New Report Suggests Lowering Legal Limit to 0.05 Percent BAC

It’s been a debate for some time now. Should the legal limit for how much alcohol someone can have in their system while driving be lowered from 0.08 percent to 0.05 percent?  

The National Academies of Sciences, Engineering, and Medicine believes so. But before we get into what their newly released report says, let’s put the numbers into context.

According to the National Highway Traffic Safety Administration, a male weighing 140 pounds would be at, or close to, a 0.08 percent blood alcohol content having had three drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.08 percent blood alcohol content having had just two drinks within an hour. Regardless of gender, your blood alcohol content will not be as high if you weigh more. Conversely, your blood alcohol content will be higher if you weigh less.

On the other hand, male weighing 140 pounds would be at, or close to, 0.05 percent blood alcohol content having had two drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.04 percent blood alcohol content having had just one drink within an hour.

Of course, these figures are approximate and depend on several factors which include, but are not limited to, whether the person ate, what they ate, what they drank, and how fast they drank it. But based on these approximate numbers, we can see that for both males and females, the difference between a 0.08 and a 0.05 percent blood alcohol content is about one less drink in an hour.

Should the legal limit be lowered to 0.05 percent, that means for some, only one drink or less and they would be breaking the law if they get behind a vehicle. According to the U.S. government-commissioned panel of the National Academies of Sciences, Engineering, and Medicine, that’ll prevent DUI-related collisions and fatalities.

“The plateauing fatality rates indicate that what has been done to decrease deaths from alcohol-impaired driving has been working but is no longer sufficient to reverse this growing public health problem,” said report committee chair Steven Teutsch in a news release from the National Academies. “Our report offers a comprehensive blueprint to reinvigorate commitment and calls for systematic implementation of policies, programs, and system changes to renew progress and save lives.”

Teutsch is an adjunct professor at the University of California, Los Angeles School of Public Health.

The 489-page report also recommends that states significantly increase alcohol taxes, stricter regulation on alcohol advertising, broadening ignition interlock device laws, and stricter laws to prevent the sale of alcohol to people under the age of 21, amongst other things.

Not everyone is on board with the panel’s suggestions.

“[We], along with other organizations focused on traffic safety such as MADD, strongly supports the strict enforcement of the 0.08 BAC level,” said the Distilled Spirits Council in a statement. “Reducing the BAC limit to 0.05 will do nothing to deter the behavior of repeat high BAC drivers who represent the vast majority of drunk driving fatalities on the nation’s roads.”

Just as a reminder, a person can be arrested, charged, and convicted of a DUI if they are “under the influence,” regardless of what their blood alcohol content is. This means that a person can have a 0.04 percent blood alcohol content as long as they cannot drive a vehicle as a reasonable sober person would under similar circumstances.

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Posted January 18, 2018, 9:22 pm
Categories: dwi

Drunk Driving…A Drone

As I’m sure you’re aware, the purpose behind DUI laws is to protect the public and drivers themselves from harm caused by an automobile driven while the driver was intoxicated. The same logic can be applied to vehicles other than automobiles, which is why people can be prosecuted for operating other vehicles while intoxicated such as a bicycle, a boat, a horse, a plane, and yes, even a Zamboni. What these “vehicles” have in common is that they are operated by a driver while the driver is in the vehicle. But should the same logic apply to vehicles where the driver isn’t actually in the vehicle like, say…a drone?

New Jersey certainly thinks so.

This week, New Jersey lawmakers approved a ban on operating drones while under the influence. The new legislation, which was approved 39-0 in the State Senate and 65-0 in the State Assembly, would punish pilots of drones who operate while under the influence with up to six months in jail and $1,000 fine.

Although the law doesn’t specify the type nor the size of drone that cannot be operated while intoxicated, it does, however, use the DUI standard for blood alcohol content of 0.08 percent as the legal limit.

According to the text of the bill, “…it is a disorderly persons offense to operate a drone: 1) knowingly or intentionally in a manner that endangers the life or property of another; 2) to take or assist in the taking of wildlife; and 3) while under the influence of intoxicating liquor, a narcotic, hallucinogenic, or habit-producing drug or with a blood alcohol concentration of 0.08% or more by weight of alcohol. Disorderly persons offenses are punishable by a term of imprisonment of up to six months, a fine of up to $1,000, or both.”

“The use of drones has increased dramatically in recent years for a variety of purposes,” State Sen. Paul Sarlo told NJ Advance Media in December of last year. “There are many benefits for commercial and recreational purposes but they can also pose threats to safety, security and privacy. The technology has outpaced regulations.”

Although drunk drone driving has yet to become the problem that vehicle DUI’s pose, with the increased availability and use of drones, state lawmakers are seeking to preemptively stamp out problems like that which occurred in 2015 to an off-duty National Geospatial-Intelligence Agency employee. After the employee had been drinking, he flew a two-foot by two-foot “quadcopter” from a friend’s apartment balcony and lost control of it over the White House.

Similar bills have been pocket-vetoed by New Jersey Governor Chris Christie, but it is unknown whether he’ll sign the current bill before his second term ends on January 16, 2018.

We’ll also have to wait to see if California follows suit. Who knows, maybe by that time, California will also outlaw drunk driving remote control cars as well.

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Posted January 11, 2018, 4:30 pm
Categories: dwi

Recreational Marijuana Laws and the California DUI

As predicted, California passed Proposition 64, otherwise known as The Adult Use of Marijuana Act, on November 8th 2016. This made it legal for people to possess and use marijuana recreationally in California. However, it wasn’t until January 1st of this year that recreational marijuana could be sold to consumers.  

So what does this mean for marijuana laws in California, including marijuana DUI laws?

Well, let’s start with the laws that aren’t related to a DUI of marijuana. Adults over the age of 21 can purchase and possess up to one ounce of marijuana and can grow up to six plants per household out of public view. People under the age of 18 can only purchase marijuana if they have their medical license.

Those who are able to possess marijuana cannot consume in public, even in areas where it is legal to smoke cigarettes. Some cities plan on allowing consumptions of marijuana at designated lounges. However, until then, smoking in public places can lead to fine of $100 to $250.

Just like alcohol, drivers cannot consume marijuana while driving. And any marijuana that is being transported in a car, must be in a sealed container in the trunk.

While marijuana laws have changed in many other respects, it is still illegal to drive while under the influence of marijuana.

California Vehicle Code section 23152(e) makes it illegal to drive a vehicle while under the influence of drugs including marijuana. Unlike California’s DUI of alcohol law, there is no legal limit for marijuana, or more specifically, tetrahydrocannabinol (THC) the psychoactive component of marijuana. Therefore, a person can only be arrested and convicted of a marijuana DUI if the ingestion of marijuana impairs a person’s ability to drive a vehicle as a sober person would under similar circumstances.

To prove that a person is driving under the influence of marijuana, a prosecutor can use officer observations of driving patterns, observations during the traffic stop, performance on field sobriety tests, and the presence of THC in any blood test done.

Since “under the influence” is an extremely subjective standard, it is often very difficult to prosecute DUI of marijuana cases. This is especially true if the driver refused to perform the field sobriety tests and/or the officer did not observe driving that would be indicative of someone who is under the influence of marijuana.

Law makers could seek some sort of per se limit for how much THC can be in a person’s blood while driving. Several states have set a per se limit of five nanograms of THC per milliliter of blood. Colorado, has set a five nanogram per milliliter of blood limit to allow for the presumption that a person is “under the influence.” Unfortunately, current per se limits for THC, are an inaccurate measure of how impaired a person is.

Unlike alcohol, THC is fat soluble and remains in a user’s system long after they have ingested the marijuana, sometimes by several weeks. This creates the possibility of being arrested with five nanograms of THC in the system weeks after a person has smoked marijuana and well after the “high” is gone. Yet, because the THC is present, a person can either be arrested or, in Colorado, presumed to be under the influence.

As tech companies are scrambling to be the first to develop a device that will allow law enforcement to test “how high someone is,” Assemblyman, Tom Lackey, who is a former sergeant with the California Highway Patrol, has introduced Assembly Bill 6 which would allow tests using saliva samples taken from drivers suspected of driving under the influence. The test would let the officer know whether a driver has recently used a number of drugs including marijuana.

“The ballot initiative passed [in 2016] to legalize marijuana will result in more marijuana consumers on our state’s highways and roads,” Lackey said in a statement. “It is imperative that we invest in a broad spectrum of technologies and research to best identify marijuana-impaired drivers.”

There is an established correlation between blood alcohol content, specifically the legal limit of 0.08 percent, and alcohol impairment. Unlike alcohol, however, there is no such correlation between the presence of drugs and impairment. In other words, a person can have traces of drug in their system without being impaired by that drug.

Marijuana, for example, can stay in a person’s system for weeks following the smoking or ingesting of the marijuana and well after the person was intoxicated or stoned. The purpose of DUI laws is to prevent impaired driving, not to punish sober and unintoxicated people merely because they ingested drugs at some point in the past.

Until we can establish a correlation with drugs including marijuana like we have with alcohol, namely the correlation between quantity and impairment, we shouldn’t be using pushing for laws like this.

Assembly Bill 6 will be brought up for a vote early this year.

Since it is perfectly legal to consume marijuana and have THC in your system, it is important to protect yourself from unwarranted DUI of marijuana charges. Do not say anything to the police. The 5th Amendment exists for a reason; use it. Politely refuse any field sobriety tests. Lastly, remember that you must submit to a chemical test after you have been arrested.

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Posted January 7, 2018, 12:44 pm
Categories: dwi

New California Law Could Give You a Free Ride if You’re Too Drunk to Drive

Most of us have done it at least once and most of us don’t want the responsibility of being designated driver. Unfortunately, unless someone is willing to pay for transportation, a designated driver is one of the few ways to avoid a DUI and get home safely. However, a new law could make designated drivers a thing of the pass by allowing alcohol manufacturers and sellers to provide free rides through ride-sharing apps to its customers.

Too drunk to drive? New California law could give you a free ride

December 25, 2017, The Sacramento Bee – It’s an all-too-familiar scene in Sacramento. A group of friends heads to midtown for a night of partying and drinking, but one friend has to miss out on the fun and stay sober to be the designated driver.

A new law that takes effect Jan. 1 may not only let everyone join in on the fun, but it’ll also mean more money for the bubbly.

Under Assembly Bill 711, alcohol manufacturers and licensed sellers can offer free or discounted rides to transport drinkers home safely through ride-sharing services, taxicabs or other ride providers.

Vouchers or codes can be given to alcohol sellers or directly to consumers, but cannot be offered as incentives to buy a company’s product. Current law restricts alcohol licensees from offering discounts of anything more than inconsequential value to consumers, though liquor and wine manufacturers have been temporarily allowed to pay for rides for people attending private, invitation-only events.

The measure, by Assemblyman Evan Low, D-Cupertino, would relax the rules to expand that program, allowing alcohol manufacturers to underwrite free or discounted rides in all cases.

Low noted that thousands attending the Super Bowl 50 in Santa Clara in 2016 didn’t have options to get home safely after drinking. Forty-four other states and the District of Columbia allow liquor manufacturers to pay for free or discounted rides, according to a legislative analysis of the bill.

The bill cleared the Legislature unanimously, and was supported by major beer manufacturers as well as ride-sharing company Lyft. Last year, Anheuser-Busch partnered with Lyft to offer rides home across 33 “safe ride” programs throughout the nation.

Katja Zastrow, vice president of Corporate Social Responsibility for Anheuser-Busch, said since teaming up with the ride-sharing service, the program has provided more than 64,000 rides. “Drunk driving is 100 percent preventable and offering safe rides is one way that we can have a real impact on reducing (it),” she said.

The bill was opposed by Alcohol Justice, a San Rafael-based nonprofit that lobbies against policy thought to promote the “alcohol industry’s harmful practices,” according to the group’s website.

Carson Benowitz-Fredericks, the organization’s research manager, said AB 711 could encourage people to drink more. Alcohol Justice says overconsumption of alcohol costs California $35 billion a year and causes 10,500 deaths annually.

“The idea that drunk driving is the only harm from alcohol is a real misunderstanding of alcohol harm,” Benowitz-Fredericks said.

The main concern from both Benowitz-Fredericks and the Rev. James Butler, the executive director of the California Council on Alcohol Problems, is that though the bill says the rides should be provided in order to get drinkers safely home, there is no real way to prevent consumers from using the free rides to go to another drinking spot.

“If they get free transportation, maybe instead of two beers they have six,” Butler said. “And when people overconsume alcohol, they make bad decisions.”

I’ve said it before and I’ll say it again: Anything that helps people get home safe after a night of drinking and avoid a DUI I’m in favor of, including this new law.

 

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Posted December 28, 2017, 6:17 pm
Categories: dwi

Can You Be Punished for Suspicion of Drunk Driving?

It has always been a cornerstone of the United States Constitution that a citizen is presumed to be innocent until proven guilty beyond a reasonable doubt.  No citizen can be punished based merely upon a police officer’s suspicion that he or she has committed a criminal offense.

Except, perhaps, in drunk driving cases.  See, for example, my posts DUI and the Presumption of Guilt and The DUI Exception to the Constitution.

In a recent example of this widely-prevailing view, consider a recent decision by the Oklahoma Supreme Court in the case of Hunsucker vs Fallin (December 20, 2017), as reported by TheNewspaper.com:

Oklahoma Supreme Court Slams DUI Law

Oklahoma City, OK.  Dec. 27, 2017 — Oklahoma’s attempt to crack down on drunk driving went too far. In a ruling last week, the state Supreme Court declared the Impaired Driving Elimination Act violated the due process rights of motorists by, among other provisions, requiring police officers to tear up a driver’s license upon the mere suspicion that he might be impaired.A group of attorneys filed suit, arguing that it was unconstitutional for the government to seize and destroy someone’s property without even allowing a hearing to contest the license seizure — and the high court agreed.

“More than forty years ago the US Supreme Court explained that revocation of a driver’s license must conform to the Due Process Clause,” Justice James E. Edmondson wrote for the court. “The Due Process protection of the licenses was viewed not as a mere state-created interest, right, or privilege, but when drivers’ licenses are issued their continued possession may become essential in the pursuit of a livelihood and suspension of issued licenses thus involves state action that adjudicates important interests of the licensees.”…

The law in question also included a half-dozen other provisions criminalizing the refusal to take a breath test, regulating deferred prosecution programs and providing conditions for the use of ignition interlock devices. The court found the hodge-podge of provisions in the 82-page bill violated the state constitutional requirement that bills stick with a single topic.

Question:  Why was it necessary for the state’s supreme court to tell the legislature and courts that seizing and destroying a citizen’s driver’s license based entirley upon a cop’s suspicions was a violation of the Constitution?

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Posted December 27, 2017, 11:38 am
Categories: dwi

California’s Drive Sober or Get Pulled Over Campaign

As is the case every year around the holiday season, law enforcement is ramping up efforts to catch impaired drivers. California law enforcement agencies, including the Los Angeles Sheriff’s Department as well as the California Highway Patrol, are partnering with the California Office of Traffic Safety and the National Highway Traffic Safety Administration in the anti-DUI campaign "Drive Sober or Get Pulled Over."

From December 15th through January 1st, local law enforcement agencies will deploy an increased number of DUI checkpoints and saturation patrols throughout California in high risk locations.

“This holiday season, drivers will notice increased enforcement watching closely for anyone who is driving impaired,” said Los Angeles Sheriff Department Sergeant Robert Hill.

“It is vital that we keep our roads and travelers safe, not just at the holidays, but every day. With extra travelers on the roads, and people attending holiday parties, we will likely see an uptick in drunk driving,” Hill said. “We’ll be arresting anyone we catch breaking this life-saving law.”

Nationwide in 2016, 37,461 people were killed in motor vehicle traffic crashes, and 28 percent (10,497) died in crashes where a driver had a blood alcohol concentration (BAC) over the limit of .08. In California, 1,059 DUI deaths were reported at .08 or above.

Last year, CHP’s holiday "Maximum Enforcement Period," which ran from December 23rd to December 26th, saw 535 DUI arrests and 16 fatal collisions.

“Two simple words can keep your holiday festivities safe – plan ahead,” California Office or Traffic Safety Director Rhonda Craft said. “Before you head out to any celebration, plan how you are getting home safely. If you are drinking, that means knowing what sober driver or service you will be using.”

There are things that you can do to not become a statistic this holiday season.

People can download the Designated Driver VIP (DDVIP) free mobile app for Android or iPhone, which locates nearby bars and restaurants offering free incentives for the designated sober driver, from non-alcoholic drinks to appetizers and more. Just be sure that whomever has offered themselves up as the designated driver actually remains a sober designated driver. A designated driver who drinks, while they may have less than their passengers, is not a designated driver.

While some may still use public transportation to get home after drinking, others find it easier to just call an Uber or a Lyft right from their phone. Either way, with this many options to travel, there’s no excuse to get behind the wheel after drinking at a holiday party.

Although not the best option, if you do have a glass of wine at that holiday party and plan on driving home, maybe have with you a personal breathalyzer just to be safe. One wine or one beer or one drink might not put you over the limit of 0.08 percent blood alcohol content. However, a person can still be arrested, charged, and convicted of a DUI even if they’re below the legal limit as long as the alcohol affects their ability to drive. Having said that, some preventative measures, like knowing what your BAC is, are better than none.

And unfortunately, the least favorite option is the best option. The only way to have yourself a happy DUI-free holidays is refrain from drinking altogether. Egg nog without alcohol is just as good as egg nog with.

 

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Posted December 15, 2017, 2:11 pm
Categories: dwi

OC Judge Vacates DUI Sentence After Victim Seeks Harsher Sentence

In January of this year, a man by the name of Jorge Perez was driving under the influence of alcohol when he struck 20-year-old Cal State Fullerton student Jessica Weber as she was walking with her friends back to the dorms.

Perez drove through a red light and hit Weber with his left-side mirror. Perez then drove away before law enforcement arrived at the scene. Witnesses helped police track down Perez where he was later arrested. Meanwhile, Weber was left with broken bones in her back, hip, pelvis, and left arm.

Bonnie Masters-Weber, Jessica’s mother, had told the Orange County Deputy District Attorney who was assigned to the case that she wanted to be present for every hearing. Masters-Weber, who lives in Sacramento, was told by the prosecutor that there was no need for her to make the long trip for every hearing, but that they would inform her of when sentencing would take place.

Under the California Victim’s Bill or Rights Act of 2008, commonly known as Marcy’s Law, victims of crimes and their families have the right to be present during the criminal proceedings of the defendant and give a statement at the defendant’s sentencing.

According to the Orange County District Attorney’s Office, the prosecutor on the case “inadvertently failed to notify” Masters-Weber that Perez had accepted a two-year deal with the judge.

Unbeknownst to Masters-Weber, Perez was sentenced in October. Although the DA had been pushing for four years and four months in prison, Perez accepted an offer from the judge of two years in prison.

When the failure to notify the Weber family was discovered, prosecutors filed a motion for reconsideration of Perez’s sentence and Judge Scott Steiner ordered a hearing.

“The DA failed us,” said Masters-Weber at the hearing which took place last month. “It refused to acknowledge their violation of our constitutional rights.”

Judge Steiner agreed that the Weber and her family’s rights were violated and vacated Perez’s guilty plea.

“I am making the determination that it is proper in the interest of justice to vacate the guilty plea that was entered in this case,” ruled Judge Steiner.

Perez’s attorney disagreed with the ruling arguing that the court had considered letters of impact before it offered the two-year sentence to Perez.

With the guilty plea vacated, Perez’s initial not guilty plea effectively gets reinstated and Perez’s defense can continue to fight for a better offer or take the case to trial. Given the statements provided by Weber and her family, Judge Steiner told Perez’s defense that the new court offer would be four years and four months, the same as what the DA’s office had pushed for originally.

Susan Schroeder, the Orange County District Attorney’s chief of staff issued the following statement:

"The Orange County District Attorney’s Office (OCDA) is a leading enforcer of Marsy’s Law rights and takes its advocacy for crime victims seriously. In the case of People V. Jorge Perez, the OCDA was vigorously pursuing a sentence of 4 years and 4 months on charges of driving under the influence of alcohol causing bodily injury, driving with blood alcohol .08% or more causing bodily injury, hit and run with injury, driving on a suspended/revoked license, and a sentencing enhancement for inflicting great bodily injury."

"Early on in the case, the victim’s mother, Ms. Masters, had been working with a deputy district attorney, who is no longer with the office, who suggested she not make the long drive from northern California for each and every proceeding and that our office would notify her prior to the sentencing. A note was made in the file to contact her when the time came. The judge offered the defendant a two-year sentence, an offer that was not supported by the OCDA. The OCDA gave Ms. Masters’ prepared victim impact statement to the judge who considered it at the sentencing hearing on October 17, but inadvertently failed to notify Ms. Masters to be present."

"Once the error was discovered and prior to being contacted by the media, the OCDA initiated the process of getting the case put back on the calendar to remedy the situation so Ms. Masters may address the court personally. OCDA prosecutors strive for perfection and in this case, we fell short. We certainly understand why Ms. Masters is upset and we are working to correct our error."

In no way do I condone what Perez did and I want to be perfectly clear when say that Weber and her family should have had the opportunity to address the court. While it may be difficult for some to sympathize with, I’d be remiss if I did not point out another less-obvious inequity:

The prosecution fouls up and, as a result, gets exactly what they originally wanted; a more severe sentence.

Perez is due back in court later this month for a pretrial hearing.

 

 

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Posted December 7, 2017, 9:21 pm
Categories: dwi

Drunk Drivers Say Personal Breathalyzers Helped them Prevent Driving Drunk Again

This past August, the Colorado Department of Transportation gave 475 personal smartphone breathalyzers to people who had been convicted of a DUI. In addition to the obvious objective of preventing drunk driving, the Colorado Department of Transportation also wanted to see if, in fact, having the breathalyzer actually helped keep them from driving drunk again.

After recently surveying those people who were given breathalyzers, the Colorado Department of Transportation’s results showed that having a personal breathalyzer helped those people avoid driving drunk. In fact, a whopping 90 percent said that having a breathalyzer helped them avoid driving drunk and 94 percent said that they would recommend a personal breathalyzer to others who regularly drink alcohol.

The Colorado Department of Transportation teamed up with BACtrack, who created the smartphone breathalyzer, during the informal study. The breathalyzer is linked to a smartphone app through Bluetooth. If the user determines that they cannot legally drive, the smartphone app can order them a taxi or Uber.

I’ve written a few times on the benefits of purchasing a personal breathalyzer.

Like those handed out by the Colorado Department of Transportation, people can buy breathalyzers that can either be attached directly to a smartphone or connect to smartphone through Bluetooth and will run buyers between $100 and $150.  

Other, less expensive, breathalyzers can come on keychains and can cost buyers as low as $15. Like many things, quality comes with price and the results of these novelty breathalyzers are questionable at best and decrease in accuracy after time.  

Some breathalyzers are handheld and resemble those commonly associated with the breathalyzers used by law enforcement. Those breathalyzers range widely in terms of price and quality. Some come as low as $50 and some can go as high as a few hundred dollars. Obviously, the less expensive handheld breathalyzers have lower quality, but those more expensive handheld breathalyzers are the ones used by law enforcement because of their accuracy and may even be approved by the Food and Drug Administration (FDA). Law enforcement grade breathalyzers have an accuracy range of plus or minus 0.002 percent which means that if a person is a 0.08 percent, the breathalyzer results can range between 0.078 percent and 0.082 percent.

I purchased my own personal handheld breathalyzer to experience first-hand what I’ve been writing about. I didn’t break the bank, but I did spend $60 on the lower end of the legitimate handheld breathalyzers. After having a few drinks, I gave it a go. While I don’t know what my actual blood alcohol content was because different readings were provided, I can say that the multiple readings ranged by about 0.03 percent. In other words, using that range, a person could register between a 0.095 percent and 0.65 percent, or between a 0.18 percent and 0.12 percent, or between 0.26 and 0.23 percent. After a few months of use, the breathalyzer stopped working and I need to send it to the manufacturer.

While on the face of it, it might seem as though this range is too large to help drivers know whether they are okay to drive because if a person is actually at a 0.08 percent, the breathalyzer reading can show results as high as 0.095 percent and as low as 0.065 percent. Having said that, if a person knows that a breathalyzer is less than accurate and shows a blood alcohol content of 0.065 percent, they may know that they might actually be at a 0.08 percent and abstain from driving. And bear in mind that this is one of the less accurate handheld breathalyzers.

At a minimum, having a personal breathalyzer might help people bridge the gap between how a person perceives what their intoxication level is and what their blood alcohol content is. And while many breathalyzers might not provide an accurate reading, it might still prevent people from driving merely knowing that they are close to the limit. And knowing a range is certainly better than knowing nothing and making a stupid guess.

 

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Posted December 1, 2017, 5:38 pm
Categories: dwi

Do Crime Labs Hide Breathalyzer Test Evidence?

I’ve written in the past about the inaccuracy of breath test results generally.  See, for example, Breathalyzers and Breath Test Accuracy and How Breathalyzers Work – and Why They Don’t.  And I’ve commented upon the many instances of supposedly "impartial" crime labs faulty testing procedures and lab "experts" testifying to facilitate convictions rather than justice.  See Crime Lab Breath Tests "Unreliable", More False Blood-Alcohol Results and Crime Labs Paid for Convictions – But Not for Acquittals?

This recurring and very disturbing picture of government crime labs willing to hide or even falsify evidence to assist government prosecutors appears to be endemic.  Consider, for example, this recent news article from The Boston Globe:


Report Finds State Lab Withheld Breathalyzer Test Results

Boston, Ma.  Oct. 17 – The head of a state crime lab office was fired Monday after investigators found that staff withheld exculpatory evidence from defense lawyers in thousands of drunken-driving cases since 2011, a disclosure that could threaten many convictions.

In a report released Monday, state public safety officials concluded that the Office of Alcohol Testing routinely withheld documents from defense lawyers in a lawsuit challenging the reliability of breathalyzer test results due to an “unwritten policy not to turn these documents over to any requester.”

The documents included evidence that breath testing devices had failed to properly calibrate during the office’s certification process, the report found.

“We conclude that OAT leadership made serious errors of judgment in its responses to court-ordered discovery, errors which were enabled by a longstanding and insular institutional culture that was reflexively guarded . . . and which was inattentive to the legal obligations borne by those whose work facilitates criminal prosecutions,” the report found.


This was followed a few days later with an insightful OpEd piece appearing in The Washington Post:


Another Week, Another Crime Lab Scandal

Wash., DC.  Oct 20 — ….At some point, we need to start asking pointed questions. Among them: Why would crime-lab analysts feel pressure to fake incriminating test results and to hide exculpatory results? Are they feeling pressure from police or prosecutors? We already know that, incredibly, some crime labs only get funding when their analysts produce results that help win convictions. Is that what’s happening here? There are numerous public and private grants and awards tied to driving-under-the-influence enforcement, both for police departments as a whole and for individual officers. Was that a factor here?

Crime-lab analysts should be neutral. Their job performance should be evaluated based on their accuracy. Clearly, something is making at least some of these analysts think there’s a “right” and a “wrong” answer when conducting these tests. Perhaps it’s right there in the name: the Massachusetts State Police Crime Laboratory. A forensic analyst shouldn’t be considered on the same side or team as the police. Hosting these labs under the auspices of police or district attorney’s offices is a big part of the problem.


Yet it continues…..
 

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Posted December 1, 2017, 11:11 am
Categories: dwi

Utah Council Recommends No Changes to New 0.05 BAC DUI Law

In March of this last year, I wrote about Utah’s efforts to lower their state’s blood alcohol content limit to 0.05 percent rather than the current nationally consistent limit of 0.08 percent.

In 2013, the National Transportation Safety Board (NTSB) voted to recommend that states lower their blood alcohol limits to 0.05 percent and cited studies that have shown that impairment can occur with a blood alcohol content of 0.05 percent. As of earlier this year, it seemed as though Utah would be the first to implement the lower BAC limit into its state law.

After some backlash from the hospitality industry, Utah Governor Gary Herbert indicated his desire to soften DUI penalties under the new lower BAC law. However, the state’s Substance Use and Mental Health Advisory Council recently voted to keep the lower BAC change in the law without softening any penalties.

SALT LAKE CITY (Associated Press) — A state council studying Utah’s new law setting the country’s strictest DUI threshold is backing away from recommending any changes, despite Gov. Gary Herbert’s wish to soften some penalties following a backlash from the state’s hospitality and ski industry.

The state Substance Use and Mental Health Advisory Council voted unanimously to support the new 0.05 percent blood alcohol limit scheduled to take effect next year after learning that law enforcement officials and Gov. Gary Herbert’s office disagree on how the state could soften penalties for those convicted of a DUI under the lower limit.

The stalemate makes it tougher for legislators and Herbert, who had hoped to make changes to the law in the wake of the backlash and concerns that the lower limit could target responsible drinkers after one alcoholic beverage.

The law lowering Utah’s DUI blood alcohol limit to 0.05 percent from 0.08 percent created a political problem for leaders who worry the strict new limit exacerbates Utah’s reputation as a Mormon-dominated state that’s unfriendly to those who drink alcohol.

Herbert, a Republican, signed the law this spring but said he would call lawmakers into a special session to address unintended consequences. The governor said in September that he’d like to see a tiered punishment system, with lighter penalties for a DUI between 0.05 percent and 0.08 percent.

At Herbert’s request, a committee of prosecutors, law enforcement and officials and others has been working since spring to draft possible changes to the law, which were presented Tuesday to the substance use council.

Paul Boyden, an attorney in the Salt Lake County District Attorney’s Office, said the DUI study committee that he helped lead suggested changing the law so that drivers with a 0.05 to 0.07 blood alcohol limit faced some lighter penalties — such as no mandatory jail time — than a full-fledged DUI.

But the penalties would be harsher than Utah’s lesser crime of impaired driving — an offense that Boyden said most drivers arrested for DUI are convicted of because they strike plea deals with prosecutors.

Drivers convicted of having a 0.05 blood alcohol limit would still face fines of at least $1,330, lose their driver’s license for at least 90 days, and be required to have an ignition interlock device for a year.

Ron Gordon, a member of Herbert’s staff and the executive director of the state Commission on Criminal and Juvenile Justice, said the governor felt the plan didn’t lighten the penalties enough.

Herbert, who is traveling in Israel this week, could not be reached for comment, Kirsten Rappleye, a spokeswoman for his office, said the governor’s position hasn’t changed from when he signed the legislation and he would like to see changes made before the bill takes effect.

Proponents of the 0.05 limit, including the National Transportation Safety Board, say people start to become impaired with a first drink and shouldn’t be driving and the lower limit will discourage people from thinking they can drink up to a point and drive safely.

"If we pass 0.05, people will live that would otherwise die if we do nothing," said Art Brown, president of the Utah chapter of Mothers Against Drunk Driving. "If you walk away from it the way it’s written, you can see it will diminish the effectiveness up and down about getting the impaired driver off the road."

At a blood-alcohol content of 0.05 percent, a driver may have trouble steering and have a harder time coordinating, tracking moving objects and responding to emergencies, according to the National Highway Traffic Safety Administration.

The new law means a 160-pound man could be over the 0.05 limit after two drinks, while a 120-pound woman could exceed it after a single drink, according to data from the California Department of Motor Vehicles.

However, a number of factors, including how much a person has had to eat and how fast they’re drinking, can affect their blood alcohol levels.

If Utah passes the lower limit BAC law, let’s hope that it doesn’t become a trendsetter for the rest of the states. For many people, a 0.05 percent blood alcohol content limit will mean that they’ll be subject to a DUI after only a glass of wine with dinner and who are clearly not under the influence nor a danger to the streets.

The purpose of DUI laws is to keep the streets safe, not to punish people who are not impaired with an arbitrary and subjective standard.

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Posted November 22, 2017, 10:01 pm
Categories: dwi

Wet Reckless vs. California DUI: What are the Differences?

People who have been charged with a California DUI always ask whether it’s possible to get the case reduced to a wet reckless. They often ask this question without even knowing what the difference is between a DUI and a wet reckless, except that it’s a reduced charge. While it’s true that it is a reduction to a DUI charge, there are a number of other differences.

The wet reckless if the first of several reductions that are sometimes offered in lieu of a DUI. The wet reckless is usually offered when the flaws in the prosecution’s case are relatively small. For example, the wet reckless is often offered when the chemical breath or blood test shows that the driver’s blood alcohol content is at a 0.08 percent or close. Further reductions may be offered when there is no chemical test and/or there is little evidence that the driver was “under the influence. Rather than risk losing at a trial, the prosecutor may offer a wet reckless or another reduction merely to secure a conviction.

If, however, the problems in the prosecution’s case are more than minor, the prosecutor may offer to reduce the DUI charge to a “dry reckless” or an “exhibition of speed.” Discussions on these, I’ll save for another day.

Unlike these other charges, the wet reckless can only be offered as a reduction. In other words, a prosecutor cannot file a criminal complaint with a wet reckless listed as a charge.

If the wet reckless is offered as a reduction and a DUI defendant accepts the reduction, they’ll  be pleading guilty or no contest to California Vehicle Code section 23103 pursuant to 23105.5 which reads, “A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving…If the prosecution agrees to a plea of guilty or nolo contendere to a charge of [reckless driving] in satisfaction of, or as a substitute for, an original charge of a violation of [DUI], the prosecution shall state for the record a factual basis for the satisfaction or substitution, including whether or not there had been consumption of an alcoholic beverage or ingestion or administration of a drug, or both, by the defendant in connection with the offense. The statement shall set forth the facts that show whether or not there was a consumption of an alcohol beverage or the ingestion or administration of a drug by the defendant in connection with the offense.”

Simply put, a defendant who is convicted of a wet reckless is deemed to be guilty of reckless driving involving alcohol.

Now that we’ve clarified exactly what a wet reckless is, let’s talk about the benefits of it.

Well, first off, it’s not a DUI. There is an obvious stigma attached to a DUI conviction and a wet reckless simply isn’t a DUI.

Another benefit to a wet reckless reduction is that there are no mandatory sentencing enhancements. In other words, if a person is convicted for a second-time DUI within 10 years, they face a minimum of 96 hours in jail. If a person is convicted for a third DUI within 10 years, they face a minimum of 120 days in jail. However, when a person is convicted of a wet reckless when they’ve suffered prior DUI convictions within a 10 year period, there is no mandatory minimum jail sentence. If however a person suffers a DUI conviction within 10 years of a wet reckless conviction, the wet reckless will be used to increase the sentencing enhancements of the current DUI and subsequent DUI convictions.

Other possible advantages of the wet reckless include a shorter probationary period, lower fines and fees, and a shorter DUI program. I say possible because it depends on what the prosecutor offers as a sentence to the wet reckless reduction.

The last advantage to a wet reckless conviction is that it does not trigger a 6 month driver’s license suspension with the DMV. It should be noted, however, that a license may still be suspended through the DMV’s admin per se suspension which occurs if a person does not request a DMV hearing within 10 days of their DUI arrest or they lose their DMV hearing. Therefore, the only way to completely avoid any license suspension following a DUI arrest is to request the DMV hearing within 10 days of the arrest, win the DMV hearing, then get the DUI charge reduced to a wet reckless.

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Posted November 17, 2017, 10:07 am
Categories: dwi

DUI on a Horse

Over the years, I’ve written about DUI’s on a variety of transportation methods, from a Zamboni to a Power Wheels to a canoe. Although I’ve written about a DUI on a horse before, it has been quite a while and is definitely due. Is there any surprise that this story comes from never-dull state of Florida?

A Florida woman rode her horse on a highway drunk, police say. She was charged with a DUI

November 4, 2017, Washington Post — Nothing’s unusual in Florida, a sheriff department spokesman said Friday. But some things like a woman arrested this week for allegedly riding a horse while drunk down a busy highway — are still surprising.

Around 3 p.m. Thursday, a passer-by saw Donna Byrne, 53, on the horse looking confused and possibly in danger and notified officers, according to her arrest affidavit. Sheriff’s officers found Byrne on Combee Road near North Crystal Road in Lakeland, about 35 miles east of Tampa. She smelled of alcohol and had red watery eyes. When she dismounted from the horse, she staggered from side to side.

Byrne had ridden the horse for a 10 to 15-mile stretch from Polk City, said Brian Bruchey, a spokesman for the Polk County Sheriff’s Office.

Byrne is being charged with driving under the influence while operating a vehicle — which in her case was a horse equipped with a saddle and bridle. She is also charged with animal neglect for putting the horse in danger of being injured or killed.

“We haven’t had a horse DUI that I’m aware of. We’ve had incidents of bicycle DUIs and motorcycle DUIs, so this was a different kind of thing.”

Whether an intoxicated person on horseback can be charged with a DUI or DWI varies from state to state.

In 1993, an appellate court in California ruled in People vs. Fong that people riding animals on the highway are subject to the same rules as the drivers of automobiles, meaning people must ride their animals at a reasonably safe speed and avoid reckless behavior.

The issue was a hot topic in Montana in 2011, when the state’s department of transportation aired an advertisement featuring a horse picking up its owner after a night of drinking at the bar. In Montana, horseback riders can’t be arrested for driving under the influence, because state law’s criteria for a vehicle in a DUI excludes devices moved by “animal power.”

Several criminal defense lawyers in Florida interviewed by The Post are skeptical of whether the DUI charge will hold up in Florida court. Thomas Grajek, a Tampa attorney who specializes in DUI cases, said he thinks Byrne can’t be charged with a DUI because Florida law states that people riding animals on roadways or shoulders are treated as pedestrians, and are not subject to the same rules as automobile drivers. Grajek said that, if anything, someone riding a horse drunk might be charged with disorderly conduct, similarly to a publicly intoxicated pedestrian.

Officers arrested Byrne after conducting a sobriety test, during which Byrne registered blood-alcohol levels of .157 and .161, twice the state’s legal limit of .08. The horse was taken to the Polk County Sheriff’s Animal Control livestock facility, officers said.

“The road she was stopped on was a very busy road,” Bruchey said. “Of course, if somebody hit the horse, then that person would be in danger. And (Byrne) was a danger to herself.”

The Polk County State Attorney’s office could not be immediately reached for comment. Bruchey, the sheriff’s department spokesman, said the officer who arrested Byrne thought he had sufficient probable cause to consider the horse a vehicle.

“I can tell you it’s going to be interesting if (the DUI charge) goes through,” Bruchey said. “The way sheriffs look at it, the woman put a saddle and bridle on this horse and was riding it to get from point A to point B. For all intents and purposes, we look at that as a vehicle.”

Byrne’s criminal history includes five felony and ten misdemeanor charges, consisting of cruelty to animals, drug possession, probation violation and criminal traffic, officers said. She could not be reached for comment.

While there may be questions as to whether Byrne will actually be prosecuted and convicted under Florida law, as the article stated, California fully recognizes DUI on a horse. In fact, California Vehicle Code section 21050 states, “Every person riding or driving an animal upon a highway…is subject to all of the duties applicable to the driver of a vehicle…”

I’ll leave you with a poem written by a dissenting Pennsylvania Supreme Court Justice in a Pennsylvania case which held that a horse is not a vehicle for purposes of driving under the influence:

“A horse is a horse, of course, of course, but the Vehicle Code does not divorce its application from, perforce, a steed as my colleagues said. ‘It’s not vague’, I’ll say until I’m hoarse, and whether a car, a truck or hors, this law applies with equal force, and I’d reverse instead.”

 

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Posted November 10, 2017, 10:47 am
Categories: dwi

The U.S. Constitution….Louisiana Version

Granted, the courts bend over backwards to support the police and uphold convictions.  But just when you thought it couldn’t get any more ridiculous, along comes the Louisiana Supreme Court…..


Washington Post, Nov. 2 – When a friend says, “I’ll hit you up later dog,” he is stating that he will call again sometime. He is not calling the person a “later dog.”

But that’s not how the courts in Louisiana see it. And when a suspect in an interrogation told detectives to “just give me a lawyer dog,” the Louisiana Supreme Court ruled that the suspect was, in fact, asking for a “lawyer dog,” and not invoking his constitutional right to counsel. It’s not clear how many lawyer dogs there are in Louisiana, and whether any would have been available to represent the human suspect in this case, other than to give the standard admonition in such circumstances to simply stop talking.

The ruling by Louisiana’s high court…clarified that requesting a canine attorney need not cause the police to stop questioning someone.


Not a joke.  It’s an actual decision by a state supreme court right here in the U.S. 

 

(Thanks to attorney Steve Oberman of Knoxville, Tn.) 
 

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Posted November 2, 2017, 2:07 pm
Categories: dwi

Prosecutors Decline to Prosecute Long Beach Councilwoman for DUI

This story is disturbing to me not just because it occurred in my hometown of Long Beach, but because it exemplifies the partiality with which prosecutors and police treat DUI’s of those whom they have a working relationship with versus everyday citizens.

Prosecutors have decided not to prosecute Long Beach Councilwoman, Jeannine Pearce with domestic violence nor driving under the influence in a June 3rd incident involving her former chief of staff, Devin Cotter.

District attorney declines to charge Long Beach Councilwoman with drunk driving, domestic violence

October 26, 2017, Los Angeles Times – Prosecutors have decided not to charge Long Beach Councilwoman Jeannine Pearce with domestic violence or driving under the influence in connection with a June clash with her former chief of staff.

But a district attorney’s memo detailing the decision also raises questions about the Long Beach Police Department’s response to the June 3 incident involving the councilwoman and Devin Cotter.

In its initial statement, the Police Department said it received a call for assistance from the California Highway Patrol about a possible drunk driving incident on the shoulder of the 710 Freeway in Long Beach at 2:40 a.m.

The city’s officers smelled alcohol on Pearce, who admitted to drinking that night, according to the district attorney’s memo. A field sobriety test conducted about 4 a.m. showed she was mildly impaired.

But the memo said a test of the councilwoman’s blood alcohol level was not conducted until 4:20 a.m., nearly two hours after the CHP called. At that point, the test showed Pearce had a blood alcohol level of 0.06%, under the legal limit of 0.08%, the memo said.

The testing device used on Pearce was unreliable, the prosecutor’s memo said. A department toxicologist had recommended it not be used a month before the incident. Additional tests were not performed, according to the district attorney’s memo.

A police spokesman said in a statement that officers initially investigated whether domestic violence had occurred when they arrived, interviewing Cotter and Pearce before realizing that the councilwoman had been drinking. At that point, the officers called for a colleague who is a certified drug recognition expert to investigate, Sgt. Brad Johnson said in the statement.

He said the testing device had been “tagged to be replaced but was not removed from its storage cabinet. The officer who retrieved the device did not realize … and unfortunately used it during the DUI investigation.”

Police at the scene saw Cotter with swelling, redness and a cut to his head and cuts to his hand, according to the district attorney’s memo. Pearce at one point had shoved Cotter, causing him to fall to the ground, the memo said.

Prosecutors ultimately decided that Pearce, who was first elected to the City Council in 2016, could argue she was defending herself when she shoved Cotter.

Pearce said she could not immediately comment. Cotter could not be reached for comment.

 

I can tell you that, had this been an average Joe Schmoe driver, it would not have ended up in a refusal to file DUI or domestic violence charges.

Many DUI cases are filed everyday where the blood alcohol content is below the legal limit or a breathalyzer is faulty. While it may have been true that Pearce was under the limit at the time of the test and that the breathalyzer was inaccurate, had it been a regular member of the public, charges for driving under the influence would still have been filed and prosecutors would have left it to the defendant their attorney to dispute the results.

The same thing can likely be said for the refusal to file domestic violence charges. If prosecutors declined to prosecute domestic violence charges when anybody “could argue [they were] defending [themselves],” then they’d never prosecute anyone. And believe me, in the many domestic violence cases I’ve handled, not once has a prosecutor dropped a case because a person “could argue that they were defending themselves.”

So now let me ask you: Is this a coincidence?

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Posted October 26, 2017, 9:40 pm
Categories: dwi

Breath or Blood Test After a California DUI Stop?

Let’s imagine a common DUI scenario.

A person is stopped on suspicion of a California DUI. The person stopped has read my many posts telling readers that the field sobriety tests are optional and should not be submitted to. So they politely decline the field sobriety tests. Then the officer requests an on-scene breathalyzer known as the “preliminary alcohol screening” test or PAS test. In addition to my posts reminding readers that this too is option, the officer also informs the driver that the PAS test is optional. So this too is politely declined by the driver. Lastly, the officer advises the driver that they are under arrest on suspicion of a California DUI and that, by law, they must submit to a chemical test which can either be a breath or a blood test.

Which test should the driver choose? Breath or blood?

The DUI blood test is much more accurate than the DUI breath test. The blood test is far less likely than a DUI breath test to produce a false reading. Another benefit of a DUI blood test is that the law requires that a sample of the blood is saved for future testing by the DUI suspect’s defense attorney. The defense attorney can have the sample tested by its own blood analyst to contradict the results of the prosecutor’s analyst. This is called a “blood split” and it is commonly used in DUI defense.

The blood test, however, is not infallible. See my previous post:

The Dirty Skin Defense

Since the blood test is more accurate, if a person knows that they have not had much to drink and they are fairly certain that they are under the legal limit of 0.08 percent, then a blood test might be the better option. On the other hand, the blood test might not be the best for someone who is clearly over the legal limit because it will be more difficult to dispute the test results.

 Unlike the blood test, the breath test is rather unreliable. Breath tests can provide false readings for several reasons. See Lawrence Taylor’s post:

Are Breathalyzers Accurate?

Although California DUI attorneys cannot dispute the reliability of breathalyzers as a whole during a DUI trial, they can provide evidence that the particular breathalyzer used in an individual case was inaccurate.

Unlike the blood test, the breath test may be a better option for someone who knows they are likely over the legal limit because it will be easier for a California DUI attorney to refute the results. However, many people who are actually under the legal limit may still test over the legal limit because of the same inaccuracies.

Simply put, if you are fairly confident that your blood alcohol content will below the legal limit of 0.08 percent, you’re probably better off opting for the blood test because it will accurately show that you were, in fact, under the legal limit. However, if you think there is a chance that you could be above the legal limit, you might be better off opting for a breath test so that your attorney can challenge the results if you test above the legal limit.

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Posted October 19, 2017, 8:42 pm
Categories: dwi

DUI in a Driverless Car

Driverless cars are so close to becoming a reality that just this past week, California published new draft rules that provide a clearer picture of how the driverless car industry will be regulated in the state.

Amongst the many proposed regulations that were drafted, which can be found on California’s DMV website here, is that driverless cars must comply with state and local driving laws.  Companies which sell the driverless vehicles to customers must make software updates available to comply with changes in traffic laws.

While the proposed regulations apply primarily to the manufacturers of the driverless vehicles and not necessarily on the owner of the driverless vehicle, it remains unclear how driverless cars will affect another state law that does apply to the owner and, dare I say it, driver of the driverless vehicle; the California DUI.  

As is, the California Vehicle Code’s DUI law makes it “unlawful for a person who is under the influence of any alcoholic beverage…[or] who has 0.08 percent or more…of alcohol in his or her blood to drive a vehicle.”

If driverless cars take to the streets of California in the next year, or possibly even months, the question becomes whether the word “drive” under California’s DUI law still applies. In other words, can a person still be charged, arrested, and convicted of a California DUI while using a driverless car?

At least one country says no.

Australia’s National Transport Comission (NTC) has released a report suggesting that applying drunk driving laws to driverless cars could discourage the use of driverless cars in general and when trying to get home safely after drinking:

Driving Drunk or on Drugs in a Driverless Car Should Be Legal, Expert Body Says

October 6, 2017, CNBC – People under the influence of drugs and alcohol should be able to use driverless cars without falling foul of the law, a regulatory body in Australia has suggested.

The National Transport Commission (NTC), an independent advisory body, said current laws could reduce the uptake of automated vehicles. One of those potential barriers could be any law that requires occupants of self-driving cars to comply with drink-driving laws.

"This would create a barrier to using a vehicle to safely drive home after drinking. Enabling people to use an automated vehicle to drive them home despite having consumed alcohol has the potential to improve road safety outcomes by reducing the incidence of drink-driving," the NTC said in a discussion paper released earlier this week.

"Legislative amendments could be made to exempt people who set a vehicle with high or full automation in motion from the drink- and drug-driving provisions."

The NTC does acknowledge a risk that could involve a person under the influence of drink or drugs choosing to take over the car. If that occurred, the body suggests that drink and drug driving offences would apply. But ultimately, a drunk person in a driverless car is similar to them being in a taxi, the NTC concludes.

"The application of an exemption is clear-cut for dedicated automated vehicles, which are not designed for a human driver. The occupants will always be passengers. The situation is analogous to a person instructing a taxi driver where to go," the paper said.

In many countries drugs are illegal and drink-driving laws differ between jurisdictions.

Australia has been pushing forward legislation to facilitate driverless cars over the past two years. In 2015, the first public self-driving car trials took place in South Australia, after laws were passed there to allow tests.

The NTC also recently released guidelines on driverless car tests across the entire country.

Analysts have forecast that automated vehicles could actually be a boon for the alcohol industry.

"Shared and autonomous vehicles could expand the total addressable market of alcoholic beverages while reducing the incidence of traffic fatalities and accidents," Morgan Stanley analyst Adam Jonas saidin a report last month.

Governments across the world are looking into the implications that driverless cars will have on the law and the insurance industry.

I’ve said it before and I’ll say it again. Anything that helps prevent drunk driving, I’m in favor of. If a driverless car can get people home safely after a night of drinking, then why wouldn’t we use them? But to apply DUI laws to those using driverless cars defeats the purpose of DUI laws in the first place, namely to punish and deter drunk driving. In fact, it may actually discourage people from choosing this new method from traveling, as the NTC’s report suggests.

 

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Posted October 13, 2017, 10:15 am
Categories: dwi

Drunk Driver May Finally Lose License After 28th DUI Arrest

Danny Lee Bettcher of New York Mills, Minnesota, has been arrested for driving under the influence for the 28th time. Yes, that’s correct, 28th time.

This past week, an off-duty police officer spotted Bettcher drinking at a local Veterans of Foreign Wars (VFW) post. The off-duty officer notified authorities after he saw Bettcher leave the VFW post in his vehicle.

Authorities caught up with Bettcher and pulled him over after he ignored a stop sign and drove onto the highway at 10 mph while swerving. According to officers, Bettcher had bloodshot eyes and a beer can was located behind the passenger’s seat.

“I am way over. Take me to jail,” Bettcher told police after refusing to take a sobriety test, according to the criminal complaint.

According to Assistant County Attorney, Jacob Thomason, Bettcher could be sentenced up to seven years in prison.

Although Bettcher’s license was valid at the time of the arrest, it included “a restriction that any use of alcohol or drugs invalidates the license,” state Department of Public Safety spokeswoman Megan Leonard told the Star Tribune.

As of last week, a revocation of Bettcher’s license was pending.

Bettcher, who attributes his alcoholism to post-traumatic stress disorder following his military service, has already served four years behind bars for other DUI convictions and has been ordered to go to treatment at least 12 times.

So what would it have taken for Bettcher to have his license permanently revoked had he been in California?

The California license suspension can be rather complicated. Suffice it to say, on a first time DUI, a person faces a six-month suspension assuming the driver was over the age of 21, there was no refusal of the chemical test, and there were no injuries as a result of the DUI. You can read my previous posts about the nuances of a first-time DUI license suspension.

If, however, a person suffers a DUI and they have previously been convicted of a DUI within the past 10 years, then the suspension increases significantly.

A second DUI will trigger a two-year suspension and a third DUI will trigger a three-year suspension. If a driver suffers a fourth DUI within 10 years, they are facing a four-year suspension, but they may also be deemed a “habitual traffic offender” and can have their license revoked permanently.

Although Bettcher’s 27th DUI arrest occurred in 2010, it’s unclear whether any of his previous DUI’s occurred within a 10-year window.

I’m no mathematician, but at 64-years-old, as Bettcher was, I can’t imagine that the convictions could have been spaced out such that he would have been able to avoid the habitual traffic offender status and permanent revocation here in California.

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Posted October 6, 2017, 2:00 pm
Categories: dwi

California DUI with a High BAC

Many people know that the legal blood alcohol content limit is 0.08 percent and that if caught driving with a 0.08 percent or more, they will face the penalties associated with a DUI. Few people however know that if they are caught driving with a blood alcohol content that is much higher than the legal limit, they face additional penalties.

The mandatory minimum punishment for a first time DUI conviction in California is $390 plus penalties and assessments, which are like court taxes and will increase the overall amount to about $2,000, three years of summary (informal) probation, and a three-month DUI program called AB-541.

The first consequence of a driver having a high blood alcohol content, beyond the mandatory minimum penalties mentioned above, is that they must admit to having a high blood alcohol content. The prosecutor may include in the criminal complaint a “special allegation” that the driver’s blood alcohol content was high. In addition to pleading guilty to the DUI itself, as part of a plea deal, prosecutors often want the driver to admit on the record that the special allegation that their blood alcohol content was particularly high.

A driver may also be facing a longer DUI program. AB 762 is a six-month program and AB 1353 is a nine-month program and both can be offered as part of plea deal for an elevated blood alcohol content. There is an 18-month program called SB 38, but it is reserved for people who have been convicted of one or more California DUI’s within the past 10 years. 

Another additional penalty that a person faces after a California DUI conviction with a high blood alcohol content is the Mothers Against Drunk Driving Victim Impact Panel. According to Mother Against Drunk Driving (MADD), one of their main goals is to prevent recidivism of DUI offenses. In an attempt to accomplish this, MADD provides one-day presentations where convicted DUI offenders listen to the stories of people whose lives have been negatively affected by drunk driving. The speakers are usually victims of DUI-related collisions or relatives of those who were killed as the result of DUI-related collisions.

The prosecutor might also offer a Hospital and Morgue (HAM) program. The name is exactly what the program entails. The person convicted of the California DUI must visit with doctors at a hospital who address the dangers of driving drunk and experience the health consequences of driving drunk. Following the hospital visit, the person must visit a morgue where they view the bodies that are stored there and are confronted with the ultimate consequence of driving drunk and other risky behavior. After both the hospital and morgue components are completed, the person must write an essay reflecting on their experience, the lessons learned, and behavior moving forward.

Alcoholics Anonymous (AA) meetings might also be offered as an additional penalty when a BAC is particularly high. According to its own website, www.aa.org, “AA is an international fellowship of men and women who have a drinking problem…Membership is open to anyone who wants to do something about his or her drinking problem.” AA meetings are relatively easy to locate and are offered throughout the week at varying times. Since the meetings only typically last one hour to 90 minutes, the court usually requires at least 10 meetings. For extremely high BAC readings, a person may have to a significant amount of AA meetings.

Lastly, a person may actually have to serve jail time. Whether a prosecutor will want jail for an elevated BAC depends other aggravating factors surrounding the DUI, the county in which the DUI took place, and the courthouse itself. Although it is the most severe of the increased penalties and unlikely to be offered, it is possible.

A driver with a particularly high blood alcohol content may face one, all, or a combination of any of the abovementioned increased penalties. Other, less frequent penalties, such as a SCRAM device or an ignition interlock device, may also be included. Since these penalties are not mandatory, it is important to hire a California DUI attorney to possibly eliminate them as part of a DUI sentence.

 

 

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Posted September 29, 2017, 9:07 am
Categories: dwi

State Supreme Court: “No Reliable Scientific Test for Marijuana Impairment”

It is, of course, illegal to drive a vehicle while impaired by the effects of marijuana.  The continuing problem, however, is:  How do you prove that a driver is, in fact, under the influence of marijuana?

Law enforcement currently relies primarily upon the opinions of police officers as to whether a suspect is unable to safely operate a vehicle due to marijuana impairment.  The primary tool used to arrive at this opinion is the same as for alcohol impairment: field sobriety tests.  These highly subjective roadside "tests", administered and interpreted by a police officer with little training, is coming under increasing scrutiny — as reflected in yesterday’s decision by the Massachusetts Supreme Court:
 

Court: Roadside Drunken Driving Tests Not Valid for Pot

Boston, MA.  Sept 19 – The highest court in Massachusetts has ruled that field sobriety tests typically used in drunken driving cases cannot be used as conclusive evidence that a motorist was operating under the influence of marijuana.

The Supreme Judicial Court on Tuesday said police officers could testify only to their observations about how a person performed during a roadside test.

But they would not be allowed to testify as to whether a person passed or failed such a test or offer their own opinions about whether a driver was too high to drive.

The justices said there is currently no reliable scientific test for marijuana impairment.

Adult use of recreational marijuana is now legal in Massachusetts, though the court noted it’s still illegal to drive while high on pot.


Absent evidence of impairment based upon field sobriety tests, the only other evidence (independent of a police officer’s subjective opinion), is a blood test.  This, however, has been proven to be highly unreliable.  See, for example, Can DUI Marijuana Be Detected or Measured?, How Much Marijuana Does It Take to Impair Driving? and New Study: Minimal Impairment from Marijuana.

(Thanks to Joe)

 

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Posted September 20, 2017, 8:14 am
Categories: dwi

Can Personal Breathalyzers Prevent Drunk Driving?

How many people would think twice about getting behind the wheel after having a few drinks knowing that they were above the legal limit? My guess is a lot. No longer must a person guess whether they are over or under the legal limit if they have their own personal breathalyzer.

So can a personal breathalyzer prevent a DUI? I don’t see why not.

Breathalyzers are so readily available nowadays that, in addition to the standard multiple-use breathalyzer, they have developed single-use disposable breathalyzers and breathalyzer apps for the smartphone.

As you can imagine, the range in the quality and price of personal breathalyzers is quite large. Costs will vary between $15 and several hundred dollars. Breathalyzers under $50, and those coming on key chains have questionable accuracy from the start and accuracy continues to decrease after multiple uses.

Unlike novelty breathalyzers, quality breathalyzers will be backed by the Food and Drug Administration (FDA). This means that the FDA conducts research to confirm that the breathalyzer does what its literature says it does.

Just because I believe that personal breathalyzers can prevent a DUI, it doesn’t mean that they are 100% accurate. Almost all quality breathalyzers, like those the police use, require calibration after repeated use to ensure accuracy. Some products allow for owners to calibrate themselves and some require that the breathalyzer be sent to the manufacturer for calibration. Heavily used and non-calibrated breathalyzers will likely not be accurate.

It is possible for a person’s blood alcohol content to continue to rise after a breathalyzer reading, especially if they’ve only recently stopped drinking. Therefore, it is also possible for a person to have a blood alcohol content of 0.07 when they leave the bar (and when they test themselves) and a 0.09 after they’ve been driving for a while. If that is the case, you can still be arrested and charged for a California DUI.

Lastly, a person does not necessarily need to be above a 0.08 blood alcohol content to be arrested and charged with a California DUI. A person can be arrested and charged with a California DUI if they are above a 0.08 percent blood alcohol content or if they are “under the influence.” In other words, you can be a 0.07 percent, but if an officer determines that you cannot safely operate a vehicle as a sober person could, you can still be arrested and charged with a California DUI.  A breathalyzer may determine if you are under the legal limit, but it cannot determine whether you are “under the influence.”

Although I can’t imagine some DUI’s not being prevented with personal breathalyzers, the Colorado Department of Transportation wants to be sure. They are providing personal breathalyzers to people with prior DUI’s in certain counties.

Those who participate in the program have agreed to actually use the breathalyzer and complete a survey. At the end of the program and when the survey is completed, participants can keep the breathalyzer.

You can be sure that when the Colorado Department of Transportation releases the results of this experiment, you can be sure that I’ll update you with that information.  

 

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Posted September 14, 2017, 6:12 pm
Categories: dwi

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