Hawaii DUI Attorney Richard Holcomb Joins DUIAttorney.com
I am pleased to announce that Richard Holcomb has joined DUIAttorney.com as the Hawaii DUI Attorney representative.
Rick is an experienced DUI lawyer who recently moved from Tennessee to Hawaii, and is starting his own law practice. His office is located in Honolulu, and he will provide service to all of the outer islands as well.
DUI Attorney Update for January 2010
There have a been a lot of changes at DUIAttorney.com in the past few months, and I have been neglectful of this blog while working on them. As I continue to refine the content on that site, I will make more of an effort to keep my readers up to date here.
As for the subject matter of this blog, for now I'm going to be shifting focus from DUI law and news updates, which are largely handled by my team at DUI and DWI News, to tracking the status of the DUIAttorney.com project and what our lawyers are doing. I also think it's appropriate to talk about the subject of DUI law as a business, including DUI marketing.
I want to say sorry to all of you who have posted comments over the last couple of months... I have not had a chance to go through and moderate them, and given the volume of spam comments we receive (mostly from DUI lawyers I should add), it's impossible for me to just do a blanket-approve-all with comments.
For those of you who have been posting stupid one-liners with links back to your websites, come on and get real. That might have been an effective strategy in 2003-2004, but not now. You should realize that most modern blogs automatically add no-follow tags to comment links anyways. In short, please don't waste your time and mine.
I'll post more updates about the progress and status of DUIAttorney.com soon, maybe later today. In the meantime, take care.
New York DWI Attorney Rachel Kugel Joins DUIAttorney.com
DUIAttorney.com is pleased to announce that New York DWI Attorney Rachel Kugel has become a member.
Ms. Kugel practices throughout New York City, and is the DUIAttorney.com NY attorney for all five boroughs and several surrounding counties.
DUI Forum Launched
DUIAttorney.com announced the re-launch of its DUI forum today. The forum is open for public registration.
When Police Officers Get DUIs
It happens every month. Police officers get arrested for DUI. They cause accidents while driving drunk. They commit other crimes too. So do defense lawyers, prosecutors and judges. Its a fact of life and shouldn't come as a shock to anybody.
Some people seem to relish the hypocrisy of somebody in law enforcement getting caught breaking the law.
To me, it's not the fact that an arrest happened or didn't happen that matters most. The big question is what the officer does after the fact. They can either run and bury their head in the sand, or the can use the experience as President Obama might say as a "teachable moment."
Hats off to Chief David Baker for agreeing to go on the radio to talk about his experience.
Police Chief David Baker to appear on Ridin' Dirty DUI radio show : DUIAttorney.com: "Baker was arrested for driving under the influence after a car crash in Arlington County. He had a blood alcohol level of .19 which is more than twice the legal limit. ‘I offer no excuses for my bad decisions and behaviors because there are none, and I am , and will be, forever haunted by the personal embarrassment and humiliation I caused to those who have supported me…’ said Baker."
MADD shows true stripes
Marty Capetz had some very interesting thoughts about MADD's venture into the for-profit near-beer industry.
OPINION: MADD.org Betrays Supporters and Morphs into MADD, Inc. : DUIAttorney.com: “So here I sit, Saturday morning. Coffee freshly brewed, newspaper up on my screen, and I wonder as I peruse the latest news articles: What BIG news is afoot from the corporate world? What BIG announcements might a public service organization make today, on a Saturday morning?
If there was ever any doubt about the motives of corporate MADD, let there be no more confusion. MADD wants a piece of the industry beyond what they already have. They already have a monopoly on sentencing proceeds from Victim Impact panels. Now they want a piece of the dorky fake alcoholic beverage industry too.
First of all, this will only appeal to non-drinkers. Imagine a conditioned alcoholic liking MADD's stuff. Nonsense. So the church lady is gonna drink MADD's brew. It will do nothing to slow or stop DUI arrests and DUI deaths. Nothing!
Many DUI convictions in many states
Interesting question about whether there should be a single national standard for DUI laws across all states so that it is easy to determine whether prior drunk driving convictions are valid in one state when the prior is from another.
DUI News, Updates & Opinions : DUIAttorney.com: "Others question the validity of reciprocity because a person is convicted under a state's specific laws, not federal laws. This means the same person could be found not guilty in one state and guilty in another. Many question whether national standards must be set if a person is to be held accountable for the same offense in two different states."
For practical reasons, it is sometimes very difficult for a prosecutor to prove the validity of an out of state prior conviction, especially from a state that keeps records in a different way.
DUIAttorney.com LLC is hiring
We are looking to fill several positions at DUIAttorney.com LLC.
Positions include salesperson, customer service specialist, copywriter/blogger and more. See the job listings and apply online.
Another confusing Florida DUI homicide sentence
Here's another Florida DUI homicide sentence that just doens't make much sense in light of Mr. Donte Stallworth's slap on the wrist. Few would aruge that Mr. Stallworth's sentence was appropriate, or that the one in the article below is too stiff. However, fewer still would argue that the sentences are proportional.
DUI News, Updates & Opinions : DUIAttorney.com: “Bay County, FL - Mr. Storm Wood of Georgia, was convicted of DUI manslaughter in a Florida court this morning. He will spend the next fourteen years in prison for the motorcycle accident that killed a Panama City woman who was riding on the back of his bike.The victim, Robin Arnett, was 34 years old.
The Judge heard from both the defendant's and the victim's mothers before sentencing Mr. Wood to 14 years in prison.
At the time of the accident, Mr. Wood was driving without a valid license.”
Again we see the double standard when it comes to Florida DUI homicide cases.
Sturgis DUI arrests up this year
It has been reported that DUI arrests this year at the Sturgis Motorcycle rally are up. Each year thousands of bikers converge on Sturgis, and there is always a lot of drinking, DUI arrests, and arrests for other things.
This year, through Saturday, there were a total of 316 DUI arrests. That is up sharply from last year's 23 arrests. Injury accidents are also up to 72 and counting, from 60 a year ago. However, misdemeanor and felony drug arrests are down.
What does this mean? Are the police focusing more on DUI? That could explain the elevated arrest numbers, but doesn't justify the elevated accident numbers.
Perhaps it is a sign of the economy. More people are turning to the relatively inexpensive alcohol instead of other drugs. Only time will tell, and we may never know the exact reasons.
Seattle boating under the influence
Seattle DUI Lawyer Aaron Wolff is warning about increased BUI patrols in the Seattle area this Seafair weekend.
According to Wolff, there will be a boating under the influence patrol stationed on Mercer Island where suspects arrested on Lake Washington will be taken for a breath test.
Under Washington DUI law, boating under the influence, or BUI, is treated as a serious misdemeanor.
Aaron Wolff's Washington DUI firm handles BUI cases throughout the greater Seattle area.
Michigan DUI Statistics
According to MADD, 30 percent of all Americans will be involved in an alcohol related crash at some point in their lives. Sobering statistic.
If you think about it, it probably is about right. How many people do you know who have either been in a DUI related accident, or are close with somebody who has. I can't think of a single person I know that is more than 4 degrees separated from a serious DUI accident or fatality.
Consider the bolded quote in the excerpt below:
Commentary: No defense if others die | detnews.com | The Detroit News: "Statistics from Mothers Against Drunk Driving say about 3 in 10 Americans will be involved in an alcohol-related crash at some time in their lives.
Last year, those odds resulted in the death of 317 people in the state. They died horrible and gruesome deaths with no good-byes to those left behind.
If the definition of insanity is repeating the same thing over and over again expecting different results, our failure to combat drunken driving is beyond insane.
Police say less than an hour before the crash, the same pickup bounced off the guard rails at a McDonald's drive-through on Van Dyke in Warren; the driver was allegedly so smashed he was no more capable of operating a vehicle than a kid ramming bumper cars at an amusement park.
'He was that drunk,' a State Police officer said. 'He just didn't realize what he was doing.'"
By that definition of insanity, one could coherently argue that the DUI laws on the books in every state are insane. The lawmakers keep the same laws or make them though each year. Prosecutors keep on doing their thing. Cops do theirs. DUI defense lawyers do theirs. And yet the problem and the statistics don't shift much.
Perhaps these statistics dictate that it is time for a fresh look at how we deal with the problem of DUI in our justice system?
California juries can consider accuracy of breath tests in DUI cases
This is a long post and the article below from the LA Times is quoted in full. At issue is one of the most important issues surrounding DUI cases. That is the accuracy of breath testing. This ruling, from the California Supreme Court, is on the right track and acknowledges the "science" behind breath testing and comes to terms with the simple fact that the machine will produce disparate results for different people depending on many factors not accounted for in testing.
California's highest court says juries can consider accuracy of breath tests in DUI cases - Los Angeles Times: “SAN FRANCISCO (AP) — The California Supreme Court has joined a handful of other courts in the country that have said Breathalyzer results mean different things for different people and ruled that suspected drunken drivers can attack the test results in court.Defense attorneys lauded Thursday's unanimous ruling for deferring to science, which has shown for years that the test results are highly variable. Prosecutors, however, predicted the move will undermine California drunken driving cases.
At issue is how authorities use booze breath to determine how much alcohol is in the bloodstream.
When consumed, alcohol is absorbed in the blood and carried through the brain to the liver and heart before diffusing in the lungs, where it is exhaled in breath.
Authorities now use a nationally accepted scientific formula known as "Henry's law" to convert the amount of alcohol vapor in the lungs to a blood-alcohol level.
The scientific problem is that breath-to-blood ratios vary greatly throughout the population and fluctuate individually, influenced by such factors as body temperature, atmospheric pressure, medical conditions and the precision of the measuring device.
That means the same breath-test result for one person's breath could signal intoxication while for another it could simply mean "just a glass of wine with dinner, officer."
Compounding the matter are California's two distinct driving under the influence laws.
The first law, which has been on the books for decades, requires proof that a driver was intoxicated such as slurred speech, bloodshot eyes and the like. Jurors are told they can presume someone is drunk if blood tests show at least a .08 percent level of alcohol.
The second law, passed by the Legislature in 1981 and updated in 1989, simply defined a drunken driver as someone with a blood-alcohol level of .08 percent regardless of appearance or behavior. The state Supreme Court in 1994 extended that definition to include Breathalyzer results, barring drivers charged with the second law from attacking the variability of the breath tests.
Since then, most DUI attorneys viewed disputing Henry's law as a dead end for challenging breath-test machines.
Prosecutors routinely charge their clients with both versions of the law to increase the chances of conviction.
Defense attorneys and prosecutors agreed the state Supreme Court ruling on Thursday reopened the door to breath-test challenges. The court said evidence of the variability of tests can be shown to juries.
"Defense evidence is relevant to rebut the presumption that the defendant was intoxicated, but not to remove the presumption altogether," Justice Carol Corrigan wrote for the Supreme Court.
Courts in Arizona and Vermont have made similar rulings, she said.
Prosecutors said the California ruling will seriously hamper their ability to win convictions in driving under the influence cases.
"It will confuse jurors," said Margaret O'Malley, a Santa Barbara County prosecutor who represented the California District Attorneys Association before the high court.
Defense attorneys said the ruling confirms in court what science already knew: one-size-fits-all breath tests don't necessarily reflect reality for all suspects.
"I've had clients with one lung," said Steven Oberman, a Tennessee lawyer and founder of the National College for DUI Defense, explaining such people will naturally have more alcohol vapors in their breath than someone with two lungs.
To make its ruling, the California Supreme Court used the case of Timmie Lance McNeal, who was convicted in San Bernardino County of drunken driving. He appealed in 2007, arguing that he was improperly barred from challenging the breath test.
The Supreme Court agreed that McNeal was wronged by the trial court but chalked it up to "harmless error." The Supreme Court said there was abundant evidence other than the breath test to support the jury's determination that McNeal was guilty of drunken driving.”
Congratulations to the California Supreme Court for getting this so right!
Tennessee DUI News: Former sheriff arrested
Here we go again. Add Tennessee to the list of states where an active or former police officer has been arrested for DUI.
Former Grainger County Sheriff facing DUI charges: "GRAINGER COUNTY, Tenn. (WVLT) -- A former Grainger County Sheriff is facing charges, after failing a field sobriety test Monday afternoon, according to the Tennessee Highway Patrol.
A THP trooper says he pulled 55-year-old Richard McElhaney over on Highway 11W just west of Rutledge in the Joppa Community.
Investigators say the stop was made after a trooper noticed the pickup truck weaving on the highway.
McElhaney is charged with first offense DUI and violation of the implied consent law."
For more about what he faces, see Tennessee DUI law.
It always amazes us here how many law enforcement officers get themselves into the DUI dilemma. An think about the ones that you never hear about because they are given "professional curtsey," and driven home?
NFL says ok to kill while DUI but no smoking pot
In Miami DUI cases, all is fair in love and war. At least that's what we would like to think. Some might throw out a little pixie dust and argue that the sentence given to Dante Stallworth (30 days in jail) was fair. They might take another hit on a Disney inspired crack pipe and even argue that justice was done.
Ok, so it appears, at least to the naked eye of the casual observer, that big NFL players get to kill non-NFL players with relative impunity, that a crime to could land most people in prison for years gets a pro athlete a one month free pass to the Miami jail.
Well, thanks to Florida DUI attorney John Musca's blog post, it has not escaped my attention that justice, after all, will be served. He writes:
DUI News, Updates & Opinions : DUIAttorney.com: "The Miami Herald released on Tuesday, June 30, that Stallworth also tested positive for marijuana. Defense attorneys argued that marijuana can remain in the system weeks after use and illegal drugs were not necessarily factored in the fatal crash. This new information may not impact Stallworth's criminal case, but it could affect his deal with the NFL. The NFL has a strict no illegal drugs policy and has suspended Stallworth indefinitely."
(Via DUI News.)
Ahh, the smoking gun. The jock had marijuana in his system. Ok, so the Florida criminal justice system doesn't give a you-know-what. You can mix pot and alcohol and kill a non-jock. That's sort of okay in Florida. No biggie because the pot might not have been active. It might not have impaired his ability to drive (above that which being 1.5 times the legal limit already had). In fact, one could just as coherently make the argument that the pot enhanced his ability to drive.
But justice can be a persistent little bitch. Just ask O.J. But this time it may be the NFL who comes down on Dante Stallworth. In fact, they suspended him indefinitely.
Thanks for the message NFL. If I'm reading you right, you are saying:
a) Killing is okay; but
b) If you smoke pot, well that's just not the kind of example we want around.
So kids, here's the thing. Chose your idols wisely because it may turn out that our supercool drunken killer actually likes to smoke pot.
Learn more about the sometimes very lenient Florida DUI laws.
Colorado DUI enforcement to increase
Expect an increase in DUI enforcement in Colorado over the 4th of July weekend. The Colorado State Patrol plans stepped up enforcement. This is mainly because the risks of death and serious injuries due to drunk driving in Colorado increases over holiday weekends such as this.
The concentrated patrols this weekend are part of a larger Colorado DUI campaign dubbed "100 days of heat."
The increased enforcement will continue through Labor Day, the high season for DUI in CO and in most parts of the country.
DUI Convicts May Be Tracked Like Sex Offenders
Get ready for DUI offender registration, the next wave in MADD's push against people who get drunk driving charges and convictions.
There are certain law enforcement agencies that are pushing for the ability to compile databases which anybody can search online, similar to those that allow searches for registered sex offenders.
Already, many areas are publishing DUI arrests and convictions. This would prove to be the next logical step in making the otherwise lab-abiding citizen who happened to drink, drive and get caught, into a public enemy.
Famous DUIs: Why we should ignore them
Ok, this post is going to sound hypocritical. If you can't stand a dose of measured hypocrisy, please stop reading now.
I was just writing about the most recent Seattle Seahawk DUI, when it occurred to me why I write about them. Actually there are two reasons.
1) Frankly, some days it gets a bit boring analyzing cases and extrapolating the law and boiling it down to layman's terms; and
2) Famous DUI cases are easier to talk about because they are public examples. You can't just start blogging about Joe Schmoe's DUI if Joe ain't a public figure... it just feels wrong.
Despite the fact that they are important teaching tools, famous peoples' DUI arrests should be ignored (at least ignore who is involved).
Not so easy when people like Mel Gibson reveal their true colors. Not so easy when a stand-up guy like Charles Barkley sets a good example for everybody of how to deal with a DUI, and get through and beyond it. Not easy because otherwise, what would people who blog about DUI talk about?
Ok, I suppose we can't separate the person from the event, but think of them like they are in character. After all, you probably don't really know them anyways. And most importantly, don't judge them.
Omaha DUI Golf Cart Case
Omaha (but could be anywhere). A woman rides in a golf cart. The driver of the cart is drunk by any definition. Not something that is too unusual on the golf course, right?
Then something goes terribly wrong. The cart tips. The passenger is killed. Suddenly a nice day on an Omaha course turns into a vehicular homicide prosecution.
Death Raises Questions About Alcohol On Golf Courses - Omaha News Story - KETV Omaha: “Mcillece's blood-alcohol level was measured at more than twice the legal limit. She has been charged with DUI and motor vehicle homicide. Mcillece has a bond hearing scheduled for Thursday.City Prosecutor Marty Conboy said a golf cart, as a motorized vehicle, stands within the definition of the law.”
For golfers in Omaha and really everywhere, this is a wake-up call. Your day at the golf course can turn into more than a decade in prison.
Under Omaha DUI Law, there is no exception for private property.
Methadone DUI
Can you believe it! The Arizona legislature is trying to make driving with more than your prescribed dose of Methadone a DUI. The Arizona DUI laws governing driving under the influence already technically cover this, but one supposes when there isn't work or publicity, one has to create it, right? Here's a local story excerpt about it.
New Bill Addresses Methadone DUI - Phoenix News Story - KPHO Phoenix: "Though the bill which passed banned using methadone while driving, senators said they will probably add an amendment before it goes to the Senate floor.
The amendment would let people drive under the influence of the drug if it's used as prescribed; if a driver has more than his or her prescribed amount in his or her system, he or she can receive a DUI citation."
Personally, I suppose if I had to pick whether the driver next to my vehicle has Meth or Methadone in his system, I'd go for the Methadone.
I'm curious to hear from people who are either on Methodone or have been. Do you drive? Any accidents? What are your thoughts on this proposed Arizona DUI law?
According to Florida DUI Attorney John Musca, other states like Florida look to states like Arizona when it comes time to legislate newer and tougher DUI laws.
According to Oregon DUI Lawyer Bart Herron, it wouldn't be surprising to see Oregon take up similar legislation in the future as well.
One thing is clear, Arizona can grease the slippery slope of DUI law trends nationally, so if there are states or people who have an interest in being allowed to drive with Methadone in their systems, now is the time to speak up.
Florida DUI Manslaughter sentence comparison
Here's a good comparison of Florida DUI sentences. Remember that Stallworth just got a measly 30 days for taking a life. The young man in the article quoted below got a year, AND he was treated as a youthful offender.
Laurel Hill man gets a year for DUI manslaughter | judkins, year, laurel - News - Northwest Florida Daily News: "A man convicted of DUI manslaughter was sentenced to a year in the county jail, prosecutors said Friday.
James Matthew Judkins, 21, of Laurel Hill, was treated as a youthful offender, assistant state attorney Greg Anchors said.
Judkins was 20 when he crashed into a utility pole in June 2008. He was driving north on State Road 85 when he veered onto the shoulder, hit the pole and came to rest in a driveway."
Location and representation can make a big difference, according John Musca, a Florida DUI and criminal defense lawyer.
This much is clear. In Florida DUI cases, money, power and fame mean something.
Pensacola DUI Homicide - Bail Denied
Watch this case closely. My guess is that this will be a study in contrast to the sentence received by Mr. Stallworth (which I blogged about at Miami DUI Penalties - Wealthy Person Style).
No bond in DUI-death case | pnj.com | Pensacola News Journal: "Christina Rivkin, 32, is charged in the death of Michael Steele, 25, who was struck while riding his bicycle to work at the Winn-Dixie grocery store at Nine Mile and Chemstrand roads about 11 p.m. June 10.
Escambia County Judge Thomas Johnson set Rivkin's bond at $500,000 last week. Circuit Judge Frank Bell on Tuesday agreed with a request by the State Attorney's Office to hold her until trial because she poses a danger to the community."
It is difficult to argue that a person on their third DUI (which resulted in a death) does not pose a danger to society.
Miami DUI Penalties - Wealthy Person Style
Wow. Stallworth got 30 days in jail. That's it!
So is this what to expect from every DUI manslaughter in Miami? In Florida? If so, I bet there are a lot of very MADD people right now!
could win approval for limited driving such as for employment."Stallworth pleads guilty, gets 30 days in jail - NFL - Yahoo! Sports: "Stallworth also reached a confidential financial settlement to avoid a potential lawsuit from the family of 59-year-old Mario Reyes, according to Stallworth attorney Christopher Lyons. Reyes was struck and killed March 14 by Stallworth, who was driving his black 2005 Bentley after a night drinking at a swanky hotel bar.
Stallworth, 28, told Miami-Dade Circuit Judge Dennis Murphy that he hopes to get involved in drunken driving education programs.
‘I accept full responsibility for this horrible tragedy,’ said Stallworth, who was accompanied at the hearing by his parents, siblings and other supporters. ‘I will bear this burden for the rest of my life.’
Stallworth faced 15 years in prison. After his release from jail, Stallworth must serve two years of house arrest and spend eight years on probation.
The NFL has said it will review the matter for possible disciplinary action. Lyons said the plea agreement will allow Stallworth to resume his football career.
Stallworth also must undergo drug and alcohol testing, will have a lifetime driver’s license suspension and must perform 1,000 hours of community service. Lyons said after five years, Stallworth
For more information on what he could have faced, see Florida DUI Penalties. To put this sentence into perspective on a national level, with a .150 or higher alcohol level (just .026 higher than Stallworth - i.e., 1-2 drinks) a first offender with a clean record who didn't even scratch the paint on another vehicle, let alone kill somebody, would face a mandatory minimum 30 days in jail under Arizona DUI law.
DUI Forum at DUIattorneys.org
I am pleased to announce the newest addition to the family of websites owned and operated by DUIAttorney.com LLC.
The National DUI Forum (at duiattorneys.org) went live yesterday and is open for registration and posts. Unfortunately, registered users of our other websites will have to register separately to use the forum.
This forum is the replacement for the now defunct DUI forum at duiattorney.com. I decided to separate them for several reasons that I won't go into in this post.
I want to thank all of the people who helped make phpbb3 and phpbb seo a reality, and therefore make this DUI forum in its current incarnation possible.
My hope is to attract questions from people around the country, and get our excellent attorneys involved in helping to post answers and lead discussions. These attorneys include:
Evan Levow - Pennsylvania DUI Lawyer, & New Jersey DWI Lawyer
John Musca - Florida DUI Attorney
Aaron Wolff - Seattle DUI Lawyer
Randall Longwith - Los Angeles DUI Lawyer, Orange County DUI Lawyer
The Kavinoky Law Firm - San Diego DUI Defense, San Francisco DUI Lawyers
Mike Tillotson - Virginia DUI Lawyer
Van Wagner & Wood - Wisconsin DUI Lawyers
Anna Lehnert - New Mexico DWI Lawyer
Frank Mungo - Ohio DUI Lawyer & Kentucky DUI Attorney
Bart Herron - Oregon DUI Lawyer
Jose Valdez - Sacramento DUI Defense
Stewart Bergman - Phoenix DUI Firm & Arizona DUI Defense Lawyer
And many more who are featured on and participate at DUIAttorney.com and the related properties.
For the benefits of attorney participation in the forum, see my DUI Attorney Marketing blog, where I will be posting a letter to drunk driving defense lawyers on the topic.
Andrew Gallo's Attorney Randall Longwith
According to the report quoted below, Los Angeles DUI Attorney Randall Longwith, who represents the man accused of killing Nick Adenhart, may have an additional defense now that it has been determined that the driver of the vehicle Mr. Adenhart rode in was DUI.
Driver in deadly Adenhart crash was DUI - UPI.com: "SANTA ANA, Calif., June 11 (UPI) -- The driver of the vehicle carrying Los Angeles Angels pitcher Nick Adenhart the night of his death had an illegal blood alcohol level for her age, prosecutors say.
Prosecutors in Orange County, Calif., said 20-year-old Courtney Frances Stewart had a blood-alcohol level of .06 the night an alleged drunken driver crashed into her vehicle, killing her, Adenhart and law student Henry Nigel Pearson, The Orange County (Calif.) Register said Thursday.
California drivers under the age of 21 cannot operate a vehicle legally if their blood alcohol level is above .01.
Deputy District Attorney Susan Price said Stewart's level was determined by toxicology tests conducted by the Orange County Coroner.
Attorney Randall T. Longwith is representing Andrew Thomas Gallo, the man accused of causing the deadly accident on April 9.
Longwith told the Register the toxicology report on Stewart could come into play in the second-degree murder trial of his client.
'It's a big revelation,' said Longwith, whose client also faces other charges including driving under the influence. 'In essence, we're talking about two people who were drinking and driving. I think it's definitely something we need to look at and investigate.'"
With both driver's allegedly above the legal limit, one imagines that it would be next to impossible for the state to prove that one driver or the other caused the accident. Without this causation element, a conviction will be difficult to impossible.
It will be interesting to see where the DA goes from here.
John Musca
I am pleased to announce that Florida DUI lawyer John Musca of Musca Law has joined duiattorney.com as the representative for Florida.
John Musca has built a solid reputation and a great criminal defense practice by serving all of his firm's clients with dedication, skill and zeal. His associate attorneys work with John and his clients to ensure that each client has the best possible experience and gets the best possible results.
Tampa DUI Arrest After Reckless Driving
The below scenario is all too common in Florida and throughout the country. In the below scenario, the person stopped turned out to be over twice the legal limit, which under Florida DUI law is .080.
'Reckless' driver becomes DUI suspect: "A woman was arrested on suspicion of DUI after motorists reported a reckless driver to authorities.
A deputy began following a white eastbound Ford Expedition on Monday from the intersection of Cortez and Mariner boulevards. He pulled it over after he said it failed to stay in its lane and requested a traffic deputy to perform field sobriety tests on the driver, Katrina Mott.
Mott, 38, reportedly failed the tests and was taken to jail on a DUI charge. A report states her blood alcohol level was .191; Florida law presumes intoxication at .08"
To get a sense of what Mr. Mott may be facing, see Florida DUI penalties.
How to tell your parents you got a DUI
So you got a DUI and now you are trying to figure out how to tell your parents?
You probably fall into one of two camps:
1) You need to tell them because you need help with your legal fees;
2) You feel a need to tell them because, well, that's how you cope, or feel better, or forgive yourself or whatever.
The first thing that you should do is evaluate yourself.
How old are you?
If you are under 21 it is probably a no brainer that you should tell them. You got a DUI before you are even old enough to drink, so you probably lack the emotional maturity to handle this by yourself. If this applied to you, just come right out and tell them. You don't need to make a special dinner or anything. You don't need to butter them up. Just come right out with it.
If you are over 21 you might think twice. You are probably trying to assert your independence from then as an adult. If this applies to you, you might consider growing up and trying to handle it on your own.
If you are over 30 years old and you are telling you parents for any kind of emotional or financial support, you might consider instead taking a good hard look in the mirror. Perhaps your parents or your relationship with them is part of the problem, not the solution. Perhaps it is time to cut the umbilical cord and take responsibility for yourself before you are 40 years old and living in their garage.
If you look at telling your parents as a sort of confessional, consider going to church, or synagog or mosque, get a shrink, go to some support group meetings, go get lost in the woods for a week and find yourself. I guarantee that if you are a legal adult and need to lean on mom or dad for this, then you have larger issues than the DUI arrest anyways.
Think about your parents.
What will the knowledge of your DUI arrest do to them? Will it hurt them? Is it better to spare them that pain?
Is it revenge?
Perhaps you somehow blame your parents for your DUI. What didn't they give you? Do you come from an alcoholic home? Do you want to hurt them with the knowledge of your DUI? If so, then you should tell them only after you are through it and safely on the other side. Your best revenge may be to succeed, and nothing says success under these circumstances better than getting through a major life obstacle without the help or guidance of your parents.
In a nutshell:
Evaluate why you want to tell your mom or dad about your DUI arrest. If your motives are pure and the good of telling them outweighs the bad, then just come right out and tell them. No sense in beating around the bush.
Bart Herron
San Bernardino DUI Court sentenced man to prison
Here's an example of a sentence for second degree DUI murder in California. Under California DUI Law, an accident resulting in death involving alcohol can be charged as murder. I assume he pled guilty to avoid a much longer sentence. With four prior DUI, and given the fact that he was on probation at the time he caused the accident,he seems lucky to only receive 15 years in prison.
Yucaipa man sentenced to prison in 2006 DUI crash - San Bernardino County Sun: "A Yucaipa man was sentenced to 15 years to life in state prison today after he admitted in March to killing a 68-year-old woman in a drunk driving related crash.
Glenn Matthew Chiccarelli, 50, was sentenced in San Bernardino Superior Court for the death of Yucaipa resident Frances Fullingim on Feb. 12, 2006.
Chiccarelli pleaded guilty to second-degree murder, as he had been charged, just before a trial was set to begin on Mar. 17.
Chiccarelli had four known prior DUIs, and he was on probation for a DUI when he crashed head-on in Fullingim, according to the San Bernardino County District Attorney's Office.
Mr. Chiccarelli is 50, meaning that he will likely be in his early 60s when he is released. When he gets out, he will need a lot of help to make sure he doesn't get back behind the wheel and do it again. Learn more about San Bernardino DUI defense and about California DUI law in general.
Seattle DUI Arrest: Minor is possession
According to the Seattle PI, a kid and his 20 year old passenger were heavily armed while he was being investigated for DUI.
Armed and drunk: Cops find AK-47 in crashed car: "A suspected drunken driving accident led to the arrest of a 17-year-old and his 20-year-old passenger after police found an AK-47, a 30-round magazine and a butterfly knife.
A few minutes before midnight, North Precinct and Port of Seattle patrol officers were dispatched to the 6200 block of Seaview Avenue Northwest, where two men were reported fleeing form a car.
Police say the 17-year-old driver crashed his black sedan into two parked cars. He hid in some bushes but not for long enough. He'd returned to the car before the officers arrived.
Along with the assault rifle, officers found two baseball bats and a red bandana in the back seat.
The 17-year-old was arrested for investigation of DUI and later also booked into the Youth Service Center for investigation of the felony weapons possession.
His passenger was booked into King County Jail for investigation of the knife possession."
That's a lot of firepower, especially for an underage intoxicated person. Without knowing this kid's history, from personal experience I'd say this guy is in need of some love and an intervention more than prosecution.
I never understood why butterfly knives were illegal while other knives are not.
Florida DUI lawyer arrested for drunk driving accidents
Here is a story about a Florida DUI lawyer who was arrested after allegedly causing several accidents.
Defense attorney charged with DUI, causing wrecks | whitehead, charged, test - News - Northwest Florida Daily News: "Investigators say Whitehead, of Furling Lane in Destin, hit a car at the intersection of U.S. Highway 98 and Scenic Highway 98 and then hit another vehicle near The Track. The accidents caused major traffic back-ups.
One of the accidents was a head-on collision, according to the Okaloosa County Sheriff's Office incident report. No one was injured in that vehicle, the report said.
Whitehead told the deputy he was not injured, but the deputy noted he appeared to be heavily intoxicated. His face was 'slightly red,' his eyes were 'glassy' and 'watery' and his speech was slurred and difficult to understand.
'I don't want to go to jail,' Whitehead said, during the traffic investigation.
When the fire department arrived on scene and tried to check on Whitehead, he attempted to put the vehicle into gear to drive away, according to the report. The deputies and one of the firefighters managed to turn the vehicle off and take away the keys."
DUI attorneys need to be so careful because police officers who regularly investigate drunk driving cases may hold a grudge and slant the investigation. Not saying that happened here, but you probably have to have some major problems to, as a DUI lawyer, to get into this kind of trouble legitimately. To see what he is potentially facing, see Florida DUI penalties.
Santa Clara DUI Update
Here are the first of the numbers for DUI arrests over Memorial Day weekend. These are from Santa Clara California.
MorganHillTimes.com | 115 DUI arrests in Santa Clara County during Memorial Day weekend: "Law enforcement agencies in Santa Clara County reported at least 115 arrests for driving under the influence of alcohol or drugs during the Memorial Day weekend.
The arrests were the result of the ongoing Avoid the 13 campaign, characterized by heightened enforcement of drunk driving violations. Thirteen agencies in the county, including the Morgan Hill Police Department and California Highway Patrol, participate in the annual holiday DUI crackdown."
April 2009 DUI Report | Napa Valley Register
Here are the most recent stats for Napa County California DUI cases.
April 2009 DUI Report | Napa Valley Register: "Arrests: 114
Convictions/pleas: 95
Reported blood-alcohol below .10 or unavailable: 21
Reported blood-alcohol between .10 and .19: 55
Reported blood-alcohol between .20 and .29: 17
Reported blood-alcohol between .30 and .39: 2"
Learn more about California DUI law, and DUI in Napa County California.
How to avoid a DUI arrest
Here's a new way to avoid a DUI arrest in Arizona this Memorial day weekend.
Since Arizona DUI penalties are so stiff, using this service makes sense at every level."Tipsy Tow" To Prevent Drunk Driving - KOLD News 13 live, local and late breaking-: "AAA Arizona is launching a new program for the summer called 'Tipsy Tow.' The concept is simple: If you have too much to drink, call AAA and you and your vehicle will be towed home for free. The program is open to everyone. You do not need to be a AAA member to take advantage of this service."
Arizona DUI Accident? Maybe not says local attorney
It appears that a terrible accident which occurred in the Phoenix area yesterday may have been DUI related.
DPS: Wrong way driver slams into semi on Valley freeway - Phoenix Arizona news, breaking news, local news, weather radar, traffic from ABC15 News | ABC15.com: "The Arizona Department of Public Safety is investigating a three-vehicle collision that shut down portions of Interstate 10 on Tuesday morning.
Eastbound I-10 is closed at Queen Creek Road with all traffic exiting at Queen Creek.
The accident, involving a commercial vehicle, has also closed I-10 westbound at Riggs Road with all traffic exiting at Riggs Road.
According to DPS, a driver was heading westbound in the eastbound lanes on I-10 when he slammed into a semi-truck.
The semi burst into flames and crashed into a truck.
In all, four people were taken to the hospital with unknown injuries.
The alleged wrong-way driver was airlifted and is being tested for DUI.
The eastbound and westbound lanes were both reopened before 7 a.m., according to the Arizona Department of Transportation."
"It's really hot right now in Arizona," said AZ DUI attorney Stewart Bergman. "We should not rush to judgment. The heat plays tricks on people's judgment just like alcohol does. We should wait for the test results before we assume that anybody is guilty. That's how the criminal justice system works, and it's what DUI defense lawyers fight for every day... the right to the presumption of innocence."
DUI Forum
Florida DUI and Probation Revocation
Here is an appeal from a probation revocation case that was initiated after a Florida DUI arrest. It discusses whether probation can be revoked on an original offense by virtue of arrest alone, in absence of an admission of guilt to the new offense.
The case was issued on 5/15/09, out of the fifth district court of appeals of Florida. The petitioner's name is Raymond Good. At the time of writing this, there is no official cite available.
This case began as an Anders appeal. Appellant's underlying crime was grand theft over $20,000, a third-degree felony, to which he pleaded nolo contendere and was sentenced on July 30, 2007, to eighteen months of probation. He was subsequently charged with violation of probation. The public defender was ordered to file a supplemental initial brief addressing whether reversible error was committed when Appellant's probation was revoked due to his arrest for DUI. We cited Hines v. State, 358 So.2d 183 (Fla.1978); Lockett v. State, 547 So.2d 1292 (Fla. 5th DCA 1989), and Purvis v. State, 397 So.2d 746 (Fla. 5th DCA 1981), which stand, overall, for the proposition that probation cannot be revoked based solely on proof of an arrest during the probationary period where the sole condition assertedly violated was that the probationer "live and remain at liberty without violating any law" and the only evidence of a violation was hearsay.Appellant admitted that he was arrested for DUI and identified the ticket that he received. He did not admit to the DUI. There was no Breathalyzer test, no arrest affidavit, no video of Appellant's behavior during the traffic stop or booking offered in evidence. The arresting officer did not testify. The only evidence of the law violation was the ticket. The trial court found that Appellant violated his probation based on the arrest and reinstated the probation and extended probation to five years. Without this violation, Appellant's probationary period would have ended January 31, 2009.
In its response, the State urges that this appeal should be dismissed because Appellant is now a fugitive from justice, an arrest warrant having been issued for Appellant on December 12, 2008. Under Griffis v. State, 759 So.2d 668 (Fla.2000), if an appellant absconds after filing an appeal, the reviewing court has the discretion to dismiss the appeal. According to the State's filing, Appellant absconded on or about December 12, 2008, and as of the date the State filed its response, February 18, 2009, he was still missing. Had Appellant gone missing after the end of his original term of probation, we would likely not dismiss the appeal; however, having elected to abscond during the original probationary term, this appeal is essentially moot. Accordingly, we elect to dismiss this appeal.
There is a perception that once on felony probation, it is extremely easy to get violated, and an arrest can result in revocation of probation. This would mean that the mere accusation could be enough to send somebody back to prison, even if it is merely an accusation of misdemeanor DUI.
Never blindly trust expert witnesses
Here's a very good, real life, example of why we should not blindly trust expert witnesses in DUI cases (or any criminal case for that matter).
A Forensics Charlatan Gets Caught in the Act: Video from a defense attorney's sting exposes Mississippi bite-mark "expert" Michael West. - Reason Magazine: "Plourd’s video sting ought to move public officials in Mississippi and Louisiana to thoroughly, if belatedly, investigate just how much damage this dentist has inflicted on the judicial systems of those states. There are still dozens of people in prison due in some part to 'expert' tetimony that has been shown to be anything but."
When a person's freedom and life is at stake, it is appropriate to question the methodology, motive and conclusions of any expert witness.
Lifetime DUI Revocations: The next trend
Fool me once, shame on you. Fool me twice, shame on me. That is the thought process of many lawmakers, judges and prosecutors about people with multiple DUI charges or convictions.
Currently, most states allow people with multiple drunk driving convictions to reinstate their license, usually within months or a couple of years of their most recent conviction.
But this is slowly starting to change, and when it reaches a critical mass, then I believe we will see lifetime license revocations (or lifetime ignition interlock requirements).
Most people believe that anybody can make a stupid mistake and get one DUI. However, most people also believe that if you get more than one DUI, meaning you didn't learn your lesson the first time, that you probably have deeper issues and that you are willing to disregard the safety and well-being of others. Different states treat DUI license suspensions differently. For an overview of the suspension process, and a jumping off point to research drunk driving suspensions in all 50 states, refer to DUI license suspensions and driving issues.
People with commercial drivers licenses already lose their licenses for a lifetime on DUI number two. Look for this trend to spill over into regular "citizen" licenses in the near future.
Nevada DUI: Under the legal limit
Nevada could still charge a man who caused a fatal accident that killed an officer with DUI, even though he was below the legal limit of .080.
Attorney: Darling could still be charged with DUI: "The man accused of killing a Metro officer in a deadly crash admits to having a few beers just before the accident. But now, blood tests have put Calvin Darling below the legal drinking limit in Nevada.
So what does this mean for the charges he's facing?
Calvin Darling can still be charged with DUI. Nevada law states that if you are under the influence of alcohol to any degree and it makes you incapable of driving safely, you can be held responsible for your actions. However, it's up to investigators to decide whether his driving was impaired by the beers he said he had."
Prosecutors usually want to get a defendant for something. So if vehicular homicide won't stick, why not charge the DUI. Learn more about Nevada DUI law.
Hawaii DUI Statistics
When I think of Hawaii, drunk driving and DUI related fatalities are not in the top 25 things that come to mind. Here is a sobering reality check that shows that DUI happens everywhere, even in paradise.
KPUA.net - KPUA Hawaii News - Latest Big Island DUI stats: "During the week of April 28, 2009, through May 4, 2009, Big Island police arrested 38 motorists for drunk driving. Two of the drivers were involved in a traffic crash. Seven were under the age of 21.
So far this year, there have been 456 DUI arrests compared with 466 during the same period last year, a decrease of 2.1 percent. The numbers of arrests by district were:
DUI Arrests by District
District Weekly Total Year to Date
Hāmākua 0 2
North Hilo 0 0
South Hilo 13 137
Puna 1 50
Ka'u 2 20
Kona 21 198
South Kohala 1 37
North Kohala 0 12
Island Total 38 456
There have been 558 major accidents so far this year compared with 635 during the same period last year, a decrease of 12.1 percent.
So far this year, there were five traffic fatalities on the Big Island compared with 11 during the same period last year, a decrease of 54.5 percent.
DUI roadblocks and patrols will continue island wide."
DUI roadblocks are legal under Hawaii DUI law.
I always pictured sleeping it off in Hawaii should I ever find myself under the influence there.
Minnesota DUI breath testing on the ropes
It appears that Minnesota may be ground zero in the battle for the release of the source code that powers Intoxilyzer breath test devices.
Intoxilyzer, which is a brand of CMI, Inc., is the most widely used type of breath testing device in the country.
The Minnesota Supreme Court issued an opinion on the matter.
In a nutshell, if you can come up with a reason why the source code might help your case, then, in MN DUI cases, you get it. If you can't think of a reason why you need it, then you don't get it.
The problem with this logic is that there may be a legitimate need for the discovery, which a DUI defendant can't discover until they actually have the source code.
Minnesota DUI Lawyer Charles Ramsay, although not a lawyer named in this case, has been instrumental in the fight to obtain the code in Minnesota.
Lebanon Pennsylvania DUI Patrol Update
According the the Lebanon Daily News, the police at Jonestown, PA, stopped 35 people as part of a DUI patrol and arrested three of them. That is fewer than 10 percent of the people they stopped. What does this mean?
Either the patrol was very focused in the people they pulled over OR if they pulled people over at random, then it would appear that 8.5 percent of the people in Jonestown were driving around with enough alcohol or drugs in their systems to get arrested for DUI.
Could this be indicative of the general population?
I have heard stats quoted as high as 25% of people on the road at 2am are legally under the influence of something, so 8.5% really doesn't seem that high, does it?
Colorado DU repeat offenders
So 33.33% of all Colorado DUI arrests are of people who have been down this road before. That's a staggering number when you think that for Colorado alone, over 10,000 people with previous DUIs were arrested. Here's an article that goes over those stats:
1 In 3 DUI Arrests Repeat Offenders - cbs4denver.com: "A Denver Post analysis has found that about 10,000 drunken drivers arrested in Colorado each year are repeat offenders.
Police arrest roughly 31,000 drunken drivers a year, so about one in three has at least one previous DUI.
The Post examined records of arrests made from 2005 to 2007.
From 2005 to 2007, an average of 31,011 suspected drunken drivers were arrested each year in Colorado, according to statistics from the Colorado Bureau of Investigation.
An average of 10,835 drunken drivers each year had at least one prior DUI arrest, according to Division of Behavioral Health data from probation-department evaluations of drivers facing DUI charges.
Jefferson County District Attorney Scott Storey says getting drunken drivers off the road for good is a constant struggle."
Learn more about Colorado DUI law and process.
So what's the solution? I would be interested to know how many people each year arrested for DUI in Colorado had suspended licenses for prior DUIs? Obviously, the number will be less than the total number of people arrested who had at least one prior, but how much less? How many of those arrested with priors were supposed to have ignition interlock devices on their vehicles but didn't? How many of those people did jail time? How many did substantial jail or prison time?
If we look at all of the statistics, I bet you that the only possible conclusion is that nothing except treatment works, and even treatment is ineffective.
So there's our civil liberties. There's the constitution. And then there's the sobering statistics in the quote above.
Man poses as lawyer
Here's a good reason for anybody who is looking for a lawyer to do adequate homework to make sure that they person is who he or she claims to be.
The fact is, anybody with a little homework, a suit and a serious set of you-know-whats, could easily pretend to be a lawyer and get away with it in many courts.
Felon posing as lawyer spoke at local legal seminar - JSOnline: "Dozens of Milwaukee-area lawyers earned education credits a little while back for attending a local seminar featuring a convicted felon posing as an expert on criminal sentencing.
How's that for getting the inside scoop?
Howard O. Kieffer was brought here by Federal Defender Services of Wisconsin to talk to local lawyers about the ins and outs of state and federal criminal prison sentences at a November 2007 conference. Kieffer was identified as a graduate of Antioch Law School.
In truth, he never set foot in the place. The Washington, D.C., school closed in 1992.
Nobody tied to the conference knew anything about his charade.
They weren't the only ones conned by Kieffer. Over the years, he made out like Leonardo DiCaprio on the big screen, persuading clients, attorneys, judges and court administrators around the country that he was totally legit.
Catch him if you can.
'To the extent that Mr. Kieffer hoodwinked Federal Defender Services of Wisconsin, we are one of many in that lot,' said Daniel Stiller, executive director of the agency.
It took authorities in South Dakota to nab the bogus barrister.
Earlier this month, Kieffer was convicted on federal charges of mail fraud and impersonating a lawyer in court records. The Denver Post reported that he has represented at least 16 clients in 10 federal courts throughout the country. Among those paying for his legal services was a former St. Louis Blues hockey player who pleaded guilty to plotting to kill his agent."
The fact is, I have never been asked for my bar card in courts in Washington State or in Arizona. I am rarely asked to write down my bar number, and even when I do, I highly doubt that anybody ever checks to make sure it matches up with the state bar's records.
Alcohol and impulsive behavior is genetic
Here's a study that supports the theory that drinking (and be a tangential extension drinking and driving) may not be a choice for some people. If this is the case, it supports what I have argued for years, that people accused of DUI need more support and treatment, and less punishment.
Putting somebody in jail and stripping them of their dignity and their livelihood does not make them less likely to act impulsively and drink and drive in the future. In fact, it likely does just the opposite.
Scientists find genetic link to impulsive behaviour | Latest News: "In humans a blood alcohol level of .08 is produced by the consumption of two drinks an hour by a 120-pound individual or 3 drinks an hour by a 180-pound individual. At that level human concentration and judgment are impaired and all 50 states prohibit operation of a motor vehicle.
‘It is well documented that humans with alcohol problems have impulsivity issues. High impulsivity, when defined as the tendency to choose small instantaneous rewards over larger delayed rewards – like getting drunk instead of going to work for that paycheck in 2 weeks— is more prevalent in alcoholics than in non-alcoholics. Because these mice had never had alcohol, we were able to show that it was the genes that increase drinking, rather than drinking itself, that yielded impulsive behavior,’ said Dr. Grahame.
‘Our data can clearly be extrapolated to humans and strongly suggests that impulsivity contributes to high alcohol drinking. Consequently, the diagnosis of any disorder associated with impulsivity, such as attention deficit disorder or bipolar disorder, is cause for concern about future problems with alcoholism,’ he added"
As a society, we need to respond to the problem of DUI with more love and less judgment. Support and incentive is what quells impulsiveness.
Wisconsin DUI probable cause case
The Wisconsin Supreme Court is set to rule on whether there can be probable cause for a DUI arrest without an odor of alcohol, or, as the attorney arguing for the defense put it, any indication of drinking at all.
Wisconsin supreme court takes on drunk driving evidence - WKOW 27: Madison, WI Breaking News, Weather and Sports -: "'If you're going to drive drunk, make sure you really go big, because you need to have an accident, if it's really bad and there's a gasoline smell and someone's almost died, that you're not going to be able to arrest unless they can smell alcohol or see beer cans, or something like that in the car,' Ziegler said.
'That's the standard you're asking this court to accept.'
Cohen demurred. 'I'm not saying you need an odor of alcohol, I'm not saying you need a beer can, I'm just saying you need something that would indicate the use of intoxicants.
Justices pointed out state law assumes permission to test blood for alcohol, even if a driver is unconscious, if there's an odor of booze, or probable cause.
'The inference to me is that you can have probable cause to believe a violation, without detecting any presence of alcohol,' Justice Ann Walsh-Bradley said.
Another standard that determines whether a drunk driving investigation can happen is the totality of the circumstances.
Mitchell Lange's arrest and blood draw took place at a Madison hospital. It was his second drunk driving arrest."
This case could mark a shift in Wisconsin DUI law, and has the potential to reach the US Supreme Court.
Riverside California Tox-Lab scandle
California lawyer Mary Frances Prevost has a blog entry about a scandal at Riverside's Bio-Tox lab. The post, quoting an article from DailyJournal.com, should be an example and a warning for all who think that forensic science in DUI cases is unassailable.
CALIFORNIA'S TOP LEGAL NEWSPAPER TRACKS BIOTOX SCANDAL :: California Criminal Lawyer Blog: "Defense attorneys are questioning the viability of evidence in thousands of criminal cases in Riverside, San Bernardino and San Diego counties because defendants' blood and urine tests were conducted by a forensic lab technician who admitted to fudging his analysis in a previous job.
Lawyers are frantically digging for information on every case Aaron Layton tested on behalf of Riverside-based Bio-Tox Laboratories over two years with the company until he was fired in February. Thousands of cases in the three counties that contract with Bio-Tox have been thrown into question, attorneys and some judges say, because Layton acknowledged lying hundreds of times about his testing while working at a Colorado lab eight years ago."
According to Fullerton DUI attorney Randall Longwith, who practices DUI and criminal defense in Los Angeles, Orange County and Riverside County, this is discouraging from the standpoint of justice and fair play, but some that good California DUI lawyers are always on the lookout for.
And this is not the only lab and the only time that this has happened. Our history is fraught with stories of people wrongfully convicted based on inaccurate and false scientific testimony. Sometimes that testimony is given intentionally, and sometimes out of accident or ignorance. The result is the same. Justice is not served.
San Diego's Official Navy Newspaper - Local Command Achieves 900 Days Alcohol Related Incident Free
San Diego Naval Detachment has made it 900 days without anybody getting a DUI.
This is news, and it is also quite amazing if you think about it. In my decade as a DUI defense lawyer, I have represented many people in the military.
San Diego's Official Navy Newspaper - Local Command Achieves 900 Days Alcohol Related Incident Free: "The Detachment has gone 900 days without having any driving under the influence (DUI) or alcohol related incidents (ARI). The accomplishments of the detachments can be attributed to constant awareness and the leadership reiterating the importance acting responsible at all times. ‘It all begins when the Sailors arrive at our command. They are briefed on responsible drinking, as well as making and following a good liberty plan. Additionally, the Senior Enlisted Leader (SEL) talks one-on-one with every newly arrived Sailor and re-emphasizes the importance of responsible drinking and conduct while on liberty,’ said Senior Chief Information Systems Technical (SW/AW) Lana Tullos, SEL for the command"
Eventually, somebody is going to get a DUI and break the streak, and then, for that person, there will be hell to pay.
I imagine that making this record well know would cause Sailors to think twice before getting behind the wheel after drinking. It's a lot to live up to, but it's positive.
I think positive reinforcement and goals, rather than scare and punish, is the best way to prevent DUI from happening everywhere.
Strange Florida crash may be DUI related
ABC Action News in Florida is reporting a strange crash that occurred overnight in Pinellas County, Florida. According to officers, the crash may be DUI related.
Alcohol a possible cause in Safety Harbor crash that injured 3 | WFTS-TV: "SAFETY HARBOR, FL -- A wild crash along Main Street overnight sent three to the hospital.
Pinellas County deputies say a car with 2 people inside was heading east on Main Street. After the car crossed McMullen Booth Road deputies say it began to swerve toward the sidewalk.
The car hit a pedestrian, 18-year-old Andrew Hall, from behind then slammed into two utility poles before coming to rest."
If it turns out that the accident was DUI related, the driver of the vehicle faces potentially very stiff Florida DUI penalties, and may be charged with vehicular homicide and vehicular assault.
Bellingham, MA DUI fatality defendant surrenders
This is so sad, and happens so often. A person has an accident and kills their passenger, who usually is a family member or friend. Then they find themselves prosecuted for DUI or vehicular homicide.
Driver charged with DUI after fatal Bellingham crash - Bellingham, MA - Country Gazette: "A Bellingham man was arrested Thursday and charged with drunken driving in connection with the fatal car wreck that claimed the life of his friend, 23-year-old Sean Whalen, on April 9.
Matthew Markham, 21, of 79 Elvira St., who drove his Oldsmobile Cutlass into several trees just beyond the High Street bridge, came to the Bellingham Police Station with his attorney yesterday, and was subsequently arrested, said District Attorney Joseph Early Jr.'s spokesman Tim Connolly."
According to Massachusetts DUI Attorney, the penalties for DUI resulting in death in MA are:
MANSLAUGHTER BY MOTOR VEHICLE:FINES: Up to $25,000;
JAIL: Mandatory minimum 5 years - maximum 20 years in prison;
LICENSE SUSPENSION: Mandatory minimum 15 year suspension - maximum lifetime suspension.
DUI/OUI VEHICULAR HOMICIDE:
Mandatory minimum 2.5 years in prison - maximum 15 years in prison; lifetime driver's license revocation; substantial fines. (source - Massachusetts DUI Penalties).
Terrible situation.
Vacaville California DUI Patrol
Here is a report for a "saturation patrol" out of Vacaville.
It appears that the DUI patrol actually resulted in many arrests for things other than DUI. Does this mean that the police were running background checks even on people who exhibited no signs or symptoms of alcohol consumption or impairment?
DUI patrol's busy night - The Reporter: "A DUI saturation patrol conducted by the Vacaville Police Department on Friday netted multiple arrests, police said.
They included the arrest of one person on suspicion of DUI and narcotics, another for violation of parole, a third arrest on narcotics charges and a fourth arrest for an individual with outstanding warrants. Four additional arrests were made for driving without a license.
In all, police said, seven vehicles were towed and 30 citations were issued."
DUI saturation patrols are a feel good measure that wastes resourced and does little good for removing DUI drivers from the roads as compared to regular patrols.
Virginia DUI Case Law Update: "Sleepwalking"
Here's a freshly minted Virginia DUI case that denies relief based on a defense of sleepwalking. The case centers around Ambien.
The full opinion is here.
Because the circuit court did not make a factual finding that Riley was sleepwalking at the time of the charged offenses, and because Riley's unconsciousness defense was predicated solely on the assumption that he was in fact sleepwalking, Riley failed to meet his burden to establish his unconsciousness defense. Without that defense, the evidence established merely voluntary intoxication and was otherwise sufficient to sustain his conviction for maiming. We will thus affirm the judgment of the Court of Appeals of Virginia upholding Riley's convictions.
Scratch off one more novel attempted DUI defense as ineffective, at least in Virginia.
Learn more about Virginia DUI Law.
Canada Drunk Driving Consequences
Here's another story about a police officer who got a DUI. This time it occurred in Canada. He was convicted under Canada's version of "DUI by physical control." He was not actually driving at the time he was found, but was passed out in his car.
Even though he wasn't driving, a fellow officer decided to arrest him. Although many officers would have protected him and just made sure he got home safely, this officer treated him like any other person found passed out with vehicle running.
Officer gets 18 months' probation for drunk driving: "A veteran Edmonton police officer convicted of impaired driving was given a conditional discharge and 18 months' probation in provincial court on Friday.
Const. Brian Toner, 50, was convicted in May 2008 of having care and control of a vehicle while impaired.
In February 2006, Toner was found intoxicated and passed out in his parked and running car three blocks from the west division police station. He had been drinking after his shift with some colleagues in the station. He was found by a fellow officer who brought him back to the station and charged him.
According to the conditions of his probation, Toner will have to seek treatment for alcoholism as directed by his probation officer.
He must also abstain from alcohol and provide a breath sample whenever requested by a peace officer.
He also must perform 30 hours of community service and cannot be in bars when off-duty.
If Toner meets the conditions of his probation, he will not have a criminal record. He will also be banned from driving for one year, though he can apply for a breath alcohol ignition interlock device for his vehicle in a few months.
At his sentencing hearing Friday, Toner told the court he has struggled with binge drinking most of his adult life. The drinking got worse in 1990 after he shot a man who attacked him with a knife while he was responding to a call.
Toner attended a 56-day residential treatment program in B.C. after he was charged in 2006 and said he has been sober ever since."
Some states have safe harbor DUI laws, which prevent a person from being charged with a DUI if they move safely off the road before being stopped and attempt to sleep it off or use their vehicle as a shelter.
The question is, is it good public policy to arrest and charge somebody who has pulled over and is passed out in their vehicle?
I vote no. I think it is a horrible idea to prosecute people who try to do the right thing. Doing so encourages people who know the law and realize that they might be impaired to attempt to make it home. Statistically, a high percentage of DUI accidents occur very close to the driver's home.
What do you think? Good idea or not?
DUI homicide bail differences between states
There have been a wide range of bail amounts in DUI related homicides this month. Here's a quote about one in a Florida DUI homicide case:
Judge sets $75,000 bail for suspect in double-fatal DUI: "Randy Archiquette, the suspect in two crashes that killed two women last night, could be free if he posts $75,000 bail.
Hillsborough County Circuit Judge Walter Heinrich set bail for Archiquette, of 12610 Bramfield Drive in Riverview, during his first court appearance this morning.
Archiquette, left, is charged with two counts of DUI manslaughter, one charge of vehicular homicide with leaving the scene, and one charge of vehicular homicide."
Compare that to Rhode Island at $25k and California at $2 million and we can see that DUI homicide bail amounts are all over the map.
Missouri public defenders forced to accept cases
Overworked and underfunded, a Missouri public defense agency decided to stop taking cases to preserve the quality of the work that it was able to handle.
If you are accused of a crime in Missouri, and can't afford to hire a private criminal defense lawyer, you are entitled to a public defender. The catch is that the Missouri public defense system is the second least funded per capita system in the country. While public defenders in most states are overworked, the MO system is an extreme. Here's are quotes from a good article that discusses the ruling:
Appeals court says Missouri public defenders cannot refuse new cases - Kansas City Star: "A Missouri appeals court ruled Tuesday that the state’s public defender system cannot decline to accept new cases because of its caseload crisis.
The opinion, from a three-judge panel in Kansas City, throws out a state regulation that allowed public defender offices to refuse cases until caseloads had declined to a more manageable level.
. . .
Missouri ranks 49th among U.S. states in per-capita spending on indigent defense. Offices in Kansas City and Liberty, which serve Jackson, Clay and Platte counties, have not stopped taking cases."
Here is the entire opinion from the Missouri Court of Appeals.
We'll see what happens at the Missouri Supreme Court level, but at the moment, if I were a public defender in Missouri I would think long and hard about going private. If I were accused of a crime in Missouri, I would not want a public defender, not because they are bad, but an overextended criminal defense attorney is just like a surgeon running on a week of no sleep... might be the best lawyer in the world, but presently lacks the capacity to do everything possible in every situation.
Missouri DUI opinion issued on 4.14.09
On April 14, 2009, the Missouri Court of Appeals filed an opinion in the Missouri DUI case of State v. Richard Allen Edwards.
Mr. Edwards appealed the court's denial of his motion for a judgment of acquittal from his MO DWI arrest.
Defendant’s trial took place on April 25, 2008. The State presented testimony from Ayers. The Defendant chose not to present evidence. Defendant filed motions for judgment of acquittal at the close of the State’s evidence and the close of all evidence, both of which the trial court denied. After the jury instructions were read, and during deliberations, the trial court received a note from the jurors asking, “What is a DUI. What is a DWI. Are they both the same. Is it illega[l] to have a drink and th[e]n drive.” After discussing the questions with the parties, the trial court responded, “You must be guided by your recollection of the evidence and the instructions you have been given. No further instruction may be given.” The jury then returned a verdict of guilty of driving while intoxicated. On May 5, 2008, Defendant filed both a Motion for Judgment of Acquittal and Motion for New Trial. (emphasis added)
Look at the bolded quote above. This is the most common question that I hear asked by jurors in DUI cases. (As an aside, there are many acronyms for impaired driving, and the initials used typically indicate near identical charges from state to state, but some states chose one acronym, while others don't. Missouri happens to use "DWI" most commonly.) Now look at the answer the judge gave, also in bold. This is a variation of the most typical answer to jury questions in DUI cases.
The question is, is it a fair answer. Under Missouri DWI law it is not illegal per se to have alcohol and get behind the wheel of a vehicle.
Let's see what the Missouri Court of Appeals has to say about it.
Here, Defendant fails to adequately brief his third point on appeal. His argument section simply recites the relevant facts, makes a one-sentence conclusory statement, and then briefly argues policy. Glaringly absent from Defendant's argument is any supporting legal authority. We find that Defendant has abandoned this argument, and we decline to review this point on appeal.
Oops, a DUI defendant can't prove a negative. Sorry, appeal denied. Next.
DUI Attorney Randall Longwith seeks change of venue for Adenhart's killer
Randall Longwith, a highly regarded California DUI lawyer who is representing the man accused of killing Nick Adenhart asked for a change of venue. Longwith, regarded as one of Southern California's premier DUI defense lawyers cited the negative publicity the case has received. Longwith is correct in that it will be difficult or impossible to find a jury anywhere in the country, let alone is Southern California, who has not heard about this case. And I hate to say it, but I'd be shocked to hear of one person not related to this young man who does not want to see him get every bit of the 55 years to life that he is facing.
Hit-and-run suspect seeks change of venue | Nick Adenhart | Special Reports | PE.com: "The attorney for the suspect in the vehicle collision that killed Angels pitcher Nick Adenhart and two others said today he plans to see a change of venue for the Orange County murder trial.
Fullerton-based lawyer Randall T. Longwith cited the publicity the case has received in the county, which is home to the Anaheim-based Angels.
The Orange County district attorney said he will oppose such a move.
Bail was set this afternoon at $2 million for Anthony Thomas Gallo, 22, of Riverside.
In seeking the $2 million bail, which is considered about $1 million more than usual for a murder case, the Orange County district attorney's office argued that Gallo had previously disregarded court instructions and had fled from officers at the scene of Thursday's crash. Gallo is accused of being drunk while running a red light at a Fullerton intersection. He has a previous DUI conviction from San Bernardino."
Mr. Longwith will have his hands very full in this case. Gallo's family should rest a little easier knowing that Mr. Longwith is in their corner, but should prepare for the fact that Gallo faces one of the most notorious DUI prosecutions in the history if DUI cases.
Minnesota DWI presumption of innocence
Here's a novel idea. Let's give people accused of the serious crime of DWI the presumption of innocence.
Bill would presume innocence in drunk driving cases | Park Rapids Enterprise | Park Rapids, Minnesota: "If you are arrested for DWI in Minnesota, your license can be suspended or revoked within days of your arrest, even before you go to court on the actual criminal charges. This civil proceeding, the license revocation, is a separate matter, resulting in a maximum suspension of 90 days if your blood-alcohol content exceeds .08 percent.
The intent is to crack down on drunken drivers immediately and get them off the state’s highways.
A bill currently working its way through the Minnesota House of Representatives seeks to restore due process and a presumption of innocence to drivers arrested on suspicion of drunk driving. It would mandate a conviction on the criminal charges before the driver could lose his or her license. Currently, that process typically begins within seven days of the initial arrest.
The House bill, with a companion Senate bill, stands little chance of passing, opponents and political observers say. County attorneys throughout the state have organized a letter-writing campaign to their legislators. Hubbard County Attorney Don Dearstyne sent out several communications, imploring legislators not to take what he calls a drastic step backward in DWI prosecution."
Like the article says, the bill has little chance of passing. But what an idea. Presume somebody who might actually be innocent is innocent unless proven guilty. In America. Come on, pigs don't fly. Or do they?
Nick Adenhart's killer faces three counts of murder
The man who allegedly killed Nick Adenhart and two others in Fullteron has selected top Orange County California DUI lawyer Randall Longwith to represent him.
Law Practice Examiner: Nick Adenhart's alleged killer to be arraigned Monday: "Andrew Gallo, who is accused of three counts of vehicular murder, including Angel's rookie pitcher Nick Adenhart is scheduled to be arraigned Monday in Fullerton, California.
It has been estimated that Gallo's blood alcohol level was approximately three times the legal limit when he killed Adenhart and two others. Police reportedly found him a mile from the scene.
Mr. Gallo is represented by prominent Fullerton DUI Defense Lawyer Randall T. Longwith.
If convicted of all three counts, Gallo faces 55 years to life in prison.
Given the severity of this tragedy, Mr. Longwith will have his hands full dealing with both the legal issues and the court of public opinion.
Under California DUI law, there may be several aggravating factors in this case, including the deaths, the speed and Gallo's prior criminal history."
Gallo is expected to plead not guilty at his arraignment. I will continue to monitor the story as it unfolds.
Fullerton California DUI Homicide
Sometimes it is hard for even a DUI defense lawyer to have any sympathy for somebody accused of a DUI type offense.
Man Charged with Murder & Drunk Driving in MLB Pitcher's Death | Cleveland Leader: "According to the district attorney's office, Gallo was driving a minivan at 65mph in a 35mph zone around 12:35am Thursday in Fullerton, CA. He was on probation and his license had been suspended after a previous DUI charge. Police say he ran a red light and hit the car that Adenhart was in, killing the pitcher, 20-year-old California State University student Courtney Stewart and law student Henry Pearson, 25."
Utah DUI enforcement plan
Utah is starting to coordinate troopers on a state-wide basis to go after drunk drivers. Like many other states, Utah DUI enforcement is being taken more and more seriously.
ksl.com - First-of-its-kind DUI blitz planned for the weekend: "SALT LAKE COUNTY -- In an effort to curb drunk driving in Utah, law enforcement will be out in full force this weekend. The Utah Highway Patrol has coordinated a statewide effort with troopers from nearly every county to ensure that this holiday weekend is fatality free.
'To my knowledge and in my time with the Highway Patrol, we've never tried anything like this before. So hopefully it makes an impact,' UHP's Cameron Roden said.
Troopers say the blitz will start Friday night and last through Sunday.
Friday morning crash on I-15 near 16450 South.
UHP wants drivers to know just how serious they are about driving under the influence. They say this weekend's statewide blitz will prove that.'We're serious about getting drunk drivers off the road,' Roden said. In fact, they're 174 troopers serious.
This weekend's DUI blitz will be the biggest one in its history. But it's not just impaired drivers troopers are looking for; they will also be looking for aggressive drivers, speeders and for those not wearing their seat belts.
'These officers have been trained to spot different things, different indicators. Through somebody's driving, they may see something that catches their eye, and the driver's reaction to the way they are and just key off of that,' Roden said.
He says DUI-related crashes in Utah tend to fluctuate each year. A rollover crash on I-15 Friday morning is the perfect example of what they are trying to prevent.
A man riding in an SUV around 3:30 a.m. says he and his girlfriend were arguing, he tugged on the steering wheel and caused the woman to lose control and the vehicle to roll near 16450 South on Interstate 15.
Troopers say they suspect alcohol was involved because both people inside the SUV smelled of it, and containers of alcohol were found inside the vehicle.
Only the female driver was taken to the hospital. She is expected to be OK.
Law enforcement also believe alcohol played a factor in Thursday's crash in Hooper that sent three people to the hospital and left a family with a huge hole in the side of their house.
The driver of a blue Dodge Ram blew through a stop sign, hitting another vehicle and eventually ended up going airborne into the second-story living room.'We're trying to decrease them [DUI related crashes] regardless, and trying to get these things down. So, hopefully with a big push like this, people will see that were serious about this, and that this is a serious thing, and a serious matter, and hopefully they'll take it serious,' Roden said.
Roden says that the extra staff being used in this statewide blitz will be paid for by federal grants. While this is the first statewide blitz of its kind, it won't be the last. UHP is planning to do one of these every month from now on."
The important thing is to make sure that people are constitutionally protected as these saturation DUI enforcement programs take off across the country.
Criminal Defense Lawyers trapped on case
As often happens in criminal cases, the defense attorneys for Petters have not been paid. Given the complexity of the case, there is a real sense that being forced to remain on the case without pay could ruin the criminal defense attorneys financially.
Here the judge claims that he is worried about delay:
Report: Judge won’t let Petters' legal team quit - Minneapolis / St. Paul Business Journal:: "Although they haven’t been paid for any of the work they’ve done in defending Tom Petters on fraud charges this year, his attorneys will not be allowed to quit the case, the Star Tribune reported Friday.
U.S. District Court Judge Richard Kyle on Thursday informed Petters’ criminal defense attorneys, Jon Hopeman and Paul Engh, that they must continue to represent their client. Hopeman and Engh have said Petters’ defense could cost up to $5 million.
Petters is in jail in Sherburne County awaiting trial for allegedly defrauding investors of up to $3.5 billion. The trial is expected to begin this summer.
The defense team said it’s had to cut back on trial preparations including investigators, other attorneys and expert witnesses because of the impending ‘financial disaster’ it faces.
Kyle said that appointing a new defense team would delay the case.
Felhaber Larson Fenlon & Vogt, the law firm Hopeman works for, was paid more than $500,000 for work done in 2008.
Petters maintains his innocence."
There are many things that delay a criminal case. A lawyer who is not being paid may not do the best job for the client. There is an extreme potential for a conflict of interest. That conflict of interest could open up the real possibility of appeal.
All I can say is I'm glad I don't represent Petters on this one.
Obama taps MADD brass for NHTSA administration
President Obama has chosen a top MADD official to head NHTSA. NHTSA is responsible for much of the DUI regulations, and publishes the standards for field sobriety testing.
The Associated Press: Obama chooses MADD official to lead safety agency: "President Barack Obama has chosen a top official with Mothers Against Drunk Driving to lead a Transportation agency that oversees safety and fuel efficiency requirements for automakers.
Chuck Hurley was nominated Wednesday to become administrator of the National Highway Traffic Safety Administration. Hurley, a longtime safety advocate, has served as MADD's chief executive officer since 2005 and worked for the National Safety Council and the Insurance Institute for Highway Safety.
At MADD, Hurley urged states to adopt tougher drunken driving laws and require first-time offenders to use ignition interlock devices on their cars. The devices require drivers to blow into an instrument that measures alcohol and prevent a vehicle from starting if the driver's blood alcohol concentration exceeds a certain level.
MADD, a nonprofit organization based in Irving, Texas, was founded in 1980 and was instrumental in pushing Congress to set aside federal highway funds for anti-drunken driving efforts and to pass legislation to raise the federal minimum drinking age to 21.
The organization has received funding from several auto companies, including General Motors Corp., Toyota Motor Corp., Ford Motor Co. and others. The General Motors Foundation provided MADD and MADD-related programs with $133,000 in grants in 2007, according to financial records filed with the IRS.
Obama worked with Hurley as a state senator in Illinois to strengthen the state's auto safety laws, the White House said.
Vernon Betkey, chairman of the Governors Highway Safety Association, said Hurley was a 'passionate safety advocate whose career has been dedicated to reducing motor vehicle deaths and injuries.'"
NHTSA has always had an anti-DUI bent, but with Hurley at the helm, it will be interesting to see what changes come down the pike.
Pennsylvania DUI arrests increased in 2008
The number of Pennsylvania DUI arrests increased between 2007 and 2008. The increase is being attributed to a stepped-up enforcement.
LancasterOnline.com:News:DUI arrests in state rise in '08: "If you're planning to drink and drive, beware: There's a good chance you'll be caught.
State police have announced they made a record number of DUI arrests in 2008, nabbing 16,156 motorists who were driving under the influence.
That is a 3 percent increase from 2007, when police arrested 15,654 drivers.
'We've put a bigger focus on enforcement,' said Jack J. Lewis, state police press secretary. 'We don't think drinking and driving has risen. But it's like with speeding. When we put more emphasis on the problem, the numbers of arrests go up.'
DUI arrests include motorists under the influence of drugs as well as alcohol.
In Lancaster County, state police DUI arrests in 2008 totaled an even 600; 441 by troopers operating out of the main barracks in Lancaster, and 159 by those out of Ephrata."
In reality, a very small percentage of people who drive while impaired ever get caught. Smartly increasing enforcement should drive the arrest numbers up in any state, all things being equal.
Tucson DUI Intoxilyzer Source Code Issue Update
Here is an update on the DUI Intoxilyzer source code issues being litigated in Tucson, Arizona.
Ariz. court overturns order on breath-testing code - Forbes.com: "An Arizona appellate court skirted a big-picture issue snagging numerous drunken-driving cases as it issued a narrow ruling that overturned a judge's order requiring prosecutors to obtain a breath-testing machine's computer code and provide it to defense attorneys.
A Tucson-based panel of Court of Appeals judges ruled that Judge Deborah Bernini of Pima County Superior Court shouldn't have issued the order because law enforcement officials did not have the 'source code' for the Intoxilyzer 8000 machine and had no way to get it from the out-of-state manufacturer.
The next step in the case will likely be for defense lawyers to ask Bernini to prohibit use of breath-test results from the Intoxilyzer 8000, defense attorney Joseph P. St. Louis said from Tucson.
Meanwhile, the Court of Appeals' ruling Tuesday leaves a tangle of rulings by Superior Court and municipal judges, some of which prohibit use of the evidence while others that permit it, said Deputy Pima County Attorney Jacob Lines.
'It really depends on which judge you're in front of,' Line said. 'It's sort of been a mess.'
In cases where judges don't allow breath-test results to be used, prosecutors still press many drunken-driving cases by using evidence that includes testimony from police about drivers' performance behind the wheel and in field-sobriety tests, St. Louis said.
The Pima County Attorney's Office drew support in the Court of Appeals case from the Arizona Attorney General's Office and prosecution agencies for jurisdictions that included Phoenix, Tempe, Tucson and Yavapai County.
The Arizona Department of Public Safety has 250 of the Intoxilyzer 8000 machines in use statewide, spokesman Bart Graves said. Municipal police using the machines include departments in Phoenix and Tucson, officials said."
This issue has not gained the kind of traction in the Phoenix area that it has in Tucson.
Supreme Court to clarify Miranda Warnings?
There is a chance that the US Supreme Court will review a Florida case holding the pre-interrogation warnings that the officers gave the suspect were inadequate under Miranda v. Arizona.
What does Miranda require? | SCOTUSblog: "When he was taken by Tampa police to headquarters for questioning, he was given Miranda warnings. Detectives, reading from a standard form, included this warning in their recital: ‘You have a right to talk to a lawyer before answering any of our questions.’ Powell agreed to talk to them, and then provided the incriminating statement. He appealed his conviction, challenging the adequacy of that warning.
The Florida Supreme Court took on the issue, treating it as a matter of ‘great public importance.’ In its ruling, that Court remarked: ‘In this case the warning was misleading. The warning said ‘before answering any questions.’ The ‘before questioning’ warning suggests to a reasonable person in the suspect’s shoes that he or she can only consult with an attorney before questioning; there is nothing in that statement that suggests the attorney can be present during the actual questioning.’ That, it said, is a direct violation of the Supreme Court’s Miranda decision."
(Via SCOTUSBlog.com.)
On the one hand, it would be good to get some clarification on the issue. On the other hand, at least from a criminal defense lawyer's perspective, that SCOTUS hears the case does not bode well for the potential outcome.
Ohio DUI Penalty for 3rd conviction
Can this be right? This dude got his 3rd DUI and is receiving 2 days in jail.
Mansfield Municipal Court: Man sentenced 3rd time for drunk driving | mansfieldnewsjournal.com | Mansfield News Journal: "Marshall C. Dunn, 630 Oak, Lot 93, Mansfield; (third) operating vehicle intoxicated; $900 fine; 180 days in jail; license suspended one year. No operator's license/failure to have proper endorsement; $350 fine; 30 days in jail, 28 suspended."
Under Ohio DUI Law, that was the result.
Now picture the same case under Arizona DUI Law. Can you say felony, with a minimum of 4 months in prison and a 3 year drivers license revocation? That would be the starting point.
I'm sure that there are those who complain that Ohio DUI law is too strict. Here's my suggestion if you fall into that category. "Splash some cold water on your face, open your eyes and take a look around."
Colorado DUI Saga: A senseless tragedy
Here is part of a very long "must read" article about the dangers and real human toll of driving impaired. It is also a good support exhibit for those who argue for stricter DUI penalties.
Reckless record ends in senseless tragedy - The Denver Post: "On the day she was accused of a hit-and-run crash that left two Connecticut librarians dead, Sandra Lee Jacobson had a suspended driver's license, a prior drunken-driving conviction and a blood-alcohol level more than twice the legal limit.
She also easily could have been in jail for repeatedly violating the terms of her probation in a 2006 DUI case."
Minnesota DUI for bus driver on the job
Here's a story about the bus driver in the Minneapolis area who got arrested for a Minnesota DUI. Since driving a bus in Minnesota requires a commercial driver's license, it shouldn't matter whether the person is "on duty" or "off duty" when the DUI occurs. You see, ANY DUI results in a one-year revocation of a commercial driver's license (CDL). A second DUI in a lifetime results in a "lifetime" revocation of the CDL, although there are certain ways around the "lifetime" revocation being forever.
Here's the story:
Off-duty DWI not always end of bus job: "Metro Transit said the DWI arrest last month of a driver in his bus was a first in its history and quickly fired him for 'gross misconduct.'
Yet it's not nearly so rare that Metro Transit drivers are arrested for off-duty drunken driving. Nor does it automatically mean the end of their bus-driving careers.
Since July 2006, 14 off-duty drivers have been charged with DWI, said Bob Gibbons, Metro Transit customer services director. Of those, nine lost their jobs after the state suspended their driver's licenses. Three others were transferred to non-driving jobs within the agency. Two drivers were able to get their licenses reinstated within about 30 days and quickly took the wheel of a bus once again.
Metro Transit puts the burden on drivers to maintain valid commercial driver's licenses and pass regular drug and alcohol tests, rather than taking disciplinary action for any traffic violation. But the March 21 arrest of Alonzo V. Martin in his Route 5 bus has jolted the transit agency into reevaluating its hiring and alcohol-testing practices, including whether it should look back further than three years for traffic violations and DWIs before hiring a driver.
The agency is also planning to get 'more involved, more engaged' when drivers commit traffic violations in their buses, Gibbons said.
'A bus operator arrested while in service has not happened in our history,' he said. 'It's clearly a major safety violation.'
But Michelle Sommers, president of the Amalgamated Transit Union Local 1005, said federal laws already dictate extensive policies of alcohol and drug testing and tougher penalties for traffic violations by commercial drivers. A recent change in federal rules mandates a one-year suspension of a commercial driver's license for a DWI conviction, so she expects few bus drivers in the future will be able to keep their jobs if convicted of drunken driving."
A DUI arrest for a person with a CDL is typically career ending. In this economy there is virtually no chance of keeping a CDL required job in the near future if you get a DUI of any type today.
Minnesota DUI law does not govern licensing in other states. For that reason, a non-Minnesota licensed driver who gets a DUI while passing through MN will probably lose their CDL in their home state if their home state finds out.
Former congressman arrested for a New York DWI
Former Congressman John Sweeney was arrested in Clifton Park New York on charges of a second offense DWI.
Former Congressman Accused of DUI | accused, congressman, dui - Breaking News - WRGB CBS 6 Albany: "Former Republican Congressman John Sweeney of Clifton Park was arrested early Sunday morning for allegedly driving drunk.
According to the Saratoga County District Attorney's Office, Sweeney was speeding on State Route 9 in Clifton Park when State Police stopped him. He refused both breath and blood tests. He appeared on the charges Sunday at 6am in the Clifton Park Town Court. Bail was set at $2,500 cash and $5,000 bond. Mr Sweeney was booked on the charged, and posted bail a short time later.
This is not Sweeney's first run in with the law for DUI.
In 2007, Sweeney pleaded guilty of driving while under the influence. As part of a plea deal, his license was suspended that same December. The deal also required Sweeney to go through a Drinker/Driver program with State Police, pay a serious of fines and attend a victim impact panel.
Seeing that this is Sweeney's second arrest for DUI, Sunday's charge is considered a felony.
D.A. James Murphy said in a press release Sunday, 'We are fortunate that his alleged conduct did not result in death or serious physical injury to himself or anyone else. This case will proceed through the criminal justice system like any other. . .Mr. Sweeney will automatically lose his privilege to drive on the pending charge for one year as mandated by DMV due to the fact that he refused the breath/blood test.'
Sweeney served in Congress from 1999 to 2007. He was defeated in his quest for reelection by now Democratic Senator Kirsten Gillibrand."
Learn more about New York DWI law, and explore New York DWI Penalties.
Immigration consequences of DUI
DUI consequences are still for citizens, but they can be terrible for non-citizens who are not documented.
Chicago Progressive Examiner: The Rigo Padilla story: When is a DUI not just a DUI?: "So Padilla was placed in a lockup along with criminal offenders, and the next day ICE agents came for him and other undocumented detainees. On the way to the ICE detention center downtown, 'the driver kept saying,'your best bet is to request voluntary deportation,'' Padilla said. At the ICE facility he was given the choice of posting another bond or wearing a tracking bracelet on his ankle; he picked the latter, and by that point the DUI was no longer an issue. His next court appearance would be a deportation hearing. "
You decide: Should somebody who is not licensed to drive and not in the country legally who choses to drive while impaired be treated the same as a licensed driver who is a US citizen or in the country legally and does the same thing?
Utah DUI Checkpoints for April 2009
Here's an article listing planned DUI checkpoints in Utah for April 2009.
DUI checkpoints set for Utah County - Salt Lake Tribune: "As the summer recreation season begins, the Utah County Sheriff's Office has planned two sobriety checkpoints beginning April 9. The checkpoints will be located on State Road 6 at milepost 147, west of Elberta, Utah County Sheriff's Sgt. Wayne Keith said. The first will begin at 2 p.m. on April 9 and continue until 2 a.m. April 10. The second will begin at 2 p.m. April 10 and continue until 2 a.m. April 11."
Learn more about Utah DUI Law and DUI checkpoints.
Washington State DUI Law: Tri-cities vs. Seattle
Interesting factoids about Washington State DUI law. So Seattle gets 19 DUI arrests a night. Tri-cities gets 9-10 arrests per night. Population-wise that is a staggering statistic.
KNDO/KNDU Tri-Cities, Yakima, WA | DUI Bus Back in the Tri-Cities: "KENNEWICK, Wash-- The Mobile Impaired Driving Unit is run through State Patrol and it's designed to assist officers throughout the entire state. But in the last three months, it has come to the Tri-Cities three times.
Here's how it works: individual police units can request the bus, or if there's a big event, like the Water Follies, it will likely be here. But with no big events in 2009 so far, why has the bus come to the Tri-Cities multiple times?
One sergeant with the Washington State Patrol says drivers in our area too frequently gets behind the wheel drunk.
'If you're asking me if it's needed over here, of course it is,' says Sergeant Zach Elmore of the Washington State Patrol. 'Do we have a DUI problem? Yea, we really do. For us to get 9 or 10 in a night compared to Seattle, where they get 19 in a night. That kind of bothers me.'
The bus will help cut down the time it takes to process a DUI by up to an hour. It'll be in the Tri-Cities Friday and Saturday night. "
Learn more about Washington State DUI law.
Mobile web use caused fatal accident: Woman gets 6 years in prison
There are certain things that impair a person's ability to safely drive as much as alcohol or drugs. Using a cell phone is one them. Putting on makeup is another. Being extremely tired is another.
Below is an article describing a woman in California who was sentenced to six years in prison for killing another person because her multitasking (paying bills on her cell phone while speeding) was more important to her than the lives that she was putting in danger.
Calif woman gets 6 years for fatal texting crash: "REDDING, Calif. – A woman who crashed into a line of stopped vehicles while text-messaging on her cell phone has been sentenced to six years in a California prison for killing a woman in one of the vehicles.
Deborah Matis-Engle was sentenced Friday by a judge in Redding, Calif.
Investigators said Deborah Matis-Engle was speeding and text messaging when she slammed into the vehicles stopped at a construction zone in August 2007.
Shasta County prosecutor Stephanie Bridgett said the 49-year-old woman had paid several bills by cell phone in the moments before the crash.
She was in the middle of one of those transactions when she struck a vehicle that burst into flames, killing 46-year-old Petra Winn.
Defense attorney Jeffrey Stotter said he will appeal."
If instead of using her cell phone, she was drunk or on drugs, nobody would have a problem with a six year sentence. In fact, most people would think it was way too lenient.
This woman is just as bad as any drunk driver. Just as most drunk drivers don't intend to kill somebody, I'm sure she didn't either. But she did intend her actions, and should have been able to foresee the potential consequences, just as a person who chooses to drink and then drive should know the risks.
I'm a defense attorney, so this position will not be a popular one amongst my peers, but I'll say it anyways. This woman deserves every bit of six years, if not more. She needs to serve as an example to millions of others who are doing the same thing as her on the roads every day.
If we enforce DUI laws and abhor the decision to drink and drive, we must treat equally dangerous and negligent actions while driving equally. While I feel sorry for her to have to spend six years of her life behind bars, she did kill another human being because she was too self-involved to care about other people.
Pennsylvania DUI arrests: What these people have in common
Here's a list of some unfortunate people who happened to get arrested for a Pennsylvania DUI and have their names published in the below-referenced publication. Look through each of these names and the blurbs describing their arrest, and see if you can pick out a common theme.
The question is: What do each of the people named in the quote below have in common (besides obviously being arrested for impaired driving)?
Hilltown DUI log - The ReporterNews: Serving North Penn, Indian Valley and neighboring communities: "The following people recently were arrested and charged with driving under the influence of alcohol or a controlled substance. In Pennsylvania, you are considered legally drunk if your blood-alcohol content is 0.08 p
JAN. 1: HILLTOWN TOWNSHIP — John Vandevander, 42, of the 100 block of Spruce Lane, Perkasie, was charged with DUI after he was stopped for erratic driving on Bethlehem pIke in the area of Keystone Drive, police said.
JAN. 24: HILLTOWN TOWNSHIP — Lydia A. Smith, 27, of the 700 block of Jefferson Street, Red Hill, was charged with DUI after police investigated a traffic accident in the 1100 block of Church Road, police said.
JAN. 28: HILLTOWN TOWNSHIP — David DeCarme, 38, of the 300 block of Cambridge Circle, Harleysville, was charged with DUI after he was stopped on Bethlehem Pike in the area of Hilltown Pike by an officer who was familiar with DeCarme and knew his license was suspended, police said.
FEB. 14: HILTTOWN TOWSHIP — Atem Angok, 22, of the 800 block of Poplar Street, Perkasie, was charged with DUI and hit and run after police were called to the area of Route 309 and Route 113 for the report of a hit and run, police said.
FEB. 15: HILLTOWN TOWNSHIP — Taressa Mattix, 27, of the 5700 block of Old Easton Road, Plumsteadville, was charged with DUI after her vehicle was stopped for erratic driving, police said.
FEB. 25: HILTTOWN TOWSHIP — Douglas S. Luber, 18, of the of the 4300 block of South Park Road in Ottsville was charged with DUI after police stopped his car for moving violations on Route 113 in the area of Keystone Drive , police said.
FEB. 27: HILTTOWN TOWSHIP — Kenneth F. Baker, 40, of the 2300 block of Charles Lane in Jamsion was charged with DUI after police stopped his car for a vehicle equipment violation on Route 113 at Route 152, police said.
MARCH 1: HILTTOWN TOWSHIP — Jennifer R. McCray, 30, of the 500 block of Washington Street in Royersford was charged with DUI after police were called to the Hilltown Crossing Shopping Center for the report of a female slumped over the steering wheel of a vehicle, police said.
MARCH 21: HILLTOWN TOWNSHIP — Brian Hastings, 29, of the 200 block of Hampshire Drive, Perkasie, was charge with DUI after police investigated a report of a vehicle driving with a flat tire on Hilltown Pike in the area of Diamond Street, police said."
The answer: Each and every person named above is innocent unless proven guilty in criminal court. Reporters, judges and prosecutors sometimes forget that the presumption of innocence applies to drunk driving cases. It is good the check ourselves and remember this from time to time.
Minnesota DWI ignition interlock devices
Here is an interesting article about ignition interlock devices in Minnesota DUI cases.
DWI device can prevent motorists from driving drunk | Duluth News Tribune | Duluth, Minnesota: "A Twin Cities area defense attorney/businessman was in Duluth Friday to show how a potentially deadly weapon can be taken out of the hands of the intoxicated.
Attorney Edward Cohen Jr., vice president of Smart Start MN of Golden Valley, demonstrated his company’s ‘vehicle ignition interlock’ to a group of corrections officials, a representative of Mothers Against Drunk Driving and others who work with convicted drunken drivers.
The breath-testing device prevents a car from starting if it registers above a pre-set alcohol level when the driver blows and hums into a sensing unit. The technology has become more sophisticated and harder to beat than other ignition locks. It includes a camera to make sure the person who is required to use it is the person blowing into it, and not a sober buddy recruited to try to beat the system.
The device also requires a driver to do ‘rolling tests’’ at random intervals to make sure the driver doesn’t start drinking after getting the car started. The unit will record a violation if alcohol is detected or if the driver doesn’t perform the rolling test.
‘When you’re working in any type of corrections or with people in recovery, the more tools you have in the tool box the better chance you have to help people be successful,’’ said Dennis Cummings, director of the Duluth Bethel Center, which provides chemical dependency services."
Many DUI defense lawyers rant and rail against ignition interlock devices as being invasive and reactionary. However, I have personally seen repeat offenses where the person got a first DUI, and then didn't get an interlock device, and then got another DUI shortly thereafter. I have actually had clients tell me they wished that they had been required to install one on their vehicle after their first DUI conviction, as it would have prevented their second. Now, Arizona DUI law mandates that everybody convicted of a DUI get one for a year. I have seen people get second offense DUI arrests literally days after fulfilling their ignition interlock requirement and having the device removed.
Ignition interlock devices are bad for business if you are a DUI defense lawyer, unless or course, you also happen to own an interlock company. But I don't disagree with MADD on this one. The fact is, ignition interlock devices prevent people from easily getting DUIs, and probably save lives.
Idaho DUI opinion grants officers permission to enter residence
An unpublished Idaho DUI opinion issued by the Court of Appeals of Idaho on March 2, 2009 reversed the lower courts finding that officers following a DUI suspect into her residence was illegal without a warrant.
Here's why the court found that the police had probable cause to arrest for DUI prior to the defendant entering her house:
In this case, Deputy McFarland clearly had probable cause to arrest Finnicum for DUI before she retreated into the house. Finnicum’s son had informed him that Finnicum had been drinking all day, was highly intoxicated, and had recently driven away. About half an hour later, Deputy McFarland saw Finnicum driving on the adjacent public road and flagged her down. He then made observations that tended to confirm the report that she was intoxicated--she smelled strongly of alcohol, slurred her speech, had glassy and bloodshot eyes, and seemed confused. When Deputy Vrevich arrived, he noticed that Finnicum seemed unable to walk in a straight line. Collectively, this information amply provided probable cause for Finnicum’s arrest for DUI, and McFarland was authorized by state law to make a misdemeanor arrest without a warrant because the offense was committed in his presence. See I.C. § 19-603(1). Deputy McFarland not only possessed probable cause before he entered the residence, but he had already taken steps toward an arrest, notifying Finnicum that he suspected her of DUI and ordering her to stay by her vehicle while he finished interviewing her son. Although Finnicum initially complied, she ultimately disregarded this order and went into her residence.
The result of this case is predictable. Thinking about it logically, if the entry by police into the house under these circumstances was deemed unconstitutional, then anybody being pursued by police for an Idaho DUI would be on notice that if they could make it inside their residence before the police caught up to them, they would be safe from arrest (and then, of course, could quickly consume alcohol at home to further blur the issue).
I hate to say it, but I think the Court got this one right.
Minnesota DUI Intoxilyzer source code case: This ought to make you angry
On March 31, 2009 the Court of Appeals of Minnesota issued an "unpublished" opinion about a Minnesota DUI case involving the much sought after source code for the Intoxilyzer breath test machine. Astonishingly, the Court reversed the lower court's order compelling the disclosure of the source code under threat of suppression of the breath test results.
THIS IS A TERRIBLE OPINION AND SHOULD SHOCK YOU UNLESS YOU ARE USED TO "INJUSTICE AS USUAL"Quick fact summary by the Minnesota Court of Appeals:
The district court granted respondent’s request for discovery of the source code, finding it “relevant and necessary for [respondent’s] defense.” The district court specifically ordered the state to “provide the full source code to [respondent] within 30 days of the filing of this order,” and stated that “[i]f the source code is not produced within 30 days of the filing of this order, the Intoxilyzer test result shall be suppressed.”
Here is the (pardon my judicial criticism) but stupid logic that is used by the court, and is used in many cases to justify admission of unreliable evidence in DWI prosecutions:
The state argues that the district court’s discovery order has a critical impact on its case because if the Intoxilyzer results are suppressed, the state will be unable to prosecute respondent for second-degree DWI over .08 alcohol concentration. We agree. While the state may still prosecute respondent on the DWI charge based on the officers’ observations, this court has held that a critical impact is shown when evidence essential to prove some, but not all, criminal counts is suppressed. See State v. Grohoski, 390 N.W.2d 348, 352 (Minn. App. 1986) (holding that the critical-impact test is met when, without the chemical-test evidence, four of six charges would be dismissed), review denied (Minn. Aug. 27, 1986). Suppression of the Intoxilyzer result in this case, as required by the district court’s discovery order, has a critical impact on the state’s ability to prosecute respondent.
So essentially, their legal reasoning is that they can't compel the source code because they know that the company that makes the Intoxilyzer, CMI, will not give the code up. Therefore, even though the breath test evidence might be unreliable, they are going to allow the state and CMI to get away with it because to do otherwise hurts the state's case!
If you care about justice and this doesn't make you angry, check your pulse. Did these judges actually go to law school?
It gets better:
The state argues that respondent has not demonstrated that the source code has any specific relevance to his guilt or innocence. Specifically, the state contends respondent has not presented evidence raising a question as to the accuracy of the test in his case and has not shown that the Intoxilyzer malfunctioned or that the result was unreliable as to him. The state further argues that “[r]espondent failed to explain to the District Court how the source code could demonstrate some flaw in the software of the instrument or its operation.” (emphasis added)
So this court wants the defense to produce evidence that there is something wrong with the code from the machine in order to compel disclosure of the code. How could they possibly show there was something wrong with it without having a chance to examine it?
With the judicial clarity that this ruling shows on the part of these judges, perhaps they would rule that a psychic's assessment that the test was incorrect would suffice? What the heck are they looking for?
Here's the take home message. If you are accused of DUI in Minnesota, your battle is uphill, with the wind blowing in your face and little monkeys in black robes trying to steal your clothes and pickpocket you as you try to move forward.
Learn more about Minnesota DWI law, and find a Minnesota DWI lawyer.
Louisiana DWI suspect beat by police
Warning: This video is disturbing.
Could this treatment be justified?
California DUI case: Justice or good old boys network?
Here's a riddle.
Is justice the same when a prosecutor is a defendant as it is when a DUI prosecutor is just a prosecutor?
According the the DA in the story below, the reckless driving deal that this Nevada prosecutor took after his California DUI arrest was just business as usual, the same deal would be offered to anybody else.
Now before we DUI defense lawyers get our panties all up in a bunch, let's consider what we do every time we negotiate a case for one of our clients with a prosecutor. More on that later. First the article, quoted in full:
Calif. Prosecutor Drops DUI Charges Against Nevada Prosecutor | NBC Los Angeles: "A Nevada prosecutor pleads guilty to reckless driving and won't be prosecuted for DUI in connection with two crashes in a six-hour span, according to the Las Vegas Review-Journal.
Nye County District Attorney Bob Beckett crashed two cars within six hours on the same stretch of California highway in June 2008. He failed an alcohol breath test at the scene of the second crash.
In September, Beckett pleaded not guilty to DUI charges.
But he changed his plea after the DUI charges were dropped, pleading guilty instead to reckless driving. As part of the plea, he is also required to complete a class on alcohol and automobiles.
Beckett will not be prosecuted for drunken driving under the plea deal entered in Barstow, Calif., Superior Court on Friday.
In the first crash, which happened early afternoon, Beckett totaled the county-issued SUV he was driving on California Route 127, south of Shoshone, Calif. No other vehicles were involved.
After riding home in a tow truck, Beckett went out to the same highway in his own van, crashing six hours later.
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After failing a breath test for alcohol at the scene, Beckett was arrested, taken to Baker, Calif., and released into the custody of a friend, according to LVRJ.com.
San Bernardino County deputy district attorney Joel Buckingham said the plea agreement was not out of the ordinary and Beckett did not get any special consideration."
Now, back to what DUI defense lawyers do when they plea bargain a case.
1. First we present the facts and explain to the prosecutor why they favor our client.
2. If the facts don't favor our clients, then we present our legal theories.
3. If our legal theories are no good, then we present our client as a human being. We bring out the good. We hide or minimize the bad. "This client is an upstanding citizen, a doctor," we say. "This client just got home from Iraq where he took two bullets and rescued 5 babies from certain doom." We sell our clients value to society, and we emphasize that their behavior is more negligent than criminal, that they are guilty perhaps, but never condemnable.
4. If none of the above work, then some of us beg. Some of us whine. Some of us threaten litigation, and some of us vow to rid the planet of several trees as we explain to the judge in many motions what is wrong with the case.
For us DUI defense lawyers, if any of the above tactics work, then we are successful. It really does not matter how we got there if we got the client a good result, as long as we didn't violate the ethical rules.
So, for defense attorneys who are inclined to say that this is favoritism and not justice, think of the example it sets. Now, for California DUI lawyers practicing in San Bernardino County, they can cite this example.
This was a good result for a California DUI defendant who just happened to be a prosecutor. I congratulate him and hope that he has the good sense to learn from this not just one, but at least two lessons:
Lesson 1: Don't drive drunk. Pretty basic, huh?
Lesson 2: Perhaps this ordeal will cause him to approach people he prosecutes with greater compassion, and approach justice with a people based perspective. Perhaps he will set a tone for younger prosecutors in his office to follow.
Perhaps.
Ryan Moats incident officer Powell resigns
This is golden. Ofc. Powell of the Ryan Moats incident fame has resigned.
It was the right thing to do under the circumstances, given the negative publicity it has drawn to the Dallas PD.
Look at the quote below and read the statement issued by his lawyer, then see if you agree with my assessment below:
Cop who stopped NFL player in hospital lot resigns - NFL - Yahoo! Sports: "The police officer who pulled out his gun and threatened an NFL player with jail instead of allowing him inside a hospital where his mother-in-law was dying resigned Wednesday.
Officer Robert Powell had been placed on paid leave pending an investigation of the March 18 incident.
‘I made this decision in the hope that my resignation will allow the Dallas Police Department, my fellow officers and the citizens of Dallas to better reflect on this experience, learn from the mistakes made, and move forward,’ Powell said in a statement issued through his attorneys."
It will give everybody else other than him time to reflect and learn from his mistakes. Good that he's taking responsibility and learning himself.
Do closed circuit court appearances prejudice defendants?
Have you ever watched "video court" in the judge's courtroom where he or she is staring at a computer screen or television and making decisions about defendants' lives? I have, and my perception is that the judges take less time with each defendant, and are less likely to view them as human and act with compassion. Here's one judge's take on the subject:
The Columbus Dispatch : Video blunts impact, judges say: "The woman's blank stare worried Union County Common Pleas Judge Don Fraser.
He was about to send her to prison for a fairly long time on a probation violation, yet she showed no emotion. He wondered whether her distance made the difference. She was participating in the proceedings via video link between the county jail and Fraser's courtroom, about 16 miles away.
'I found myself wondering if, maybe, that young woman shouldn't be here looking me in the eye,' the judge recalled. 'At that moment, it struck me as so impersonal that I made up my mind I wasn't going to do it anymore.'
And as quick as that, the man who took over the bench in February after longtime Judge Richard Parrott retired ended the practice of video hearings that Parrott had long embraced.
Fraser said he will continue to use the video hookups that allow prisoners to stay at the Multi-County Jail for their initial appearance because arraignments are routine, with little room for conversation.
For everything else, he has decided he wants to see the defendant in person.
As technology advances, budgets for transporting prisoners shrink and courtroom security draws greater scrutiny, the potential of remote hearings is debated more often.
The Franklin County Common Pleas Court has considered the practice for years but still doesn't use it. Some of the judges are wild about the idea while others hate it, said Judge John P. Bessey, who led a committee that studied the possibility of such a system.
Bessey said that, like Fraser, he would never use a video system for matters other than an arraignment, but it makes perfect sense in those initial appearances.
At arraignments, the judge takes care of routine matters, such as setting bail and inquiring about a lawyer. Bessey said he timed an arraignment once and it took 90 seconds.
There is little reason, then, that the sheriff and the court should have to pay for and deal with the security issues that surround the shackling of 20 or 25 inmates at a time each day and herding them to a courtroom, he said.
He hopes Franklin County will embrace a video system once the new courthouse opens, if not sooner."
If budget is the main concern (not security), and efficiency rules the day, then we have truly lost our way as a nation of justice. If you are accused of a crime you are entitled to YOUR DAY IN COURT. That should mean something, right? After all, it is not "you are entitled to a quick Skype chat with some dude in a black robe who has the power to remotely sentence you to jail.
Strange Ohio DUI Case: Ohio OVI on Barstool
This one takes the cake for creativity. Near Columbus, Ohio, a man decided to turn a barstool into a motorized vehicle and, of course, drive it after drinking (when else would one attempt to drive a barstool?). Here's part of the story:
The Columbus Dispatch : DUI charge is filed, but man never left bar stool: "Gerrit Konink was sitting in his living room around dinnertime earlier this month when he heard somebody down the street fire up what he thought was a lawnmower.
He figured one of his neighbors was getting a jump on his yard work.
Instead, it was someone jumping on a motorized bar stool.
From his window, the 66-year-old Konink then saw something buzz down Kelley Lane in Newark.
'I knew it was something strange, and then it was gone,' he said. 'It was too fast.'
Newark police say that Konink saw a neighbor riding a motorized bar stool shortly before the man wrecked while trying to make a U-turn.
Police say that Kile Wygle, 28, had one too many before wheeling his homemade oddity around the neighborhood on March 4.
Wygle was charged with driving the bar stool while under the influence of alcohol and driving while under suspension. He has pleaded not guilty to the charges and asked for a jury trial. No court date has been set.
According to a report by Officer Michael Trotter, Wygle told him that his bar stool can reach a speed of 38 mph but that he was traveling only about 20 mph when he wrecked.
At Licking Memorial Hospital, where Wygle was treated for minor injuries, he chuckled about his bar stool. Wygle told Trotter that he'd had about 15 beers before the wreck. The man refused to take a blood-alcohol test.
When Trotter informed Wygle that he was investigating a traffic crash, Wygle reportedly replied that he wasn't driving a vehicle -- he was driving a bar stool."
This guy's lucky he ended up on this website rather than the Darwin awards. He should put that creativity into something useful to society, like curing a disease or the country's economic problems.
Pregnant woman arrested for Indiana DUI
It is hard not to be sympathetic towards pregnant women, but this one really stretches the imagination of even the most forgiving amongst us. If the allegations turn out to be true, and she was above the legal driving limit while near full-term, she is not only breaking Indiana DUI law, she is also flirting with child-abuse.
Some states charge child abuse for having a child in the car when DUI. This, one could argue, is even worse because not only did she put the child's life in danger by the drinking and driving, she also developmentally jeopardized the baby by drinking in the first place.
Pregnant woman charged with drunk driving | IndyStar.com | The Indianapolis Star: "An eight-months pregnant Fort Wayne woman was arrested early Saturday morning for drinking and driving, her second such arrest in 2009, state police said in a news release today.
Originally stopped for driving without head- or taillights around 4 a.m. Saturday morning, Molly E. Gram, 21, had a ‘strong odor of alcohol, bloodshot eyes and slurred speech,’ said Sgt. Ron Galaviz of the Indiana State Police’s Fort Wayne District.
‘After Trooper (Caleb) Anderson asked her to exit her vehicle, he promptly realized she was pretty far along (in her pregnancy),’ Galaviz said. ‘Gram also confirmed she was eight months pregnant.’
Gram failed several field sobriety tests and a portable breath test, but Galaviz said he only knew she tested above 0.08, the legal limit in Indiana. She later refused a chemical alcohol test for intoxication. Galaviz didn’t know where or why Gram had allegedly been drinking that evening."
I'm a DUI defense lawyer, but this would be a hard one to defend.
Ryan Moats Video - this is disgusting
Here's the video clip of the Ryan Moats traffic stop from CNN.
Truly disgusting police behavior.
Georgia DUI News: House struck by high BAC driver in Rome
There are people who are barely able to stand and function at the legal limit of 0.080. Then there are people who are highly functional at twice that. Here is some news from a Georgia DUI case about a man who was four times the legal limit at the time he hit a car and a house.
Rome News - Tribune: "A Rome man is in jail today, charged with ramming into a parked car and a house on his way home Sunday night.
According to Floyd County Jail records:
Pedro Coj Ruiz, 37, of 812 Darlington Way, was arrested late Sunday and charged with DUI, driving without a license and striking an unattended vehicle.
Police said Ruiz was driving a 2009 red Ford Aerostar on East Ninth Street about 8 p.m. when he sideswiped a 1993 Jeep Cherokee and continued onto Maple Avenue.
A witness provided a license number and officers contacted 911 for the address.
Upon arriving at Ruiz’s Darlington Way home, police found him leaning up against his van, talking to a neighbor whose house he had just hit as he pulled into the drive.
Ruiz reportedly smelled of alcohol and was ‘unstable,’ so an officer helped him sit in his van while he was questioned. A field sobriety test was not conducted because he was unable to stand on his own.
A breath alcohol test given to him at the station registered results of .342 and .324. The legal limit is .08 for drivers in Georgia."
Most jurisdictions now punish very high BAC drivers more severely than they do low level drivers. I question whether this is right or not. Since you or I may be just as impaired at a .120 as Mr. Ruiz from the article was a .324, would you or I be any less of a danger to ourselves and others? I think not.
Now, if I'm at the same level of impairment at a .120 as Mr. Ruiz is at a .324, who do you think needs help more? I vote for Mr. Ruiz because you have to have a serious alcohol tolerance and probably a serious alcohol problem to be able to get that high. Should we punish him more because of his problem. I argue that we shouldn't, as long as he agrees to get help. Getting Mr. Ruiz help is the only thing that will ultimately make society and Mr. Ruiz safe.
Could Ryan Moats have been shot?
The quoted blog post below poses a simple question. I think everybody knows that an officer as monumentally "challenged" as Powell might well have shot Moats. He exhibited the sense of a half-wit in a lynch mob. But the questions go deeper:
Had Ryan Moats Lost His Cool: "To call Police Officer Robert Powell the poster-boy for the abuse of petty power by a fool with a gun is easy. Even his chief is disgusted by his monumental indiscretion. So do we applaud Moats for having kept his cool, having stopped and obeyed rather than ignored Powell and tried to go inside to his mother-in-law's bedside? Was his choice, missing the one opportunity to say good-bye to a dying woman, the right one given the possibility that Powell would have been so very upset at not being shown the obsequience due him that he would have physically subdued, perhaps even shot, Ryan Moats?"
(Via Simple Justice.)
I think most people who have followed this story wonder:
If Powell will be fired? And if not, why the hell not? Somebody who is capable of doing what he did is not fit to carry a badge and gun, and I'm sure most police officers would agree. He is the type of cop that gives other officers a bad name. Most officers are good and decent people. And then there are the guys like this.
If he will not be fired, what will be done to "rehabilitate" or educate the young man to make sure that he has the tools to keep his ego in check and exercise appropriate discretion on the job.
If he is allowed to stay on the job, when he really hurts somebody, will the police department that knowingly employs him after the Moats incident be any more liable?
Study shows hints as to why alcohol is addicting
The country as a whole treats people with drinking problems as second class citizens. Addiction to alcohol is typically hidden until it no longer can be. When it comes to DUI arrests, it is easier to criminalize both the act and the individual rather than looking at the physiology behind the cause of the "crime." Here's a new study that looks at more than the dangers of drinking and driving, and delves into the potential reason why people so easily develop alcohol addictions.
Light Alcohol Consumption Linked to β-Endorphin Release - Findings in rodents' midbrain area suggest role in ethanol reward and reinforcement - Modern Medicine: "Low to medium doses of ethanol -- 1.2, 1.6 and 2.0 grams -- led to a significant increase in dialysate content of β-endorphin compared to the saline group, but the 2.4-gram dose did not, the authors write.
'The current investigation demonstrated that at the level of midbrain/VTA systemic administration of ethanol mainly altered the release of β-endorphin in a dose-dependent manner with low to medium, but not high, doses of ethanol increasing β-endorphin release. This ethanol induced increase of β-endorphin release in the midbrain/VTA region may play a significant role in the ethanol-induced stimulation of the mesolimbic dopaminergic system and the initiation of the processes of ethanol reward and reinforcement,' the authors conclude."
The act of drinking may be explainable in terms of chemistry as much as it is in terms of consciousness or will-power. I have long advocated a more treatment oriented approach (as opposed to a punish at all costs approach) to dealing with impaired driving. Emotions never win this argument, as everybody has a visceral reaction that demands a pound of flesh from those who hurt people by driving drunk, and also from those who might have but for the grace of god.
It is always encouraging to see science looking at the issue from an objective perspective.
More than two percent of Virginia in Jail or on probation
This is amazing. One in every 46 adults in Virginia is on probation or in jail. This is a staggering number.
Webb calls for criminal justice review | Richmond Times-Dispatch: "Sen. Jim Webb, D-Va., wants Congress to find ways to cut the prison population -- a sharply divisive issue that has shaped his home state's politics for more than a decade.
Backed by the White House and key Senate Republicans, Webb yesterday called for a national commission to conduct a 1½-year review of the criminal-justice system.
Webb, who has been speaking out on prison issues for the past year, said the bipartisan panel should examine crime control, sentencing, and ways to ease the return of felons to society after completing their penalties.
Webb said incarceration, in particular, is raising concerns at all levels of government because of the exploding cost of jail construction and housing inmates who may be unprepared for life outside prison.
'It's a very emotional issue,' he said in a speech. 'We have a mess here . . . and we have to have a holistic approach to solve it.'
The U.S. has the world's highest incarceration rate, with nearly 2.4 million people behind bars. An additional 5 million are on probation or parole.
One in every 46 adult Virginians is in prison or jail or on probation or parole -- more than double the 1 in 108 in 1982."
With 2.4 million adults in jail and 5 million more on probation in the United States, I think Mr. Webb is on to something.
Wisconsin DUI ignition interlock device video
Here is a video about Wisconsin DUI cases and ignition interlock devices.
Ignition interlock devices are the cause of the day for states that don't already have them. We are monitoring as more states debate requiring them for first offense DUI convictions.
What do you think... should interlock devices be required for all DUI cases?
Dallas police officer who detained Moates
Officer who detained Moats shouldn't see the streets again - Shutdown Corne... - NFL - Yahoo! Sports: "Should the guy be fired? As always, opinions vary. Some say yes, some say no. Maybe it's punishment enough that the guy's going to have to live with the fact that he denied a man the ability to hold a loved one's hand as she passed away. But for that to qualify as punishment, the officer would have to have some sense of human compassion, and maybe I missed it, but I see absolutely no sign of that in the video."
West Palm Beach Florida DUI
Here's another police officer arrested for DUI. This one was in West Palm Beach, Florida.
Fox29 WFLX TV, West Palm Beach, Florida-Video Shows Deputy Arrested for DUI: "West Palm Beach, FL (WFLX)
He's sworn to uphold the law, now he's accused of breaking it.
An off-duty sheriff's deputy crashes his squad car into a palm tree, and is arrested for DUI.
Dash cam video from the night of February 6th shows Palm Beach County Sheriff's deputy Christopher Grube trying to pass several roadside sobriety tests after crashing his marked patrol car on 45th street in West Palm Beach.
The arresting officer said Deputy Grube had bloodshot eyes, slurred speech, and a strong odor of alcohol on his breath. Grube said he was on his way to Palm Beach International Airport to pick up relatives who were flying into town."
(emphasis added to quote above)... anybody ever see a DUI police report that didn't contain at least one of the following:
1. bloodshot eyes
2. slurred speech
3. odor of alcohol
I didn't think so.
DUI Law Blog Posts Being Stolen
California DUI statistics show Placer County has top conviction rate
Placer County California has an astonishingly high conviction rate. While California DUI cases as a whole have just under an 80 percent conviction rate, according to the article quoted below, Placer County is at nearly 100%.
Placer County: More than 99 percent of DUI arrests end up in convictions | SierraSun.com: "PLACER COUNTY — If you’ve been drinking, you don’t want to get behind the wheel in Placer County.
A recent report from the California Department of Motor Vehicles indicates that the Placer County District Attorney’s Office has the highest conviction rate of drunken or impaired drivers in the state.
Placer’s DUI conviction rate is 99.2 percent. The state average is 79.4 percent.
Only two other counties in California had conviction rates of 90 percent or higher. These included Shasta at 96.9 percent and Santa Barbara at 92 percent.
The statistics are based on DUI arrests made in 2006 and their subsequent prosecutions through the end of the 2007 year.
Placer County’s rating marked the fourth consecutive year in which the county had a DUI conviction record of 90 percent or higher.
Capt. Rick Ward, commander of the California Highway Patrol’s Auburn office, said the No. 1 rating by Placer County came as no surprise to him.
‘I’ve worked up and down the state and I can say that the Placer County District Attorney’s Office is one of the hardest-working agencies toward achieving justice that I’ve seen,’ Ward said. ‘This county lets people know that if you come here and are violating DUI laws, you will be held accountable.’
Steve Dragland, supervising deputy district attorney for Placer County, credited the nearly perfect score to an aggressive approach by his prosecutors and by the local law enforcement agencies that made the DUI arrests.
The Department of Motor Vehicles report shows that Placer County convicted 2,257 motorists on misdemeanor DUI charges and 76 others on felony DUI charges. Another 182 drivers who were arrested on suspicion of drunken driving were eventually convicted of reckless driving."
Now, the questions is why? It would be interesting to know how many of these Placer County California DUI cases actually went to trial, and how many pled out. Could it be that in the smaller counties there are fewer DUI attorneys who are willing to take cases to trial? Is there such a grave threat of extreme penalties if a case goes to trial? Or are prosecutors actually offering better deals than in other California DUI cases?
Notice that in the article it says that two other counties in California, Shasta and Santa Barbara have a DUI conviction rate above 90 percent.
Pennsylvania DUI Ignition Interlock proposal gains steam
Here's another take on the new proposed Pennsylvania ignition interlock device proposal, which would change PA DUI law to mandate the installation of a breath test device on even first offenders' vehicles.
Pa. Lawmakers Weigh DUI Crackdown - Pittsburgh News Story - WTAE Pittsburgh:HARRISBURG -- Pennsylvania lawmakers are considering an increased use of ignition interlocks to help curb the state's drunk drivers.
Ignition interlocks prevent a car from starting if the driver's blood-alcohol level is above the legal limit and are currently used for Pennsylvania DUI offenders with multiple convictions.
The new measure would include first time offenders as well.
On Wednesday, the Pennsylvania House Transportation Committee heard testimony on the pros and cons of using the device on first time offenders.
Opponents argued judges should be granted the discretion to make the decision on a case-to-case basis.
Supporters said most first time offenders are not first time drinkers, and the law should apply to them too.
State police average 15,000 drunk driving arrests per year."
Here is a summary of the current Pennsylvania ignition interlock device law. Changing it would bring it in line with Arizona DUI law and New Mexico DUI Law.
King County Assessor says sorry for Seattle DUI crash
The latest public figure to be arrested for a serious Seattle DUI charge has talked with the media after several months of silence, saying that he is an alcoholic, but that he is functional and can continue to do his job.
There are many functional alcoholics in high-powered positions. The fact is that many he was doing his job well, and for all outward appearances continues to do so. If he's missed stretches of days after the accident, well, that's to be expected. Here's the Seattle Weekly's take on it:
The Daily Weekly - Scott Noble Says He's Sorry, Alcoholic...But What's His Strategy? - Seattle Weekly: "King County Assessor Scott Noble's facing a seemingly unwinnable criminal case (possibly followed by a prison term and a seemingly unwinnable civil case) over his drunk, wrong-way crash on I-5 in January. But he hadn't talked to the media until yesterday, when he gave an interview to King-5 News:
'I want to apologize, but I also want to bring up the fact that I'm an alcoholic, I'm a recovering alcoholic and have been for 20 years.'
Despite that admission, Noble insists that he is fit to continue as King County assessor, an elected office he has held since 1992.
'My disease of alcoholism has not impaired the functioning of this office, nor has it impaired my performance as assessor,' Noble said.
Except he's missed stretches of days, pretty much everyone's asked him to step down, and he'll be out for sure if he gets a felony conviction. Nevertheless, the office has seemingly functioned well, winning several awards.
When faced with similar scenarios, many public figures choose to do damage control by taking a break from their jobs and going into inpatient rehab. So why the Blago impression, and what would it mean for his case? We asked DUI defense attorney Dan Fiorito for his thoughts.
Rehab is pretty much a given, Fiorito says, but 'voluntarily entering treatment could have some play with the judge, could give him some sway with the prosecutor,' though he adds it seemed unlikely to be significant."
As I always say, better to give productive members of society who get a DUI and admit that they have a problem with alcohol or drugs a chance to get help and turn their lives around. It doesn't make sense to deprive the public of a good and willing servant if he is able to do his job.
Under Washington DUI law, he faces potentially stiff penalties. DUI cases should not be about exacting revenge or extracting punishment and pain from the accused. If society's goal is truly to keep people safe from drunk drivers, then a therapy oriented approach is best.
Alabama DUI Attorney now live and updated
Just a quick note to announce that the Alabama DUI Attorney section of duiattorney.com is now live and can.
Many thanks to Lindsay Berman for her hard work and tireless research.
Good field tests and bad Illinois DUI Officer
Here's an example of somebody doing very well on the DUI field sobriety tests. Most police DUI investigations would have stopped after the performance on these tests, but not this one. First watch the video, and then read the blurb below it:
Does video catch cop in lie? :: CHICAGO SUN-TIMES :: Metro & Tri-State: "The video from top DUI cop Joe D. Parker's squad car shows a man walking a straight line, without stumbling or flailing his arms.
When prosecutors viewed this video of Officer Joe D. Parker's July 2008 sobriety test of motorist Raymond L. Bell, they dropped DUI charges.
But Parker, a Chicago Police officer who has won acclaim for being among the leading DUI enforcers in the state, told a different story in his police report.
He wrote that Raymond L. Bell lost his balance and used his arms to steady himself. And he arrested the 33-year-old Oak Lawn man on charges of driving under the influence, speeding and negligent driving.
Now, after reviewing the squad-car video, Cook County prosecutors have dropped the July 2008 charges against Bell.
And they're considering filing criminal charges against the 59-year-old Parker, who is one of three Chicago cops whose prolific DUI-busting has now come under scrutiny. Dozens of DUI arrests by Parker alone are under review, sources say.
'There is an ongoing investigation, but we are not going to comment in further detail,' said Sally Daly, spokeswoman for Cook County State's Attorney Anita Alvarez.
Prosecutors have charged one of those cops -- Officer John Haleas -- with trumping up a DUI case. A review of his DUI arrests led to 156 cases being dismissed, Daly said."
That pretty much says it all about what to expect from some police officers in Illinois DUI cases.
Tragic Alaska DUI case set for trial
This is the tragic case of a young woman who has ruined many lives because of her use of alcohol. While not even old enough to legally drink, she had already amassed a history of underage alcohol violations before she got behind the wheel of a vehicle and killed a child.
newsminer.com • Trial set for Fairbanks driver accused of running over boy while driving drunk: "Jessica Paul, 21, faces charges of manslaughter, first-degree assault, driving under the influence of alcohol, minor operating a vehicle after consuming and habitual minor consuming alcohol.
If convicted on all charges, she could spend decades in jail.
Paul attended a brief trial date setting conference Tuesday afternoon with her attorney, public defender Jennifer Hite, though Paul did not speak during the brief hearing.
Superior Court Judge Paul Lyle set the trial to begin May 19. Paul previously was set to go to trial in January and April, but those dates were postponed as attorneys file motions and gather evidence. The trial is expected to last nearly two weeks.
Authorities say Paul struck and killed 4-year-old Phillip Lara in August as Lara rode a Big Wheel tricycle just two doors down from his Slater Drive home."
Not many people can muster sympathy for somebody who kills a child, especially when the death is as senseless as in this case.
Everybody can picture an innocent 4 year old boy riding a big-wheel in the neighborhood.
The fact is though that a vast majority of young adults in their late teens and early twenties who get DUIs have a history of drinking, and a good percentage of them have a history of prior minor alcohol violations.
The girl in this story, sitting in jail with a $100,000 bail and facing decades in prison could be any kid who gets behind the wheel after drinking. She is no more evil than thousands of other young people across the nation who have done the same thing, except for one major difference. Most were lucky enough not to have killed themselves or another person.
So here, Ms. Paul, when she faces an Alaska jury in May, will probably pay the price both for her actions and because she is an example of why underaged people are not legally allowed to drink alcohol, and why Alaska DUI law, and drunk driving laws across the nation, are so punitive and strict.
Are DUI cases treated differently by judges?
The article quoted below is a must read for anybody under the impression that DUI cases are treated the same as any other type of criminal case. Amongst DUI defense lawyers, there is a common understanding that there are certain "constitutional exceptions" that remove liberties from DUI defendants that are enjoyed, and even take for granted by others classes of accused criminals, including rapists and murderers.
Judges Taught to Help Prosecutors in DUI Cases: "While most Americans might believe judges are expected to consider all cases with equal impartiality, a prominent judicial standards organization suggests courts should treat differently any case involving driving under the influence of alcohol (DUI). Former Chief Justice of the United States Warren E. Burger founded the National Center for State Courts in 1971 to provide educational services for members of the judiciary. The group is now working in concert with the National Highway Traffic Safety Administration (NHTSA) to promote 'efficient disposal of traffic cases.'"
Although DUI requires no guilty mind (mens rea), people who are accused of committing the crime of impaired driving are viewed as needing to be controlled more than their guilty minded counterparts who engage in other criminal activity.
Fair or not, this is a reality of the justice system in the United States when it comes to DWI cases.
Minimum alcohol price to deter DUIs?
Some countries are looking at legislating a minimum alcohol price in the hopes that by making alcohol more expensive to buy it will cut down on underage drinking and DUI.
The opinion piece quoted below provides the details and the counterpoint.
Hiking the price of alcohol won’t deter the binge drinkers - Opinion - Belfasttelegraph.co.uk:
"It is important, however, to ask the basic question. Would this help to stop underage or excessive drinking? Not surprisingly, the answer to this question appears to be a resounding no. Arguably, underage or excessive drinkers will always be able to find a way or means of funding their habit. Even if prices are raised and age restrictions imposed (it has been proposed to encourage shops to sell alcohol only to those aged 21 and over), dedicated drinkers would most likely scrimp on other purchases in order to be able to continue drinking.
Canada already has minimum prices for alcoholic beverages based on the type of drink involved, but Scotland will become the first country in the world to introduce a standard system calculated purely by alcoholic strength when it is introduced later this year."
My thought is that this is an even worse idea than mandating ignition interlock devices in all vehicles. Any experienced DUI attorney knows that most DUIs are caused by dumb mistakes or by addiction.
The price of a DUI in most states is so high already, by the time you figure in fines and attorney's fees, increased insurance costs and decreased earning potential, that it is difficult to argue with a straight face that cost could be an effective deterrent to drunk driving.
College drinking behavior predicts adult alcohol problems
Interesting study about drinking in college as a predictor of adult drinking patterns.
Newswise Medical News | Study Helps Identify College Drinkers at Risk For Adult Alcohol Abuse: "College students who are problem drinkers using alcohol to cope with personal problems and boost self-confidence are more likely to continue excessive drinking into adulthood, a recent study suggests.
The Ohio State University survey results suggest that adults who are still high-risk drinkers by age 34 may have inadvertently used alcohol to blunt the social and cognitive development that typically occurs during college, including the ability to handle alcohol.
Binge drinking involves consuming five or more drinks for men and four or more drinks for women in a single sitting, as previously described by Harvard researchers. The Ohio State study categorized high-risk drinkers based on their scores on a National Institute for Alcohol Abuse and Alcoholism questionnaire. In all cases, this drinking puts people at risk for serious consequences ranging from fatal injuries and sexual abuse to academic or mental problems and alcohol dependence.
High-risk drinkers in the survey who stopped problem drinking after college typically reduced their alcohol use during school – a sign in itself that their social development was closer to what is considered normal and on track.
If the subset of students most likely to continue problem drinking in adulthood can be identified during college, they might benefit from counseling or programming that specifically aims to lower long-term high-risk drinking, the researchers say. And the junior year might be the best time to introduce the intervention.
‘We saw clear differences that, if they could be identified during college, could potentially lead to interventions that would make a difference in the long term,’ said Ada Demb, associate professor of educational policy and leadership at Ohio State and senior author of the study.
Demb completed this exploratory study with Corbin Campbell, a former master’s student in Ohio State’s higher education and student affairs program now pursuing a Ph.D. at the University of Maryland. The research is published in a recent issue of the Journal of College Student Development.
Demb and Campbell surveyed graduates of a large Midwestern university about their current drinking habits as well as their alcohol use during college. They received responses from 4,428 alumni who graduated between 1983 and 1993."
Jury duty in Scottsdale
When I got the dreaded summons for jury duty to Scottsdale Municipal Court six or eight weeks ago, I knew to almost a mathematical certainty that I would never end up on a jury in that court.
First, I am a practicing Arizona DUI Attorney. Second, I regularly handle DUI cases in Scottsdale. Third, I know all the prosecutors. Fourth, I know all the regular judges. Fifth, I know most of the forensic scientists from the Scottsdale Crime Lab. Sixth, I know most of the police officers who are regularly involved in DUI cases in Scottsdale. Seventh, I know and have interviewed most of the regular phlebotomists that are used by the Scottsdale PD for blood draws.
Since DUI cases are by far the most likely to be heard by a jury in that court, I figured there would be no chance that I would be accepted as a juror. I would be asked the standard "can you be fair and impartial?" No way to say "yes" to that one, no matter how curious I am as to what happens behind closed doors in the jury room.
So I got to court this morning for jury duty, and me and about 40 other people had been summoned for nothing. We sighed in. We filled out paperwork. We were told to leave.
The only eventful thing that happened was that an elderly lady almost stole my keys while I was getting shaken down by security for (heaven forbid) brining my laptop to court.
I was in street clothes. I have to say that the difference in the way I was treated by security in street clothes as compared to my normal Scottsdale security shuffle was stark. No wonder most "civilians" look angry by the time they make it through security.
Ohio DUI ignition interlock device proposal
Here we go again with MADD and ignition interlock devices. This time it is Ohio, which appears to be on the verge of requiring interlock devices for first time DUI convictions.
Tougher Drunk-Driving Law Proposed | NBC4i.com: "COLUMBUS, Ohio—Getting convicted for drunk driving could force you to deal with a new way of starting your car.
Ohio law currently requires ignition interlock breathalyzers to be installed in the cars of people who get two DUIs within six years.
But a lawmaker wants to toughen that rule and require it for first-time offenders, too.
Mothers Against Drunk Driving said it supports the proposal. The group said eight other states have interlock laws, and repeat offenses have dropped 64 percent.
But the American Beverage Institute argued the breathalyzer is fallible and should only be required for repeat offenders and offenders with blood alcohol levels above .15.
‘Waiting for the second time is not effective. We’re missing about 14,000 to 16,000 offenders each year in Ohio,‘ MADD’s Executive Director Doug Scoles said.
‘We do not think it’s appropriate to mandate the technology for somebody who gets caught at .08. We think in that case, a judge should be able to decide whether or not the person who was caught deserves an interlock or not,‘ said Sarah Longwell of The American Beverage Institute.
If the breathalyzer detects a blood-alcohol level higher than .02 it will go into a lockout. But installers said things such as cold syrup, mouthwash and even bananas can also trigger a lockout.
MADD eventually wants all cars to come equipped with breathalyzers even if you are not an offender."
MADD wants to mandate that even people who don't drink at all have to blow into a breath test machine to start their vehicles.
How do you feel about this? We welcome your comments.
Pennsylvania ignition interlock bill gains steam
Pennsylvania DUI update. Looks like the movement to mandate the installation of ignition interlock devices for first offense Pennsylvania DUI convictions is gaining steam again.
LancasterOnline.com:News:Pa. bill would toughen DUI laws:
"Lawmakers in Harrisburg are trying again to change DUI laws so first-time offenders would have ignition-interlock devices installed in their vehicles.
Ignition-interlock devices require a driver to blow into an alcohol sensor when starting the car. If the device senses the driver's blood-alcohol content is too high, the car won't start.
State law says interlocks can be imposed after a second DUI, not a first conviction, according to state Rep. Paul Clymer, a Bucks County Republican who's looking to amend the law.
Clymer submitted a bill March 19 that would allow ignition-interlock devices to be installed on a first DUI conviction. The bill has one Lancaster County co-sponsor, GOP state Rep. Tom Creighton of Rapho Township.
'I think when people have a drinking problem, they lose the ability to make rational decisions,' Creighton said Monday. 'As a safeguard, this makes them jump through some hoops before they can drive.'
Clymer said he was inspired by a letter from a Quakertown High School student who asked for such legislation.
'I agree that installation of these devices has proven to be a relatively simple way of ensuring that those individuals who are convicted of drunk driving are prevented from repeating a potentially deadly mistake,' Clymer said in a news release. 'Why are we waiting for these individuals to be convicted a second time to implement this precaution?'
A similar bill was introduced in January 2008, but because it was not passed by the end of the 2007-08 legislative session, the proposal had to be reintroduced."
Learn more about Pennsylvania DUI law.
Amador County California DUI arrest
Amador County, California - What appears to be a bogus to questionable DUI stop led to a physical struggle between an Amador County deputy and the suspect.
Ledger-Dispatch.com | DUI suspect loses battle with deputy: "An Amador County sheriff's deputy found himself in a minor scuffle Sunday afternoon with a belligerent drunk driving suspect.
The tussle led to a parking lot standoff and then a pair of handcuffs clicking on the furious man in the cold, snowy air.
The altercation began after the deputy, acting on a tip, began following the suspect's car to see if he was driving under the influence. As the suspect's red sedan passed through Pioneer, the deputy threw his lights on. Pulling into the parking lot near the Pioneer Resort Hotel, the suspect ignored the deputy's orders to stay in his car and climbed out for a confrontation. The deputy called for backup assistance, fearing the driver's passenger might also get involved. Officers from the sheriff's office, the California Highway Patrol and U.S. Forest Service arrived on scene.
Based on eye witness accounts, the suspect was threatening and aggressive until he was physically subdued by the initial deputy who pulled him over. The driver sustained cuts to his hand during the scuffle. An assortment of hard liquor was discovered in the man's vehicle as he was being led away to a patrol unit. The suspect faces a list of charges, including assault on a peace"
Missing from the article is any information that the police actually had reasonable grounds to make the stop. Learn more about California DUI law and Amador County drunk driving cases.
Just because somebody calls in a tip to police officers that somebody is driving drunk doesn't mean that the police have a legal right to stop that person without more particular knowledge.
Connecticut DUI Update: Physical control opinion
The Connecticut Supreme Court has issued a new actual physical control opinion, reinstating the conviction of a man who started the vehicle with a remote control and then sat in the vehicle but never drove.
The opinion can be read here.
Here is an excerpt from an article describing the case:
Conn. court restores non-driving DUI conviction - Projo 7 to 7 News Blog | Rhode Island news | The Providence Journal: "HARTFORD, Conn. (AP) -- Drunken people don't actually have to drive their cars to be charged with operating a motor vehicle under the influence of alcohol or drugs, the Connecticut Supreme Court ruled Monday.
The court's 5-to-0 ruling came in the case of Michael Cyr, who was arrested in Manchester in February 2005 in a parking lot near a bar. He had started his car remotely and then sat in the driver's seat intoxicated, but never put the key in the ignition and didn't drive anywhere.
Justices ordered the state Appellate Court, which had thrown out Cyr's conviction, to reinstate it and send the case back to Manchester Superior Court for sentencing.
Cyr, 50, of Andover, faces a year in prison followed by three years of probation. He pleaded no contest after a judge rejected his motions to dismiss the case. It's his third drunken driving conviction, following others in 1997 and 1998.
'In starting the engine of his vehicle remotely then getting behind the steering wheel, the defendant clearly undertook the first act in a sequence of steps necessary to set in motion the motive power of a vehicle,' Chief Justice Chase Rogers wrote in the opinion.
The 'motive power' phrase comes from a 1939 Connecticut court decision, cited by the Supreme Court on Monday, that defines what constitutes 'operating' a motor vehicle."
Clearly it is not a good idea to use your vehicle as a shelter to "sleep it off" if you need to use the vehicle's heater or air conditioning.
Wedding night in jail for DUI arrest
The couple in the story featured below was arrested for DUI in Houston, Texas on their wedding day, and ended up spending their wedding night in jail. Now they are mad, and threatening legal action over a photo that was taken of the bride in her wedding dress and then published.
The ironic thing is that the basis for the threatened litigation appears to be the humiliation that she felt when it was made public. By beating the threat drum, she is causing much more attention. For example, I never heard about this until this article.
9NEWS.com | Colorado's Online News Leader | Couple threatens to sue over wedding night DUI arrest: "HOUSTON - A couple arrested on their wedding day plan to take legal action against the law enforcement officers who arrested and jailed them.
Billy and Jade Puckett were arrested in a driving while intoxicated crackdown.
They ended up spending their wedding night in jail.
Billy Puckett pleaded no contest to a DWI charge and received a probated one-year sentence.
The couple filed a complaint with the Harris County Precinct 8 Constable's Office and plans to file another with the federal government over the way Jade Puckett was allegedly treated while in jail.
The couple said a photographer was allowed to take a picture of her in her wedding dress.
The photograph appeared on the Internet and on television.
'Yes, I spent my time in jail,' Jade Puckett said. 'What I do not deserve was to have my face being exploited and my career being exploited for the promotion of the law enforcement.'
'This is an aberration of my wife and I's wedding night. I have stood up and taken responsibility for my actions. Now I expect law enforcement to do the same thing,' Billy Puckett said.
'I was horrified. It's not any girl's dream to spend her night in jail,' Jade Puckett said."
Billy Puckett pled guilty to DUI, but the questions is, what does the couple really want to get from the police who (according to the guilty plea) rightfully arrested him?
This was obviously a novel thing for law enforcement officers at the jail. It appears that there was no allegation of sexual misconduct. Learn more about Texas DWI law.
A glowing endorsement about a friend
It always makes me happy when I get letters of appreciate from former clients. Now, as webmaster of duiattorney.com, I have the pleasure of posting endorsements when they come in for other lawyers as well.
Here's one we received about Washington DUI Attorney Aaron Wolff:
"I strongly recommend Aaron Wolff for any legal representation needed with regard to DUI … While representing our son, I personally observed his performance and found Aaron to be exceptionally knowledgeable in every aspect of the law. He provided expert counsel during an extremely sensitive and difficult time for our family. With so much at stake … college scholarship and future career plans, Aaron demonstrated the kind of motivation and proactive approach needed to reach the very best outcome for our son. This case required him to be knowledgeable in military regulations - Aaron actively sought out legal counsel from former military Staff Judge Advocates and reviewed military regulations to obtain necessary information for the case … he fought hard and refused to give up on the end goal. As a result of his legal representation, the final adjudication was a reduced charge and complete dismissal from civil record! Aaron Wolff is not only the best attorney for the job, but will forever be a family friend!"
Wow, what a great note. I've always known that Mr. Wolff is a great Seattle DUI lawyer, but that short paragraph says so much more about him and his ability and willingness to befriend his clients.
Justice Scalia called homophobe
Representative Barney Franks thinks that Supreme Court Justice Antonin Scalia is a homophobe.
Rep. Frank Calls Justice Scalia a 'Homophobe' - Presidential Politics | Political News - FOXNews.com: "Masscahusetts Rep. Barney Frank called Supreme Court Justice Antonin Scalia a 'homophobe' in an interview released Monday on a gay online news site, and said he hoped a challenge to a federal law widely disliked in the gay community will not be heard before the high court until new justices are seated on the bench. "
This tidbit probably won't affect the world of DUI litigation in the slightest, but for those of us used to reading Justice Scalia's opinions, just thought I'd share.
Georgia Police Officer Arrested for Drunk Driving
Here's another police officer arrested for DUI. This one happened in Georgia.
Richmond County Investigator Arrested For Drunk Driving | WJBF: "Augusta, GA—A Richmond County Sheriff’s Office deputy is suspended without pay, pending an internal review.
Investigator Tim Tobias faces drunk driving charges. He was arrested early Thursday morning outside a Washington Road restaurant.
Tobias was in his personal vehicle and was not on duty. Officials booked him into the Richmond County Jail and he bonded out."
Learn more about Georgia DUI Law.
Alcoholism drug Vivitrol: An alternative to DUI sentencing?
There is a little known drug called Vivitrol, which has been shown to have good success in battling alcoholism. The problem is, hardly anybody really knows about it.
One of the main problems is that most non-alcoholics refuse to think of alcoholism as a disease, while most alcoholics refuse to acknowledge that they have a disease or addiction. The net result is that useful drugs are not as profitable for drug companies to concentrate on. The demand may not be there, and interest is hard to stir.
Before the invasion of ignition interlock devices and SCRAM devices into the DUI court system, courts would sometimes mandate the use of Anabuse in exchange for certain privileges, like avoiding jail time. I haven't seen this done in years. Instead, courts have gotten more punitive, taking their cues from legislatures. Until we acknowledge that alcoholism mandates treatment, not punishment, DUI and all of the carnage it causes, will, unfortunately, continue.Makers of alcoholism drug Vivitrol struggle to make way into market - The Boston Globe: "'I would absolutely recommend it [Vivitrol] to anyone who is looking to get sober,' he said. 'I would obsess about drinking all the time, and I just don't think about it anymore.' But when Kyle mentions the drug to other alcoholics, he mostly gets puzzled looks. 'Nobody has any idea what it is,' he said. Despite a litany of similar testimonials about its effectiveness, Vivitrol has largely been a commercial flop. There are several reasons: Many alcohol treatment programs resist using drugs; some doctors contend Vivitrol doesn't work for most patients; and it's expensive - $800 a month. According to the National Institute on Alcohol Abuse and Alcoholism, there are about 8 million alcoholics in the United States, yet only a few thousand use Vivitrol, nearly three years after it went on the market. Alkermes recently predicted it will generate no more than $24 million in sales for this fiscal year, far below initial expectations."
Utah CDL DUI
For DUI lawyers who accept clients with CDLs, it is very important to understand all the details of how not only a DUI conviction, but also an administrative license suspension may affect the client's ability to work.Truck driver arrested for DUI | thespectrum.com | The Spectrum: "A California truck driver was arrested on charges of driving under the influence of alcohol and reckless driving Saturday after rolling a tractor-trailer on Interstate 15 near the Washington City exit at mile marker 10. Douglas David Olson, 47, of Long Beach, Calif., was booked into Purgatory Correctional Facility on $1,919 bail, shortly after he was released from Dixie Regional Medical Center, where he was treated for broken ribs and other minor injuries, said Sgt. Dan Ferguson of the Utah Highway Patrol. Clean-up of the wreckage continued on Sunday, forcing closure of the right-hand lane of southbound I-15 at Washington City and backing up traffic in the area."
Peoria, IL DUI Published Convictions
DUI Dispositions - Peoria, IL - pjstar.com: "The following people were sentenced in Tri-County courts for driving under the influence of alcohol. Some jail sentences may not be served if other conditions are met:"
Ohio DUI News: Aurora police officer arrested
Here is another example of a well-respected police officer getting arrested for drunk driving. This one happened in Ohio.
As I keep saying, being a police officer is very stressful. In fact, police officers and lawyers, as groups, have statistically high rates of alcohol and drug abuse.
Aurora police sergeant on leave after DUI arrest - Metro - cleveland.com: "'Sometimes you can't dictate behavior, but our officers get substance-abuse training every year,' Mayor Lynn McGill said. 'As a police officer, you're expected to be able to serve the public and serve them well.' Piggott is a recent graduate of the Police Executive Leadership College, run by the Law Enforcement Foundation. It's a 105-hour program for police executives. Piggott was on the city's tactical response team and trained other officers how to shoot. Aurora Patrolman Scott A. Garan, 42, was arrested Dec. 19 in Kent, where he lives, on drunken driving and criminal damaging charges. Kent Patrolman Martin Gilliland stopped Garan, who was driving his wife's car. Garan refused to take a breath-alcohol test and damaged property at the police station. A hearing to discuss whether some evidence should be supressed is set for April 15. Garan had been wearing an alcohol-detecting monitor until March 16, when a Portage County judge allowed him to remove it. It was Garan's second drunken-driving charge. He also has a prior conviction in Kent for disorderly conduct. He was demoted from sergeant to patrolman after the incident. He pleaded guilty July 23, 2007, and was fined $130."
My point in reporting police officers who are arrested for DUI is not to "out" or shame them, but to support my ongoing thesis that DWI is truly a crime that touches all types of people, in all occupations and of all responsibility levels.
The "cure" for drunk driving is not heavy prosecution. It is understanding and treatment.
Ohio Criminal Defense Lawyer and Prosecutors Agree
Ohio Criminal Cases Take A Step Forwards
Ohio prosecutors are pushing for open discovery throughout the state in Criminal cases. This push for uniformity is being touted by Ohio Criminal Defense lawyers as a major step forwards towards a fair and equal system.
e said. 'This is a huge step on their part, a substantial leap.'"Ohio's prosecutors serve justice by calling for open discovery across the state: Regina Brett - Regina Brett, Plain Dealer Columnist - cleveland.com: "Champaign County Prosecutor Nick Selvaggio, who is president of the prosecutors group, told me the plan would give defense attorneys the right to inspect all police reports and witness statements before a trial. Right now in Ohio, justice depends on geography. Prosecutors in the state's 88 counties decide whether to grant open discovery. Some offer it; too many don't. The proposal, which was shaped by about 25 prosecutors, also allows prosecutors to protect witnesses who fear harm. In cases where prosecutors can 'reasonably articulate' their concern for danger, they can withhold witness statements. The prosecutors also want to inspect all defense witness statements and expert witness findings or reports before those individuals testify. The defense could still cite privilege as a reason not to disclose some information. Ian Friedman, president of the criminal defense lawyers group, was ecstatic at the proposal on the table. 'We are going to accomplish a more fair system of justice in Ohio,' h
Now, if only the makers of the Intoxilyzer and the prosecutors in states that use Intoxilyzer products would agree to make discovery about the breath test device plain and open.
Michigan DUI Reasonable Suspicion Case
Learn more about Michigan DUI Law, and about reasonable suspicion in DUI cases.City appealing ruling on DUI tipsters - UPI.com: "TROY, Mich., March 21 (UPI) -- The city of Troy, Mich., says a district judge should not have dismissed a drunken driving case because the suspect was stopped based on a motorist's tip. Troy City Attorney Lori Grigg Bluhm said an appeal of Troy District Judge William E. Bolle's Feb. 24 ruling was filed because the officer involved in the traffic stop had reasonable cause to stop the suspect, The Detroit News reported Saturday. 'We believe the officer's stop was supported by reasonable suspicion, regardless of whether she personally observed erratic driving,' Bluhm said. The case began Nov. 11 when a 38-year-old man, whose identity was not reported, was stopped on suspicion of drunken driving after another motorist contacted authorities. While the suspect was found to above the legal blood-alcohol limit for motorists in Michigan, Bolle dismissed the charges because the police officer never personally witnessed any drunken behavior by the suspect. Mothers Against Drunk Driving representative Richard Rondeau has also questioned the judge's ruling, the News said. 'What are we supposed to do, wait for people to be killed before you arrest a drunk driver?' Rondeau said."
Colorado DUI Record
661 St. Patrick's Day DUI Arrests Break Record / Colorado Springs, Pueblo, Southern Colorado, Breaking News, News, Weather, School Closings, Traffic from KKTV 11 News: "Driving Under the Influence (DUI) arrests for the St. Patrick's Day crackdown broke a record this year with 661 state-wide. Colorado law enforcement agencies say the arrests were made during the recent five-day crackdown that began at 6 p.m. Friday, March 13 and ended at 3 a.m. on Wednesday March 18. Colorado State Patrol says seven people were killed in traffic crashes during the five-day crackdown, and four of those deaths were alcohol-related. The arrests broke a record, with a previous high of 626 in 2004. Last year, 520 people were arrested for DUI over the holiday period. ‘It’s clear that we have a consistent problem that is not going away, despite our constant warnings and reminders about the consequences of drinking and driving,’ said Col. James Wolfinbarger, chief of the Colorado State Patrol."
Yakima police officer charged with DUI
People look at police officers who get DUI arrests or otherwise break the law as hypocrites. What many people who judge them don't realize is that they are under a lot of stress. Like almost every person who gets a DUI, alcohol is used by police officers as a stress relief and a way to deal with work related and personal problems. Hypocritical, yes. More evil or culpable than the average person who gets a DUI, I say no. What do you think?Yakima police officer charged with DUI: "YAKIMA, Wash. -- A Yakima police officer who has been a leader in fighting gangs and graffiti has been charged with drunken driving. Probable cause for the charge against 39-year-old Officer Tarin Miller was established Wednesday in Yakima County District Court. Deputy Police Chief Kelly Rosenow says Miller is on paid administrative leave pending an internal investigation. She was given a ticket by the State Patrol after another Yakima officer stopped her shortly before midnight March 2. Investigators wrote that her blood-alcohol level registered higher than .16, more than twice the .08 threshold for drunken driving. Miller is a charter member of the Yakima Gang Enforcement Team and is known for working to stop graffiti. Two men were convicted after a downtown graffiti spree that caused thousands of dollars in damage in 2006."
Nurse's Florida DUI and Child Neglect Charges
Nurse charged with DUI, child neglect: "TAMPA - A nurse has been arrested and charged with drunk driving after deputies say she left a 15-month-old in her care alone for several hours. Hillsborough County deputies arrested Brenda Sue Singer around 1 a.m. Thursday near I-75 and Morris Bridge Road. Sheriff's investigators said Singer, 44, had been hired to look after a toddler who needs 24 hour nursing care. The child's parents left the house around 10:30 p.m. Wednesday and returned to find the boy alone around 3 a.m. When Singer was pulled over deputies said she was driving with the headlights off, and her blood alcohol level was in the area of .307 to .314, nearly four times the legal limit. 'In this case she was very drunk,' sheriff's spokesperson J.D Callaway said. Singer was booked into the Orient Road jail where she was released on $2,500 bond Thursday afternoon, jail records show. She's charged with felony child neglect and DUI. When the boy's parents found their son home alone, they immediately called the nursing agency and deputies. A short time later they learned the nurse was in jail. 'They sought the help they needed totally unknowing that their child would be left alone. It could have been very very tragic but it did not turn out to be,' Callaway said."
DUI Cameras: Illinois DUI squad cars to get video?
I find this interesting, since many jurisdictions who have experimented with police car video cameras for DUI investigations have later, at the request of prosecutors' offices, abandoned the use of the videos. The reason, presumably, was that the videos contradicted the police reports. With video evidence, it is difficult for DUI officers to fabricate physical symptoms such as swaying and balance issues. It also makes interpretation of the DUI field sobriety tests much less subjective.Prosecutor says top DUI cops need squad-car cameras :: CHICAGO SUN-TIMES :: Metro & Tri-State: "The top prosecutor in Cook County's Traffic Court has asked the Chicago Police to assign video-equipped squad cars to officers who frequently make drunken-driving arrests. Lawrence X. O'Reilly, supervisor of the state's attorney's traffic division, has identified 28 Chicago officers who regularly have DUI cases before the court, sources said. O'Reilly wants them to have video evidence to support their arrests."
DUI Checkpoints on GPS
GPS program finds red light cameras - Seattle- msnbc.com: "SEATTLE – Designers of a controversial new software say it can help you find red light and speed cameras, and even DUI checkpoints."
Such a device could have prevented this needless death by cop.Another Ignition Interlock Device Proposed Law
Representative wants to toughen DUI law - News- msnbc.com: "Levittown - State Rep. Paul Clymer is again trying to expand the use of ignition locks for DUI offenders. A Bucks County Republican reintroduced a bill Wednesday that would require first-time drunken-driving offenders in Pennsylvania to install a device in their vehicles that would prevent them from starting if the driver has been drinking alcohol. State Rep. Paul Clymer's proposed legislation has drawn supporters in Mothers Against Drunk Driving and detractors in the American Beverage Institute. It now figures to be the center of a heated debate before the state House Transportation Committee next Wednesday in Harrisburg."
Death Penalty for DUI: A checkpoint deathtrap
Trooper In Fatal St. Patrick's DUI Patrol Also Killed Boy Years Ago - News- msnbc.com: "'When officers activated their emergency lights, the driver put the vehicle in reverse and backed down 13th Street at a high rate of speed,' Harper said at a news conference. Haniotakis ultimately crashed into a parked car at Wharton and 22nd streets, where, police said, he refused to comply with the officers' orders and they fired an unknown number of shots. Police said he backed up again before sharply turning toward an officer, at which time more shots were fired."
Seattle Police Lt. in DUI Court
Seattle police Lt. pleads not guilty to DUI - Examiner.com: "SEATTLE (Map, News) - Seattle police Lt. Donnie Lowe pleaded not guilty Monday to a drunken driving charge in King County District Court in Redmond. He was cited by a state trooper Nov. 23 on Interstate 5 and registered 0.11 on a blood-alcohol test. The Seattle Times says despite the arrest Lowe supervised a 42-member Seattle police detail sent to Washington, D.C., to assist in security for the Jan. 20 inauguration of President Barack Obama. Lowe works in the department's Homeland Security Bureau, planning for special events and disaster management."
Washington State DUI and public records
I prefer Washington State's approach because it says that all persons, even those in positions of high power, are treated equally.Illinois, Washington state info policies show marked contrast - Galesburg, IL - The Register-Mail: "In Washington state on Jan. 18, King County assessor Scott Noble, an elected official responsible for determining property values for tax purposes, crashed his SUV on Interstate 5 south of Seattle and was arrested on suspicion of drunken driving. And 2,000 miles makes for a world of difference when it comes to finding out the circumstances surrounding such arrests. What is routinely released by authorities in Washington state is just as routinely kept secret in Illinois, where the state attorney general and other legal experts say state law governing public records is filled with loopholes and vagueness that agencies can use to withhold records. In the case of Noble, the Washington State Patrol responded to a records request in exactly 24 minutes, e-mailing 71 pages of documents to The State Journal-Register that included the results of blood tests indicating that the assessor had a blood-alcohol content of .22 percent. The documents included witness statements, a log that shows every person a police investigator interviewed and statements of troopers showing what they observed when they responded to the scene. ‘Please let me know if you would also like … copies of the photos of the collision scene,’ wrote Duane Ungurs, a public records coordinator with the Washington State Patrol. ‘The files are too large to e-mail, and I would have to mail them to you on a CD.’"
Phoenix DUI arrests: The St. Patrick's Day Numbers
Given that St. P's day was mid-week this year, these numbers are not surprising.148 arrested in St. Paddy's DUI sweep: "Valley officers made nearly 150 DUI arrests on St. Patrick's Day as part of a five-day task force sweep targeting drunk drivers. The 148 arrests on the holiday accounted for nearly half the arrests made during the entire sweep. The St. Patrick's Day Task Force involved over 300 officers and deputies from the Department of Public Safety, the Pinal County Sheriff's Office, and at least eight police departments, and resulted in 276 total arrests on suspicion of driving under the influence."
Oregon DUI Arrest Records: Hope for the falsely arrested
It's unthinkable that this isn't the law in every corner and crack of the United States. After all "innocent unless proven guilty, right?" Perhaps there is an exception that society has been willing to make for drunk driving cases.Bill would let people clear false DUI arrests | StatesmanJournal.com | Statesman Journal: "Existing law bars people from having the records of an arrest expunged if it was for a state or municipal traffic offense, including drunken driving, even if the driver was never prosecuted and the charge was dropped. The bill is a response to complaints arising in Corvallis in 2007, when a police officer arrested at least four drivers for driving under the influence even though they proved to be sober. At least two false-arrest lawsuits were filed against Corvallis. The officer resigned, moved to Idaho and started a private-investigation company, specializing in helping clients defend themselves in DUI cases, the Albany Democrat-Herald reported. Last week, all 60 House members voted to pass the bill, HB 2318. It now is in the Senate. Rep. Andy Olson of Albany sponsored the bill."
DUI Law Blog: We're back
After a several week hiatus to put the finishing touches on a newly designed DUI Attorney.com, and do a jury trial, I am now back and will be working on catching up on the case law updates from around the country (of which there are many) that I missed over the past weeks.
Announcement:
DUI Attorney.com is now live and available to people in every state. We are hard at work filling in state-specific information, and are beginning to talk with dedicated attorneys from around the country about contributing state and local information to the project.
I want to welcome our first DUI lawyer to join, Washington State DUI Lawyer Aaron Wolff. Aaron brings nearly a decade of DUI experience in the Seattle area to the table. Aaron
For people looking for my Arizona DUI Attorney information, it is still there, just in a different section of the site.
DUI Attorney.com now has two active blogs: One at blog.duiattorney.com, and the other at www.duiattorney.com/blog. For the time being we will keep them both active.
We are hard at work on the following states, which should be done within the next week:
Any dedicated attorney from states other than Washington and Arizona who wants to talk to be about getting involved in the project can reach me at:
Office: 480-951-3200
or fill out the form for potential DUI attorney partners on the website.
When Arizona Police don't take no for an answer
Charles Barkley - A Forced Blood Draw: Barkley declined to submit to a breath test but was given a blood test, which is common in Arizona where the police don’t just take ‘No’ for an answer.
(Via Georgia DUI Blog.)
I agree with the statement "police don't just take "No" for an answer on many levels, but want to explain how the process works in Scottsdale DUI cases. Scottsdale defaults to blood, which means that they always request a blood test. The preliminary breath test (PBT) may be offered, but is not admissible into evidence, and the refusal to take it can't be held against a person. What I presume Barkley refused was the PBT. Now if a person refuses to take a blood test in Scottsdale, the police don't have to, and usually do not take no for an answer. Instead, they seek a search warrant and the forcibly draw blood if necessary.Intoxilyzer source code update for January 2009
In his noted blog, California DUI Lawyer Lawrence Taylor wrote about the Intoxilyzer source code saga that is playing out in court across the nation. He points out that the manufacturer of the Intoxilyzer refuses to divulge the source code that powers the machine, and therefore renders the machine a "mysterious black box."
I couldn't agree more, and am appalled that Courts still allow the machine's results to be used against a DUI suspect. Meanwhile, the citizens of each state that uses the Intoxilyzer are footing the bill for the prosecutors to continually defend the use of the machines in court and protecting the manufacturer from having to divulge the code.
Mr. Taylor quotes an article from the Tucson Citizen which discusses why Arizona believes that it can't compel the company, which is based in Kentucky to appear in an Arizona court.
I think the real question is why do prosecutors continue to defend this machine, and why do law enforcement officers continue to use it? I think it must be because if/when the source code is shown to be biased, corrupted, inaccurate or worse, there will be a flood of appeals from convictions where these machines were used.
My supposition is that CMI will go gently into that good night. In Arizona, I have definitely noticed a decrease in its use over the past several years. More agencies are switching to a blood standard. Some are now taking both an Intoxilyzer and a blood test.
The era of rewarding brazen corporate greed appears to be coming to an end, and hopefully with it an end to business practices like those noted by Mr. Taylor and the Tucson Citizen article.
Until then the best weapon we have against injustice is to educate the public through blogs like Mr. Taylor's, through reporters who really want to get at the truth, and on a grass-roots level, one juror at a time.
That the manufacturer refuses to testify in court should be highly relevant to any DUI defense against the machine. If judges won't compel the company into court and won't suppress the results of the tests, the least they should do is admit into evidence the facts of this company's behavior, which should speak for themselves.
A catch-22 for victim of DUI driver
Imagine this. You are hit and severely injured by an impaired driver. The driver is prosecuted for your injuries and charged with assault, which is a felony. You then learn that if the person who injured you is convicted of the felony, his insurance policy will not compensate you for your injuries.
What if you are injured so badly that you can't work and support your family? What if your only hope for a non-institutionalized life is the proceeds from the insurance policy?
Then what if you find out that the prosecutor wanted to extract his pound of flesh and stick the guy with a felony?
Well, fortunately for the victim in this case, the prosecutor considered his best interest and bit the bullet and gave the defendant a misdemeanor.
The article can be found here.
Clarkson was initially charged with DUI and felony assault, but a plea deal amended the assault charge down to a misdemeanor. Lawyers said a felony would have negated Clarkson's $3 million insurance policy which could benefit Wiseman.
Although this is a horrible case and the defendant may very well deserve even more than the 30 days he will get in jail, it is refreshing to hear that prosecutors are making judgment calls that really consider the victim's best interest, rather than just going for conviction on the more serious charges.
South Dakota DUI Law gain momentum
For states that have a time window for per-se DUI laws, the fact that South Dakota lacks one may come as a surprise.
The following quote comes from an editorial:
But some defendants have argued successfully that even though they had a 0.08 percent reading by the time their blood was drawn while in jail, they were driving before alcohol actually reached their blood system.
In other words, they were drunk after they got out of the car.
That this is factually true in some cases makes little difference. That a person can have several drinks and then immediately drive home sober, only to become intoxicated by those drinks as time passes is a scientific fact that no law can change. In the political world it does not matter. Politics has little to do with justice in drunk driving cases, that is until a politically connected person gets arrested fro DUI.
Newspaper editorials mostly support per se DUI laws with look-back windows (that is, if you are .08 or more within two hours of driving, the law does not care if you were sober while you drove, you are still guilty of DUI). Politicians oppose such laws at their political peril.
As a legal matter I oppose these laws because there is no rational relationship between the evil sought to be prevented (driving impaired) and the means of preventing it (jailing somebody who is sober when they drove but drunk later).
However, as a preventative measure, I see where people are coming from who support it. The thinking must be that if we make it illegal to have a .08 or more alcohol concentration any time within two hours of driving, then the would be drunk driver won't try to calculate when they will become impaired by an amount of alcohol they drank (sufficient to cause them to be a .08 or more at some time during the absorption process). If the idea is to scare people out of making the choice to make a quick dash towards home before the booze hits, then they may be on to something, something that even a rational defense could not help but agree with.
The problem is that while these laws pass with fanfare amongst politicians, few people actually pay attention to the changes in the law, and fewer understand the dynamic interplay between alcohol metabolism and the law.
The trend towards two (and even three or four) hour look-back/look-forward windows for per se alcohol DUI laws appears to be irreversible. What we need now, since we are stuck with them in the majority of states, is serious public information.
As a society we will be safer if we educate rather than simply incarcerate.
New Washington State DUI Ignition Interlock Law
Washington State has enacted a new law that allows DUI drivers to keep their license if they agree to install an ignition interlock device. Under the new law, people who refuse to take a breath test, and who would otherwise be subject to a mandatory one-year license revocation, may drive if they have a breath test machine installed in their vehicle.
This next week I intend to ask standout Washington State DUI lawyer Aaron Wolff his opinion on the new law.
At first glance, it appears that the law may take the teeth out of WA's implied consent law, which is designed to make it painful for a person to refuse to take a breath test.
When admissible into evidence, the breath test is certainly a DUI prosecutor's best weapon towards securing a conviction. It makes me wonder why anybody would ever submit to a breath test if arrested for DUI in Washington State.
Sure, a prosecutor may be able to argue that the refusal indicated a consciousness of guilt. However, it could also just indicate a healthy distrust of breath testing technology, which is flawed to begin with.
Washington State, to my knowledge, is the first state to use ignition interlock devices to defang DUI laws. States like New Mexico and Arizona, which have had ignition interlock device laws on the books for several years use them as an additional punitive or remedial measure, not as a way to decrease the impact of a conviction or license suspension.
I certainly applaud Washington State's approach to DUI defendants. They treat them less as criminals, and more as victims of disease or bad judgment. Although Washington State DUI lawyers may disagree with me on this point, one only has to look to Arizona DUI law to see the stark contrast.
Warning: Personal breath tests and sleazy DUI advertising
While this DUI blog is normally focused on new caselaw and statutory developments from around the country, an issue has come to my attention that needs immediate attention from both DUI lawyers and the public.
Some DUI attorneys are starting to advertise and even sell personal breath test devices. It has come to my attention that these attorneys are endorsing these devices as a safe and effective way to avoid a DUI, even through the use of local media.
If you are planning on drinking and then driving, DO NOT rely on a personal hand-held breath test device. They are not accurate and could set you up to be arrested.
I have a serious problem with a DUI defense lawyer selling or giving away personal breath test devices. Here are the problems from my perspective:
- How can a lawyer argue that breath test technology is unreliable if he sells them? A DUI defense lawyer's job is to challenge the validity of breath testing technology. Anybody who is truly knowledgeable about breath test devices knows that the technology is unreliable at its best. We also know that hand-held breath test devices are extremely inaccurate. In most states, the results are not even admissible in court. For a DUI lawyer to endorse such a device undermines that lawyer's credibility to later argue in court against better breath test technology.
- Selling breath test devices makes other attorneys look bad because other attorneys who are doing their job are constantly making arguments against the breath test. Any lawyer who cares about his or her clients and has experience in the trenches of DUI court will be offended by this gimmick.
- It exposes the public to actually getting a DUI by relying on the results of an inaccurate device. It also, at least tacitly, endorses having drinks and then driving. It creates the impression that if the devices says you are okay to drive, then you are legally safe from a DUI. This is a severely misleading notion. Even if the device is totally accurate (which it isn't) at the time of the test, you may still be in the absorptive state of alcohol metabolism. If you are, then from the time you blow into the machine to the time you get pulled over for DUI, you may well absorb enough alcohol into your system to be above the legal limit. The only way to be sure to avoid a DUI is to not drive at all after drinking.
- Advertising a conflict of interest? These devices are actually being sold with law firm's names, logos and phone numbers engraved on them. If you use one, then get a DUI and call that firm, they essentially provided you with your defense (a poor one... "I relied on the hand-held breath test device). If you then call them to defend you (which they are inviting you to do by putting their name and number right on the thing), do you think your best interests will be served by that firm?
There are some disgusting marketing practices out there, and in my opinion this is the one, in the DUI arena, that takes the cake for 2008.
Delaying a DUI jail sentence
There are very few public stories that catch our interest, as most fall into the category of propaganda or celebrity gossip. This story is different. It is about a 10-time DUI convict, condemned to another 4 years in prison.
This poor guy's daughter is sick and needs a kidney. The justice system is allowing him to delay his start date for the sentence in order to donate a kidney to her.
Kidney disease is tangible and one that our court's honor and pay attention to. Alcoholism is, for the most part, treated as a criminal rather than medical problem.
Excerpts from the AP Article: (link)
He was given a 4-year prison sentence, but it won't begin until January. Prosecutor Sandra Donaghy said the start of Lawrence's sentence was set back so he can contribute one his kidneys to his seriously ill daughter. Court records show Lawrence has 10 previous DUI convictions in Knox County and one each in Sevier and Union counties. A call to arms for DUI attorneys, and prosecutors: Start educating your colleagues, judges, court staff and the public about the disease of alcoholism. Until we start treating the underlying cause of drunk driving, we will never solve the symptoms, which often come in the form of multiple DWI arrests.
DUI Law Blog Is Now Live: New mission statement
DUI Law Blog is now live again. For return readers, you will notice that a lot has changed. We have big plans for this blog.
News For Lawyers: First, we intend to cover all of the major DUI news stories from around the country. By news, we don't mean which celebrity was busted, or the latest drunk driving related tragedy to hit the news. There are plenty of other sources already covering that kind of stuff. Our coverage of DUI news will be limited to the political, scientific and legal realms. That means that when a new breath test machine hits the market, we will be there. When a new published or unpublished appeals court case involving DUI is issued, we will be there. When a new peer-reviewed scientific article is published, we will cover that too.
New Case Analysis: We are not a citator service, and we can't cover all of the points in every case. We will try to make you aware of every new case that is out there in all 50 states. Each new case will contain either commentary, analysis, a practice tip, or any combination of those three. As time allows, we will also compare and contrast new cases with the status quo from other states.
Participation Welcomed: DUI lawyers who have something that they either want to say, or want us to discuss, please let us know. If there are new cases that slip through the crack, email us the cite and we will post them. This is especially true for lower court opinions, as they may miss our radar screen, especially at the trial court level.
We are excited to embark on this new project, and hope you will find the information provided on this website useful for your practice (or your case).
Sincerely,
Dan Jaffe
Scottsdale, AZ
