Should California Lower its BAC Limit?

It’s not a novel question. Should California lower the blood
alcohol content limit before someone can be arrested, charged, and convicted of
a DUI in the state?

Although a nationwide blood alcohol content limit was
suggested prior, it was not until 2001 that the Department of Transportation
said it would cut funding to states that did not maintain a blood alcohol
content limit of 0.08 percent for DUI cases. As a result, all states adopted a
0.08 percent blood alcohol content limit. However, as of January 1^st
of this year, Utah became the first state to lower the blood alcohol content
limit to 0.05 percent making it the strictest in the country.

A new bill introduced in California hopes to follow in
Utah’s footsteps.

Introduced by Assemblywoman Autumn Burke (D-Marina del Rey),
AB1713, otherwise known as Liam’s Law, would lower California’s BAC limit to
0.05 percent.

The bill was named in honor of a 15-month old who was struck
and killed by a drunk driver in 2016 when his aunt was pushing his stroller
across Hawthorne Boulevard. Liam was the son of former mixed martial art
fighter Marcus Kowal and his wife, Mishel Eder. Since then, both have been
pushing for a lower BAC limit and Burke said that she had been influence by
them.

“Every year, we see drunk drivers kill or injure our friends
and loved ones because they thought they were OK to drive,” said Assemblyman
Heath Flora (R-Ripon), who co-authored the bill and who also introduced a bill
to increase the penalties for repeat DUI offenders. “Lowering the [blood
alcohol content] limit to .05 percent has [been] shown to decrease DUI-related
traffic fatalities by serving as a deterrent to folks driving drunk in the
first place.”

Flora is referring to studies that suggest people begin to
start feeling the effects of alcohol at 0.04 percent, and which have been used
by the National Transportation Safety to justify its support of a 0.05 percent
limit.

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

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

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

This raises another question: Is this law merely changing
the definition of “drunk” to cast a wider net, thus creating more “criminals”?

“When (a bill) is first introduced, the 10,000-foot view is,
‘This is a law that’s tough on drunk driving. It should pass pretty easily,’” said
Jackson Shedelbower, spokesman for the American Beverage Institute. “But in
reality, it’s not tough on drunk driving. It’s punishing moderate, social
drinkers. It’s focusing traffic safety resources away from people who are the
real problem toward people who aren’t the problem.”

Shedelbower went on to say that most DUI-related collisions
are caused by drivers with BAC levels higher than 0.05 and repeat offenders,
and that having a BAC level of 0.05 is less impairing than talking on a
hands-free cell phone while driving.

Should the bill become law, many could be arrested after
having a single drink and certainly when they’re not even drunk. I’m sorry, but
I thought DUI laws were meant to protect against impaired driving. I’m not
so sure that the hoped effect of the bill is worth the collateral consequence
of arresting, charging, and convicting non-impaired drivers.  

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Maine Supreme Court Affirms DUI Conviction Even Though Science Suggests Defendant was Involuntarily Intoxicated

Apparently, some high courts in this country don’t care whether
science can show a person is innocent.

Earlier this month, the Maine Supreme Court denied the
appeal of a man who sought to introduce the testimony of a medical expert at
trial that he suffers from auto-brewery syndrome.

Believe it or not, there is a rare medical condition that causes
a person to “brew” alcohol within their body causing them to become intoxicated
even though they haven’t had a sip of actual alcohol; hence the name, “auto-brewery
syndrome.”

If you know how beer is made, you’ll know that yeast is
added to grain extract (which is essentially sugar). When the yeast eats the
sugar, it releases carbon dioxide (which creates the carbonation in beer) and
alcohol (which gives beer its intoxicating effects). This process is known as
fermentation. A person with auto-brewery syndrome produces unusually high
levels of yeast in their gastrointestinal tract which, in turns, eats the
sugars that a person ingests creating both carbon dioxide and alcohol in the person’s system even though they haven’t
actually ingested any alcohol. In some instances of auto-brewery syndrome, the
production of alcohol is so much that it can actually cause a person to become
legally intoxicated!

I think you can see where I’m going with this. John Burbank claimed
to be such a person afflicted with this rare disorder when he was arrested on
suspicion of a DUI in 2016 because his blood alcohol content was 0.31 percent,
almost four times the legal limit. In preparation for trial, Burbank sought to
introduce an expert who would have testified that he suffered from this
condition and that the condition caused him to become intoxicated through no
fault of his own.

The trial court judge, however, denied the introduction of
Burbank’s expert. And without the expert’s testimony, Burbank opted to plead no
contest and filed an appeal challenging the denial of the expert’s testimony.

The Maine Supreme Court concluded that the trial court was
correct in not allowing the expert to testify, thus affirming Burbank’s DUI
conviction.

The Maine Supreme Court justified its conclusion by saying
that, although the expert was a P.h.D. in toxicology and physiology, she was
merely basing her opinions several articles regarding the condition, but that
she, herself, had not worked directly with cases of auto-brewery syndrome or
with Burbank and his condition.  Additionally,
the court pointed out, that Burbank’s symptoms were different than those who
were the subjects of the articles that the expert was relying on.

Bear in mind that auto-brewery syndrome is extremely rare
with far less available research and knowledge about it than many other
conditions.

The court went on to say that the denial of the expert’s
testimony did not amount to a denial of Burbank’s constitutional right to
present a defense because, according to the justices, the denial was a “reasonable
restriction.”

I don’t know about you, but this sounds like an unreasonable
restriction to me. In law, for expert testimony to be admissible, it must be
relevant and reliable. It is relevant because it could show that Burbank did
not choose to become intoxicated when he drove. The law should not and, in most
cases, does not punish people for things they cannot control. The law should
only punish people who, through voluntariness and free will, engage in criminal
conduct. And it is reliable because, while the expert may not have specific
knowledge as to Burbank’s auto-brewery syndrome, it is nonetheless a legitimate
and recognized medical condition, albeit with little research on it because of
its rarity. People with rare conditions should not be disadvantaged and
punished merely because their condition is rare, which is exactly what the
Maine Supreme Court is doing.

What’s more, the concurring justice concluded that the
defense of involuntary intoxication should not be allowed in DUI cases because “it
may invite many ‘I didn’t know there was vodka in my orange juice’ or similar
defenses to [DUI]…charges.”

So what?! So what if it invites future defenses? If it is a
plausible defense to a crime for which the government can take away someone’s
freedom, a defendant should be allowed to assert it. It’s their life on the
line, not the judges. And pardon me, but I thought it was the jury’s job to
determine if a defense is true or not. If the jury had heard the expert
testimony, but still concluded that Burbank did drink and drive, then so be it.
At least he was provided the opportunity to defend himself.  

What’s next? Courts not allowing an alibi defense because it
could invite many “I was somewhere else” defenses?

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School Bus Driver DUI with 26 Students Onboard, Abandons Bus and Students

When parents send their children off to school, they expect that
the adults in charge maintain a certain level of care and maintain a level of
responsibility towards the children once in their care. It is not outrageous to
think that that expectation extends to the time that the children are onboard a
school bus traveling to and from school.

Sadly, one school bus driver broke parents’ and children’s trust
with her erratic driving caused by alleged intoxication.

On March 1, a Pennsylvania school bus driver, later identified as
Lori Ann Mankos, was driving 26 middle and high school students home around
2:50 p.m. Initial reports mentioned a disturbance on the bus that caused Mankos
to pull the bus into a gas station. There, she parked the bus, exited, and
handed the keys to a gas station employee and proceeded to walk away.

As shocking as this seems, thankfully no children were harmed. Some
parents picked their children up from the gas station and others were taken
home by a different bus driver.

A further investigation revealed that this seemingly innocuous,
but nonetheless irresponsible, act by a school bus driver was far worse than
merely abandoning the bus at the gas station. The police reported that soon
after the students were picked up by Mankos, some of the students noticed a
change in Mankos’s driving pattern. She wasn’t taking the usual route to the
students’ home. Additionally, the students became concerned when Mankos took a
right-hand turn too fast and the bus ended up almost halfway into the opposing
lane. The students then started to record their wild ride and protested the
erratic driving. This, apparently was the disturbance that caused Mankos to
pull the bus into the gas station.

Students reported that in response to their protests, Mankos swore
at them and flipped them off. In one of the videos recorded by the students,
she can be heard asking if the children preferred that she stop the bus and the
students call their parents to pick them up. When they agreed to her
suggestion, she parked at a nearby gas station where she then proceeded to hand
her keys to the station attendant and walk away. She initially refused to let
the students off the bus, but the students were able to open the emergency door
and get themselves out of the bus. She can be heard telling the students to “go
f**k themselves.”

Police found Mankos at her residence and took her into custody.
She has been charged with DUI, one count of careless driving, one count of
reckless driving, and 26 counts of child endangerment (one count for each
student aboard the bus).

Mankos’s mother told reporters that her daughter hadn’t been
herself since she started to drive that bus route and that she believed that
her daughter had a nervous breakdown.

Information has not been released regarding what substances may
have been the cause of Mankos’s erratic behavior or if she has suffered any
previous DUI convictions. However, in a profession where the primary
responsibility is to children and their wellbeing, one would hope that the
school district and bus contractor will take this opportunity to be more
selective with their employees or perhaps provide better emotional and/or
mental health support for their employees.

“This is not what we expect of any of our drivers,” said
a
spokesman for the bus contractor, Cincinnati-based First Student, which employs
the driver. “Our first priority is the safety of the students, which is why we
sent a reliever bus to pick them up and take them to their homes once we found
they were stranded. All students are safe and accounted for. If there’s appropriate
action warranted against the driver as a result of this investigation, that
action will be taken.”

“Nothing like this has ever happened before in my 28 years with
the district,” Northampton School District Superintendent Joseph Kovalchik told
the Morning Call. “We’re extremely upset by this, but very thankful that none
of the students were hurt.”

The post School Bus Driver DUI with 26 Students Onboard, Abandons Bus and Students appeared first on DUI BLOG.

Canadian Immigration Crackdown on Foreign DUI Offenders

As
of December 18, 2018, Canada’s Bill C-46 became law, classifying impaired
driving offenses as “serious criminality” rather than “simple” within the
Immigration and Refugee Protection Act.

So
how does the passing of Bill C-46 affect us stateside?

First,
we should understand what the Immigration and Refugee Protection Act of Canada
is. This is “[a]n Act respecting immigration to Canada and the granting of
refugee protection to persons who are displaced, persecuted or in danger.” As
such, the act details under what circumstances immigration and refugee status
is given to a non-Canadian citizen. Of those details existed Section 36 (1),
which states that “a permanent resident or foreign national is deemed
inadmissible to Canada if he or she is convicted of an offence that is
considered serious criminality.”

Previously,
serious criminality included offenses such as murder, aggravated sexual assault
and drug trafficking. Now, with this new bill, impaired driving fits in this
category. Even offenses such as wet reckless, which are reduced DUI offenses
(see What
are the Benefits (and Disadvantages) of a Wet Reckless?), are now
considered in the serious criminality category.

Not
only did the amendment change the categorization of DUIs, it also increased the
penalty as well. What was a maximum term of imprisonment of five years is now
10 years. Canadian immigration officials are not pulling any punches.

Having
a DUI offense on your record made it slightly inconvenient when travelling to
Canada, but now, it can mean that it becomes extremely difficult for you to
obtain a work visa in Canada or even to simply visit as a tourist (see Traveling
to Canada after a California DUI Conviction).

Many
of the same rules apply if you want to visit Canada after you have been
convicted of a DUI with this new bill. However, one of the exceptions we
mentioned in the previously noted post, is “deemed rehabilitation.” With the
new bill, this method is no longer an option for those inadmissible to enter
Canada due to a DUI conviction. Leaving only what is called “rehabilitation by
application” as a method to entering Canada legally.

You
are eligible to apply for rehabilitation if five years has passed from the
completion of the sentence and are able to demonstrate that they are no longer
a risk for criminal activity. Demonstrating that you are no longer a risk can
come from showing a stable lifestyle, community ties, or proof that the offense
was an isolated event. Simple, right? Well, the difficulty comes when we start
counting the five years. Below are some of the most common sentences and the
correct way to calculate the waiting period:

Suspended
sentence: Five years from the date of sentencing.

Suspended
sentence with a fine: Five years from the date the fine was paid. For any
varying payment, the count will start from the date the final payment was paid.

Imprisonment
without parole: Five years from the end of the term of imprisonment.

Imprisonment
and parole: Five years from the completion of parole.

Probation:
Probation is considered to be a part of the sentence. Thus, five years from the
end of the probation period.

Driving
prohibition: Five years from the end date of the prohibition.

You
must also remember that because the new characterization of DUI is more serious
than before, the immigration officials will be looking at your application with
more scrutiny than they had before. The redefinition will undoubtedly make some
of the applications more difficult to accept.

One
saving grace is that currently this amendment is only being considered for
offenses that happen after its passing. Therefore, if your offense happened
before December 18, 2018 then you may be unaffected. For any permanent
residents or foreign nationals already living in Canada, the amendment is not
grounds for expulsion.

The post Canadian Immigration Crackdown on Foreign DUI Offenders appeared first on DUI BLOG.

Can an Unconscious Driver Give Consent to have a Blood Alcohol Test?

The Founding Fathers drafted the Constitution, specifically
the first 10 Amendments, mindful that the government could and may at some
point in our country’s future subvert our individual rights, such as the right
to be free of unreasonable governmental searches and seizures. Specifically,
the Fourth Amendment prohibits the government from “unreasonable searches and
seizures.” Simply put, if a person has a reasonable expectation of privacy in a
particular place, the government cannot search it unless, amongst other things,
it has a warrant to do so or if it obtains voluntary consent to the search.

That was then. Mitchell
v. Wisconsin is now.

The United States Supreme Court is currently deciding a case
that will determine if police can withdraw blood from an unconscious suspected
drunk driver without their express consent.

In May of 2013, Gerald Mitchell was arrested on suspicion of
driving under the influence of alcohol. While en route to the police station,
Mitchell became lethargic and the officers instead took him to a hospital.
There, the officers attempted to read Mitchell his rights as well as a statutorily
mandated form regarding Wisconsin’s implied consent law. Mitchell, however, was
already too close to unconsciousness to understand, if not unconscious already.
That didn’t stop the officers. They ordered hospital workers to withdraw blood
from Mitchell without his express consent. The blood test revealed a blood
alcohol content of 0.22 percent, almost double the legal limit.

Implied consent laws, which exist in every state, declare
that every driver, through merely having a government-issued driver’s license
and using state-owned roadways, has impliedly agreed to take a blood-alcohol
test if arrested on suspicion of driving under the influence.

Mitchell was charged with a DUI (or OWI – operating while
intoxicated – as it’s called in Wisconsin). He moved to suppress the results
arguing that the officers did not have a warrant and that he did he did not
give his express consent. Prosecutors argued that neither a warrant nor express
consent were required because of the implied consent law. The trial court sided
with the prosecutors and Mitchell was convicted.

Mitchell appealed and the court of appeals certified the
case to the Supreme Court of Wisconsin on the issue of “whether the warrantless
blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent
law…violates the Fourth Amendment.” The Supreme Court of Wisconsin accepted the
certification and upheld Mitchell’s conviction. Earlier this year, however, the
United States Supreme Court decided to take on the case.

It couldn’t come at better time either. State court stances
on the issue have been all over the place.

Some states have struck down laws that allow prosecution of
someone who refuses a blood alcohol test in violation of the implied consent
law. Some states have held that warrantless, consentless searches are
unconstitutional and, therefore, the evidence obtained by the search is
inadmissible against the driver at a DUI trial. Others, like Wisconsin, have
held that the Constitution and the Fourth Amendment don’t matter as long as
implied consent laws allow law enforcement to search DUI suspects carte
blanche.

Let’s take this step by step. The officers in Mitchell’s
case do not need a warrant if Mitchell does not have a reasonable expectation
of privacy in the place that law enforcement is searching. We’re not talking
about Mitchell’s garage. We’re not talking about his car. We’re not even
talking about his home. We’re talking about the thing that we as humans
consider to be the most private; our body. I’ll even take it a step further and
say that we’re talking about a search of the contents of someone’s blood. You
damn well better believe that we have a reasonable expectation of privacy in
our bodies and our blood.

Since Mitchell had a reasonable expectation of privacy, the
Constitution requires that the officers either get a warrant or get Mitchell’s
consent. They did not have a warrant nor did Mitchell give consent because he
was, for all intents and purposes, unconscious.
Yet, they searched and found what they were looking for.

Wisconsin’s Supreme Court, in allowing Mitchell’s blood and
blood alcohol content to be used against him in a criminal case, has
essentially said that unconscious drivers can give consent, and have already
done so.

How? Because the state legislature has subjectively and in
contradiction to the Constitution of the United States created a law that gives
the government the right to search without a warrant or consent.

The Founding Fathers were right to be wary of the
government, clearly. Let’s just hope that the United States Supreme Court
decides Mitchell’s issue bearing in mind what the Founding Fathers had intended
and what they wrote in the Constitution.

The post Can an Unconscious Driver Give Consent to have a Blood Alcohol Test? appeared first on DUI BLOG.

Could DUI Fines be on the Upswing?

In a previous post, we covered potential costs of a DUI. That was
based on our current understanding of California DUI law. However, Mississippi
may be a trendsetter to legislatures throughout the country in increasing the
fines and fees associated with a DUI arrest and conviction.

The Mississippi House of Representatives just passed House Bill
1445 which would essentially double the fine for DUI violations. The bill,
which calls for the increase of the general fund amount for implied consent law
violation, also known as driving under the influence, would, according to state
assessment, increase the current fine of $243.50 to $493.50. The funding that
is raised with the increase in fines would be used to support trauma care in
the state.

During the House floor debate on the proposed law, Rep. Greg Haney
(R-Gulfport) asked, “Are we doing this to just raise money or is it for
safety?” Rep. Donnie Scoggin (R-Ellisville) admitted that it was a little of
both.

Scoggin supported this answer with information and a little bit of
history about the state’s trauma care system. The state of Mississippi’s
statewide trauma care system was instituted in 1998 after the then-Governor
Kirk Fordice and Lieutenant Governor Ronnie Musgrove received severe injuries
in separate car crashes. According to the state’s Department of Health, as of
Nov. 9^th, 2018, there were 86 designated and participating hospitals
in the Mississippi Trauma System of Care, with the University of Mississippi
Medical Center the only Level 1 trauma hospital in the state.

Scoggin says that the fine wouldn’t fully fund trauma care in the
state. However, the increase would bring it up to about three-quarters. He
further stated that the original trauma funding bill from the mid-1990s
actually listed the DUI fee at $500, but was reduced to its current $243.50.

A bill in 2017, had set the amount from the state’s general fund
that could be used for the trauma system at $7,023,197 and reduced the overall
spending for trauma care from $40 million to $20 million. Scoggin stated that
raising the DUI fine for the purpose of supporting trauma care “…seems to be
the right place to do this.”

In an attempt to further support the use of DUI fines for trauma
care, Rep. Steve Holland (D-Plantersville) mentioned that crashes that are
caused by impaired motorists are responsible for several of the trauma cases in
the state.

According to the 2017 statistics by Mother Against Drunk Driving,
there were 129 drunk driving deaths in the state of Mississippi and that 19
percent of traffic fatalities were connected to driving under the influence.

Although the lawmakers are attempting to tie drunk driving to the
funding of trauma care, personally it seems to be contradictory. The raising of
funds is important in making sure that severely injured have the best possible
care in order to save lives and it makes sense that if raising a fine could
help to support that, they should raise it where they can. However, something
like a DUI fine is also imposed in order to dissuade people from breaking that
law of driving under the influence. If, by raising the fine, it does what it
was intended to do, namely to dissuade drivers from getting behind the wheel under
the influence, then essentially, the state has less cases to collect the fine.
Which in turn, would mean that the actual amount collect by fines is less than
what was initially proposed or considered.

Perhaps it is designed to be a temporary remedy to the bigger
issue of how to raise more money for the trauma center. Or perhaps the
Mississippi legislature just sees an opportunity to collect from an easy
target; DUI defendants.

In any event, if the bill is passed in the Senate and signed by
the governor, then it would become effective July 1.

The post Could DUI Fines be on the Upswing? appeared first on DUI BLOG.

How Does a DUI Affect Car Insurance?

When
one gets pulled over and subsequently arrested for an alleged DUI, what are
some of the first things that run through their head? “Oh no, I’m in trouble,” “I
am going to jail,” “I need a lawyer” are probably a few. However, after the
initial shock wears off, that person eventually gets to realizing the potential
fines and legal fees that go along a DUI conviction. Those fines and fees are
typically a one-time expense. But there is one cost that often gets over looked
and is one that affects your life for 10 years after the DUI; car insurance.

In
January of 2007, new legislation required that DUI offenses be a part of your
public driving record and remain on that record for 10 years from the violation
date. The legislation was changed in order to allow car insurance companies
access to driving records so that they could apply the new provisions that were
added in 2005 in the Insurance Code under Senate Bill 597, primarily dealing
with “good driver” discounts. Under the law, good driver discounts would not
apply to drivers with DUI offenses within the past 10 years. In other words,
because the discount you previously received for being a good driver will not
apply, your car insurance premium will go up, at minimum, the amount of that
previous discount.

Losing
the discount is not the only reason your car insurance premiums may go up. Having
a history of DUI suggests to the car insurance company that you are at a higher
risk of being in an accident. It’s no surprise that having a higher blood
alcohol content will hinder basic motor skills and therefore negatively affect your
ability to operate a vehicle, thus leading to a higher chance of being involved
in a collision. And having a higher risk of being in an accident means that the
insurance company has more to lose with you behind the wheel. The insurance
companies are not allowed to cancel your insurance mid-policy due to a DUI
conviction, but they will definitely reconsider your premiums when the renewal
comes around. As such, your premiums will more than likely go up. Although it
will depend on your insurance company, on average, an increase of a few hundred
dollars is likely. Some, however, can increase as much as a couple thousand
dollars.

Assuming
for argument’s sake that your insurance only increases a few hundred dollars,
that few hundred dollars might seem doable, but remember, your status as a
“high risk” driver stays with you regardless of whether you change insurance
companies for 10 years. With that label lasting 10-years, you are looking at a quite
a few thousand dollars of a difference in total. Now, imagine what it would be
if the increase is more than a few hundred dollars.

If
you are convicted of a DUI, you may want to shop around for car insurance. With
this new dent in your record, there may be other policies that won’t make as
much of a dent in your wallet.

It
may seem like a lot of work, and more money than someone might want to dish out
for a DUI, but taking the time to research a good DUI lawyer will also probably
be worth it. If the right circumstances are aligned in your case, your lawyer
may be able to get your DUI charge down to a “wet reckless” (See the post What
are the Benefits (and Disadvantages) of a Wet Reckless? for details on wet
reckless). One of the advantages of being able to reduce your DUI to a charge of
wet reckless is that the conviction will stay on your record for only seven
years, rather than the 10 years that a DUI conviction requires. Obviously, it
would depend on your car insurance, but the additional cost of paying for a
good DUI lawyer, may outweigh the cost of paying an additional three years of
increased premiums.

Suffice
it to say, that extra six-dollar beer is not worth the few thousand dollar
increase in insurance premiums that a DUI conviction will bring with it, or all
of the time and research you will have to put into finding yourself a good
lawyer, or the time and research in possibly finding new insurance to make sure
you are able to keep your premium increase to a minimum.

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