Wisconsin Looks to Criminalize Drunk Driving

Wisconsin
state law makers are continuing the trend of proposing bills that call for more
stringent driving under the influence laws.

Under
current law in Wisconsin, operating while intoxicated, or “OWI” as it’s called
in Wisconsin, is a civil violation with the first offense subject only to a
fine of no less than $150 and no more than $300. A second offense will only
have increased penalties if the person has committed the OWI within ten years
of the first offense or if the OWI offense caused death of great bodily harm to
another.

A
bi-partisan plan of bills was introduced, with one of the bills pushing to make
the first offense a misdemeanor and would call for a fine of up to $500,
imprisonment for up to 30 days, or both. This same bill will also subject a
second offense to increased penalties regardless of the offense occurring
within ten years of the first OWI-related offense.

There
is another bill within this plan that calls for a mandatory minimum jail
sentence of five years for committing a homicide while driving drunk. Current
penalties include imprisonment of up to 25 years if a Class D felony and up to
40 years if a driver is found to have had prior convictions and thus charged
with a Class C felony. However, neither one of these penalties have a minimum
imprisonment limit.

A
public hearing at Wisconsin’s Capitol was held to address several bills,
including those mentioned above. The hearing included testimony from families
who have lost family and loved ones through the actions of drunk drivers and
many of them have called for stricter punishments for under the influence
offenders.

In
comparison to other states that have already categorized driving under the
influence as a criminal offense, this change may seem fairly minor and certainly
a long time coming. If you recall one of our earlier posts about states with
the most DUIs (States
with the Most Drunk Drivers), Wisconsin clocked in at number 4. It is quite
possible that part of the reason why their numbers are so high in the survey is
that their citizens have less incentive to refrain from getting behind the
wheel after a few too many drinks. Republican Representative Jim Ott, who
authored the bills, was quoted “I think it would be a deterrent effect. I think
if people recognized and were taking drunk driving more seriously in Wisconsin
than we have in the past, that it would cause people to not drive drunk and be
a first offender.”

According
to the Wisconsin Department of Transportation there were 25,734 OWI citations
in 2015, 93% of which were found guilty. In theory, categorizing a first
offense OWI as a criminal act and processing a drunk driver’s sentence as such should
be a deterrent and keep those who are considering the additional drink from
climbing behind the driver seat. However, I am fairly certain that there is a
significant number of people who didn’t want to deal with civil action and
simply plead guilty since the penalty was only a fine. However, if that were to
be a criminal mark on your record, people will undoubtedly start to pay a
little more attention to the seriousness of the situation. Consequently, criminal
defense attorneys can apply their expertise to make sure that the arrests are
legitimate before allowing their clients to plead guilty to what is now a
criminal action with more serious consequences.

There
is also a major question that will need to be addressed should these bills go
forward: Is Wisconsin’s court system actually prepared for this change? The
bills still have to go through another group of lawmakers before being
presented to the floor for a vote, but if they do go through, there are changes
to the court system and the entire criminal process that may make things difficult
in other ways.

Because
even first offenses will be considered criminal, all OWI cases will need to
start going through the District Attorney’s office. If there is a lack of
sufficient personnel to handle such an increased caseload at the District
Attorney’s office, the delays in charges being filed that would result is
likely inevitable. Not only that, are the jail systems prepared to handle the
increase for if offenders as a result of the new laws?

Time
will only tell what happens with the new laws, whether they get passed, and, if
so, what effect it will have on deterrence, the court system, and the district
attorney’s office.

The post Wisconsin Looks to Criminalize Drunk Driving appeared first on DUI BLOG.

Should Courts Allow Cops to be “Experts” in Drug Intoxication for DUI Cases?

It is not uncommon for police to be trained in recognizing
drug intoxication. But should they be allowed to testify as experts in court
about drug intoxication in DUI cases?

At least one judge believes not, and rightfully so.

Timothy B. Callahan, from Cheshire, Massachusetts, was
pulled over in May of 2016 after police received a report that he had smoked
laced marijuana and was acting violently. Additionally, he was alleged to have
been speeding and driving erratically before the stop.

Callahan was arrested on suspicion of driving under the
influence (operating a motor vehicle under the influence or “OUI” as it’s
called in Massachusetts).

While being booked, police called in Officer Brennan
Polidoro to observe Callahan.

Polidoro received a drug-recognition certificate in 2014 and
has since been considered the only Drug Recognition Expert in the county. As of
the summer of 2018, Polidoro had evaluated over 15 people accused of driving
under the influence of narcotics.

Following Polidoro’s evaluation of Callahan, Polidoro
determined that Callahan was under the influence of drugs and Polidoro’s
conclusions were included into the police report.

During Callahan’s criminal case, prosecutors sought to have
the court recognize Polidoro as an expert so that he could provide testimony
about the effects of drugs on a human and offer an opinion as to whether
someone was under the influence of drugs.  

Callahan’s attorney filed a motion seeking to exclude
Polidoro’s testimony as an expert.

During the hearing on whether Polidoro should be allowed to
testify as an expert, the prosecution offered evidence that Polidoro was
trained in drug recognition and that the training was based on three law
enforcement studies from 1985, 1986, and 1994. Evidence was also offered that after
evaluating 12 individuals during training, Polidoro was determined to be
“proficient” by his instructors who formed their opinions as to his proficiency
based on the same studies.

Let me get this straight. The prosecution is arguing that an
officer should be deemed an “expert” in how chemicals affect the human body if
other law enforcement officers think they’re proficient, not physicians or
chemists or other medical professionals? “Proficiency” after 12 training evaluations,
really? Am I missing something? Does Polidoro have a background in chemistry or
medicine?

What’s more, “proficiency” as determined by law enforcement
is an accuracy rate of 43% to 49% when people did not have drugs in their
system. Really?!?! That means that law enforcement considers being wrong 57% to
51% of the time as “proficient.” With people’s lives at stake, you’d think
they’d set their standards a little bit higher.

Fortunately, the court disagreed with the prosecution.

“As law enforcement has embraced these studies as the
basis for their trainings, the Court finds that, `proficient,’ as used by law
enforcement means a 43% to 49% accuracy rate for identifying those subjects
with no drugs in their systems,” said Judge Jennifer Tyne. “The Court
does not find this to be reliable, let alone proficient.”

“Based on the evidence presented at this hearing, the
Court finds that the body of knowledge, the principles and the methods that the
officer was instructed on are not reliable predictors of whether an individual
is under the influence of certain narcotics,” Tyne said.

Having denied the prosecution the ability to introduce
Polidoro’s testimony about drug recognition and the effects of drugs on humans
as an expert, Judge Tyne did, however, say that Polidoro could testify about
his observations of Callahan and any statements Callahan might have made after
Callahan’s arrest.

Callahan may very well have been under the influence of
drugs while driving, but that’s not the point. The court should not allow the
testimony of “experts” without a sufficient basis to deem that person an
expert. Doing so can lead to wrongful convictions in DUI and any other types of
criminal cases.

The post Should Courts Allow Cops to be “Experts” in Drug Intoxication for DUI Cases? appeared first on DUI BLOG.

Should Bars be Allowed to be Sued when they Serve Alcohol to Someone who Later Causes a DUI-Related Accident?

The question has been raised recently several times: Should victims
of DUI-related collisions be allowed to sue the bar who served the drunk driver
that caused the collision?

Relatives of an entire family that was killed by a drunk
driver certainly think so.

Relatives of the Abbas family have filed a wrongful death lawsuit
against two Kentucky bars who are accused of over-serving a customer, and
against the customer’s estate.

According to the police report, in January of this year, Joey
Lee Bailey consumed at least two 22-ounce beers and three double White Russians
at the restaurant, Roosters Wings in Georgetown. Bailey then drove to Horseshoes
Kentucky Grill & Saloon in Lexington. There he was served at least one beer
and four more double White Russians.

After Bailey left the last bar, Lexington police said they
received a report of a white pickup truck traveling in the wrong direction on the
interstate. Shortly thereafter, a collision was reported.

Bailey had collided with an SUV carrying a family of five
who were headed home from a vacation in Florida. Bailey did not survive and
unfortunately neither did the occupants of the SUV; 42-year-old Issam Abbas,
and Issam’s wife, 38-year-old Rima Abbas, along with their three children, 14-year-old
Ali Abbas, 13-year-old Isabella Abbas and 7-year-old Giselle Abbas.

“For the surviving family members, as well as for their many
friends left behind, the nightmare and grief caused by that crash will never go
away,” said Greg Bubalo, an attorney representing the Abbas family. “By filing
the lawsuit, the family hopes to hold those responsible accountable and ensure
that this type of tragedy does not occur to another family. This is a second
time fatalities have been alleged to have resulted from over-serving alcohol by
Horseshoes.” 

According to the coroner, Bailey’s blood alcohol content
level was 0.306 percent, more than three times the legal limit in Kentucky (and
California) of 0.08 percent.

While I agree with Mr. Bubalo’s first statement, I wholeheartedly
disagree with his second.

I’m sorry, but it is not the job of bars and restaurants to
babysit customers. It is not their job to make sure they don’t drink and then
drive. And it is not their job to monitor whether someone is too intoxicated to
drive.

Bailey, an adult, made the decision to have that many drinks
and then, after having left the bars, get behind the wheel. What were the bars
supposed to have done? Breathalyze Bailey before he left? Were they supposed to
take his keys away? Were they supposed to have someone monitor the exit of the
parking lot?

Fortunately, thus far, the California legislature feels the
same.

Fortunately, California sees it the same.

While other states such as Kentucky may hold a bar liable
for injuries caused by a drunk driving customer, in California it is the
customer’s willful decision to drink and then drive which is the cause of any subsequent
DUI collision. Thus, in California, bars and restaurants are shielded from
liability when a customer over drinks, drives away, and causes injury or
damage.

California’s “Dram Shop Laws” (California Civil Code section
1714) read as follows:

(b) It is the intent
of the Legislature to . . . reinstate the prior judicial interpretation of this
section as it relates to proximate cause for injuries incurred as a result of
furnishing alcoholic beverages to an intoxicated person, namely that the furnishing
of alcoholic beverages is not the proximate cause of injuries resulting from
intoxication, but rather the consumption of alcoholic beverages is the
proximate cause of injuries inflicted upon another by an intoxicated person.

(c) Except as provided
in subdivision (d), no social host who furnishes alcoholic beverages to any
person may be held legally accountable for damages suffered by that person, or
for injury to the person or property of, or death of, any third person,
resulting from the consumption of those beverages.

(d) Nothing in
subdivision (c) shall preclude a claim against a parent, guardian, or another
adult who knowingly furnishes alcoholic beverages at his or her residence to a
person under 21 years of age, in which case, notwithstanding subdivision (b),
the furnishing of the alcoholic beverage may be found to be the proximate cause
of resulting injuries or death.

As you can see, the laws are different if the customer is
under the age of 21. It is the responsibility of bar to ensure that their customers
are of legal drinking age before serving them alcohol. People under the age of
21 are legally deemed incapable of making good decisions regarding alcohol
use…like the decision not to drive after drinking at a bar.

While California’s law differ from other states with respect
to civil liability, like Kentucky, a bar may be held criminally liable if they
serve alcohol to an “obviously intoxicated person.”

According to California Business and Professions Code
section 25602(a), “Every person who sells, furnishes, gives, or causes to be
sold, furnished, or given away, any alcoholic beverage to any habitual or
common drunkard or to any obviously intoxicated person is guilty of a
misdemeanor.”

Having said that, I’ve been practicing criminal law for 10
year and I’ve never seen California Business and Professions Code section
25602(a) charged. My guess is that it’s difficult to prove that a bar knew that
someone was “obviously intoxicated,” as might have been the case with the bars
that served Bailey.

The post Should Bars be Allowed to be Sued when they Serve Alcohol to Someone who Later Causes a DUI-Related Accident? appeared first on DUI BLOG.

Shooting a Gun while Intoxicated Less Dangerous than Driving while Intoxicated?

The New York Legislature last month voted to lower the blood
alcohol limit allowed while hunting to match the threshold for the blood
alcohol content someone can have while driving.

On March 26^th of this year, the New York Assembly
voted 147 – 1 to amend the law that previously outlawed hunting in the state with
a blood alcohol content of 0.10 percent or higher. The following day, the New
York senate voted 56 – 5 to amend the law. Under the amended law, hunters
cannot have a blood alcohol content of 0.08 percent or higher, matching blood alcohol
content limit while driving in most states, including California (Utah just
became the first state to lower its blood alcohol content limit to 0.05
percent).

Under the new law, hunting with a blood alcohol content of
0.08 percent or more is a misdemeanor and carries a fine of up to $500, up to a
year in jail, and a revocation of a person’s hunting license for two years.
Additionally, licensed hunters who refuse to submit to a breath or other test
for intoxication can also have their licenses revoked.

“These changes were based in part on studies which
determined that this level of alcohol in an individual’s bloodstream can result
in substantially impaired motor skills, perception and judgment,” Assemblyman
Kenneth Zebrowski wrote in his sponsor’s memo. “These are also critical skills
used in hunting.”

In California and other states, DUI laws generally include prohibitions
against both driving with a per se blood alcohol limit of 0.08 percent or higher
(or 0.05 percent or higher in Utah) and driving while under the influence (or
some other iteration like “driving while intoxicated” or “operating under the
influence”).

The purpose for this is that nobody should be driving while actually under the influence, meaning that they cannot drive like a reasonable and sober person would. And, as Mr. Zebrowski stated, at a 0.08 percent, studies have shown that the motor skills of individuals, albeit very subjectively, are affected to a degree that might impair driving.

Like Zebrowski, lawmakers who approved of New York’s new
limit expressly cited the risk of injury and death.

“An individual who is too intoxicated to drive a car or
pilot a boat is also unfit to engage in hunting and the increased risk is not
only to the hunter, but to everyone else in the field,” Zebrowski, a Rockland
County Democrat, wrote. “This bill would ensure a consistent standard for
intoxication in state law.”

Sure, it sounds like they’re considering driving with a blood
alcohol content limit of 0.08 percent just as dangerous as shooting a gun with
a blood alcohol content limit of 0.08 percent or higher.  But are they really?

Let me get this straight. It is illegal to shoot a gun and
drive with a blood alcohol content of 0.08 percent or higher. Fine. However, it
is also illegal to drive a vehicle while “under the influence” regardless of
what a person’s blood alcohol content is. Yet, a person can shoot, say a semi-automatic
rifle, if they are “under the influence,” but not necessarily above a 0.08
percent.

Let me give an example. Take a person weighing less than a
hundred pounds who has never had a sip of alcohol before in their life. If they
have a couple of beers, they may not be above a blood alcohol content of 0.08
percent, but they’re certainly going to be “drunk” or “under the influence.”
New York is telling them, “Sure, go shoot that gun, but don’t you dare drive.”

Really?

It seems to me, and I would hope others would agree, that using
any firearms with any alcohol seems patently dangerous, and certainly more
dangerous than driving a vehicle. Not that I’m saying it’s safe to drive with
alcohol in your system. Neither are safe. But if lawmakers are using a driving
under the influence as a measuring standard for how they draft other laws, then
it should actually be equal at a minimum, if not more restrictive for more
dangerous activities. Or is this just another example of the overzealous vilification
of DUI’s?

New York’s new law becomes effective September 1^st.

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