Police in Washington Double their DUI Arrest Rate

So
far in 2019, the Bellingham Police Department of Washington state has seen 110
DUI arrests through April 19, 2019. That is approximately one DUI arrest per
day. According to Lieutenant Claudia Murphy that’s a 134% increase from the 47
arrests made in the same period in 2018.

It
is not that there is all of a sudden a huge increase in the number of drivers
who appear to be imbibing and getting behind the wheel, but rather that the
Traffic Division of the Bellingham Police Department is emphasizing on what
they believe is the first step in keeping their community safe. According to Sergeant
Carr Lanham, the department’s success in achieving this arrest rate has much to
do with the $20,000 grant they received from the Washington Traffic Safety
Commission’s Target Zero Program.

The
Target Zero Program aims to achieve “Zero Deaths & Zero Serious Injuries by
2030.” The grant money allowed the department to train their officers in
recognizing drug use through a mentoring program with the department’s drug
recognition expert, Officer Zack Serad. According to Sgt. Lanham, the grant and
mentoring program allowed Officer Serad to take other officers with him to gain
knowledge and experience in properly spotting and processing impaired drivers
as well as allow him to do ride-alongs with other officers. Serad was also able
to focus on training other officers in testing for intoxicants other than
alcohol.

In
addition to the mentoring program, increased staffing has allowed for more
officers to be on duty on the streets during the peak DUI hours which Lt.
Murphy has also credited for the higher arrest rates. Murphy has also attributed
the “success” to a more “mature” staff in comparison to 2018.

The
Bellingham Herald called this “an impressive start to 2019.” But is it really?

Sure,
the number is much higher than last year, but the number doesn’t necessarily
reflect the number of convictions. We have no real data about how many of these
arrests are legitimate DUI arrests. Other counties in the area are not seeing
this huge jump in arrest numbers. Remember, an arrest means nothing without a
conviction because without a conviction a driver suspected of DUI is innocent.

We
recently posted an article about “experts” in the police force being used in
court (see article Should Courts
Allow Cops to be “Experts” in Drug Intoxication for DUI Cases). Is a
mentoring program by a police force drug recognition expert enough to gain the
proper knowledge and experience to have made such a huge impact on the arrest
rate? Or is there a possibility that, as a result of the mentoring program and
focus on DUIs, the officers are a bit more quick to arrest drivers with DUI? If
you recall from the article, “proficient” in the eyes of law enforcement is a
43% to 49% accuracy rate.

It
would be interesting to know how the mentoring program may have focused on
recognizing marijuana use as recreational use of marijuana has been legal in
the state of Washington since 2012. Washington state does not utilize
roadblocks as part of their system in controlling impaired drivers so it would
also be interesting to receive more details about how the officers are even
able to spot impaired drivers on the road. Sure, having more officers out on
the roads will raise the probability of an impaired driver being recognized,
but to the extent of a 134% increase? Seems a bit suspicious.

If
in fact, a majority of the arrested drivers were legitimately impaired and the
Bellingham police force was able to get them off the streets so that other
drivers can have a safer environment to drive, then all the power to them.
Being able to get the potentially dangerous drivers off the roads is an
incredible feat, but if these numbers are just a façade making it look like they
are 134% more effective than last year at catching drunk drivers, then we may
need to take another look at a breakdown of this number.

The post Police in Washington Double their DUI Arrest Rate appeared first on DUI BLOG.

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.

The post Shooting a Gun while Intoxicated Less Dangerous than Driving while Intoxicated? appeared first on DUI BLOG.

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.  

The post Should California Lower its BAC Limit? appeared first on DUI BLOG.

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?

The post Maine Supreme Court Affirms DUI Conviction Even Though Science Suggests Defendant was Involuntarily Intoxicated appeared first on DUI BLOG.

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.