As a Maryland DUI/DWI Attorney I am frequently asked by friends and acquaintences whether they should take the breathalyzer if they are stopped for suspicion of Driving Under the Influence . This question is almost invariably followed by the statement, “because I have always heard that you should never take it”.
I am not completely sure where this idea that one should never take the breathalyzer came from, although I suspect it is simply dated advice that is still being recirculated because in my view, under most circumstances, a person who is stopped by the police should take the breathalyzer if asked to do so. Here’s why:
As most people are aware, significant changes have been made to the law regarding Driving Under the Influence over the past 20 years. For instance, 20 years ago the legal limit was a BAC of .12 as opposed to .08 today for Driving Under the Influence. In those days judges were also far more likely to give a well represented defendant the benefit of the doubt in cases where there was no breathalyzer. The administrative sanctions imposed by the MVA for refusing the breathalyzer were also far less severe than they are today. The bottom line was in those days not taking the breathalyzer gave you a better shot at being found not guilty in criminal court and did not subject you to extreme administrative penalties. It may very well have been sound legal advice to advise people to never take the breathalyzer before these changes.
Today, the police are trained much better than they were in the past and know how to observe and explain a suspects intoxicated behavior in language that is persuasive to judges and juries in most cases. Laws have also been changed to aid prosecutions in which the breathalyzer was not taken. For instance, it used to be the case that the State was not even allowed to mention the fact that a test was not taken to the judge or the jury. Today, they are allowed to argue to the judge or jury that they should draw a negative inference from the defendant’s refusal to submit to the breathalyzer.
In recent years judges have also been trained, and some my say also cajoled by groups such as MADD, into being much more likely to convict without the benefit of the test. Finally the administrative penalties are much harsher today than in the past. Today for a first refusal there is a mandatory suspension of 120 days. A second or subsequent refusal requires a suspension of a year. There is no provision for a work restricted license such as there is when the test is taken. The only way around the suspension is to participate in the interlock program for a year.
Unfortunately, the decision as to whether to take the test was further complicated a few years ago when the legislature changed the law to increase the adminstrative sactions for readings of .15 or greater. These higher readings now require a 90 days suspension that, like the refusal, may not be modified unless the person participates in the interlock program.
So what is my advice? Today, I tell people that if you are not completely intoxicated and it is your first offense, in most situations you are better off to cooperate fully to include taking the breathalyzer. For the reasons explained herein, there is really little to gain in criminal court by not taking the test and refusing to do so will ensure the much more onerous administrative sanctions I described. On the other hand, if the test is taken and the result is below .15, the person will only face a 45 day suspension that may be modified so that the person can drive to and from work. This is obviously far easier to deal with than a mandatory 120 day suspension or a year with the “blow and go”
The heart of this case — State v. Boecker if you want to read it yourself — involves the type of issue that only lawyers can really get behind . . . complex statutory interpretation. But even the most convoluted cases can be simplified for non-lawyers, and State v. Boecker is no exception. Basically, this case came about because the Minnesota Legislature has done a terrible job writing our DWI laws, creating loopholes and contradictions across various statutes. Because we get a new Legislature every two years, the situation gets progressively worse, as future law makers then make even dumber decisions, like inserting language describing the “intent” of previous lawmakers from decades past.
This isn’t uncommon — very few of our legislators are actual attorneys, or even have legal training— but it seems to get especially ugly with our DWI laws. And our Courts, who are responsible for interpreting the letter of the law (not the “spirit,” and especially not when the statute imposes a criminal penalty) sometimes make a deliberate effort to “look the other way” when a DWI law is being scrutinized for lousy drafting.
And that’s what happened here. Minnesota’s DWI laws make any DWI a felony-level offense (meaning you can go to prison) if you have a prior felony offense at any point in your lifetime. In fact, the statute lists all of the possible ways of enhancing a misdemeanor DWI to a felony.
But in Boecker’s case, the statute didn’t list his specific offense, that happened in 1998. The Minnesota Supreme Court relied largely on some “statement of intent” language that was inserted by the 2012 Legislature, purporting to describe the intent of the 2007 Legislature . . . and things just got more confusing from there. Long story short, the Court concluded that even though Mr. Boecker’s prior 1998 DWI wasn’t listed as an option for enhancing his current offense to the level of a felony, they were just going to “read it into the statute” (that’s me paraphrasing).
That’s typically a huge no-no — if a criminal statute doesn’t say something explicitly, it’s not the role of the the Courts to invent language to cover any gaps. But that’s what happened in Boecker . . . and now he’s going to spend several years in prison for driving with an alcohol concentration of 0.14. That may or may not have been the intent of the Legislature, but if it was their intent, they should have done a much, much better job of saying it.
Source: Ramsay Law Firm
The Operation Of A Motor Vehicle Requirement For A DUIAn essential element for a DUI conviction in Kentucky according to the Kentucky DUI statute, KRS 189A.010 (1), requires that “a person shall not operate or be in physical control of a motor vehicle anywhere in this state.” A person who is not in control of a motor vehicle simply cannot be guilty of a DUI.So for example, if an officer observes a properly parked vehicle with an intoxicated person sitting behind the wheel, with the keys in the ignition and the motor running, and the person inside sitting there just smoking and texting on their cell phone, is that behavior sufficient to meet the proof of operation to support a DUI arrest? What if the intoxicated person was asleep at the time that the officer arrived? The simple answer to both questions is it depends on the facts and whether the prosecutor can prove the intoxicated person was operating or in control of the vehicle.In order to prove operation or control of the vehicle to support a DUI arrest and subsequent conviction, the prosecutor has the burden of proving the following four factors:Whether or not the person in the vehicle was asleep or awake;Whether or not the motor is running;Location of the vehicle and all the circumstances bearing on how the vehicle arrived at that location; andThe intent of the person behind the wheel.The first factor, whether a person is asleep or awake, is easily observed by the officer. But by itself it is not sufficient to support a DUI arrest. Courts have held that a sleeping person is not in operation of a vehicle.The second factor may be more difficult since determining whether or not a gasoline or diesel engine is running is easy but with the introduction of hybrid and electric vehicles on the roadways in recent years it does make it more difficult to determine whether or not an electric motor is running since they are mostly silent when running and designed to remain off while the vehicle is stopped. However, at least one court has held that merely starting a vehicle’s engine or motor is not an exercise of actual physical control.The third factor, the location of the vehicle and all the circumstances bearing on how the vehicle arrived at that location, are important in determining operation. For example, when did the driver become intoxicated: before or after parking the vehicle? Was the driver discovered before any new driving could begin?The fourth factor, the intent of the person behind the wheel, is more difficult to prove and has been the subject of numerous court hearings over the years. Kentucky courts have held that sleeping drivers in properly parked vehicles could not have had any intention to drive under those circumstances. Furthermore, as a court stated, merely being awake in the driver seat of a vehicle with the engine on does not require finding of an intent to drive or it would constitute a separate factor in the determination of whether the person and the vehicle was awake or asleep.Answering the questions in the example above, a person who is sitting in the driver seat of a properly parked vehicle in which that person can comfortably smoke and text, rather than using the vehicle as a mode of imminent transportation, shows that the person did not intend to drive. In that situation the person is not in operation of the vehicle to support a DUI arrest.
Have you heard the one about the driver who was arrested for DUI because he had a caffeine high? Or about the state legislator who successfully argued that cough syrup and a breath spray caused a false positive DUI breathalyzer reading?
While law enforcement officers and courts generally accept breathalyzer tests as proof that someone was driving under the influence, those tests can sometimes give false positive readings. As absurd as these stories sound, to the people wrongfully arrested for DUIs, these incidents are no laughing matter.
Betrayed by their bodies
A rare medical condition led a judge to dismiss a DUI charge against an upstate New York woman in 2015. Police pulled the woman over because she was driving on a flat tire and arrested her when a breathalyzer test revealed that she had almost four times the legal limit of 0.08 percent alcohol in her bloodstream. That’s considered life threatening, so police rushed her to the hospital.
What puzzled police, the hospital and her attorney, Joseph Marusak, was that the driver showed no symptoms of being under the influence. Plus, Marusak’s client claimed she had only four drinks over the course of six hours—not enough to leave her intoxicated.
Marusak ended up doing some investigating and eventually uncovered his client’s problem; she had auto-brewery syndrome, in which the body actually manufactures its own alcohol. Those with the disease have abnormal amounts of gastrointestinal yeast, which takes the common carbohydrates they eat and turns them into ethanol. The medical community has been aware of this condition since the early part of the 20th century.
The judge dismissed the charges against Marusak’s client, who is now on a yeast-free diet (no sugar, no alcohol and very few carbs, according to CNN).
Last December, ABC News 13 in Houston reported the story of a woman who was arrested for DUI and spent three days in jail. But Christie Lietzau claimed that the problem wasn’t that she was intoxicated, but that she was having an episode of multiple sclerosis (MS).
Christie Lietzau said she was driving her daughter to a fast food restaurant when she had an MS episode. The daughter, alarmed by her mom’s slurred speech and instability, called 911. When officers responded, they told the daughter her mother was impaired, not ill, and arrested her for DUI. Lietzau said the police didn’t give her a BAC field test, but a spokesperson for the Rosenberg Police Department said they followed all procedures.
The officers said that they drew blood and that the DUI charges stem from Lietzau being under the influence of prescription medicine. Lietzau admits to taking medication to control her MS, but says it doesn’t affect her driving ability. (There’s no word yet on how this case has been resolved.)
Prescription medicines can cause people to drive erratically, but one police officer in Statham, Georgia, has taken that a bit far, according to many locals. They allege that Officer Marc Lofton routinely arrests people who take prescription drugs—even those legally prescribed by physicians for diabetes, blood pressure and other medical conditions.
Stratham has a population of just over 2,500 people. Last fall, a group of 400 of those citizens—almost one-sixth of the town’s population—signed a petition calling for Lofton’s firing because of his allegedly overzealous actions. In November 2016, the Online Athens news site reported that a group of people “too large to fit inside the Statham City Hall without breaking fire code” attended a meeting of the City Council to demand that Officer Lofton be fired.
The angry citizens claim that Lofton is making these DUI arrests in order to boost the department’s (and the town’s) budget.
Statham Police Chief Allan Johnston has backed Lofton, although he admits that the officer needs more training in DUI. The Georgia Prosecuting Attorney’s Council, which investigated citizens’ complaints, said that the officer should take an Advanced Roadside Impaired Driving Enforcement Class (ARIDE). When questioned by reporters for CBS46, Johnston said that Lofton had taken the class when he worked for another agency but failed it. (The CBS46 reporters didn’t find a record of that training, but found that Lofton had taken—and failed—a Lidar (radar) speed measurement class.)
Officer Lofton’s accusers were further outraged by the fact that his wife was arrested for DUI in 2015 after blowing a .204 on a breathalyzer. But when her case came to court, the prosecutor dismissed the charges. He claimed that the Winder, Georgia officer who arrested her had credibility issues and that his office was dismissing many other of the officer’s DUI arrests.
One problem that DUI enforcement officers face is the lack of a credible test for marijuana intoxication. Many states, including Georgia, have reacted by training more officers to become Drug Recognition Experts, who learn how to detect possible drug intoxication by evaluating drivers’ behavior and reactions. The problem is some officers don’t get it right… and then they’re reluctant to admit that they may have been wrong in their assessments.
An investigative report by Atlanta 11 Alive news team found that one officer in Cobb County, T.T. Carroll, received a silver medal for making 90 DUI arrests in 2016, even though in at least three cases he apparently misread the signals.
Carroll charged Bartender Katelyn Ebner with DUI despite the fact that she passed a BAC field test and denied ever smoking marijuana. Carroll insisted that he could tell she was pot-impaired. Carroll spent the night in jail, lost her alcohol server’s permit and ended up spending thousands to clear her name. The drug tests, which police had said would prove her impairment, came back negative.
In a similar case, a college student named Princess Mbamara went to jail on Carroll’s accusation of marijuana intoxication. Her test results came back positive only for a local anesthetic that is found in anti-burn, anti-itch and similar over-the-counter medicines. Another unnamed Auburn University student had a similar experience; the prosecutor eventually dismissed the charges against the defendant, noting that the student had done fine on the field sobriety evaluation and that the blood and urine tests were negative.
Politics also sometimes plays a role when determining who gets charged and convicted of a DUI. In June 2016, a judge acquitted Florida Senator Terry Burton, the President Pro Tem of the Florida State Senate, of the charges of DUI against him. The Scott County judge decided that Senator Terry Burton’s BAC reading of 0.10 at the time of his arrest was a false positive. He accepted Burton’s explanation that the reading was the result of his taking cough syrup and using breath spray.
Burton had hit a traffic sign around 10 p.m. on the evening of May 14, 2016. He said that he had a coughing spell after the airbags deployed and drank some Nyquil because he had nothing else in the car. He then used the breath spray because his mouth was dry.
Burton admitted to drinking alcohol earlier in the day but insisted that he had stopped drinking in the afternoon and was not under the influence when arrested. The judge ruled that the BAC reading was a false positive and dismissed the charges against Burton.
Police are from the same cloth as all court witnesses, drawn from the general population that ranges from the angelic to the amoral to the sinister. Neither the law nor good sense merits cloaking police with any more presumption of believability nor honesty, than any other witness.
Recent examples that police include those to heavily beware of include:
– Two weekends ago, a Minneapolis police officer shot dead Justine Ruszczyk, a 911 caller who reported a possible assault in progress. No video footage exists of the incident, the police officer who shot the caller has apparently remained silent (which of course is his right, as much as police often act berserk when their own suspects do not talk to them), and the Minneapolis police chief has resigned in the midst of this scandal.
– Praised be the Maryland Public Defender’s Office for making public a video from earlier this year seeming to show Baltimore police planting illegal drugs in a residential area. The related prosecution got dropped as a result.
– Speaking of Baltimore, two veteran Baltimore police detectives — Evodio Hendrix and Maurice Ward — on July 21, 2017, entered guilty pleas in federal court over charges involving robbing arrestees, claiming non-existent overtime pay, and forging documents.
Material mis-steps by police are not isolated incidents, even if the above examples are among the more extreme police mis-steps. Police work under extraordinary pressure, often exhausted working when most people are sleeping, often too quickly dashing off incident reports that become their gospel (so that they may return to the street or end their shift), and are bound to make serious errors. Their badge and uniform do not shield them from such mis-steps.
What can the population at large do about this state of policing affairs? We can start by acknowledging that the public over the decades has allowed the criminal justice system to get overgrown and overly harsh, abdicating our own role in looking out for each others’ welfare as opposed to seeking a policing and prosecutorial solution to even minor claimed ills that do not need police and court intervention. In community after community in the United States, millions of Americans greenlight what has become a police state, with police trolling for those with marijuana, for those minding their own business enjoying several cold ones without any car keys nor intention to drive, drivers possibly over the alcohol drinking limit, and the list goes on. Too many politicians cower about possibly lost votes if they stand up for a smaller, more manageable, more sensible and humane criminal justice system rather than the current state of affairs that allows too many presumed innocent people to be detained without bond pending their trials, too many people to be racially profiled, too many non-violent convicts to suffer overly-severe mandatory minimum sentencing, and too many innocent people to be convicted.
Of course, we want police to humanize all people, and one way to accomplish that is for us to humanize police. Plenty police mean well, but how many police who mean well stand up when they witness colleagues who violate their oath of office, stand up to orders that disserve the public, and stand up for them to have the resources and time to minimize getting the wrong people arrested, convicted and harshly sentenced? For a police officer to stand up in that way, the officer needs to be ready to risk losing his or her police fraternity, his or her job, and all the substantial pay, overtime, pension, and other benefits that come with the position.
Prosecutors, judges and jurors do a gross disservice to criminal defendants and the rest of the public to cloak police with any more a presumption of honesty and reliability as witnesses than they do with civilians. We all are humans, all with the potential and ability to do great and abysmal things. Police are far from Übermensch immune to such failings.
Northern Virginia criminal defense attorney Jon Katz has been fighting for thousands of criminal defendants since 1991. For a confidential appointment, please call Jon’s staff at 703-383-1100.
The Texas Court of Criminal Appeals last month issued an opinion in Ex Parte Mark Bowman, with a dissent from Judge Elsa Alcala, that caught Grits’ eye – not because of the issues being decided in the case but thanks to the underlying fact pattern evinced in the discussion.At issue was a 2004 DWI in Houston and whether the defense counsel was alleged to be ineffective. The evidence of counsel’s ineffectiveness? Because of Houston PD overtime rules, the officer had an incentive to arrest people for DWI even if the cases were later dismissed because he received time-and-a-half for the hours he spent in court.The officer, William Lindsey, testified that members of the DWI task force were “paid overtime, time-and-a-half” for all hours spent in court, giving him a personal financial motive to go to court whether or not an arrest is legitimate. In the prior year, he said, he’d made 476 DWI arrests.In his habeas writ, the defendant was able to show that Officer Lindsey, from 1992 to 2004, made more money from combined overtime pay than he did from his regular salary. According to the majority opinion, “In the first eleven months of 2004 – the year of Appellant’s first DWI arrest – Lindsey earned a total of $145,957, of which only $63,924 was regular salary while $82,032 was paid overtime.”For a while, Lindsey was the highest paid officer in the city. He retired after reporters began to question the situation in 2006. (See contemporary Grits coverage.)Three criminal defense lawyers, including Doug Murphy, a DWI specialist, testified that failure to secure details about Lindsey’s economic incentives amounted to ineffective assistance. From Murphy’s affidavit:It is common knowledge among lawyers in Harris County who regularly handle DWI cases during Lindsey’s tenure on the DWI Task Force that he arrested many people in affluent parts of southwest Houston – regardless of how well they performed the field sobriety tests or how sober they appeared to be on videotape – so he could obtain overtime pay for appearing in court pursuant to a subpoena to testify at their trials. Competent defense lawyers made Public Information Act requests to HPD to obtain Lindsey’s payroll records before they tried DWI cases in which he would testify.Further, wrote Mr. Murphy:Defense lawyers would present this evidence on cross-examination to demonstrate Lindsey’s motive for making the arrest. They typically would argue that Lindsey arrested sober drivers for DWI because he knew that they would go to trial and he would receive overtime pay for appearing in court to testify; that, for this reason, he gave no driver the benefit of the doubt at the scene; that, in effect, he received three days of pay for appearing at a two-day trial; that he received the money even if the defendant were acquitted; and that his overtime pay exceeded his regular pay during his tenure on the task force. Arguments of this nature frequently persuaded juries to reject Lindsey’s opinion regarding intoxication.The other two attorneys’ affidavits included essentially similar comments.A Houston Chronicle story from July 1, 2006* mentioned a “memo … from a traffic enforcement captain warning that officers were scheming to have themselves unnecessarily placed on court dockets to inflate their overtime totals.” So these allegations were coming from HPD brass, not just defense lawyers or the media.Let’s leave aside for a moment the question of whether defense counsel was ineffective, which is the focus of the two opinions. Grits instead wants to raise other questions: Is it good public policy for police officers to have an incentive to make dubious arrests so they can get overtime to show up in court? If testifying is part of a police officer’s job, why can’t they do it during regular work hours? Is there a way to pay for court time that doesn’t contribute counterproductive incentives?In Austin, the meet and confer agreement (Art. 8, Sec. 3) specifies particularly generous extra pay for time spent in court. For example, an officer who attends court for more than one hour prior to the start of the work day gets credit for a minimum four hours of overtime. Similarly, officers who go to court after work receive a minimum of four hours overtime no matter how long they stay there. So if an officer gets off at 5, goes to court at 5:15, and is out by 5:50, they’d be compensated for four hours at time-and-a-half.Such pay structures give incentives for police to arrest on trumped up charges so they can justify spending time in court and making time-and-a-half. Such incentives can result in false convictions, particularly when counsel is ineffective or nonexistent. That seems like a more important takeaway for me, anyway, than the ineffective assistance questions at the heart of the debate between the judges over Mr. Bowman’s habeas writ.
OUI checkpoints pop up on heavily traveled roads throughout MA every weekend. You have rights if you are stopped at one of these checkpoints, but it’s important to keep the following in mind – the U.S. Supreme Court ruled that OUI checkpoints are legal. So, while you do have rights, you must stop at a checkpoint if directed to do so. Read on for more information about what to do, and what not to do, if you are stopped.
OUI Checkpoint Dos
- If you are directed to stop, do so as soon as it is safe to pull over. The requested stops are usually done at random, so don’t panic if you are directed to pull over.
- Stay calm, and politely follow the officer’s instructions.
- Provide law enforcement with requested information, such as your driver’s license and vehicle registration. Failing to do so may cause suspicion and result in further complications, even your arrest.
OUI Checkpoint Don’ts
- Avoid violating traffic laws when you are driving through a checkpoint. This may sound obvious, but it’s easy to make mistakes when you are panicking. Don’t make illegal U-turns, use excessive speed, or ignore an officer’s signals to pull over. These actions could give police reason to suspect you of OUI.
- Don’t unnecessarily incriminate yourself. If police ask if you’ve had anything to drink, politely decline to answer the question. Although you may think it will help your case to say you’ve only had one or two beers, this statement can be used against you. In fact, other than providing police with identifying information, such as your license and registration, you should – politely – decline to answer any questions that police ask you.
- Decline field sobriety tests. You are absolutely able to refuse field sobriety tests; politely decline and inform police that you know it is your right to refuse.
- Do not volunteer to take a breath test. If you haven’ been arrested, you are not required to submit to a breath test. Once you have been arrested, there are penalties for refusing. However, in some cases these penalties are less severe than the potential penalties of an OUI conviction. It is impossible to give a blanket statement as to whether you should or should not refuse a breath test if arrested for OUI. This can only be determined on a case by case basis, incorporating factors such as prior criminal history and OUI convictions. A Boston defense attorney can help you understand how refusing a breath test might impact you, based on your personal circumstances.
Massachusetts is tough on OUI. Even first-time offenders may see jail time, have their license suspended, and be required to have an ignition interlock device (IID) installed. These devices require a driver to provide an alcohol-free breath sample before his or her engine will start, and periodically throughout the drive. Second and subsequent offenders will have even stiffer penalties. If you made the mistake of driving while intoxicated, don’t make another one by hiring the wrong attorney. A skilled MA OUI attorney can make all the difference in the world.
On January 15th of last year, the National Highway Traffic Safety Board (NHTSA) issued the following news release:
Feds Want to Lower the Legal Limit to One Drink
Washington, DC. Jan. 15 – The National Transportation Safety Board wants to decrease the legal driving limit to one drink, lowering the legal limit on blood-alcohol content to 0.05 “or even lower.”…
The agency issued the recommendation while admitting that “the amount consumed and crash risk is not well understood.”
“We need more and better data to understand the scope of the problem and the effectiveness of countermeasures,” they said….
A 0.05 BAC level would reduce the number of drinks an average-weight man of 180 pounds could have to two, according to Blood Alcohol Calculator. Women could only have one drink before they exceeded the limit. A 100-pound woman reaches .05 BAC with just one drink, but two drinks would put any woman under 220 pounds at or above the government’s desired limit.
Under the current level of 0.08, an average weight man can have four drinks until reaching the limit.
On the next day, I posted the following on this blog:
To give all of this some context, let me offer a history of this focus on the lowering of blood-alcohol limits rather than on the more important issue of alcohol-caused impairment….
The original drunk driving laws were simple and fair: Don’t drive under the influence of alcohol (DUI). Then, many years ago, law enforcement came up with crude devices to measure alcohol on the breath of drunk driving suspects. But what did, say, a .13% blood-alcohol concentration (BAC) mean? They turned to the American Medical Association which, in 1938, created a “Committee to Study Problems of Motor Vehicle Accidents”. At the same time, the National Safety Council set up a “Committee on Tests for Intoxication”.
After some study, these two groups came up with their findings: a driver with .15% BAC or higher could be presumed to be “under the influence”; those under .15% could not. That’s right: .15%. And that recommendation lasted for 22 years. But prosecutors and certain groups of “concerned mothers” were not happy with the low DUI arrest and conviction rates.
Under increasing political pressure, the committees “revisited” the question in 1960 and agreed to lower the presumed level of intoxication to .10%. Had the human body changed in 22 years? Had the AMA been negligent in their earlier studies? Or were politics and law once again trumping scientific truth?
Well, the arrest and conviction rates shot up, but there were still too many people escaping the DUI net. Then MADD was formed. Soon after, legislation began appearing in many states that created a second crime, in addition to driving under the influence: driving with a BAC of .10% or higher.
This new crime did not require the driver to be affected by alcohol: even if sober, he would be guilty if his blood-alcohol was .10%. In effect, it completely ignored the questions of intoxication, driving impairment and individual tolerance to alcohol. And, despite questions of double jeopardy, the individual could be charged and even convicted of both the traditional DUI and the new .10% crimes! This gave police and prosecutors a powerful new weapon, and drunk driving arrests/convictions jumped once again.
This was not good enough. Under increasing pressure from an ever more powerful MADD, in 1990 four states lowered the blood-alcohol level in DUI cases to .08%; others soon followed and, ten years later, federal politicians (with one eye on MADD) passed an appropriations bill in effect coercing all states into adopting the new .08% BAC standard.
Since I wrote this, three months ago Utah enacted a new law lowering the blood-alcohol level drunk driving to .05%. See Jon Ibanez’ DUIblog post Utah Lawmakers Vote to Lower State’s BAC Limit to 0.05%.
Interestingly, on June 17th — shortly after the new .05% law was enacted — the Salt Lake City Tribune published the following comments from the original founder of MADD, Candy Lightner:
Founder of MADD Says Utah’s New Drunk Driving Law is an Unhealthy Distraction
Salt Lake City, Ut. June 17 – While drunk driving remains a serious concern, other threats are mounting on our roadways. According to a recent report from the Governors Highway Safety Association and the Foundation for Advancing Alcohol Responsibility, 43 percent of drivers involved in fatal crashes tested positive for some sort of drug, legal or illegal. And with the rise of smartphones and other gadgets, people are distracted more than ever while driving.
As the founder of Mothers Against Drunk Driving (MADD) I can attest that there is a new kind of madness on the roads. And new approaches are needed to save lives.
Unfortunately, the necessary debate on how to solve these new challenges isn’t happening in earnest. The traffic safety community is distracted by an issue that will do little to save lives: lowering the drunk driving arrest threshold from .08 to .05.
Back in the early years at MADD we focused on getting serious drunk drivers off the road…In the more than 35 years since MADD’s founding, we have fought drunk driving ferociously and saved countless lives in the process.
But today, the pendulum has swung too far in the other direction — with government agencies pushing states to arrest people for having little to drink before driving instead of pursuing strategies to tackle serious distraction and impairment. Anyone who works in traffic safety knows that most highway deaths are not caused by drivers with low blood alcohol content levels, but are the result of drivers with substance abuse disorders. Focusing finite resources on casual drinkers instead of drug and alcohol abusers is a miscalculation with deadly consequences…
Maybe it’s time for the decades-old “War on Drunk Driving” to redirect its fixation away from alcohol and towards the real problem today: drugs and distracted driving….
Marijuana DUI cases present a real risk of prosecuting people driving while not impaired. A primary reason is legislation that contradicts what science tell us it true about the drug. However, recently much of the scientific reality about marijuana has made its way to a number of higher courts. This includes the Arizona Supreme Court. As a result, the current state of Arizona law provides that prior marijuana use should not, alone, support a DUI conviction.However, while many of the myths about the meaning of a positive marijuana test result have been discarded – the world views of the people that previously prosecuted such cases still remain. These world views are plainly evident in the way some jurisdictions now prosecute alleged marijuana DUI cases based upon junk science.While no reasonable person would advocate for a person to drive while impaired by a drug, what should be equally concerning is the wrongful prosecution of someone based up an scientific sounding opinion lacking any basis in real science. After all, the American justice system was founded on the fundamental principle that “it is far worse to convict an innocent man than to let a guilty man go free.” In re Winship, 397 U.S. 358, 372, 90 S. Ct. 1068, 1077, 25 L. Ed. 2d 368 (1970).There are many legitimate signs and symptoms that a person may be impaired marijuana, but unfortunately investigations often go well beyond actual science. For example, law enforcement will often testify they a green tongue means a person is impaired by marijuana. This proposition has no basis in science yet it taught by the National Highway Traffic & Safety Administration to officers across the United States. One court that looked into NHTSA’s green tongue theory found:State has presented nothing, no scientific studies and no case law or other authority, to support the reliability of the trooper’s concern regarding the condition of Hechtle’s tongue. Cf. State v. Wheeler, No. 24397–1–II, 100 Wash.App. 1062, 2000 WL 646511, *2 n. 2, 2000 Wash.App. LEXIS 779, *7 n. 2 (Wash.Ct.App. May 19, 2000) (“Although we assume the officer’s assertion to be true for the purposes of this opinion, we are nevertheless skeptical as to its accuracy. We find no case stating that recent marijuana usage leads to a green tongue.”). State v. Hechtle, 2004 UT App 96, ¶ 13, 89 P.3d 185, 190Even the Arizona Court of Appeals has held the mere “scent of marijuana, standing alone, is insufficient evidence of criminal activity to supply probable cause for a search warrant.” State v. Sisco, 2 CA-CR 2014-0181, 2015 WL 4429575, at *1 (Ariz. Ct. App. July 20, 2015)DEFINING SOME TERMSTHC – also known as “Delta-9-tetrahydrocannabinol” is the main psychoactive constituent in marijuana.Hydroxy THC – the primary metabolite of THC.Carboxy THC – the metabolite of Hydroxy THC. Carboxy THC can remain in the body for as many as twenty-eight to thirty days after ingestion. State ex rel. Montgomery v. Harris, 237 Ariz. 98, 346 P.3d 984, 988 (2014). The presence of this metabolite provides no evidence of impairment.Cannabinoids – the active constituents in cannabis.HOW THE DRUG EFFECTS THE HUMAN BODYIt is common knowledge that the higher your alcohol concentration, the more severe your intoxication. However, marijuana does not affect you the same as alcohol. The highest levels of the active part of marijuana (THC) are usually in your blood within about 3 to 10 minutes following inhalation. This does not mean the concentration of the drug will be at its highest level in that time frame. The concentration of THC in a blood sample simply has no correlation with a level of impairment.Marijuana’s maximum influence on your performance usually manifests in 20 to 40 minutes after inhalation, yet this is also during the time period when the your THC levels are rapidly falling. (Sewell et al., 2009).Science has yet to meaningfully quantify how and to what extent marijuana impairs us. While it is “well established that alcohol consumption increases accident risk, evidence of cannabis’ culpability in on-road driving accidents and injury is far less robust” (Armentano, 2013).In sum, presence of marijuana in your blood is simply not a reliable indicator of psychomotor impairment.Keep reading by clicking here, or you can contact the firm directly by calling (602) 494-3444 for a consultation.
The legal driving limit is the same in every state with a requirement of 0.08 blood alcohol limit, and that does not apply only to alcohol. Even though anyone driving under the influence is charged with DUI, each state has different charges and rules. Whether you receive a ticket for “driving under the influence” (DUI), “driving while intoxicated” (DWI), or “operating under the influence” (OUI), it’s a serious penalty in any state under any name. You also don’t have to be driving a car or truck; if you’re intoxicated, you’ll receive a DUI whether you’re riding a golf cart, ATV, or even a bicycle.
What Happens When You Are Charged Out Of State?
Most people know the rules and what happens if they receive a DUI in their state. But many don’t know the charges and rules if they’re in a different state. Not only are the charges different in each state, but the punishments vary as well. There are things you need to know and questions you may have if you get a DWI or a DUI if you’re on vacation or a business trip. If you get pulled over and get a DUI ticket when you’re out-of-state, your local police receive that information, and they can also charge you according to the laws of your own state, and you end up with a double punishment.
Most states have entered an interstate driver’s license compact that is used to exchange traffic violations that are committed out-of-state and forwarded to the home state. Your home state will charge you as if you committed the offense at home, and apply the laws of your home state to the out-of-state charges.
The state where the DUI occurred can punish you under their traffic laws, inflict fine, jail time, revoke your driving privileges, and other punishments, but they cannot take away your out-of-state license. Only the state that issued your driver’s license has the right to take it away.
What Happens If A Police Officer Sees Someone Driving Erratically
A police officer will pull someone over if their driving is erratic or impaired. The officer then conducts a sobriety test, such as a breathalyzer, which measures the blood-alcohol concentration, or BAC, to determine if the driver is under the influence. If the BAC is 0.08 or higher, then the driver may be charged.
There are also other tests that the officer may choose to conduct if they deem it necessary.
Car Insurance Rates May Be Raised As A Result Of A DUI or DWI
If you receive a conviction for drunk driving, your insurance may go up, or they may even drop you. However, if you have a spotless driving record and this is your first offense, you may just get a slight raise in your rate.
You May Lose Your Driver’s License
If you’re charged with a DUI, your driver’s license will most likely be suspended by your home state. The police officer may take your license and give you a temporary one that expires the day of your DMV hearing. At that time, you may get your driver’s license back, or it may be suspended for a determined amount of time depending if you’ve had any prior convictions or your BAC.
However, if you refuse to give a breathalyzer, blood test, or any test, your driver’s license will be suspended automatically, even if you’re not convicted of DUI.
You May Have To Attend A Treatment Program To Get Your Driver’s License Back
You may have to go through an educational or treatment program to get your license back. If you refuse to go or don’t complete the program, you won’t get your license back for some time.
You May Lose Your Car
If you have prior drunk driving convictions, your car may get impounded for a determined period.
There are devices, like Ignition Interlock Devices (IIDs), which won’t allow the driver to start the car if their BAC is too high.
The DUI or DWI Won’t Go Away
Once you’ve been officially convicted of DUI, it remains on your record for at least 5 years, but it varies in each state. Consequently, it may show up on your background check.
Are DUIs A Misdemeanor Or Felony?
If this is your first DUI offense, it will probably be a misdemeanor. However, if you severely injured or killed someone while under the influence, then it’s a felony. If this wasn’t your first conviction, or your license is suspended, then it’s a felony.
There are many things that may occur if you’re pulled over while driving under the influence that could harm your future. So if you’ve been drinking and your mind is impaired do not drive. If you’re intoxicated call a cab, an uber, or a friend because, in the end, it is not worth it even if you think you can ‘get away’ with it out of state.
Evan M. Levow, Esq. is an award-winning New Jersey DWI defense attorney at Levow DWI
Law who has been successfully representing drivers arrested on DWI charges in New Jersey for
decades. In addition to his dedication to representing his clients, Evan is also committed to
giving back by helping educate drivers throughout the country about DUI laws and safe driving practices.