Is a New .05% Law Coming to Your State?

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….

Source: DUI BLOG : DUI Laws, Lawyers and Law Enforcement

Arizona DUI Center – Arizona Marijuana DUI

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.

Source: Arizona DUI Center – Arizona Marijuana DUI

How Will An Out Of State DUI Affect You?

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.

Author Bio:

 

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.

What Should You Do if One of Your Friends or Relatives is Arrested?

If a call came from a friend or relative asking for help because he had been arrested, would you know what to do? Hiring a criminal defense attorney or arranging for bail is not something most people are accustomed to doing, so understanding the court process and the roles played by criminal defense attorneys and bail bonds agents will help.           Following an arrest, the accused person is booked by the police. Booking involves taking fingerprints and pictures (mug shots), and recording personal information of the arrested person. After completion of the booking process, the arrested person is taken to court.           During the accused person’s court appearance, a judge informs the person of the charges against him. The judge also informs him of his rights, including the right to be represented by an attorney. This initial court appearance ends with the judge deciding whether to release the person from custody and the setting of bail.           The best way to help a person accused of a crime is to contact a criminal defense attorney early in the proceedings. The attorney will represent the accused person’s interests at all stages, including the setting of bail.           Judges have broad discretion in deciding whether to set bail, and the amount.           The purpose of bail is to secure the accused person’s attendance at future court proceedings. The seriousness of the charges filed, and the accused person’s ties to the community are two factors judges use to decide the amount of bail.           An experienced criminal defense attorney is knowledgeable of the laws and appellate court decisions dealing with bail. The defense attorney knows the factors to bring to the attention of the judge to obtain the accused client’s release without bail, or with lower bail than normally would be imposed by the judge.           Once bail is set, the attorney will guide the friends or relatives of the accused person through the process of posting the bail. Retaining the services of a reputable and reliable bail bonds agent will help to speed the accused person’s quick release. A bail bonds agent will post the bail to obtain the person’s release, and becomes responsible for assuring the court that the person will return for all scheduled court appearances. The fee charged by bail bonds agents varies from state to state, and is a percentage of the bail posted.  This bail bonds company website has a more comprehensive bail bonds guide you can download.

Source: What Should You Do if One of Your Friends or Relatives is Arrested? – Chapman Criminal Defense Firm

Intoxilyzer 9000 DUI Breath Testing Forgeries – NBD

A recent article in the Denver Post details the discovery by DUI defense attorneys in Colorado that hundreds of “certifications” of Intoxilyzer 9000 machines have been forged. The Colorado state health lab is supposed to calibrate and test each breath test machine and then issue a certification that the machine is accurate. Under Colorado law, the machine is assumed to be working properly and accurately if it is certified. But, it turns out that hundreds, maybe thousands, of those certifications were faked. In addition, many of the certifications bore the “signature” of a technician who had quit a year before the certification was issued. Naturally, the health department and the governor shrug and say no independent investigation is necessary – no big deal.It is a big deal. The certification is supposed to substitute for live testimony from a scientist that the breath test machine was working properly. Judges and juries rely on breath test results alone to convict people of DUI everyday. At least in Kansas, every DUI conviction means a minimum of 48 hours in custody up to a maximum of one year in jail. The breath test machine alone can put people in jail. All that is required to admit a breath test result into evidence in Kansas is to show that the machine was certified, the operator (police officer) was certified, and that the test was run according to a 7 step protocol (basically push the button and tell the person to blow). The certification is important.The Intoxilyzer 9000 is the breath test machine used exclusively in Kansas. I have seen multiple occasions where police departments in Kansas forged the documents required by law to be sent in to the Kansas Department of Health and Environment to prove that the machine was being tested and the calibration checked. Did those agencies lose their certification to run breath tests? No. No big deal. The Department of Health and Environment, the agency that is supposed to administer the breath testing program in Kansas, has routinely and repeatedly watered down the quality control standards for maintaining reliability in breath testing and the certification of machines and breath test operators. No big deal. The machines are supposed to be tested (once) every “calendar week” by the individual police departments to make sure they are working properly. When agencies fail to do the tests every seven days, the Department of Health and Environment covers for them and says that a “calendar week” means up to 13 days. Hilarious.They used to at least give the appearance of compliance with modern scientific standards but no longer. Almost every state in America requires two breath tests. Because anyone who was taught science in 7th grade knows that scientific accuracy means the ability to repeat results. You do a test and then a confirmation test. No doctor on the planet would make a diagnosis based on a single test result. But, not in Kansas. One test is all you are given. If the single result is .08 or greater, you are looking at jail time.So, some lawyers in Colorado looked into the certification of the machines in that state and found out that corners were being cut and documents were being forged. Who is looking out for people in Kansas who are accused of DUI? The breath test machine has to be investigated in every case.

Source: Intoxilyzer 9000 DUI Breath Testing Forgeries – NBD

The whole is not always the same as its parts : Arizona DUI Defense Blog

You are going to buy a new home.  The house is 2000 square feet on a 3/4 acre lot.  You hire Rich (the termite inspector) to check it out before you buy. After all, no one wants to buy a house with termites. Good news!  The house passed.  No termites.  Thus, you buy the house.Bad news!  A month after the sale closes you discover – termites.  What?  How could this happen? You go back and look a little deeper in the method of inspection Rich relied upon.  You find out his methodology was to only check “one square inch” of the floor in the house.  When he did not find anything wrong within the “one inch” he assumed everything else was also termite free. How do you feel now? A part of something does not always represent the whole. Determining how many termites are in “one square inch” of a house does not really answer the question whether you have a termite problem. The termite inspector committed what logicians call the all things are equal fallacy.  This occurs when when it is assumed, without justification, that conditions have remained the same at different times and places. The same danger is present when attempting a forensic measurement.  For example, in a typical DUI case where a blood sample is taken, the lab will test less than a M&M size sample of blood.  However, in Arizona the legal definition of an alcohol concentration is grams per 100 micro-liters. Translation, the legal definition of an alcohol concentration requires multiplying the results of the “one inch” by about 1000 (assuming the M&M is about 100 micro-liters). The danger is assuming the rest of 1000 micro-liters (or 100 milliliters) has a proportional amount of ethanol in it.  Small errors multiplied by 1000 can easily mislead you to believe that a person’s alcohol concentration is above a legal limit when it is not. Like the termite inspection, it is up to the crime laboratory to prove their justification for assuming using such a tiny amount below the legal definition of an alcohol concentration answers the question – is the person above the legal limit?  After all, no one wants termites…or people being wrongfully convicted.

Source: The whole is not always the same as its parts : Arizona DUI Defense Blog

My husband was pulled over for driving

My husband was pulled over for driving after drinking and is spending the night in jail. Does he need an attorney before he goes to court tomorrow?

People in custody are represented by Public Defenders.

Not sure I need a lawyer

Not sure I need a lawyer. I refused the test. I believe that is an admission of guilt. it is also likely that they did a blood test at the hospital as I hit a parked car. I did not leave the scene. I called the cops.

Refusal of the test is not an admission of guilt. You need a DUI lawyer no matter what the facts. It is a complicated process and you need to protect your rights.

Late Discovery at Trial

Can discovery “video cam” be presented after discovery was completed and trial started. Video cam was presented to proscuting attorerny.

It is up to the judge. I have had success in the past keeping out late discovery.

What Should I Expect Upon A 4th (or more) Conviction

I get a number of chats about what to expect. The easy answer based on sentences is 0 to 16 years in prison, because this is the range of sentencings to date. I hope the individuals who ask these questions are promptly meeting with a defense lawyer as soon as possible, because delay could reduce the chances of getting a result at the lower range of the scale.