Lawyer explains OWI concerns of BAC below legal limit

MADISON (WKOW) — Prosecutors are now dealing with a new twist in the crash that killed Lake Mills firefighter Chris Truman.

Police say Samuel Cremers hit and killed the off-duty fire captain, when Truman stopped to help another driver along the Beltline in Monona New Year’s Eve.

Cremers appeared in Dane County Court Thursday, and was released on a signature bond.

He was arrested on a tentative charge of homicide by intoxicated use of a vehicle, but a court official who has seen documents on this case tells 27 News, Cremers’s blood alcohol level was .07, just below Wisconsin’s legal limit to drive: .08.

Even though it’s only .01 below the threshold, could it make that much of a difference in how this case moves forward?

According to Sarah Schmeiser, a lawyer for a Madison firm known for working on drunk driving cases, someone can be charged with an OWI even if they’re under the limit when tested.

In a situation such as this, Schmeiser says the test used was a preliminary breath test, or PBT.

The PBT is the handheld breathalyzer test usually used by police on scene but that can’t be used as evidence in court — a more thorough blood test is needed.

Schmeiser says as long as that blood test is taken within three hours of the offense, it will stand in court.

“For a person to be charged with having a prohibitive alcohol concentration, which is another common charge that usually goes along with the operating while impaired, they do have to prove specifically that the person was over .08 at the time of driving,” Schmeiser said.

Even if that blood test confirms the PBT as being below .08, that could still be considered operating while impaired.

“There the number doesn’t have to be over the legal limit, it doesn’t have to be exact,” Schmeiser said. “The state has to prove that at the time of driving the person was being impaired by alcohol, so affected enough that their driving was unsafe by alcohol.”

She says in this situation, where homicide is under consideration, it puts a stricter burden of proof which can end up swaying the final outcome of the case.

Schmeiser mentioned that in the time between the first test and the blood test that she suspects were taken, it is possible Cremers’s BAC could have changed either higher or lower, depending on how quickly or slowly Cremer’s body absorbed any alcohol he ingested.

Prosecutors say they need weeks to look at this case.

They’ll have that as Cremers appears in court again in March.

DWI Checkpoints: Checking All the Boxes

DWI cases often begin with a driver being stopped at what is referred to as a DWI checkpoint. From the standpoint of defending drivers charged with Driving While Intoxicated, there are important Constitutional issues arising from a checkpoint stop that should be considered.

As a basic Constitutional principle, individuals acting on behalf of the State such as Police Officers and State Troopers, cannot stop motor vehicles unless they can justify the stop. Both the United States and New Jersey Constitutions require that the State demonstrate a reasonable and articulable suspicion that the law has been violated before an officer can intrude upon the driver’s right to travel without State interference. Simply stated, the State has to make some showing that a law has been violated before a car can be stopped. If not, the State will be prevented from having evidence acquired as a result of that stop considered by the court. In the case of a DWI prosecution, this could include evidence of the driver’s intoxication, which could be crucial to the State’s ability to prove the driver’s guilt.

Obviously, cars stopped at DWI checkpoints are not stopped because of a motor vehicle violation. Rather, they are stopped simply because a checkpoint has been mounted at a particular location, on a particular date and at a certain time. This would seem to be at odds with Constitutional requirements. An exception to the unusual standard has been provided by United States and New Jersey court decisions holding that checkpoints meet Constitutional standards if certain requirements are met.

Firstly, the checkpoint must be under control of a superior officer who has organized the checkpoint so it meets Constitutional and safety standards. The United States Supreme Court determined some time ago that cars cannot be stopped without a prior plan being approved and put into effect by superior officers.

More important is the requirement that the checkpoint be placed at a location where intoxicated drivers are expected to pass through, based upon prior police experience. This, in turn, must be based upon objective data which demonstrates occurrence of prior DWI arrests and accidents where intoxication is a factor, in the vicinity of the DWI checkpoint. In other words, the State must demonstrate a reasonable expectation that intoxicated drivers will pass through a certain location at a particular time, based upon data reflecting this experience.

Before an attorney or prosecutor reaches the question of a driver’s intoxication then, the attorney and prosecutor must consider whether the checkpoint leading to the stop, was justified the stop in the first place. This means obtaining all documentation which was created, leading to the checkpoint in question, including data which the State relied upon in choosing the date, time and location. Obviously, this information must be carefully reviewed to determine whether Constitutional standards have been met. If not, evidence of intoxication will be excluded.

The viability of the checkpoint will be the product of the effort made to justify its existence, before a single drive passes through. The quality of the underlying police work, therefore, is crucial in determining whether the checkpoint meets Constitutional muster and results in suppression of evidence. I have seen officers go to great ends to gather this data. Even when this is the case though, problems can arise for the State.

I was involved in a case not long ago where the officer, who was bright and capable, went to great efforts to ferret out the necessary data to justify the checkpoint time and place. Close analysis of the data however, suggested that the officer’s decision was questionable.

The defense attorney’s first job in this type of case is to acquire all of the data upon which the officer and State is relying. The  next job is to evaluate, analyze and make sense of that data. To do so, all of the records of prior DWI and drug related investigations leading to arrests and accidents in the immediate vicinity of the proposed checkpoint site, must be evaluated to determine the frequency of these events. This is done with an eye to determine whether a correlation existed between the proposed site, date and time of the checkpoint and these previous events.

After putting this information together, some surprising results became clear. Firstly, the data showed that only four DWI related events over the prior 10 years occurred in the immediate vicinity of the proposed checkpoint location. More than that, the month chosen by the officer for the checkpoint was one of the lowest months in terms of occurrence of prior DWI events.  Indeed, a review of the data suggested a low probability that the particular site, date and location selected would be efficacious, that is, drunken drivers could be reasonably expected to pass through the checkpoint. That low probability was reflected in actual results from the particular checkpoint, where one single arrest was made for DWI, after almost four hours of stopping hundreds of cars passing through the checkpoint. Hardly efficacious, it would seem. But it got worse.

Due to our quaint tradition known as cross-examination, I was able at trial to delve beyond the data provided to get to what Paul Harvey referred to as “the rest of the story.” The rest of the story was simple. Notwithstanding all of the data obtained and what that data did or did not suggest, the officer set the date of the checkpoint so it did not interfere with his scheduled move into his new house! Data be damned … a man has to move when he has to move! Checkpoints can wait!

Winston Churchill famously said that that, “you can always count on the Americans to do the right thing, after they have tried everything else.” I guess the officer never got around to trying everything else.

Woman flees DUI checkpoint, crashes into an electricity pole

Police said Letizcia Bell tried to dodge a DUI check on New Year’s Eve and ended up in a wreck.

“I heard tires screeching,” Robert Sporillo said, a North Port resident. “But I didn’t think nothing of it because this street they race up and down all of the time.”

The high speed chase started in North Port around 9:45 p.m. and ended in Port Charlotte.

The electricity pole the vehicle crashed into. Photo via WINK News.
The electricity pole the vehicle crashed into. Photo via WINK News.

“I heard a high speed chase coming through, saw the lights, saw a screeching of tires, and heard an impact of something,” Paul said, a Port Charlotte resident.

Paul did not want to be identified. He lives across the street from the power pole where Bell crashed on Chamberlain Blvd.

Here’s Why We Announce DWI Checkpoints

BLOOMFIELD, NJ — The Bloomfield Police Department plans to hold a DWI checkpoint on Bloomfield Avenue on Saturday, Dec. 29. And they want local motorists to know exactly where and when it’s happening.

The BPD recently announced that its Dec. 29 checkpoint is being held “in response to statistics demonstrating a disproportionate number of impaired driving incidents in the area.”

Police wrote:

“These operations are being conducted to raise awareness of impaired driving by educating motorists and arresting impaired drivers. The New Jersey Attorney General’s Office requires that these notices be posted in advance.”
According to Bloomfield Director of Public Safety Samuel DeMaio, it’s a state law that whenever a checkpoint is done, it must be announced via a press release. But sharing the news about an upcoming checkpoint isn’t done just as a formality, police added.

Bloomfield Lt. Naomi Zepeda said that giving advance notice about checkpoints to the public can help to prevent drunk driving in the first place… which is the ultimate goal.

“If we are able to deter drunk driving by releasing information through the media it adds to the success of the checkpoint and the safety of the general public,” Zepeda said.

Zepeda added that DWI checkpoints are conducted under guidelines established by the Attorney General of New Jersey.

“The guidelines recommend advanced general public notice to deter drunk drivers operating their vehicles in the first place,” Zepeda stated.;_ylt=AwrXgSMklCtcOwEA4gHQtDMD;_ylu=X3oDMTByMjR0MTVzBGNvbG8DZ3ExBHBvcwM3BHZ0aWQDBHNlYwNzcg–

Utah Implements Strictest DUI Law in the Country

For Utah residents looking to spend their New Years Eve getting white girl wasted, a hangover just officially became the least of their concerns.

Because Sunday morning, a new law went into effect that drops the state’s blood alcohol content limit from 0.08 to 0.05—the strictest DUI standard in the entire country.

Happy New Year!

According to CNN, the new law also states that “thou shalt call an Uber” and anyone who “operates a motor vehicle in a negligent manner causing the death of another” and has a “blood alcohol concentration of .05 grams or greater” will have committed a criminal homicide, a felony.

There was minimal resistance in getting the change approved in 2017 by the Legislature, which primarily consists of Mormons and Republicans, and was signed into law by Gov. Gary Herbert, who just so happens to be Republican and member of The Church of Jesus Christ of Latter-day Saints, the Chicago Tribune reports. That religion is noted for teaching its members to abstain from drinking alcohol.

So why the crackdown exactly 24 hours before the biggest party of the year? Because Utah is sick and tired of DUIs—they’ve averaged 29.8 DUI arrests every day for the past five years—and expects other states to follow suit.

“We’ve recommended a 0.05 (blood alcohol content) to states since 2013, and we are happy that Utah is the first to actually complete this recommendation,” National Transportation Safety Board member Bella Dinh-Zarr said. “We think it will be a great incentive for other states and an encouragement to follow suit.”

Utah’s Department of Public Safety also added, “Despite decades of public campaigns and other efforts to discourage driving after drinking, survey and observational data show many people continue to do so.”

For the rest of the country, a 0.08 threshold for noncommercial drivers over the age of 21 remains standard. And this new law isn’t without its fair share of detractors.

The American Beverage Institute notes that a woman could reach the 0.05 limit after a single drink, while a 160-pound man could reach the limit after two. And is it fair to face criminal charges for only consuming one or two drinks?

“Hopefully, it deters people from thinking, ‘Maybe I’m OK. I’ve only had a few beers. I’m fine to drive,’” Matt Miller told KUTV, even though he doesn’t drive after drinking. “If it deters people from drinking and driving, I think it’s a good thing, honestly.”

Meanwhile, David Rosenbloom, a local lawyer who’s handled more than a 1,000 DUI cases, believes the change equates to bad policy for the state.

“If you have one drink, and drive within the hour,” he told KUTV, “you’re going to be over .05,” he said. “You’d have to be crazy under this law to have anything to drink and drive.”

Also of note is the fact that this new law comes at a time where drunken-driving fatalities in the U.S. have been on the decline. According to the National Highway Traffic Safety Administration, they’ve decreased by a third over the past 30 years even though almost 29 people still die each day from alcohol-related crashes—which comprise roughly 28% of all motor vehicle fatalities.

So all that to say, if you’re looking to party in Utah for New Years Eve, that Lyft surcharge is a small price to pay for your safety and peace of mind.