Man’s OWI conviction vacated by Supreme Court over warrantless blood draw, sent back to lower court

Gavel

The Iowa Supreme Court reversed the conviction of a Des Moines man who pleaded guilty to operating while intoxicated and sent the case back to Polk County Court last week. 

Brian McGee, 20, was charged with operating while intoxicated after allegedly causing a 2018 crash in which he and five others were injured. He pleaded guilty on July 22, 2019, and was sentenced to a year in jail, with all but seven days suspended. McGee was also ordered to pay a $1,250 fine and $10,000 in restitution to the victims before he appealed. 

Around 2 p.m. Dec 8, 2018, investigators said McGee was traveling at a high rate of speed and failed to yield before making a left turn, which caused a two-vehicle crash in the 1500 block of Euclid Avenue. Five occupants of the other vehicle were treated at a local hospital for injuries that were not life-threatening. 

One of the injured children needed 13 stitches, missed two weeks of school and was still scared of traveling in a car months later, Justice Edward Mansfield wrote in last week’s 5-2 decision.

McGee was found unconscious in his vehicle and had to be extricated from the driver’s seat before being transported to a local hospital. Medics at the scene noted a strong smell of marijuana, according to the ruling. 

At the hospital McGee was sedated and remained unconscious and could not consent to having his blood drawn.

An on-call Des Moines police officer did not attempt to get a warrant for the blood draw. The officer could have gotten a warrant, but said that at the time Des Moines Police Department policy only allowed officers to obtain warrants for blood testing non-responsive drivers for their OWI offense or if there were serious injuries or deaths in a crash, according to the decision. Your stories live here.Fuel your hometown passion and plug into the stories that define it

McGee briefly woke up around 4 p.m. a few moments after the officer requested that a nurse draw his blood. But McGee was incoherent  at the time and did not respond to questions, the decision said. 

He fell unconscious again and had his blood drawn without his consent at 4:10 p.m. Results showed traces of THC, the psychoactive component in marijuana, and non-impairing metabolites.

The Iowa Supreme Court agreed with the district court that the law was followed here. 

“Certifications do not expire in eleven minutes, at least without clearer evidence that the driver has become capable of refusing or consenting in the meantime,” the decision said. 

But the Iowa Supreme Court wanted the district court to consider a 2019 U.S. Supreme Court ruling that whenever probable cause exists to believe a driver committed drunk driving, a warrantless blood draw is almost always acceptable.

In that case, Gerald Mitchell was arrested in Wisconsin in May 2013 for operating while intoxicated. At a hospital, Mitchell was unconscious and did not consent to a blood draw, which showed he had a blood alcohol concentration of .222.

“If McGee had smelled of an alcoholic beverage rather than marijuana, there would be no doubt that Mitchell applies to this case,” Mansfield said. 

McGee’s erratic driving and the strong odor of burnt marijuana gave police probable cause to conclude he violated Iowa’s controlled substance laws, the decision said. But there was not enough probable cause to conclude he was driving drunk, Mansfield said. 

Pedestrian killed in hit-run near FDR Drive; man in custody on suspicion of DWI


NEW YORK (WCBS 880) – Police arrested a driver on suspicion of DWI after a pedestrian was killed in a hit-and-run crash near the FDR Drive on Manhattan’s East Side on Tuesday night, police said.logo: NYPD© Provided by WCBS Radio New York NYPDlogo© Provided by WCBS Radio New York

The pedestrian, a 29-year-old man, was attempting to cross a service road near the FDR Drive and E. 26th Street in Kips Bay when he was struck by a car around 10:15 p.m., according to police.https://www.dianomi.com/smartads.epl?id=3533

The man was found lying on the roadway with trauma to his head. The driver who hit him was nowhere to be found, police said.

The victim was taken to Bellevue Hospital, where he was pronounced dead.

About a half-hour later, officers responded to another collision on the northbound FDR Drive, near E. 53rd Street, police said.

Responding officers found a black 2007 Honda Accord disabled with a 23-year-old man injured behind the wheel, according to police.

Police determined that the Accord was the same vehicle that struck the pedestrian in Kips Bay.

The 23-year-old was taken into custody under suspicion of DWI and transported to Weill Cornell Medical Center, where he was being treated for minor injuries.

The NYPD’s Collision Investigation Squad is investigating the deadly crash.

The 29-year-old victim has not been identified. https://www.msn.com/en-us/news/crime/pedestrian-killed-in-hit-run-near-fdr-drive-man-in-custody-on-suspicion-of-dwi/ar-BB1gEoQO?ocid=hplocalnews

‘TIGER KING’ ZOOKEEPERERIK COWIE BUSTED FOR DUI AFTER CRASH

Erik Cowie, one of the “Tiger King” stars who you saw caring for the zoo’s exotic animals, was driving drunk when he crashed into another car … at least according to cops.

Law enforcement sources tell TMZ … Cowie was busted for DUI in Oklahoma after cops say they responded to a two-car collision on an interstate highway.

We’re told Cowie was driving one of the cars involved in the accident last month, and responding officers say he reeked of booze and bombed field sobriety tests.

Our sources say he admitted to having 2 beers before getting behind the wheel, and his blood alcohol content came in at 0.11.

Our sources also say, Cowie was put in handcuffs on the spot, and taken to jail where he was booked for driving under the influence. He’s already entered a guilty plea and will be sentenced on May 25.

Fortunately, law enforcement says no one in either vehicle was injured in the crash. https://www.tmz.com/2021/05/17/tiger-king-zookeeper-erik-cowie-dui-arrest-oklahoma-car-crash/

SEC Football Assistant Coach Reportedly Arrested For Drunk Driving

General view of the Kentucky football field.
General view of the Kentucky football field.

Kentucky wide receivers coach Jovon Bouknight was arrested early on Saturday morning by the Erlanger Police Department.

Bouknight was reportedly booked in the Kenton County Jail on charges of operating a vehicle under the influence of drugs and alcohol, as well as possession of an open alcohol beverage container in his vehicle.

Multiple reports state that Bouknight was driving 26 miles per hour over the speed limit when he was pulled over on Saturday morning. As of now, he’s scheduled to appear in court on May 14.

Kentucky is aware of this incident involving Bouknight. A spokeswoman for the Wildcats told the Courier Journal that this matter will be handled internally.

Bouknight joined Kentucky’s coaching staff back in March of 2020. Before making his way over to Lexington, he spent a year with the Oregon Ducks.

Oregon had a prolific passing attack under Bouknight, as his receiving corps had 298 receptions for 3,615 yards and 35 touchdowns in 2019. Prior to his stint at Oregon, Bouknight served as an assistant coach for Texas Tech and Utah State.

Kentucky has a lot of talent at wide receiver this year, especially after landing two marquee transfers in Tre’Von Morgan and Wan’Dale Robinson. However, that unit could take a major hit depending on what happens with Bouknight this offseason.

We’ll provide additional updates on Bouknight’s situation when they’re available. https://www.aol.com/sec-football-assistant-coach-reportedly-181338489.html

Police: Man inhaled chemical cleaner while driving

Is arrested after retired police officer noticed can of air in car

HAVERHILL — A Texas man passing through Haverhill was at the wrong place at the wrong time.

Police said he was also doing some wrong things at that time, including driving over a traffic cone at the site of a police detail. That drew the attention of Haverhill’s retired deputy police chief, who was working the detail, a police report said.

The retired deputy chief said he noticed the man had a can of Dust-Off between his legs when he stopped the car because the traffic cone was under the vehicle.

Dust-off is a refrigerant-based propellant that is typically used for blowing dust off of things like computer keyboards and photographic equipment.

Police said they investigated and determined the man was inhaling chemical vapors from the can of compressed gas to get high. After he failed a field sobriety test, officers charged him with driving under the influence of drugs and other offenses, the report said.

Police said Colby Festner, 37, of Houston told them he was using the can of Dust-Off to dry his car’s back seat, which appeared to have gotten wet because a rear window was left open during an earlier rain storm.

Police charged Festner with operating under the influence of drugs (third offense), possession of a Class E drug (Gabapentin), inhaling a toxic substance and negligent operation of a motor vehicle.

Gabapentin is a prescription drug typically used to relive nerve pain caused by shingles, and also to prevent and control seizures.

Festner was arraigned on the charges May 3 in Haverhill District Court, where Judge Cesar Archilla set bail at $1,000, which Festner later posted, court officials said. A pretrial hearing is scheduled for July 8. 

According to a police report on file at the court, on April 30 at 9:44 a.m. several patrol officers were dispatched to the area of 786 River St. on a report of an impaired driver. The report was called in by retired Deputy Police Chief Anthony Haugh, who was working a road detail there, the report said.

According to the report, when officers arrived, they found a Toyota Camry with Georgia license plates stopped in the middle of the road, behind a Haverhill police car that was being used for the road detail.

Haugh told the officers that Festner drove into a traffic cone being used on the detail and that the cone was stuck under the front of his car,  the report said.

Haugh also said that when Festner stopped the car, he was seen with a can of Dust-Off between his legs. Haugh said the can was cold and coated in frost, a sign that it had just been used, according to the report.

Haugh told the officers that as Festner tried to explain what he was doing, he reached for a paper bag on the passenger’s seat that contained another can of Dust-Off, the report said.

Festner told police that his back seats were “soaked” and that he was trying to dry them off with the cans of compressed air, the report said. Police said the driver’s side back seat and door were covered in water droplets, and that it appeared the car window had been left open during a rain storm.

Festner told police that he was on his way to the Hampton Inn, but missed his turn and drove over the traffic cone, the report said.

Police noted in the report that while they questioned Festner, he appeared fidgety, was talking fast and fumbling his words, was sweating from his forehead and had watery eyes.

Police said they performed a series of field sobriety tests on Festner and that based on the results, they arrested him on a charge of operating under the influence of drugs (inhalants).

Police said they searched Festner and found 11 Dramamine pills. During a search of the car, officers found a yellow pill which they later identified as Gabapentin, according to the report.

Festner told police he was prescribed the Gabapentin for pain caused by a previous car accident, but that he did not have the prescription with him, the report said.

Police said Festner’s criminal record includes a first offense driving while intoxicated charge, to which he pleaded no contest to in 2005 in Texas, and a second offense driving while under the influence of alcohol/drugs charge that he was convicted of in 2018 in California. https://www.eagletribune.com/news/haverhill/police-man-inhaled-chemical-cleaner-while-driving-in-haverhill/article_8d66329d-b575-564c-9c21-c4f8dac89523.html

Intoxicated driver injured when vehicle hits curb, train

Police said an intoxicated driver was injured when he hit a curb and his vehicle flipped, colliding with a train.

Billy R. Simpson, 41, of Dubuque, was taken by ambulance to MercyOne Dubuque Medical Center with minor injuries, according to police.

The incident occurred at about 1 a.m. Saturday near the intersection of Locust Street and U.S. 52/61/151.

The release stated that Simpson was eastbound on the Locust Street connector. As he entered the intersection, he crossed the highway and collided with a curb.

The vehicle continued eastbound, went airborne, flipped end over end and collided with railroad tracks and a Canadian National rail car.https://11121d43763024d3fae61b5a1f44eee6.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html#xpc=sf-gdn-exp-b&p=https%3A//www.telegraphherald.com

The vehicle landed on its roof. Simpson was extricated from the vehicle by the Dubuque Fire Department.

He was cited with operating while intoxicated, failure to maintain control of his vehicle and operating without a valid driver’s license. https://www.telegraphherald.com/news/tri-state/article_9f6c85d8-29b1-57c3-81cd-5cf522bab72a.html

Two crashes leave fire truck, ambulance damaged

A Hampton fire truck was struck on the driver’s side by another vehicle while at an accident scene on Interstate 95 in Hampton Thursday night.

Two separate crashes that damaged a Hampton fire truck and a North Hampton ambulance on Interstate 95 this week have prompted a warning about highway hazards and the importance of drivers obeying the state’s “Move Over” law.

A Hampton firefighter narrowly escaped a potentially deadly situation Thursday night when a car crashed into a fire truck at an accident scene on I-95 just seconds after the firefighter opened the door to climb out, heard a vehicle coming, and then quickly closed the door to avoid injury.

The incident followed another crash on I-95 in North Hampton Wednesday night involving a vehicle that struck a North Hampton Fire and Rescue ambulance as emergency personnel were responding to a crash.

“If there are vehicles on the highway that are working at an emergency scene, please give them space. It’s very dangerous out there,” Hampton Fire Chief Jameson Ayotte said.

According to authorities, the ambulance incident occurred shortly before 9 p.m. when North Hampton emergency personnel were responding to a crash in the area of the median just north of the Hampton toll plaza.

As the ambulance entered the northbound lane and proceeded across the travel lanes with its sirens on and lights flashing, authorities said it was struck by another vehicle headed northbound.

According to North Hampton fire officials, no injuries were reported, but the ambulance sustained extensive damage and is inoperable.

State Police Sgt. Joseph Ronchi said the driver was given a warning for failing to yield to an emergency vehicle and cited for having an open container of alcohol, but she was not impaired.

Thursday’s crash involving the Hampton fire truck happened at approximately 11 p.m.

Fire and rescue personnel had responded to I-95 northbound about a mile before the tolls for a single vehicle crash.

Hampton fire officials said two fire trucks with emergency lights operating were positioned behind the vehicle involved in the crash to block the scene and protect the firefighters. While an ambulance crew was assessing the driver, a car passed the rear blocking truck on the right and crashed into the driver’s side door on the other truck, officials said.

According to Ayotte, the firefighter was about to exit the fire truck when he heard the car approaching and closed the door just before it got hit.

“As a result of the accident, we’ve got a damaged fire engine but our firefighter is intact and that’s because of his quick reaction. He could hear the vehicle coming. He stayed put and shut the door. This could have been tragic,” Ayotte said.

The firefighter didn’t suffer any significant injuries, but was brought to Exeter Hospital for evaluation and released.

The driver who hit the fire truck also escaped serious injury.

Ronchi said the driver told police that he had fallen asleep.

“He wasn’t charged at the scene, but that’s not to say that he couldn’t be charged at a later time,” he said.

The fire truck sustained significant damage to the driver’s side and was towed from the scene. Ayotte said Hampton usually has spare fire engines, but because pump testing is done in May there is no spare available. The Exeter Fire Department has loaned one of its engines to Hampton in the meantime, Ayotte said.

Officials said the incident should serve as a reminder about the “Move Over” law passed in 2016 to protect emergency personnel handling highway emergencies.

“I believe there’s an important message that needs to be relayed to the public regarding the safety of emergency personnel operating in the roadways,” North Hampton Fire Chief Jason Lajoie said.

Among other things, the law requires drivers approaching an emergency incident to reduce speed and give more space, without endangering oncoming traffic, to public safety personnel, anyone in the roadway, and stationary vehicles displaying blue, red or amber emergency or warning lights.

“Our roadways, in particular 101, 95 and Route 16, are always very busy. The weather is nice so we’re certainly going to see an uptick in the population on the roadways. With that in mind, we’d just like to see all motorists make sure they’re vigilant and paying attention and looking for emergency lighting and aware enough to yield to those vehicles when they do,” Ronchi said. https://www.unionleader.com/news/safety/two-crashes-leave-fire-truck-ambulance-damaged/article_cbaffdfa-a812-5ece-8417-2b1e559bcd55.html

Miamisburg man sentenced for crash that killed Waynesville woman

Tommy E. Abner

Credit: Warren County Jail

A Miamisburg man who caused an OVI crash that killed a Waynesville woman was sentenced to a lengthy prison term.

Tommy E. Abner, 49, formerly of Miamisburg, was sentenced Wednesday to 12 to 16 ½ years in prison by Warren County Common Pleas Court Judge Timothy N. Tepe.

Abner was found guilty in March after pleading no contest to aggravated vehicular homicide, a felony of the first degree; aggravated vehicular homicide, a felony of the second degree; three counts of operating a vehicle while under the influence, misdemeanors of the first degree; and escape, a felony of the third degree.

On June 18, 2020, Abner operated a motor vehicle while under the influence, traveling westbound on Ohio 73 in Clearcreek Twp. Abner went left of center, ultimately striking head-on and killing 51-year-old Jeri Beth Murray. At the scene, witnesses observed Abner to have slurred speech and Abner’s blood tests later confirmed he was positive for amphetamines and methamphetamines. Abner also was driving on a suspended license at the time of the crash.

On March 29, 2021, while awaiting trial, the court granted Abner a medical furlough, but he failed to return to the Warren County Jail, instead fleeing to Kentucky.

This was Abner’s third OVI offense, with 17 previous license suspensions. Tepe imposed the maximum sentence allowed on the aggravated vehicular homicide, as well as a lifetime license suspension.

“Because of his repeated decisions to get behind the wheel while impaired, Abner took the life of a wife and a mother and completely destroyed her family. While no prison sentence will bring Jeri Beth Murray back, our community is safer today with Mr. Abner behind bars,” said Warren County Prosecutor David P. Fornshell.

Lawmaker arrested for drunk driving, publicly admits to alcohol problem

Bryan Posthumous was arrested on suspicion of operating a vehicle while intoxicated.

Bryan Posthumus was arrested on suspicion of operating a vehicle while intoxicated.Michigan House of Republicans

A Michigan state lawmaker was arrested for drunk driving following a rollover crash — and he publicly admitted he has a drinking problem while vowing to get help.

State Rep. Bryan Posthumus, a first-term Republican representing Cannon Township, was arrested Friday after his Jeep hit a mailbox and rolled over after leaving his family’s farm in Oakfield Township, the lawmaker said in a news release.

Cops arrested Posthumus, 36, in Ada Township outside Grand Rapids on suspicion of operating while intoxicated, according to the Saturday release.

Prior to being taken to a hospital, Posthumus was booked into Kent County Correctional Facility, where tests revealed his blood alcohol content was 0.13 — higher than the state’s legal limit of .08.

“I am deeply disappointed in myself for putting other people in jeopardy by driving after drinking alcohol,” Posthumus said in a prepared statement. “There is no excuse for what happened, and I take full and complete responsibility for my actions. To my family, friends, colleagues and constituents who I serve, I sincerely apologize and ask forgiveness.”

Posthumus admitted he has a drinking problem — citing his prior OWI arrest in January 2013 — and said he’ll immediately begin attending Alcoholics Anonymous meetings.

Lawmaker allegedly told cops arresting him is ‘bad’ because he controls budget

“I am grateful that no one else was injured because of my mistake,” the lawmaker’s statement continued. “I will work very hard to regain the trust, respect, and support of my loved ones, my fellow state representatives, and the wonderful citizens in my district.”

Posthumus, who was elected in November, said he “never again” wants to embarrass himself due to his actions.

Posthumus was booked Friday on a charge of operating while intoxicated and was released after posting $100 bond, online records show. It’s unclear if he’s hired an attorney.

The freshman lawmaker hails from a politically connected family, the Detroit Free Press reports.

His father, Dick Posthumus, was the state’s lieutenant governor from 1999 through 2003, and his sister, Lisa Posthumus Lyons, also serves as Kent County clerk following three terms in the Michigan House of Representatives from 2011 through 2016.

Posthumus’ arrest came just weeks after another Michigan lawmaker, state Rep. Jewell Jones (D-Inkster), allegedly told cops that busting him for driving drunk would not “be good” since he controlled the police department’s budget, according to a police report. https://nypost.com/2021/05/03/lawmaker-arrested-for-drunk-driving-admits-alcohol-problem/

Impaired driver crashes truck into motel in Burlington, police say

BURLINGTON, N.C. (WGHP) — A man was arrested after crashing his truck into a motel room while driving impaired in Burlington, according to police.

At about 8:12 p.m. Sunday, police responded to a crash at the Econo Lodge at 2133 Hanford Road.

At the scene, officers found a Ford truck which had crashed into the building and came to a stop inside a motel room.

  • Truck crashes into motel in Burlington. (Courtesy of Burlington police)Truck crashes into motel in Burlington. (Courtesy of Burlington police)
  • Truck crashes into motel in Burlington. (Courtesy of Burlington police)Truck crashes into motel in Burlington. (Courtesy of Burlington police)
  • Truck crashes into motel in Burlington. (Courtesy of Burlington police)Truck crashes into motel in Burlington. (Courtesy of Burlington police)
  • Truck crashes into motel in Burlington. (Courtesy of Burlington police)Truck crashes into motel in Burlington. (Courtesy of Burlington police)

Truck crashes into motel in Burlington. (Courtesy of Burlington police)

The person in the room, 30-year-old Jairo Osorio Maldonado, said he heard the truck approaching and managed to avoid getting hit. He suffered minor injuries from debris.

Tony R. Strader, 49, of Burlington, was identified as the driver and arrested. He was charged with driving while impaired and felony hit-and-run.

Police estimate the damages at about $250,000 to the business. The truck is a total loss. https://myfox8.com/news/impaired-driver-crashes-truck-into-motel-in-burlington-police-say/