Nebraska Racks Up 80 DUI Arrests During Campaign

By Mary Ann

According to The Chadron News, Nebraska State Patrol arrested 80 motorists during the “You Drink & Drive, You Lose” DUI campaign.

The two-week long national campaign, running from August 15 to September 1, was the newest effort to get intoxicated drivers off the road over the Labor Day weekend.

Citations were issued for speeding, seat belt violation, child restraint violation as well as DUI offense.

During the two weeks, police wrote 1,444 tickets for speeding, 272 seat belt citations and warnings, 79 child restraint citations and warnings and 53 driving under suspension arrests.  Records show there were three fatalities over Labor Day weekend in Nebraska.



Decimal Point Error May Invalidate Spokane Washington Breathalyzer Results

By Guest Attorney

The Seattle Post-Intelligencer reports that prosecutors in Spokane, Washington are playing down the significance of improper breathalyzer calculations, leading to hundreds of faulty alcohol test readings.

The State Crime Lab in Cheney, Washington recently announced that it had been using an erroneous spreadsheet formula to record lab test results for 584 defendants between February 2006 and January 2007. The lab said eight defendants who were harmed by the error have notified.

The Post-Intelligencer reports that a BAC of 0.79 would be elevated to 0.08 percent and 0.149 would read as 0.15. The Director of the Washington State Patrol Forensic Laboratory Services Bureau, Dr. Barry Logan, said 584 cases involved faulty test results, but 576 of the results could not have effected a defendant’s guilt or punishment.

The story appears to allege that the lab’s spreadsheet only showed Breathalyzer results to two decimal places. I tested Microsoft Excel. Breath alcohol level (BAC) results from 0.075 and 0.084 would all show as 0.08 percent, equal to the presumptive BAC level in all states. BAC results from 0.145 to 0.154 would show as 0.15 percent, requiring stiffer penalties under Washington’s excessive DUI law.

KNDO Television said Logan explained that the miscalculations occurred after software used to calibrate breath alcohol instruments was amended late in 2005 produced an error at the fourth decimal place in test readings.

Can this be right? An error in the fourth decimal place would not effect a value to only two decimal places.

My simple test, in Excel, showed that either the reporting was simplistic or many more cases should be re-examined.



Man Accused of DUI Freed After Seven Months Without Trial

By Mary Ann

John D. Goodale sat in the Oswego County, New York jail for seven months following his fifth DUI arrest. The Post-Standard of Syracuse reports that he was finally released because no action had been taken in his case.

Goodale had waived his right to a speedy trial while his attorney negotiated to get Goodale into Oswego County Drug Court. When Goodale was not allowed into Drug Court, he revoked his waiver of speedy DUI trial.

The Post-Standard says the District Attorney complained that the judge seemed to think Goodale’s was the only case the District Attorney’s Office had. Due to limited resources, the DA simply had not been able to bring the case to trial.

The U.S Constitution demands a speedy trial for all accused of a crime, period. Lacking resources is not an excuse for the DA to deprive a defendant of his constitutional rights.



Man and Woman Arrested for DUI and Sex While Driving

By Mary Ann

A Washington state trooper pulled over an SUV that was driving erratically. The driver was charged with DUI and embracing while driving.

His passenger was cited for possession of alcohol after the trooper saw her trying to hide a wine bottle.

The trooper told the Seattle Times that there were “some acts intimacy going on in the vehicle that were best saved for not driving down the freeway.”

He warned people that being distracted is as dangerous as being impaired, adding “I can’t think of anything more distracting as this.”

The driver should get a DUI attorney to see if embracing while driving is an actual law in Washington.



South Dakota DWI Bracelets Expand 24/7 Sobriety Project

By Mary Ann

Some South Dakota DWI defendants may soon find themselves wearing leg bracelets that will continuously monitor alcohol content.

Since January 2005, South Dakota DWI suspects in some counties have been required to submit to breathalyzer tests twice a day while their cases were pending. However, the program has been difficult to implement in rural areas.

South Dakota DWI enforcement agencies have now received 25 of 100 alcohol monitoring bracelets purchased by the National Highway Transportation Safety Administration (NHTSA). These bracelets will allow remote monitoring of the alcohol content in the defendant’s sweat.



.08 Does Not Mean “Drunk”

By Mary Ann

The questions arise all the time:

  • How could I be arrested if my BAC was below .08?
  • How could I get suspended from work for being under the influence if my BAC was below .08?
  • How could I have gotten arrested?
  • How could I have gotten kicked out of the high school basketball game?

These questions reflect a common but serious misunderstanding of the meaning of the .08 “legal limit.” In every state, a person may face a DUI conviction for operating a motor vehicle “with a blood alcohol level of .08% or greater” (language varies from state to state).

That means it’s a crime to drive with a BAC of .08% or greater. And that’s all it means. States are free to pass DUI laws that also make driving under the influence a crime, and allow for conviction with a blood alcohol level lower than .08% if you show signs of impairment.

States are free to make it a crime to drive with a lower BAC if you’re a minor. States are free to make it a crime to drive with a lower BAC if you’re driving a commercial vehicle. And many do all three.

Outside the legal arena, the .08% “limit” has no application at all unless specifically adopted for some other purpose. Employers aren’t bound by it. Schools aren’t bound by it. And even the criminal justice system isn’t bound by it outside the specific statutes that refer to it.

For instance, the crime of “public intoxication” is not, in most states, dependent upon a blood alcohol level of .08% or greater.

So what does your BAC mean for your case? Speak with a DUI attorney to get the facts about the laws in your state and what your BAC really means.



Repeat DUI Offender Statutes Increasingly Complex

By Mary Ann

Questions often arise as to how long the “look back” period is for purposes of enhancing DUI penalties or elevating DUI charges to felony status.

There’s no easy answer to that question and not only because state laws vary. The number of DUI convictions and the time period considered for enhanced penalties or felony DUI does vary from state to state. However, the realities are even more complex.

In some states, the period runs from date of charge to date of charge–in others, from date of conviction to date of charge. Further, some states have alternate time periods during which a different number of prior convictions qualifies for enhanced penalties or felony treatment.

For instance, in Ohio a drunk driver can be charged with a felony based on four offenses in six years or six offenses in twenty years, meaning that two separate calculations apply to every case.

If you’ve been charged and this is not your first DUI offense, make sure that you talk to a local DUI lawyer and fully understand how the repeat offender statutes apply in your case.



NHTSA Launches Anti Drunk Driving Campaign

By Mary Ann

The U.S. Department of Transportation (DOT) released 2005 statistics on DUI accidents this week. The total number of alcohol-related traffic deaths in 2005 was 16,885–virtually unchanged from 2004’s 16,919.

The data did indicate that 23 states and Puerto Rico had decreased their alcohol-related traffic fatalities during the preceding year.

In conjunction with the report,the National Highway Transportation Safety Administration announced a “massive new advertising blitz and enforcement crackdown.”

The $11 million media campaign will be aimed primarily at young men, since statistics showed that 58% of all alcohol-related traffic fatalities involved male drivers between the ages of 21 and 44.

The Department will also work with thousands of police agencies combat drunk driving, including enhanced DUI enforcement.



Surprise Costs for Some DUI Defendants

By Mary Ann

Most drivers know that a DUI conviction is expensive–court costs, fines, probation fees, license reinstatement fees and increased automobile insurance rates are just some of the direct and indirect financial penalties associated with a DUI conviction.

In some states, though, the DUI law authorizes an additional charge that may come as a surprise to DUI defendants after the fact–a bill for rescue services. Other states’ local governments are authorized by statute to bill drunk drivers for emergency response services.

Virginia Beach and Chesapeake in Virginia both send out such bills regularly, netting hundreds of thousands of dollars thus far from drivers convicted of DUI offense in situations that required an ambulance, rescue team or fire department response.



Warrantless Midnight Search Invites FBI Investigation

By Mary Ann

Last month, Miciah Massey and Tashawntay Wade filed suit in federal district court alleging that the Lake Forest Park, Washington police department violated their civil rights.

While the precise facts of the case are in dispute, this much seems clear: a family friend, Thomas Brooks, was arrested several months ago for DUI.

He happened to be driving Massey’s car. Neither Massey nor Wade was with Brooks at the time of the arrest, and Brooks lives in Nevada.

Brooks returned to Nevada without appearing in court, and a warrant for his arrest was issued on misdemeanor DUI charges.

One night in November, Lake Forest Park police officers appeared at Massey’s door after midnight, looking for Brooks. Wade told them that Brooks had returned to Nevada but, according to the couple, the officers pushed their way inside the house, waking two young children and Massey’s father and thoroughly searching the house.

Massey and Wade have filed a civil suit, and the FBI has opened an investigation into whether the couple’s civil rights were violated, but the most troubling aspect of the story is the position maintained by the law enforcement agencies involved.

The attorney for the Lake Forest Park Police Department insists that so long as police had a reasonable belief that Brooks was in the house, they had a right to enter and conduct a warrantless search of the premises–the home of another family, where they knew Brooks did not reside.

In addition, Massey’s license plate number has been entered into a state patrol database, linked to Brooks, and Wade has twice been pulled over by officers looking for Brooks.

The Seattle Post-Intelligencer reported last week that the database administrator said that it was unfortunate that Massey and Wade kept getting stopped, but that it was appropriate for officers to continue to stop them. Wade filed a complaint with the police department and was reportedly told that the only way to resolve the problem was to get Brooks to return to Washington to face the DUI offense.



Court Rules on Florida Breathalyzer Challenge

By Mary Ann

Over the past several months, hundreds of DUI cases in Florida have been lost, pled down or left hanging as prosecutors and defense attorneys argued over the source code for the Intoxilyzer 5000.

The battle caused such a snag in the legal system that the state legislature took action to prevent the issue from arising in future cases.

Today an appellate panel in Seminole County, where judges had rejected breathalyzer evidence in hundreds of cases, ruled that those judges were wrong.

Hundreds of Florida DUI cases have already been dismissed, tried or plea-bargained since the controversy arose, but those cases still pending are now free to move forward with the breathalyzer evidence.

The court ruling and legislative action seem to ensure that such arguments from DUI attorneys won’t be well received in the future.



Effectiveness of DUI Checkpoints Questioned

By Mary Ann

The legality of DUI checkpoints has long been questioned, though challenges to checkpoints that require minimal delay and inconvenience to motorists have been largely unsuccessful.

But as central Pennsylvania gears up to add more checkpoints in the coming months, experts are pointing to a different problem: it seems that DUI checkpoints are significantly less effective than roving patrols in stopping drunk drivers.

Maybe it’s because motorists are able to avoid the checkpoints if they’ve been drinking or know that they have outstanding warrants or non-functioning equipment on their vehicles. Possibly roving patrols make more targeted stops based on observed behavior. Whatever the reason, Pennsylvania data indicates that patrols lead to about double the number of DUI arrests in about one-third the number of contacts.

That means that an officer at a road block has to see six times the number of drivers as a roving officer before identifying the same number of people operating while intoxicated.



“Driving” Under the Influence?

By Mary Ann

More than one question has been posed about what constitutes “driving” under DUI law. The answer, of course, is that it varies from state to state.

However, the one thing that is clear and consistent is that you can’t count on “driving” meaning what we typically think of as driving. That is to say, “driving” doesn’t necessarily mean steering a car that’s moving down the road under its own power.

For instance, in at least one state, steering a car in tow has been held to be “driving” for purposes of a DUI conviction.

Many states consider a person “in control of” a motor vehicle if the person is sitting in the driver’s seat and the car is running–or even, in some states, if the keys are in the ignition and the car isn’t running.

In fact, there’s been at least one case in which the “driver” was convicted of a DUI committed while his keys were in his pocket.

There are too many variations in statutory language and in the interpretations of various courts to attempt to advance any kind of blanket definition.

The bottom line is that “driving” doesn’t necessarily mean what you think it does, and it’s best to find out how it’s defined in your state before it becomes an issue–or a criminal conviction.



Breathalyzer Battle Nears an End

By Mary Ann

For months, DUI attorneys in Florida have been arguing for the release of the Intoxilyzer 5000 source code. The resistance has come not from courts or prosecutors, but from the manufacturer of the breathalyzer machine.

The company argues that the source code is a “trade secret”, and refuses to turn the information over to prosecutors and DUI attorneys.

DUI lawyers have argued that without access to that information, they can’t evaluate possible challenges to the validity of the breath test results, which are usually the primary evidence in a DUI offense.

Courts have taken the argument seriously enough that more than 400 cases currently hang in the balance–and many more could be affected, since the Intoxilyzer 5000 is or has recently been used in as many as twenty states.

Judges heard testimony this week to help them determine whether the reliability of the machines could be determined by conventional means or the source code was necessary to assessing their accuracy.