While a driver may be arrested for a DUI, there are several obstacles that the prosecutor must overcome before successfully convicting that driver on official charges.
Potential errors made by police officers during a DUI arrest include failing to follow standard police procedures, conducting an illegal search or seizure, or giving a faulty breathalyzer test.
Errors such as flawed breathalyzer tests can be a legal nightmare for police departments, as evidenced by a recent incident in Kentucky in which several alleged DUI drivers may be set free after the police made a very technical mistake.
According to an investigative report from Louisville’s Courier-Journal, the results from alcohol breath tests that were used against roughly 600 drivers may be inadmissible in court after police discovered that four lab technicians had let their licenses lapse.
In what the local prosecutor called a “very unfortunate situation,” hundreds of breath test results have been challenged because they were performed by lab technicians who were working with expired certifications.
The inadmissibility of these breath tests could lead to dropped cases against hundreds of suspected DUI drivers because the breath tests are often the best evidence police can present against people suspected of drunk driving.
According to a Jefferson County Attorney Mike O’Connell, whose cases will be weakened if the breath tests results are thrown out, these tests represent “the single most important piece of evidence at trial.”
He also observed that the results of portable breathalyzer tests, which are used in the field as a first line of detection by police officers, are not admissible in court because of their unreliability.
Thus, police typically rely on blood or breath tests that are administered at the police station after the arrest. These tests, it appears, are much more reliable than the portable units used by police officers.
O’Connell expects that many DUI lawyers will try to reverse convictions for their clients that were supported by faulty tests.
He fears that many convicted drunk drivers may be released, unless state authorities can support their convictions with other compelling evidence, such as video of the driver during the arrest, witness testimony, or the results of field sobriety tests.
And, even if the defendants are able to escape DUI charges, prosecutors may still try to convict them on other charges, like public intoxication, disturbing the peace, alcohol intoxication, and wanton endangerment, none of which require breath tests at trial.
Despite these potential alternatives, though, Louisville police are embarrassed by the incident, which they claim is very rare and hasn’t happened before in Jefferson County.
Of course, while the police and state attorneys may be upset, there are hundreds of suspected drunk drivers in Louisville who can’t believe their good fortune.
Maryland Delegate Herman Taylor II was recently acquitted for his past DUI conviction. This reversed the prior conviction in which he was found guilty of drinking and driving. He was fined Taylor was found guilty and fined $250.
Taylor was found in the parking lot of a 7-Eleven convenient store passed out in his Cadillac SUV in the around 3:30 am.
The arresting police officer, Peter Johnson said he smelled alcohol on Taylor’s breath when he found him passed out in his vehicle. He seemed disoriented and confused.
He also failed several sobriety checks and after he failed to walk on the white line without stumbling, Taylor refused to take any additional tests. Johnson then arrested him.
He did not cooperate at the station either according to police testimony and when he blew into the breathalyzer he pretended to blow but did not release any air, making the test invalid
The officers’ recorded the episode as a refusal to give a sample.
With the new trial, Taylor claimed he pulled over at the 7-Eleven to catch some rest as he was very tired. He saw police in the parking lot of the establishment and thought he would be safe.
He stuck by his decision to pull off the road stating it was the right choice
In this appeal trial, four jurors who were interviewed stated the prosecution did not prove the Delegate was passed out in his vehicle due to being under the influence. They did not have any hard evidence to support their case more than he was just exhausted.
Taylor’s attorney stated that his client was merely sleeping in his Cadillac. He was exhausted and pulled over into the 7-Eleven.
The prosecution in their rebuttal claimed that Taylor was unwilling to cooperate when police asked him to take the breathalyzer and that he smelled like alcohol when he was arrested.
According to the jury this was not enough to convince them that Taylor was drunk when he was in his vehicle and did not feel this was enough for a DUI conviction.
Taylor is known for his campaign to have special license plates for people who were convicted of drinking and driving under the influence to identify them as DUI offenders.
On Tuesday, August 18, James Dean Lessard pleaded guilty to his 11th DUI offense.
The man from Billings, Mont. has 10 previous DUI convictions in Wyoming and Montana, with his first DUI in 1990 and most recent DUI offense in 2001. Currently, a plea agreement would sentence Lessard to 10 years in prison as a persistent felony offender.
If Lessard is classified as a persistent felony offender, future DUI offenses could mean an additional prison sentence of 100 years.
Lessard admitted before District Judge Russell Fagg that he was under the influence while he was driving on April 8. His car car hit another car in a grocery store’s parking lot.
He is scheduled to be sentenced on Oct. 26.
Source: Billings Gazette
Recently Gov. Jack A Markell signed two new bills into law to create stricter DUI penalties for people convicted of a DUI offense in Delaware.
House Bill 152: Increased Fines and Jail Time
House Bill 152 increases DUI fines for subsequent offenders, especially drivers with five previous DUI convictions. The bill also called for increased jail time for subsequent DUI offenders and creating a felony DUI for drivers with six and seven DUI convictions.
Last year there were approximately 6,916 DUI arrests, of which 59 people had been previously arrested at least five other times for drunk driving. Since January of this year, 3,213 drivers have been arrested for DUI, with 40 of those people having five or more previous DUI arrests.
House Bill 177: Strict Penalties for First DUI Offense
The second bill signed into law strengthens penalties for a first time DUI offense if the driver has a blood alcohol level of .15% or higher.
If convicted of a DUI with a BAC of .15%, the period of hard revocation for those who are mandated to have an ignition interlock device is increased from 30 to 45 days.
The driver’s license is suspended for six months instead of three, and the ignition interlock device must be used for six months.
The bill limits driving authority of an ignition interlock device licensed driver to work, home, school, alcohol treatment programs and interlock service provider appointments.
Source: Sussex Countian
We’ve mentioned many times that you can get a DUI offense in vehicles other than cars. This includes drunk driving of snow mobiles, scooters, riding lawnmowers, etc.
But, could face a DUI arrest even if you aren’t driving.
How’s that? The Connecticut Supreme Court recently ruled in the case of a man who started his car in a parking lot, sat in the driver’s seat while drunk but did not drive anywhere.
The court ruled that merely starting a vehicle is considered operating a vehicle. So the DUI conviction, which a lower court had overturned, was reinstated.
There are other examples in the DUI world of people being arrested even though they weren’t “driving” at the time. There are cases where a drunk driver got on the road, realized he was drunk and pulled over to rest or “sleep it off.” In these cases, you may be arrested for DUI even if you aren’t “driving” when police arrive.
Wisconsin is known for being one of the leading states in DUIs. According to a recent study by the Journal Sentinel more than 475,000 people have at least one DUI conviction and 8,000 have five or more DUI convictions.
Total DUI covered the study earlier this month, but a more recent story in the Journal Sentinel reported that there is a Wisconsin man with 15 DUIs.
Mark Allen Warner of River Falls was convicted of driving under the influence 15 times before his 40th birthday.
He wasn’t sentenced to prison until he had been convicted for the fifteenth time. For 11 DUI offenses, his blood alcohol level averaged .212.
Could DUIs across state borders lead to leniency?
The Belleville News-Democrat began an investigation after questions arose about one Alton man’s driving record. Frank M. Durr was charged with a misdemeanor DUI and allowed to strike a plea bargain for a lesser traffic offense.
However, the prosecutors in Madison County were unaware that Durr had a DUI conviction in Missouri from 1999.
If they had known, the prosecutors would not have been as lenient in their plea bargain. The Illinois Secretary of State conducted a check per request of the Belleville News-Democrat revealing that of 17 drivers in Illinois that have been charged with a DUI in Missouri, four people’s DUI convictions are not on their driving records.
Read the full article.
When is a DUI not a DUI?
On September 21 in Tarpon Springs, Florida, a Pinellas County deputy spotted a car traveling at a high rate of speed. The driver reportedly smelled of alcohol and declined to take a breath test, but instead of being arrested for Florida DUI, he was allowed to call for a sober ride.
The Tampa Tribune reported that the driver of the 2007 Dodge Charger stopped for speeding that morning was a Pasco County deputy. In this case, our officers telling us that it’s fine for deputies to drink and drive – recklessly – in their personal vehicles.
Hundreds of people awaiting trial for Washington DUI in Seattle Municipal Court just became a step closer to beating the charges.
A recent court ruling has barred the results of all breath tests given before December 18, 2007 from being used against the defendants in court. Generally a DUI offense without blood alcohol concentration reading is often harder to prosecute, but the court found that all of the breath tests conducted prior to mid-December may have delivered inaccurate readings.
The breath test machines were brought up to date and determined to be accurate as of December 18, 2007 according to the Seattle Post-Intelligencer.
Of course the Seattle City Attorney is none too happy about losing the teeth of many of the Washington DUI offenses on the docket and plans to appeal the decision.
Even without the breath tests results, Tom Carr says that only a small number of the DUI cases will be dismissed. Without the breath test evidence there are still field sobriety tests, dash cam videos and other evidence available to help prove that the defendants were driving while impaired.
The toxicology lab that conducts the breath tests in Seattle has been under fire since last summer when the lab manager was suspected of signing off on scientific tests that had not actually been conducted.
From there it only got worse and the lab policies and procedures were then questioned and challenged, as was the software used by the breath test machines. Four judges found that no one at the toxicology lab ever checked to make sure that the breath test machine data was being calculated correctly.
Because of the botched breath tests, not only are all the DUI suspects awaiting trial in Seattle off the hook for their breath test results, but going back three years, everyone who faces DUI conviction based on breath test evidence from this lab may now have grounds for an appeal.
If you feel a need to get pulled over for DUI, do it Waverly, Ohio. The Cincinnati Post recently reported that Waverly Ohio police allow DUI defendants to make a $1,000 donation to the police department in exchange for a plea bargain allowing them keep their driver’s licenses.
The Post reports that more than one-third of DUI cases in Waverly were dismissed last year. Motorists, who typically face three or more days in jail and lengthy license suspensions were allowed to make the donation and plead to a lesser charge.
Some DUI suspects with four or five prior DUI convictions were allowed back on the road with no jail time and no loss of driving privileges. In some cases, the convictions were not even reported to the Ohio Bureau of Motor Vehicles, a violation of state law.
The paper said the bargaining away DUI charges for donations raised more than $91,000 for the “drug law fund” since 2001. The money went to buy fire arms and radio equipment, according to Waverly police officials.
A candidate for trustee in Round Lake, Illinois is condemning a mayoral candidate for his support of a fellow candidate with a DUI conviction.
DUI convictions have become the scarlet letter of the 21st century throughout the United States. In Round Lake, Trustee Ken Schnur, who is seeking reelection, is criticizing Trustee and mayoral candidate John Teubert for running on a slate including a candidate who was convicted of DUI seven years ago.
Schnur condemned Teubert for using a double standard to support Luis Martinez for village board. Last year Teubert called for the resignation of a Grayslake, Illinois elementary school board member, Kristen Coe Peek, when she pleaded guilty to DUI.
Teubert said the comparison between the two cases isn’t fair. He said he called for Coe Peek to resign because she was in a position that influences children and Martinez’s legal troubles came before he ever held or ran for elected office.
Martinez said “I don’t drink and drive. I was younger, I had a drink thinking it would be nothing and that’s what happened. It was childish and I know it’s not going to happen again.”
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.
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.
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.
A recent change in the way funds obtained through DUI convictions can be spent by law enforcement agencies creates a new incentive for those agencies to up DUI conviction rates.
The $100-200 the law enforcement agency receives for each DUI conviction was once allocated specifically for the purchase of alcohol-enforcement-related equipment like breathalyzer machines.
With the law change, though, those departments have much greater leeway in the disposition of those funds. Read the full story here: Illinois DUI Funding Law
The Navy Judge Advocate General is considering an instruction that would require sailors involved in off-base alcohol related incidents to report those incidents to their commands–and those sailors shouldn’t expect a slap on the wrist.
If the instruction is approved, notation of DUI incidents will be required in sailors’ fitness reports, and those with two DUI convictions will automatically be separated from the service.
The instruction would also introduce changes in drug testing policy and consequences for underage sailors caught drinking.