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Archive for the ‘DWI’ Category

Can vehicle ignition interlocks solve the DWI problem?

16 Nov

DWIMothers Against Drunk Driving (MADD), on November 1, 2011, announced that it is urging the passage of the ROADS SAFE ACT (HR 2324/S 510) which would provide sixty million dollars in federal funding to finance the advanced alcohol detection research program known as DADDS. This technology is most commonly known as an “Ignition Interlock Device” or “IID.” These devices prevent the operation of a motor vehicle until the driver passes a blood alcohol test.

Anyone who is familiar with current IID technology will know that these gadgets are somewhat expensive, finicky, maintenance intensive and rather demeaning for drivers who are required to blow, hum and suck them repeatedly to start and continue to drive their cars. It is the sort of requirement that no one would ever tolerate unless they had no other choice. You can get a feel for how they work in this short video: Ignition Interlock Demo

So far, in Missouri, only repeat alcohol offenders are required to install the IID before they can get their licenses reinstated (after a long mandatory period when they are not allowed to drive at all). The IID must then be maintained for six months following the reinstatement date, and the driver is required to report to a certified IID vendor every month for maintenance to ensure the device is working properly.

MADD has a short term and a long term agenda. In the short term they want every legislature to force first-time DWI offenders to install the IID. In the long term (after the MADD ladies finish with the first-time offenders) they are coming after you and me, whether we drink and drive or not.

The purpose of the proposed federal sixty million dollar research program is to perfect a way to test the blood alcohol level of all drivers (not just drinkers), ideally without any need for their consent or cooperation. Understandably, researchers are looking for an involuntary test method to force compliance from the many drivers who do not esteem such nanny state initiatives.

Technologies being investigated include mounting cameras in cars to record and analyze a driver’s eye movements. Sensors may also be able to detect alcohol from air samples taken from the passenger compartment; or detect alcohol through a driver’s skin touching the steering wheel. They also discuss the possibility of requiring the driver to wear an arm or leg bracelet similar to those worn by criminal defendant’s under house arrest. Good luck with that idea. I can’t wait.

If the MADD ladies want an idea that really could save lives (without harassing the rest of us), here’s one:

Everybody now knows that if you get a DWI, you lose your license for anywhere between 30 days and ten years (or more). Supposedly, these license revocations are not to punish a DWI, but rather to safeguard the public. Punishment is a separate issue addressed by the criminal courts, not the license bureau.

Too often we read stories of drunk drivers who have an accident and hurt someone and it turns out that they were also driving while revoked. In those case, the license revocation or suspension did nothing to safeguard the public. It is hardly surprising to learn that many DWI offenders refuse to obey license revocations and drive anyway, especially when it means keeping a job and feeding their families.

If the ignition interlock device really is effective in stopping people from driving drunk, then the legislature already possesses the key to the problem. They would not even need to force people to use the IID. They could simply give the option of replacing the license revocation or suspension with the IID installation. Most defendants would take that deal if it meant they could keep driving. And then, even if they did drink, they would unable to harm anyone.

It’s not good enough to add the IID months or years after the offense occurs. It needs to be immediate to take away the temptation to drink and drive. Some may object because the state is not getting its “pound of flesh” from the offender, but any reasonable public policy will put public safety ahead of vengeance. It’s not often that the public good is best served by giving the bad guy a break, but this may be one of those times.


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Missouri DWI – taking blood without a warrant or consent

13 Nov

Missouri Criminal Defense LawyerOUR Cole County prosecutor, Mark Richardson was in the news this week as he briefed law enforcement on the new DWI law that went into effect on August 28, 2010. The story was that the new law opens the door for Missouri police to to take blood from DWI suspects, without a warrant and without consent. The story is here:

Missouri prosecutors: Warrant not needed for blood test in drunken driving cases

Ironically, the legislature almost certainly did not mean to permit warrantless blood draws. In fact, they removed a provision in the new law that expressly allowed the taking of blood without a search warrant. Nevertheless, whenever the legislature tinkers with the laws (and after 190 years of lawmaking, tinkering is about all that is left), we see unintended consequences.

In this case, the legislature removed a few words that (they seemed to think) would allow blood draws with a warrant. Such warrants were already legal, so the only effect of this change was to open the door (inadvertently) to warrantless blood draws.

Under the current Missouri and federal case law, the prosecutors feel that such warrantless blood draws will be upheld as legal. I tend to agree. Richardson said he still advises law officers in his county to seek a warrant until prosecutors find a favorable case to present the issue for the courts to decide.

Eventually, some adventurous prosecutor will get that court decision. Then Cole County prosecutors and police will start using warrantless blood draws. It’s probably smart not to take the lead in doing warrantless blood draws. That is because warrantless blood draws are going to present many problems.

Heatlh care professionals are mostly OK with taking blood under authority of a seach warrant. I should note that search warrants do not force them to do it, but typically–if shown a court order–they will take your blood whether you like it or not. That’s the way it is. So how are warrantless blood draws different?

A warrantless blood draw is done without any court order and against the will of the patient. It’s just a cop asking hospital staff to do it. They have no assurance that his judgment is correct (with all due respect for his 18 weeks of law enforcement training)

Another thing that bothers health care providers is that they are accustomed to committing acts which in any other context would be a criminal assault (sticking, cutting, drugging, etc.). But it’s OK because it is done with expressed–or at least implied–consent of the patient. They are trying to help a patient.

The trouble with taking blood for evidence is that nobody suggests they are treating or helping a patient. He is not a patient. He is a suspect and he is not being given medical treatment. He does not consent.

With all these questions, our hospitals will be worrying about lawsuits. They also have to wonder who will pay for an emergency room nurse’s time when they are called to court to testify.

Plan B

Missouri law enforcement will need a “plan B” when Missouri hospitals get fed up and tell them they don’t need the liability and expense of warrantless blood draws.

Plan B in Cole County will look something like this:

The County will have to hire a phlebotomist to draw blood at night and testify on weekdays. It will not be cheap.

Or they have to have police officers trained as medical professionals.

They must also assume that suspects who refuse to consent to a blood draw may not hold still for one. The courts will not admit the lab results of a warrantless blood draw if it harms the suspect.

It will be necessary to install some kind of special chair in the new jail to immobilize suspects who won’t cooperate.

I understand there are a couple nice ones in the gas chamber of the old penitentiary. No one seems to be using them right now

* * *

On second thought, the game is probably not worth the candle. Perhaps the legislature will just go back and fix the mistake.

 

 

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Posted in DWI, Legislation, Prosecutors

 

How much does a DWI cost?

14 Aug

Jefferson City Criminal LawyerPeople are always stunned at how much a DWI conviction costs. I had been intending to write an article explaining the damage in terms of money. Then I came upon this thoughtful post by St Louis area attorney Diana Hilliard. Naturally, these costs will vary with different locations and situations, but still, this is very instructive.

It will take your breath away.


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Missouri legislature cracks down on DWI offenders.

15 May

Governor Nixon is expected to sign new legislation, HB 1694, which sharpens the teeth in Missouri’s DWI laws. The bill has multiple provisions:

  • Creates DWI court combining judicial supervision, drug testing, continuous alcohol monitoring, substance abuse traffic offender program compliance, and treatment of DWI court participants.
  • Minimum jail sentences are now mandated for first offenders whose blood alcohol content is above .15% unless they go through a DWI court. (minimum of 48 hours jail for being over .15% and 5 days jail for over .20%).
  • Minimum punishments for prior offenders are more than doubled unless the offender can attend DWI court. A serious question still remains about the availability of DWI courts because the bill provides no funding.
  • Search warrant procedures are simplified to allow everyday use of warrants to compel blood testing for suspected offenders.
  • The bill adds reporting requirements on all Missouri courts, but makes no provision for funding. The bill also singles out municipal judges for additional training, reporting and monitoring by the circuit court. There seems a resolve to make those local judges toe the line.
  • Two provisions were (deservedly) dropped from the legislation:

1)  One provision would have allowed police to take a blood sample from suspected drunk drivers and later apply for a warrant.

2)  The other dropped provision would have eliminated the section that currently allows a person with a single DWI offense to have the record expunged after ten years had passed.

Jefferson City Criminal attorney

One hopes that despite a complete lack of funding, the severity of the new law can be offset by incorporation of the DWI courts into the existing drug court structures.


 
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Posted in DWI, Legislation

 

New Missouri DWI law would be harshest ever.

05 Feb

Jefferson City Criminal LawyerThe rage of DWI-related pressure groups is being vented through a proposed Missouri law sponsored by Joplin area state Rep. Brian Stevenson. Stevenson really takes off the gloves with this legislation–HB 1695–and removes any pretense that the “punishment should fit the crime.” HB 1695 creates new crimes such as: first offense driving over a .15% blood alcohol level or refusing to take a breath test.

MIssouri DWI lawInstead of offering treatment options that are given to drug offenders, the new law piles on more restrictions to keep offenders from driving at all.

Even if the offender never drinks and drives again, the license revocations are so lengthy, many drivers must choose between obeying the law and losing their jobs. Eventually they end up in jail or prison–not because they hurt or even endangered others–but because they disobeyed their government to make a living.

It’s not all bad. Some provisions of the law make it more likely that convictions are reported fairly and reliably throughout the state. One is that it forces all municipal judges to take remedial training in Missouri’s DWI laws.

One very sad provision of the new law eliminates what many consider a reasonable and merciful provision of our current law. It’s the one that permits a person who gets a first and ONLY DWI conviction to have their record expunged by the court if they go ten full years without any new alcohol-related contact or conviction.

This is a provision that ought to be extended to many misdemeanor crimes: make one small mistake and if you behave for ten years, we’ll forgive and forget. Instead, we are going the other way.

Perhaps our legislature will see this bill as overreaching and fundamentally unfair. We all know friends or family members who have had an alcohol offense. We know most of them are not repeat offenders and are good neighbors–not the sort that make good political cannon fodder.

If politicians want to grandstand, there are easier targets. For example, sex offenders. The public seems not to mind what we do to them, even after they have paid for their crimes. Certainly there are many more stupid demands they might make of sex offenders, things even more ridiculous than having to hide inside their homes on Halloween.

See New law makes sex offenders hunker down for Halloween


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Posted in DWI, Legislation

 

Missouri bill would criminalize refusal to take breath test

20 Jan

People often hear that they should refuse to take the breath test if they are arrested for a DWI. Unfortunately–in the case of a simple first offense DWI–that belief will frequently result in worse results than if a person is convicted of the DWI. Refusal to blow will probably result in a one year revocation of that person’s Missouri drivers license.

A bill in the Missouri legislature takes a “refusal” to blow to a new level. SB 780, sponsored by Sen Matt Bartle, makes refusing to submit to chemical testing a separate crime, equivalent to a first-time DWI

In view of the heavy administrative penalty (one year revocation) already on the books, I am not certain how useful this provision will be. It creates a bizarre situation with regard to other statutes that still remain in effect. Section 577.041 requires the arresting officer to allow a DWI suspect twenty minutes in which to contact an attorney about whether to take the breath test.

It seems odd to specifically provide extra time for a suspect to call a lawyer to ask if he should commit a crime. This places the attorney in a situation of having to violate ethical rules if he makes any specific recommendation. I can imagine getting a phone call at 3:00 am:

Me: What can I do for you?

Suspect: I’m at the police station and I want to know if I should take the breath test? I got arrested for DWI.

Me: You are asking me if you should commit another crime?

Suspect: The cop said I could call a lawyer to see if I should blow.

Me: OK, here’s the deal. I can’t advise you to commit a crime. I could advise you to obey the law and take the test, but I can’t do do that either, because it could make your situation worse. However–wink, wink–If you do take the test, X will happen. If you don’t, Y will happen. Good luck.

This bill is hardly necessary, and–as the above shows–creates difficulties within the existing law.  It needs to fail.


 
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Posted in DWI, Legislation

 

New DWI laws could have “unintended consequences”

30 Nov

After the governor’s November DWI summit, we can expect new laws that promise to crack down on repeat DWI offenders. Oddly, the news reports seem to suggest a need–not for a crackdown on drunk drivers–but rather a crackdown on courts and prosecutors.

One of the biggest problems cited relates to the many arrested drivers who refuse to give a breath sample to determine their blood alcohol content. The law already requires a one year license revocation for such a refusal, but apparently prosecutors are being blamed for allowing DWI offenders to keep their licenses in exchange for guilty pleas on the underlying criminal offense.

Reports also cite prosecutors and judges giving probation to DWI offenders, thereby avoiding any conviction from appearing on a person’s record. This seemingly ignores recommendations of the federal goverment not to permit such practices.

Changes in the law may make it a crime to refuse to give a breath sample. Other changes could prevent prosecutors from plea deals which would keep a DWI from appearing in state and national databases. Another possible change is to make it a more serious crime to drive with a blood alcohol higher than .15% (the current level is .08%).

It turns out that some prosecutors are not enthusiastic about changing the law, citing unintended consequences of the new laws.

Prosecutors know that if their hands are tied by uncompromising rules, it will change the way they do business. This is because criminal cases do not always appear in black and white. Shades of grey are the norm.

When the prosecutors are prohibited from making reasonable compromises, fewer DWI charges will be filed. Either that or many cases will end up dismissed or lost at trial.

Look for a get-tough bill to be filed soon in the Missouri legislature.


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Posted in Courts, DWI

 

Driving a La-Z-Boy While Intoxicated. Is that OK?

25 Oct

Sometimes the question comes up: Can you get a DWI for driving a golf cart? A tractor? How about a riding mower? Or a mini-bike? The short answer is yes. If it moves by motor power it is a motor vehicle under the DWI law.

Even so, this guy in Minnesota gets the prize for creativity:

Man pleads guilty to DWI in motorized La-Z-Boy

This chair has a lawn mower engine, headlights, stereo and cupholder. Unfortunately, the guy was on his way home from a bar when he crashed into a parked car.




 

 
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Posted in DWI, Humor

 

Dealing with law enforcement: Top Ten Posts

12 Sep

Jefferson City Criminal Lawyer

Some issues come up over and over:

 

 
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Posted in DWI, Know Your Rights, Law Enforcement, Odd Laws, Trial Stories, Weblog

 

Moberly pays $2.4 million for police taser homicide

23 Jun

The Associated press is reporting that the city of Moberly will pay millions to the family of a young man tasered to death after he resisted arest by arguing with Moberly police officers. Police had suspected him of driving while intoxicated. Story is here: Moberly to pay $2.4 million in Taser lawsuit settlement.

As I predicted back at the time of the incident–see Missouri man dies after Taser fired during traffic stop–the police tasering was found to be justified. Even though no criminal charges were filed, the city has suspended police use of tasers in addtion to paying the $2.4 million settlement.


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Posted in DWI, Law Enforcement

 
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