DWI – ignition interlock lets drivers back behind the wheel

jefferson city dwi lawyerMost of the new laws from the Missouri legislature this year went into effect this last week, but there are a few changes that go into effect at other times. The rules for obtaining a limited driving privilege changed effective July 1, 2013. For the better, I think. (see earlier post here)

  • In the past, the law prevented anyone from getting more than one limited driving privilege permit within a five year period. There is now no limitation to the number of limited privileges one may obtain. Section 302.309.3(6). Eligible persons may receive a limited driving privilege if their license is revoked for failure to submit to a chemical test (usually a breath test), but they must complete the first 90 days of the revocation and obtain a certified ignition interlock device.
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  • Persons under a five or ten year license denial may now petition the court for a limited driving privilege without a waiting period. The court must grant a limited driving privilege to any person who otherwise is eligible, has filed proof of installation of a certified ignition interlock device, and has had no alcohol-related enforcement contacts since the contact that resulted in the license denial. [Note that any person with a felony DWI conviction will still be denied a limited privilege under section 302’309.3(6)(b), unless issued by the DWI court.]
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There are also some other changes coming on March 3, 2014. One of those will allow first time DWI offenders a restricted driving privilege so they may drive to work [or to school, or to attend a SATOP program] during the 30 day suspension period.  Currently, they are not permitted to drive at all during that 30 days. Drivers will have to install an ignition interlock device to take advantage of this provision.

 

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DWI: Should I blow? What if they take my blood anyway?

jefferson city dwi lawyerIn the state of Missouri, if a police officer has probable cause to believe a person has been driving while intoxicated, the officer will arrest the suspect and request that they take a breath test to determine their blood alcohol content. If the suspect refuses to take the test, he loses his driver’s licence for one year.

Many lawyers used to advise their clients that if they were asked to take a breath test, they should refuse the test unless it was a first offense DWI where no personal injuries were involved. This was because a first offense DWI conviction will result in a 90 day suspension of a driver’s license, but anything more serious often involves a revocation of a year (or more) as well as heavier criminal punishments. In those more serious cases, it seemed smart to refuse the test and deny the police the proof of one’s blood alcohol level (which could easily make the difference in getting a conviction).

While prosecutors have long had the power to get a search warrant to take a sample of a suspect’s blood and determine his blood alcohol that way, it was seldom done, except in felony cases. For prosecutors it involved getting themselves and a judge out of bed in the middle of the night to draft and sign a search warrant.

Things have changed over the last several years as the legislature, prosecutors and pressure groups like MADD (Mothers Against Drunk Driving) have pushed for tougher prosecution. These days, obtaining search warrants for blood has become routine in any DWI case where the driver refuses to give a breath test. This development has subjected the suspected drunk driver to a triple whammy if he refuses the breath test:

  • First, the police still get their blood alcohol level to use against the defendant in court (courtesy of the search warrant)
  • Second, the state still revokes his driver’s license for a year because he did–after all–refuse the test (not to mention causing a prosecutor and a judge to get out of bed).
  • Third, the prosecutor gets to tell the jury what a jerk the driver was for refusing the test.

 

Considering this result, one must carefully consider before refusing to take a breath test. I tell clients that if they refuse, the cops will take their blood anyway, and then . . . the triple whammy. I suppose there is always the chance that blood sample will be lost, or otherwise screwed up. Or the test result could get misplaced, but I wouldn’t bet money on any of those things happening.

I should mention that the cops must allow a suspect 20 minutes to call a lawyer for advice on whether to blow–if the suspect asks for it. All my lawyer friends and I may–or may not–be up waiting for that 2:00 a.m. phone call. Needless to say, being intoxicated does not enhance one’s ability in making this difficult decision.

In contemplating this situation, I’ve often wondered what I might do if I were confronted with this dicey choice to take or refuse a breath test. If I refuse, they are going wake a prosecutor, then they are going to wake a judge and then the judge is going to sign a search warrant: basically a court order telling the police officer to take a sample of my blood.

emergencyThere are police officers or police technicians in some places who may be qualified to draw blood, but in my neighborhood, the police are going to take me to the local emergency room. They then show the search warrant to the nurse or technician and tell them to take two tubes of my blood. They obey and everyone is happy except me.

What if–just before the nurse sticks me–I say to her:

“Get away from me. I do not give you consent to take my blood. Take a look at the search warrant. Does that paper personally order you to take my blood, violating my rights and your professional ethics? See if your name is on it.

I am not sick; I’m not injured and I’m not your patient. Without my consent what you are doing is simply a criminal assault. If you do this, I will file a criminal complaint and I am going to sue you, this hospital and its Board of Directors for every nickel you’ve got. That warrant may be Officer Friendly’s get-out-of-jail-card, but you don’t have one. I suggest you call a lawyer.”

Or something like that, even if my speech was a bit slurred. I should note that prosecutors have been taught to insert language into a search warrant that directs some unspecified health care professional to execute the warrant. This seems questionable to me, since Missouri  law requires that a search warrant: 1) be directed to a peace officer; and 2) that it “be executed only by a peace officer.”

I don’t know how all that would work out in the courts, but how many health care professionals would willingly put their licenses and their assets on the line without knowing in advance they were 100% safe in doing what some cop assures them is fine. True enough, they are accustomed to committing acts which in any other context would be a criminal assault (sticking, cutting, drugging, etc.). But that’s OK, because it is done with expressed–or at least implied–consent of the patient. In that situation 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. Instead, he is a prisoner and he is not being given medical treatment. He does not consent; and if he physically resists the draw, the nurse may end up harming him.

Until recently, I’ve wondered what would result if a suspect tried to discourage E.R. personnel in this way. My bet was that health professionals would refuse and that law enforcement would try to bully them into obedience. That is, indeed, what is happening:

Doctors refuse to pump suspect’s stomach despite search warrant

In one recent case, a man was suspected of swallowing cocaine, so police got a judge to sign a search warrant to pump the man’s stomach. The doctors advised the authorities that unless the man consented to the invasive procedure, they could kiss off. The cops had no choice but to mount a five-day vigil around the suspect’s backside, which failed to produce any evidence.

Florida nurse arrested for refusing blood draw

needleIf the police did not manhandle the obstinate doctors in that case, things did not go as well for a mere nurse who applied the same professional ethics. When presented with a search warrant to draw a suspect’s blood she refused and the sheriff’s deputy arrested her and took her to jail on obstruction of justice charges. Although the charges were later dismissed, a federal jury refused to award her damages for the incident.

This issue pits police against health care workers who are being forced to act in ways that conflict with their care-giver role. A similar conflict prevents a physician from assisting in the execution of criminals. Ultimately, this ethical conflict–along with the requirement that a peace officer execute all search warrants–could cause the widespread use of some sort of peace officer paramedic, that is, someone with a badge, but unburdened by any medical ethics.

 

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Can vehicle ignition interlocks solve the DWI problem?

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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How much does a DWI cost?

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.

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.


New Missouri DWI law would be harshest ever.

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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Missouri bill would criminalize refusal to take breath test

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.


New DWI laws could have “unintended consequences”

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

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.




 

Missouri man dies after Taser fired during traffic stop

Suspect Dead After Moberly Police Use Taser

TaserMoberly Police apparently killed a 23-year-old drunk driving suspect with a taser early this morning during a traffic stop. Police Commander Kevin Palmatory said the young man resisted arrest, so the officer used his Taser twice. The suspect died at the scene.

I’m going to go out on a limb and predict that this homicide will be ruled to be justified because the officer was following departmental rules. Perhaps someone needs to look at those rules again. One of these days, a wise police chief will announce that taser use will be limited to situations that would otherwise justify the use of deadly force. If that were the case, this kid would be alive today.