June 30, 2012

Driving Under the Influence of…Food

I’ve written in the past about the focus on the relative dangers of impaired driving due to alcohol versus impairment from drowsiness, texting or talking on a cell phone.  Thanks to Mothers Against Drunk Driving, DUI has been demonized and the penalties have become Draconian.  But studies show the dangers from distracted driving can be at least as dangerous — yet this type of conduct is common and punished with a slap on the wrist — if at all.  See, for example, Drunk Driving vs Distracted, Drowsy or Drugged Driving, Inebriated or Texting: Which is More Dangerous When Driving?, Driving Under the Influence of…a Cell Phone and Losing Sight of the Goal. 

Now another form of impaired driving has been shown to be possibly more dangerous than drunk driving.


Eating While Driving Riskier Than Being Legally Impaired by Alcohol or Texting

Great Britain. May 7 — Would you believe that eating food while at the wheel of a vehicle could be more dangerous than drinking or texting while driving?

According to a study by the University of Leeds called “Two Hands Better than One,” this is exactly what researchers found based on observation of test subjects operating driving simulators.

The UK researchers measured reaction time while drivers negotiated virtual vehicles, and as it turns out, eating increased response times by 44 percent.

In contrast, texting increased reaction time by 37 percent, and drinking a non-alcoholic beverage from a can or bottle increased reaction time by 22 percent.

And what about the one driving no-no that that nearly everyone agrees is undesirable – drinking alcohol and operating a vehicle?

Drivers asked to operate the simulator who were at the U.S. “legal limit” of .08 percent blood alcohol content increased reaction time by 12.5 percent…

Common sense dictates that drivers can compound their chances for an accident if they do not self-govern and recognize their limits. And as the study indicates, a distraction can come in several forms – even ones that have been considered benign…

Much more could be said about this subject which the U.S. Department of Transportation has been up in arms about in recent years, labeling distracted driving an “epidemic.”


Maybe someone should remind MADD that the goal is saving lives — not returning to Prohibition.

This entry was posted on Saturday, May 12th, 2012 at 10:49 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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June 28, 2012

Orange County DUI Checkpoints – Anaheim announced

The Anaheim Police Department announced it will run a DUI/drivers license checkpoint on Lincoln Avenue from 8 tonight April 27th through 2 a.m. Saturday April 28th.  Have fun when you go out, but be careful out there!

Anaheim Police Department Orange County DUI Checkpoint Locations

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Anaheim Police Department, Driving under the influence, Law, Law Enforcement, Lincoln Avenue, Orange County California, police, United States

This entry was posted on Friday, April 27th, 2012 at 10:24 pm and is filed under Dui Checkpoints. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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June 27, 2012

Celebrity DUI: Bobby Brown Arrested for DUI

Another Celebrity DUI Arrest… WHITNEY HOUSTON‘s ex-husband BOBBY BROWN has just been arrested for DUI, according to the latest celebrity news

Valley Municipal Building in Van Nuys, Los Ang... Valley Municipal Building in Van Nuys, Los Angeles, California. (Photo credit: Wikipedia)

According to reports, Whitney Houston’s former hubby was pulled over in Reseda, California earlier today for talking on his cell phone while driving. However, the cops soon found out that Brown was actually drunk, with a blood alcohol level of .08 or higher.

Brown was immediately arrested for driving under the influence and taken to the Van Nuys jail.

He was bailed out after about two hours.  If you have any questions about Los Angeles DUI cases, call us at (877) 568-2977 anytime.

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Arrest, BobbyBrown, California, Driving under the influence, dui, los angeles dui lawyers, Mobile phone, Reseda Los Angeles, Van Nuys Los Angeles, Whitney Houston

This entry was posted on Sunday, April 1st, 2012 at 1:45 am and is filed under Celebrity DUI. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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June 25, 2012

The Reality of Police Profiling

Profiling is Prejudice and Prejudice is Injustice. Profiling is Prejudice and Prejudice is Injustice.

The police profiling people is nothing new. While racial profiling is the most talked about form, profiling can be based on age, clothing, the type of car, being a single male in a car after 2 am or anything that can trigger the “suspicion” of the police. The problem is that these types of “clues” lead to false arrests, needless confrontation and outright injustice.

There are many places, New York City being one, where cops commonly “Stop and Frisk” so called “suspicious” youth. These types of random unwarranted searches do not differ from DUI patrols where people are stopped and questioned without any evidence or fact based suspicion.  Not surprisingly, the results are similar:  under-trained, overworked police officers making false arrests based on their biased and prejudiced views.

In a DUI context, officer’s play the “statistics game.” They figure to themselves that if there is a male between the ages of 18-30 alone in their car after 2 am, the chances are statistically high that that that person has had something to drink and is driving home. Of course, if you are over 21, having something to drink is not illegal. It is not against the law to literally drink and drive. But if you are a single male in a car alone past 2 am, you are just begging to be pulled over for any or no real reason.

Whether it is an inner city youth or a baby boomer, Gen Xer,or Gen Yer in Central Pennsylvania, profiling leads to false arrests. This needs to stop.  Remember: Profiling is prejudice and prejudice is injustice.


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June 24, 2012

A Fading Constitution

As I’ve mentioned in past posts, the U.S. Supreme Court years ago reversed a Michigan State Supreme Court decision and held that DUI roadblocks (aka "checkpoints") are not violations of the Constitution.  See Are DUI Roadblocks Constitutional?  Since then, a growing number of states have relied upon their own constitutions to ban the practice. See, for example, Growing Number of States Outlawing DUI Roadblocks.

Since then, it has been common practice for police to pull over any driver who appears to be avoiding a roadblock.  And the question has arisen:  Does turning around, say, a block ahead of the checkpoint, constitute sufficient reasonable suspicion of intoxication to justify pulling the driver over?  In almost every case, the courts have held that it does not: mere avoidance is not an indication of drunk driving and so cannot be used to justify a stop and detention.

The Supreme Court of South Dakota, however, has decided that although turning around to avoid a roadblock is not enough, it becomes sufficiently "suspicious" if the turn is a wide one — even if a legal one!


South Dakota Supreme Court: Avoiding Nighttime Roadblock is Suspicious

The Newspaper.com, April 25 — Avoiding a roadblock is, in effect, sufficient justification for police to pull over a driver, the Supreme Court of South Dakota ruled last Wednesday. The justices unanimously ruled that avoidance itself technically is not enough, they approved the most minor of "suspicious" circumstances to justify pulling over any motorist who does not want to be stopped and interrogated at a checkpoint.

The decision came in the case of Ryan Rademaker, who had been driving a friend home at 1am on a Sunday. As he saw the blockade on the highway ahead, Rademaker turned off on a gravel road. A highway patrol officer issued orders to a local police officer who understood his mission was to stop Rademaker for avoiding the roadblock. The officer testified that he did not observe Rademaker violating any traffic laws, but the officer noted the driver made a "wide turn." The officer also noted, after he activated his red lights, that Rademaker might have been speeding.

The court looked to the question of whether the officer violated Rademaker’s Fourth Amendment rights and whether there was reasonable suspicion that Rademaker may have been involved in criminal activity. Rademaker cited a series of Eight US Circuit Court of Appeals decisions that concluded avoiding a roadblock is not enough to justify a traffic stop.

"In light of this line of case law, we join the Eighth Circuit in holding that avoidance of a checkpoint alone is insufficient to form a basis for reasonable suspicion," Justice Lori S. Wilbur wrote for the court. "However, the Eighth Circuit was clear that checkpoint avoidance is indeed suspicious and thus our analysis does not end here."

To uphold the conviction, the justices turned to the "totality of circumstances" doctrine to find a number of elements that are not in themselves criminal but lend enough to rationalize the officer’s actions in the court’s eyes.

"In addition to the checkpoint avoidance, the trial court also relied on two other suspicious factors: the time of day, 1 am and the police officer’s observation that Rademaker made an unusually wide, but legal, turn," Wilbur wrote. "Both this court and the Eighth Circuit have used the time of day as a ‘factor’ in determining whether reasonable suspicion exists… Likewise, this court recently held that a wide turn, even if not in violation of any traffic laws, may be sufficient in some circumstances to engender reasonable suspicion."

As a result of the high court’s finding, Rademaker’s conviction for driving under the influence of alcohol (DUI) was upheld. Alaska, Idaho, Iowa, Michigan, Minnesota, Montana, Oregon, Rhode Island, Texas, Washington, Wisconsin and Wyoming outlaw DUI roadblocks as a violation of their state constitutional protection against warrantless search and seizure.

Amazing.  A turn that is legal but "unusually wide" (whatever that means) is enough to pull over a driver on suspicion of drunk driving.  This is an example of what I meant in the banner at the top of this blog by "a fading Constitution".

This entry was posted on Thursday, April 26th, 2012 at 9:27 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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June 23, 2012

What group is against ignition interlock to prevent DUI? (Hint – it isn’t DUI Lawyers!)

Orange County Barristers Wine Tasting A night on the town could be a thing of the past

As a DUI Lawyer in Orange County, I try to keep ahead of developments in breath and blood testing.  But technology from the automotive world might be a game changer as far as how DUI s might be handled, or prevented, in the future.

Several automotive manufacturers have been meeting with, partnering with, and developing experimental technology to detect alcohol, including alcohol emitted from the skin in sweat through the steering wheel, or from the breath.

In 2008, the National Highway Traffic Safety Administration (NHTSA) launched a 5-year campaign to develop ignition interlocks as standard equipment in all vehicles. NHTSA and the Automotive Coalition for Traffic Safety—which is funded by auto manufacturers—have budgeted $10 million to solicit research and development on the widespread use of this in-vehicle technology.

Mothers Against Drunk Driving (MADD) has asked Congress for another $60 million to be allotted annually for alcohol detector development.  So there is big money behind this.

The group opposing this?  It’s the American Beverage Institute, which fears this would prevent people from going out for even one drink.  Of course, as my fellow Orange County DUI Lawyers know, a machine is only as accurate as the maintenance, calibration and margin of error for the device allows it to be, assuming no deviations from standards.  Garbage in, garbage out, as they say, and in this case, a false positive or machine malfunction could have serious consequences to the driver.  The Beverage Institute’s newsroom is here at:  http://abionline.org/newsroom.cfm?t=inthenews

By the way, if you want to to be kept in the know for the latest DUI checkpoints, check out this blog frequently, or subscribe to the Orange County DUI Checkpoints Blog, or like our Orange County DUI Checkpoints Facebook page.

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Alcohol, American Beverage Institute, Driving under the influence, Mothers Against Drunk Driving, National Highway Traffic Safety Administration, NHTSA, orange county, Orange County California, orange county dui arrests, Orange County DUI Attorney, orange county dui attorneys, orange county dui checkpoint locations, orange county dui checkpoints, orange county dui lawyer, orange county dui lawyers

This entry was posted on Thursday, April 19th, 2012 at 11:42 am and is filed under Dui Checkpoints, DUI News, DUI politics. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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June 22, 2012

The Scarlet Letter Again…

In the opening of Nathaniel Hawthorne’s classic novel The Scarlet Letter, set in 17th-century Puritan Boston, a young woman who has been convicted of adultery is led through the streets of colonial Salem, a scarlet letter "A" pinned to her chest. The townspeople watch approvingly, gossiping and enjoying her humiliation.

Fast forward….Mothers Against Drunk Driving and their cohorts seem intent on resurrecting humiliation as an added punishment — but only in DUI cases.  See, for example, The Scarlet Letters, The Return of the Scarlet Letter and The Scarlet Letter Revisited.  

The most recent manifestation of this archaic witch-hunting:

Houston Man to Wear Placard Saying He Killed a Man

Houston, TX.  April 19 - A driver who served time in jail for killing a man in a drunk-driving accident in Harris County will now have to advertise his crime by wearing a sign in public.

Harris County Court-at-Law Judge Michael R. Fields has ordered Michael Giacona, 39, to wear the sign, which states “I killed Aaron Coy Pennywell while driving drunk,” during four consecutive Saturdays as part of his two-year probated sentence…

Giacona was ordered to wear the sign from 9 a.m. to 5 p.m. at the accident scene, starting this Saturday.

Aside from the issue of public humiliation generally, one has to ask the question:  Why only drunk drivers?  Why aren’t rapists, drug dealers, child molesters and murderers forced to wear signs as well?  

This entry was posted on Saturday, April 21st, 2012 at 10:25 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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June 20, 2012

Justin McShane: The DUI Jedi!

Hi, I’m Justin McShane.  For those of you who don’t know me well I would like to tell you that I’m a fighter who is sworn to fight for the citizen accused.

The Force is Strong with Attorney McShane The Force is Strong with Attorney McShane

Law enforcement is a human endeavor and an error prone one at that.  The result is many people are falsely accused of DUI and other crimes.  The problem becomes galactic when you factor in that the police and prosecutors are highly experienced and juries tend to believe them.  The deck is truly stacked against the common person.

Enter The McShane Firm.

At The McShane Firm we are committed to fighting for justice and to protect the innocent against wrongful prosecution.  Fighting is in our blood.  I used to be a Division I wrestler, a competitive powerlifter and a bodybuilder. I am an avid fan of mixed martial arts and I bring this fighting history and spirit to the courtroom.

When the prosecution sees The McShane Firm defending you they know they are in for a battle.  We challenge their evidence. We use expert witnesses. We will fight for every inch we can.  We come to every fight prepared with the goal of protecting our clients.

At The McShane Firm, we are protectors of justice and protectors of your rights!


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June 18, 2012

Orange County DUI Checkpoints – Costa Mesa results in 8 Orange County DUI Arrests

A sobriety and driver’s license checkpoint over the weekend resulted in eight DUI arrests in Costa Mesa, police said.

Costa Mesa police conducted the checkpoint between 8 p.m. Saturday and 2 a.m. Sunday on Harbor Boulevard and Peterson Place.

A Kranz (wreath) of Kölsch beer. Don't finish the tray before heading into an Orange County DUI Checkpoint

Nearly 2,500 vehicles went through the checkpoint and about 300 vehicles were screened, police said.

Police said seven people were arrested on suspicion of driving under the influence of alcohol and one person was arrested on suspicion of driving under the influence of drugs.

Other arrests included six people who were cited or arrested for operating an unlicensed vehicle or while driving with a suspended or revoked license.

Three other drivers were cited for vehicle code violations.

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Arrest, Driving under the influence, dui specialist orange county, Law, Law Enforcement, Legal Information, newport beach dui lawyers, orange county dui lawyers, police, Random checkpoint, Vehicle

This entry was posted on Monday, April 30th, 2012 at 1:04 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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Hundreds of DUI Convictions in Doubt: Inaccurate Breathalyzers

In most drunk driving cases, by far the most important evidence comes from a breath test.  Our DUI laws even provide that they are sufficient by themselves to warrant a conviction.  The accuracy of these devices is, therefore, critical.  And I’ve posted dozens of time on the inaccuracy and unreliability of breathalyzers.  See, for example, How Breathalyzers Work — and Why They Don’t, Attorney General Finds Widespread Breathalyzer Inaccuracies: Police Shut Down All Machines and More Massive Breathalyzer Failures.

Besides the inherent inaccuracies of breath-testing devices, they are also entirely dependent upon proper maintenance and calibration by the police making the arrest. Failure to properly calibrate one of these devices on a regular basis is going to result in false readings — and wrongful convictions.

Unfortunately, cops and police agencies are notoriously lazy or incompetent when it comes to these irritating "technical" tasks….


SFPD Breathalyzer Error Puts Hundreds of DUI Convictions in Doubt

San Francisco, CA.  March 5 – Hundreds, or even thousands, of drunk driving convictions could be overturned because the San Francisco Police Department has not tested its breathalyzers, officials said Monday.

For at least six years, the police officers in charge of testing the 20 breathalyzers used by the Police Department did not carry out any tests on the equipment.

Officers instead filled the test forms with numbers that matched the control sample, said Public Defender Jeff Adachi, throwing countless DUI convictions into doubt.

“We do expect that the cases will be in the hundreds. It’s possible that it could go into the thousands. The District Attorney’s Office is still investigating the scope of this,” Adachi said during a joint news conference with District Attorney George Gascon…


Amazing….no calibration tests in six years!  The cops just made up numbers to make the machines look accurate.

Even more amazing that a reading from one of these machines is legally considered proof beyond a reasonable doubt in a DUI case — and even triggers a legal presumption of guilt, forcing an accused citizen to prove his innocence.  See Whatever Happened to the Presumption of Innocence? and How to Overcome Scientific Facts: Pass a Law. 


(Thanks to Andre Campos and Murphy Mack.)

This entry was posted on Tuesday, March 6th, 2012 at 9:40 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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June 16, 2012

Hapless Florida Man Arrested for Drunk Driving in his Front Yard

By guest-writer

Thousands of people are arrested for DUI charges every day, but most of these arrests happen on highways and other public streets. Few DUI arrests are made in the privacy of one’s own home.

One Florida man, however, bucked this trend after he was arrested for driving under the influence of alcohol when police found him repeatedly backing his truck into trees in his own front yard, according to a remarkable report from WJXT Jacksonville.

Sources indicate that Dennis Jones, a 57-year-old resident of Paisley, Florida, was charged with drunk driving after an unsuccessful attempt to back out of his driveway.

According to the police report, Jones was trying to back out of his driveway last Tuesday morning around 10 a.m. when his efforts went horribly awry.

While backing out of a driveway does pose some occasional challenges, Jones took these difficulties to a new extreme as he spent at least 15 minutes trying to escape his front yard by ramming into trees and spinning his tires in dirt.

Neighbors who called police to report the odd behavior told dispatchers that Jones smashed into trees, dug his truck into a hole, and repeatedly spun his tires in a manner that slung dirt into a neighbor’s yard.

When police officers arrived on the scene, they claim that Jones had a strong smell of alcohol on his breath, was slurring his speech, and somehow was missing a lens in his eyeglasses.

In an effort to ease the authorities’ minds, Jones curiously tried to defend himself by claiming that he had imbibed “less than one pint of vodka” that morning, according to the police report.

In one of the most predictable field sobriety tests in the history of modern jurisprudence, Jones failed to prove to police that he was sufficiently sober to drive, and he was unceremoniously taken into police custody, where he could do no further damage to his own trees.

Less than an hour after his arrest, police administered a breathalyzer test to the hapless driver, and he blew a staggering .242, which is more than three times the legal limit.

Some curious readers might wonder if Jones will be able to argue his way out of a DUI conviction because his driving took place within the confines of his own yard. This argument, however, is not likely to hold sway, as the man was clearly a danger to himself and others, especially if he had been able to successfully maneuver his way out of his own yard.


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June 14, 2012

DUI Prescription Drug Help

Attorney McShane has handled several DUI prescription drug cases. Attorney McShane has handled several DUI prescription drug cases.

One trend I that have noticed here in Pennsylvania is an increase in drug related DUI arrests and in particular arrest related to prescription drugs.  We  have discussed DUI prescription drugs before in our post: DUI Arrests Purposely Targeting Innocent People.

DUI drug cases are complex because there are many different types of drugs that fall under this category.  What’s even more alarming is that Pennsylvania treats DUI prescription drugs as equal to someone who is at the “Highest Rate” of blood alcohol.  The penalties such a charge (first time) are:

Mandatory prison time up to 6 months12 month license suspensionUp to $5,000 in fines

What becomes bizarre is that if you are convicted of a DUID and it is a second or subsequent offense, you have to get an alcohol interlock in your car? What sort of sense does that make?

It is important to find an attorney who has the knowledge and experience to fight DUI prescription drug cases.

In addition to conducting dozens of lectures on the subject of DUI drugs, Attorney Justin McShane has publish several academic papers calling into question the Drug Recognition Expert protocol which is the procedure used to test DUI drug cases.

If you are charged with a DUI prescription drug offense in Central Pennsylvania, please call The McShane Firm for a free consultation at 1-866-MCSHANE.


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June 12, 2012

Is MADD Pushing for Interlock Devices in all Vehicles?

New legislation contains a provision for research into ignition interlock devices to be installed as standard equipment in automobiles.  Is this really just research or are there bigger motives behind this?

Is MADD trying to put interlock devices in all or our cars? Is MADD trying to put interlock devices in all or our cars?

A recent article on Politico highlights the on-going battle over installing technology in vehicles to test for alcohol.  The current legislation calls for research into this technology.  While there is no mandate in the current legislation, many experts who have followed drunk driving legislation are concerned that we are headed for mandatory interlock devices for all cars.  This would be a horrible  step.

The current breath testing machines, whether it’s the handheld machines used by the police at roadside or the “advanced” machines used for the official state tests, are truly a flop.  The technology is old and makes far too many mistakes to be considered reliable.  This could cause some serious problems.

If you eat a sandwich and want to drive, forget about it.Brush your teeth and use mouth wash like Listerine and want to drive, forget about it.For instance, if you’re a husband and your wife has suddenly gone into labor, a faulty breath test could freeze your car from starting which could threaten the life of your wife and child.What if someone who was trying to assault you was chasing you and you rush to your car only for it not to start because of  the time it takes to process the breath test?

Then there is the question of our freedom.  Why do you have to blow into a machine to prove that you’re not a criminal in order to start your car?  What ever happened to the presumption of innocence before proven guilty? Whatever happened to the notion that we are a society built on the freedom from government?

Who will calibrate these machines?  The police can’t keep their own machines properly calibrated so can they be trusted in this regards?  Will people have to do it themselves?

There are many question that need to be answered and issues that need to be carefully studied and well-thought out before mandating this technology on all automobiles.  While MADD and other lobbies will argue this is the “magic potion” to end DUI forever, we hope that lawmakers will make rational decisions about this program.


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June 11, 2012

Chicago DUI Accident Kills Law Student at Northwestern University

By guest-writer
The tragic death of a law student at Northwestern University has led to drunk driving charges for a 21-year-old Illinois man who allegedly struck the student with his vehicle at a Chicago street corner.
Last week, the Chicago Tribune reported that Bianca Garcia struck 32-year-old Jesse Bradley while he was walking in Chicago’s Old Town neighborhood, apparently in an effort to seek a late-night snack.
Sources say that Bradley was walking across a crosswalk on LaSalle Street when Garcia’s Jeep Liberty ran directly into him at about 2:30 a.m. on a Sunday morning. Doctors at Northwestern Memorial Hospital declared Bradley dead at 2:54 a.m.
After the accident, Garcia reportedly fled the scene of the accident by driving the wrong way down a one-way street, but police officers pulled her Jeep over a few minutes after the collision.
Police officers were suspicious of the car because it had serious damage to its front end, including a missing headlight, and there was a significant amount of smoke coming from the engine compartment, according to the police report.
After police pulled her over, Garcia refused to submit to a field sobriety test or a breathalyzer test, but this did not prevent Chicago prosecutors from bringing DUI charges against her.
Sources indicate that Garcia has been charged with felony aggravated DUI, misdemeanor DUI, and misdemeanor reckless driving. Police also cited her for driving the wrong way on a one-way street, and for driving with a license.
After the accident, Garcia decline medical attention, but sources say that she eventually was treated for injuries, along with a 20-year-old woman who was riding in the backseat of the Jeep, at Northwestern Memorial Hospital.
Sadly, Bradley was beyond the point where treatment would help. According to the Chicago Tribune, Bradley had taken a semester off from law school, but was planning to complete his degree this summer before pursuing a career in corporate law.
As he awaited the completion of his degree, Bradley had taken a part-time job at a local Starbucks, which was partially due to his self-admitted addiction to coffee. Bradley had lived in Chicago for about five years.
In a recent interview, Bradley’s sister expressed feelings that were shared by the rest of his family. In her words, “it’s just bizarre. It really shows you how life can change in an instant. He was healthy. He was living. And he died. He should not have died at 32.”
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June 9, 2012

Flawed DUI Tests Plague Several California Police Departments

By guest-writer
A few months ago, police officials in San Francisco faced a great deal of embarrassment when an investigation revealed that several breathalyzer tests administered to DUI suspects were flawed, a finding that threatened hundreds of DUI convictions.
This problem, however, does not seem to be isolated to San Francisco, as police departments across the country have experienced troubles with the reliability of their breathalyzer tests, according to a recent report from the San Francisco Chronicle.
An eerily similar situation happened in Philadelphia last year. There, the district attorney was forced to offer new trials to almost 1,500 people who had been convicted of driving under the influence of alcohol over a 15-month period.
This offer was made necessary by the finding in March 2011 that four different breath test machines used by the Philadelphia police department had not been adequately calibrated before their use.
San Francisco faced a similar problem with the calibration of their breathalyzer devices, but they used a different type of breath test, according to sources.
In addition to San Francisco, other California communities, such as those in Santa Clara County and Ventura County, have seen some dropped DUI convictions due to faulty breath tests, but not to the extent that San Francisco experienced.
In the city by the bay, the district attorney’s office is currently reviewing hundreds of cases dating back to 2006 to possible mismanagement of breath testing devices used by the city’s police department.
According to San Francisco Public Defender Jess Adachi, as many as 1,000 convictions could eventually be altered, although Adachi does have a bit of a skewed perspective, given that he stands to benefit from any overturned convictions.
Still, the fact that even hundreds of DUI convictions could be overturned is unnerving for judges and prosecutors alike, and it reveals the danger of relying on technology when identifying possible DUI offenders.
People who are arrested for a DUI should also note that there are a wide range of complications that could arise from a breath test, including the possibility of condensation in the device that skews the blood alcohol results, or simply misuse of the machines by poorly trained police.
A DUI arrest does not necessarily mean a DUI conviction, given the wide range of possible procedural violations or technological mishaps that sometimes plague DUI stops.
So, if you’ve been arrested for a DUI, remember that you are not necessarily convicted automatically. The court must still prove your guilt.
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June 8, 2012

Ambien Sleep Driving: The Problem

     Zolpidem Tartrate, sold under the brand name Ambien, is a non-benzodiazepine sedative hypnotic. The non-benzodiazepines are a class of psychoactive drugs that have pharmacological characteristics similar to the benzodiazepines, with similar benefits, side effects, and risks, although they have dissimilar chemical structures. A sedative hypnotic is a drug that depresses the activity of the central nervous system and is used chiefly to induce sleep and to allay anxiety.

     Barbiturates, benzodiazepines, and other sedative-hypnotics have diverse chemical and pharmacologic properties that share the ability to depress the activity of all excitable tissue, especially the arousal center in the brainstem. Sedative-hypnotics are used in the treatment of insomnia, acute convulsive conditions, and anxiety states and to facilitate the induction of anesthesia. Although sedative-hypnotics are generally sleep inducing, they may also interfere with rapid eye movement (REM) sleep that is associated with dreaming. It has also been noted that when administered to patients with fever some of these drugs may act paradoxically and cause excitement rather than relaxation.

Sedative hypnotics may interfere with temperature regulation, depress oxygen consumption in various tissues, and produce nausea and skin rashes. In elderly patients they may cause dizziness, confusion, and ataxia. Drugs in this group have a high potential for abuse that may cause physical and psychological dependence. Treatment of dependence involves gradual reduction of the dosage because abrupt withdrawal frequently causes serious disorders, including convulsions. Buspirone and zolpidem are among the newer non-barbiturate non-benzodiazepine sedative hypnotics.

     Zolpidem is a benzodiazepine receptor agonist with high binding affinity for the GABA receptor. It was developed as a drug with a structure different from the benzodiazepines in order to provide it with an affinity for only a subset of the benzodiazepine receptors resulting in hypnotic properties without significant anti-convulsant, anti-anxiety, or muscle relaxant properties associated with the various benzodiazepines. Therefore, Zolpidem may be said to “compete” with the benzo’s for the attention of only some of the same receptors.

     Zolpidem has been available in this country since 1993, and for several years has also been available in a time release formula. It is available in both a five milligram and ten milligram tablet. The manufacturer recommends that it only be taken when a person has eight hours available for uninterrupted sleep. The peak concentration of the drug usually appears in the bloodstream between one and a half to two and a half hours. Therapeutic levels are reported as 29 to 113 ng/ml following a 5 mg. dose and 58 to 272 ng/ml following a 10 mg. dose according to the package insert.

     By around 2005 reports of parasomnias began surfacing. These are undesirable motor, verbal, or experiential events that occur during sleep. One of the more common was uncontrolled sleep eating. Raw eggs, uncooked rice, loaves of bread - they were all fair game. Cooking - and we are not talking about dishes that are particularly appetizing - was also reported, as well as sleep walking and sleep driving.

     Initially the manufacturer, Sanofi-Aventis, took the position that four percent of the population already suffered from somnambulism, and that while “events of sleepwalking have occurred during treatment with Ambien, these instances cannot be systemically linked to the product.”

     Finally, in March of 2007 there were two important developments. First, the Food and Drug Administration demanded that the makers of thirteen sedative hypnotic drugs include warnings about possible unusual behavior including sleep driving and recommended that the manufacturers conduct clinical studies to investigate the frequency with which sleep driving and other parasomnias occur in association with each product. Second, the manufacturers notified health care providers (i.e, the doctors prescribing the stuff) that the precautions were being revised to warn patients about the possibility of sleep driving and that such “complex behaviors” had been reported. Sanofi Aventis conceded that these events could occur in sedative hypnotic naive as well as sedative hypnotic experienced persons. Ambien (Zolpidem) was not the only drug affected. The others included Butisol Sodium, Carbrital, Dalmane, Doral, Halcion, Lunesta, Placidyl, Prosom, Restoril, Rozerem, Seconal, and Sonata. While Ambien related sleep driving cases have been encountered by all DUI defense attorneys, cases involving the other drugs are rare. Nevertheless, these drugs are on the same list as Ambien, so if a defense is viable for Ambien, it should be viable for these other medications as well.

     The question remains why would someone who has taken Ambien get out of bed and eat unappetizing food, cook stranger things, drive their cars into telephone poles, and have no memory of the event? A possible explanation for zolpidem induced nocturnal behavior is that after a person is aroused from sleep, he or she will walk, drive, or eat, and subsequently not recall the event after returning to sleep because of the sedation-mediated amnesic properties of zolpidem. Another possibility is that an arousal occurred out of deep sleep with the parasomnia occurring in this electroencephalographically verifiable stage of sleep. The author believes that at least in some cases the latter has been experienced, because the drivers’ interaction with police and other individuals was extremely incoherent, their behavior was “zombie-like”, and they stared blankly at the police as if looking through them.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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June 7, 2012

5 Questions to Ask a DUI Lawyer You Plan to Hire

Make sure you do your homework before hiring a DUI lawyer Make sure you do your homework before hiring a DUI lawyer

For many people who are charged with a DUI, this is their first encounter with the criminal justice system.  DUI cases are unique because they are highly technical and require scientific knowledge as well as legal expertise to defend properly.  This is why choosing the right lawyer is the single most important decision you can make which will greatly affect the outcome of your case.

But how can someone with no legal expertise know they are choosing the right lawyer?  Here are five questions you can ask which will help you compare your options:

What kind of specialized training do you have to defend DUI cases?
DUI is a highly technical field and requires a large amount of research and training to be able to defend effectively.  This is why attendance of advanced DUI training seminars is a must.
How many lectures have you presented or scholarly papers have you had published about DUI this year?
Only respected experts are invited to teach other lawyers about DUI.  If your lawyer is an active speaker on DUI or has had scholarly papers published, then you know you are in the hands of a lawyer who takes their craft very seriously.
When was the last time you took a DUI case to trial?
If the attorney does not take DUI cases to trial regularly then you should be suspicious.  You may be dealing with a paper pusher who would rather process your case as fast as possible without considering what options are best for you.
Can you provide me with some notable out of state references?
When you call a reference, call as an anonymous person without revealing who gave you the number. Say that you found their number on the net and are facing a DUI case in such-and-such area and would like them to refer a lawyer.  Also try to measure their level of enthusiasm about the reference they are providing.
What is your detailed plan for my case?
If their detailed plan involves pleading guilty right off the bat, then choose another lawyer.  Anyone can stand up in court and plead guilty. You may not even need a lawyer for that in certain circumstances.  Protecting your rights and your life requires a concrete plan and thorough preparation and you will only find that with an elite DUI attorney.

If you or a loved one is facing a DUI, please keep in mind the information above.  Make sure to share it with friends and co-workers and help educate them about these important legal matters as well.

If you are facing a DUI in Pennsylvania, please call 1-866-MCSHANE for a free consultation.


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June 6, 2012

Ambien Sleep Driving: Suggested Defenses

Voluntary intoxication is not a defense. However, in most jurisdictions involuntary intoxication is a defense to most offenses. In some jurisdictions, involuntary intoxication is treated as an affirmative defense, which means that the prosecution must disprove it beyond a reasonable doubt. In other places, it is simply not available as a defense to a DUI.

A Texas appeals court has which held that involuntary intoxication is not a defense in a DWI case involving both alcohol and Ambien. This same appellate court approved a defense that would be characterized as involuntary intoxication in most jurisdictions in a case of the mistaken pill. The Defendant meant to take Soma and Ultram in the morning. He had taken Ultram for about seven years, and in order to encourage him to take his medication his wife put out the pills for him. On the date of his arrest she apparently put out an Ambien, and he took it believing it to be something else.

The trial court rejected the defense of accident or involuntary intoxication, and the court of appeals agreed. However, the judges found that the defense of “involuntary act” was available if the Defendant introduced evidence that an independent event, such as the conduct of a third party, that could have precipitated the incident. If, for example, a third party slips a “mickie” in a drink or forces a person to consume an intoxicant and get behind the wheel, then the voluntary conduct defense is available. Although the Defendant voluntarily took the pills his wife laid out for him, he involuntarily took the Ambien because of his wife’s act.

Many courts have concluded that the most difficult cases to decide involve those where a defendant knowingly ingested a prescription drug. There is an Illinois case that stands for the proposition that the unexpected and unwarned adverse effect of a drug taken on doctor’s orders is involuntary. California also has case law holding that intoxication caused by knowingly ingesting prescription medication can be either voluntary or involuntary, depending on whether the defendant had reason to know he/she would become intoxicated.

The best known Georgia case involving Ambien sleep driving is Myers v. State, 302 Ga. App. 753 (2010). In this case the lady had taken two Ambien, her regular daily dose of Xanax, and had a couple of glasses of wine before bedtime. The jury charge instructed the jury that, “The criminal intent element …is simply the intent to do the act which results in the violation of the law, not the intent to commit the crime itself. Consequently, to the extent that the defendant here argues inability to form an intent to commit the crime for which she is charged, it is immaterial, which means it should not be considered. While proof of criminal intent is required to convict the defendant of the crimes with which she is prosecuted, the state is not required to prove that the defendant intended to drive under the influence of alcohol in violation of the law or on the wrong side of the road. Rather, it is required to prove beyond a reasonable doubt only that while intoxicated she drove and drove crossing over…the right line, intending such acts.”

Relying on earlier Georgia case law, the Court of Appeals upheld the conviction. Those older cases had held that the criminal intent required for a conviction is simply the intention to commit the act which results in the violation of the law, not the intent to commit the crime itself. In other words, the Court relied on language that is included in most jury instructions in Georgia DUI cases, which basically instructs the jury that DUI is a crime of general intent and not specific intent. Therefore, and the record is not clear, perhaps trial counsel should have argued that his client lacked the intent to drive as opposed to the intent to commit the crime. Both the jury instruction approved in this case and the older cases do require the intent to drive; however, in this decision the Court of Appeals seemed to emphasize that the Appellant had intentionally ingested Xanax, Ambien, and alcohol, and then drove in an intoxicated state. What is overlooked (or perhaps assumed) is the language from several older cases and the jury instruction in this case - “that she intended to drive.” Therefore, even when faced with a generally hostile jury instruction, the lack of general intent may still be argued.

Despite some slivers of hope and some very narrow openings the courts have left us when considering, and usually rejecting, other defenses, there is really a dearth of case law regarding actus reus in the context of Ambien sleep driving defenses. Georgia has a number of criminal cases stating that it is a requirement but not defining the term. Nevertheless, even the Texas appeals court has recognized that a voluntary act (actus reus) is required, and that may be the best approach of all.

A state may make an offense a “strict liability” offense or a crime of general intent, thus eliminating the need to prove mens rea (intention to commit a crime). But the State must still prove that there was a voluntary act - the actus reus. Sleep driving by its very nature is not a conscious, much less voluntary, act.

The Model Penal Code Section 2.01 lends support to this position.

1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or omission to perform an act of which he is physically capable.

2) The following are not voluntary acts within the meaning of this Section:

a) a reflex or convulsion.

b) a bodily movement during unconsciousness or sleep.

Similarly, in Colorado the applicable statute, C.R.S. 18-1-502 provides that, “The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing.” If a culpable mental state is not required, Colorado law characterizes the offense as a “strict liability” offense. Nevertheless, a voluntary act or actus reus is still necessary to obtain a conviction.

In a non-DUI case the Washington Court of Appeals has held that, although the legislature has the authority to create a crime without a mens rea element, a minimal mental element is required to establish the actus reus, and that is the element of volition. State v. Deer, 244 P.3d 965 (Wn. App. 2010). As a matter of Federal constitutional law the State bears the burden of proving beyond a reasonable doubt that a defendant committed a volitional act. This argument should certainly be made in any case where a judge is not inclined to recognize the actus reus requirement; if is not merely common law in origin but has become Constitutionally mandated by virtue of the 14th Amendment. While we understand that there are genuine cases of otherwise innocent people sleep driving, we can expect continued hostility from prosecutors (one of whom recently characterized the defense as a “fad”) and skepticism from thebench. Nevertheless, thorough research of the legal precedents applicable in a particular case, and in the event they are sparse, from around the country should yield at least one viable defense theory that even the worst judge will not reject, or face reversal.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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June 4, 2012

Navy Will Soon Give Breathalyzer Tests to Sailors and Marines on Duty

By guest-writer

In a decision that may not be popular with sailors, the U.S. Navy will soon start administering breathalyzer tests to sailors and Marines who are reporting for active duty on ships and submarines, according to an announcement made recently by Secretary of the Navy Ray Mabus.

The new tests are a small part of the Navy’s 21st Century Sailor and Marine program, which is a multi-faceted initiative designed to improve the lifestyles of members of the military.

The new initiative promotes healthy lifestyles by promoting better nutrition, heightened fitness, and responsible alcohol use. The wide-ranging program also has zero tolerance for drug use, according to a report from Fox News.

Of course, the program is not just intended to limit certain activities. It also reportedly offers programs related to topics ranging from suicide prevention, financial planning, and family and personal counseling.

These programs may be welcomed by many soldiers, but the breathalyzer tests administered aboard ships is a new, and potentially unwelcome, development.

The program, though, is a direct response to alcohol-related incidents that can “end careers and sometimes end lives,” according to a Navy spokesperson.

Sources indicate that, currently, roughly 180 active duty sailors are arrested for a DUI each month. The military believes this number is too high.

According to Mabus, the new program “is not done to punish, but to help. We want to help sailors and Marines make good choices before something happens that can’t be undone.” He also said the military’s goal is to maximize sailors’ safety, fitness, and readiness.

In addition, the Navy is concerned about sailors’ long-term healthy. According to Mabus, when “a sailor’s or Marine’s time in the military ends, whether it is after four years or 40, we want your productive life to continue and for you to leave the service in better health, more trained and better educated than when you came in.”

Sources indicate that equipment designed for alcohol screening tests will start being installed on Navy ships this month, and will continue to be rolled out through the end of 2012.

And, in response to privacy concerns given by many sailors, the breathalyzer tests given on board Navy ships would not be legally admissible in a criminal trial.

Instead, the tests are simply designed to give commanding officers notice about potential problems related to alcohol. Sources say the tests are not intended to lead to punitive measures, or criminal convictions.


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June 3, 2012

Scientists Creating Marijuana Breathalyzer to Test Stoned Drivers

By guest-writer

Unlike alcohol, which allows police officers to easily detect the amount of the substance in a driver’s system, marijuana poses all sorts of testing issues for state officials.

First, THC, the psychoactive agent in marijuana, stays in a person’s body for weeks after the initial high has long since worn off. And, today, scientists do not have a reliable test to determine exactly how much marijuana is in a person’s system at any given point of time.

However, scientists across the country are working on developing a saliva test to determine whether a driver is impaired by marijuana, as several states look to push more aggressive marijuana marijuana DUI laws , according to a report from Reuters.

Sources indicate that scientists at the National Institute on Drug Abuse, a relatively obscure government research lab, have been developing a simple saliva test that will be able to detect whether a driver has recently been using marijuana.

The test, though, won’t be able to specifically measure the user’s level of marijuana use. In fact, according to the so-called White House drug czar, Gil Kerlikowske, “I’ll be dead – and so will lots of other people – from old age, before we know the impairment levels.”

So, scientists are creating an admittedly less-than-reliable saliva test to gauge whether a person who is driving after smoking marijuana is too impaired to get behind the wheel.

And the unreliability of the saliva test has many DUI attorneys concerned that their clients could be hauled before a judge for DUI violations due to drug use that occurred days, or perhaps weeks, before the incident in question.

In response, law enforcement officials say that there are other gauges to determine just how stoned a driver is, including the redness of eyes, coordination, speech, and the like. But this seems to add a lot of guess work to an arrest that could lead to jail time or serious fines.

In fact, these concerns have already been addressed by a wary public. In California, for example, Proposition 19, which would have elevated marijuana to the status of alcohol in DUI arrests, failed in 2010 in part because voters were concerned that it didn’t specifically set forth a THC driving limit.

In the voters’ minds, if blood alcohol levels are capped at .08 percent, then THC levels should have an equally concrete limit for drivers. This limit, however, may be impossible to adequately set, given today’s current marijuana-detecting technology.


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June 2, 2012

Police Pull over Mike Tyson, High on Cocaine, and Give Him a Free Ride to a Crack House?!

Where a normal citizen would be facing jail time and a license suspension, Iron Mike gets a free ride to a crack house. Where a normal citizen would be facing jail time and a license suspension, Iron Mike gets a free ride to a crack house.

One of the major problems with our criminal justice system is that major decisions, about who is arrested and who is let go, are made on-the-spot by under-trained, overworked and sometimes corrupt police officers.  The result is the false arrest of innocent citizens and the truly guilty ones going free.

Which brings us to an interesting incident where former Heavyweight Champion Mike Tyson claims that the cops pulled him over while he was high on cocaine and instead of arresting him for DUI, they drove him to a crack house?!

Tyson said, “When they pulled me over, I said, ‘It’s over, man…!’ But they (cops) said, ‘Mike, that was awesome in ‘The Hangover,’ that was great!’ And I said, ‘Excuse me, would you take me to this address, sir?’”

Tyson also revealed he didn’t have his driver’s license with him at the time – but the officers didn’t ask for any form of identification.

He added, “The cops took me to the drug house… and the people in there are freaking out… He (cop) takes me in there and then he starts reprimanding the guy at the house to make sure I get home.”

By playing favorites, the police are setting a very dangerous precedence and putting the community in danger.  The simple fact of the matter is, without proper training and oversight, the police have too much power and too much room for abuse.


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June 1, 2012

Colorado Senate Votes to Criminalize Marijuana Levels in Drivers

Over past years, Mothers Against Drunk Driving has been successful in getting legislation passed across the country criminalizing the presence of a largely arbitrary level of alcohol in a driver’s blood.  

Whereas previously the drunk driving laws made it illegal to drive a vehicle while under the influence of alcohol, the new ones didn’t care about impairment but simply made it a crime to have a blood-alcohol level of .08% or higher.  It didn’t matter if a given driver had higher than average tolerance to alcohol; whether a citizen was impaired and a danger or not was no longer relevant.  The crime was the presence of alcohol in the body.

This, of course, made it much easier to prosecute and convict citizens of drunk driving — even if they weren’t "drunk".

Now that strategy is increasingly being adopted by states for the offense of "driving while stoned" — that is, driving while under the influence of marijuana.  As with alcohol, it is more difficult to prove that a citizen’s driving ability is impaired by marijuana than it is to prove that there is an arbitrary amount of it in his body.  

Solution: criminalize the presence of a given amount of cannabis in the blood.  Of course, there is little scientific consensus as to what levels of marijuana cause driving impairment.  But the result will be more arrests, prosecutions — and more unimpaired drivers convicted.   

"The ends justify the means", right?  


Colorado Senate Gives Initial OK to Stoned-Driving Limits 

Denver, CO.  May 2 – The Colorado Senate Tuesday gave initial approval to a bill making it easier to convict people of driving while stoned, in the toughest test yet for the proposal…

The measure, Senate Bill 117, would set a limit of THC — the psychoactive chemical in marijuana — in the blood above which it would be illegal to drive. King said numerous studies suggest that the large majority of people with more than 5 nanograms of THC per milliliter of blood are impaired.

[Bill sponsor Steve] King said the bill is needed to stem what appears to be an increase in stoned driving in Colorado. Drivers whose blood tested positive for THC at the state toxicology lab have increased from a couple hundred in 2009 to more than 1,000 last year, King said…

Opponents say that research isn’t conclusive that everybody is stoned at 5 ng and that the bill would result in sober drivers being convicted. Sen. Morgan Carroll, D-Aurora, called the bill, "a shortcut on burden of proof." Sen. Pat Steadman, D-Denver, said state law already makes it illegal to drive while stoned — including for those drivers who are impaired at less than 5 ng.

"I would prefer to stick with current law, where the question of impairment is put to a jury and where evidence of someone’s conduct is presented in court," Steadman said.

Steadman said the bill would hurt medical-marijuana patients who regularly use marijuana and may have higher baseline levels of THC in their blood.
But King said the bill sends an important message that driving high is not OK.

"What I’m saying is, you can’t get high and drive," King said. "It has an impact on the rest of us. You can smoke and wait. You can smoke and walk. You can smoke and find a ride. But you cannot smoke and drive."

Fourteen other states have laws creating a THC limit for driving — laws that are known as "per se" laws. Several other states have zero-tolerance driving laws for THC.


Notice the focus of the law in the opening line of the story:  "a bill making it easier to convict people".  Not a bill to reduce casualties on the highways.  Not a bill to punish criminals. No, a bill making it easier to convict citizens.

The great legal scholar Blackstone famously stated back in the 1760s: "Better that ten guilty guilty persons escape than that one innocent suffer".  That revered old legal principle has been reversed in DUI cases..  

The concept goes back even further — much further.  From Genesis 18:23-32 of the Bible:  

Abraham drew near and said, ‘Will you consume the righteous with the wicked?  What if there are fifty righteous within the city?  Will you consume and not spare the place for the fifty righteous that are in it?  What if ten are found there?".  He [The Lord] said, "I will not destroy it for the ten’s sake".  

The dragnet approach to justice.  Yet another example of what I have termed "The DUI Exception to the Constitution".

This entry was posted on Wednesday, May 2nd, 2012 at 9:18 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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The acronyms DUI, DWI, OMVI and OVI all refer to the same thing: operating a vehicle under the influence of alcohol or drugs. The most commonly used terms are DUI, an acronym for Driving Under the Influence, and DWI, an acronym for Driving While Impaired.
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