On January 28, 2015, SC House Bill “H.3441” was introduced and read for the first time in the 2015 South Carolina General Assembly session; and on that same day it was referred to the South Carolina House Judiciary Committee (see link below to full version of the bill). In summary, H.3441 would substantially cut down and virtually eliminate current mandatory video recording requirements for DUI/drunk driving investigations in South Carolina. The primary changes proposed in H.3441 consist of replacing the words “must” and “shall” with “should”. In other words – the video recording “should” begin no later than the activation of the officer’s blue lights; “should make a reasonable attempt to video record the driver”, ” should include the entire breath test procedure”, etcetera.Read More While there are many reasons to vigorously oppose this bill, below please find a few that quickly come to mind: 1. That it is not difficult for law enforcement to comply with the requirements of our current statute in video recording the complete field sobriety tests in a DUI case. Since the performance and results of a field sobriety test are critical are often relied upon as critical evidence in a DUI prosecution, the requirement that all field sobriety tests be completely viewable by a jury should remain intact. 2. The recent South Carolina Court of Appeals opinion in State vs. Taylor has clarified what elements a field videotape must have – and that anything not statutorily required does not have to be captured on the videotape for successful prosecution to occur. Since 2009 our appellate courts have done an excellent job of interpreting and clarifying the requirements of our videotaping law. This latest opinion shows the common sense approach of our courts – and how that is progressing steadily. 3. “Cutting back or watering down” our current dash cam requirements would probably result in monies currently being used for installation and maintenance of cameras to be diverted elsewhere. If the law does not require it – then those dollars are ultimately going to be placed somewhere else in the budget. In just a few short years many of the police cars currently equipped with functioning dash cams could disappear. There is no way to overstate the evidentiary value of video recording in 2015. There is simply no way to do it. As I have done in the past – I will continue to vigorously oppose any changes to our DUI video recording law in South Carolina. Link to H.3441 Greenville, South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving cases. Steve is a former DUI prosecutor and has been in private practice since 1994. Steve has been recognized as a South Carolina Super Lawyer® in the field of DUI defense since 2013. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™ for criminal defense. He is a member of the National College for DUI Defense and has held a judicially endorsed AV-Preeminent rating from Martindale-Hubbell® and a “Superb” (10.0 out 10.0) ranking with Avvo since 2011.
February 28, 2015
South Carolina Legislative Bill “H.3441″ Would Gut Current Video Recording Requirements in South Carolina DUI Cases
February 22, 2015
The Scottsdale Crime Lab cases will be reviewed by the Arizona Supreme Court
The Arizona Supreme Court has decided to review the Court of Appeals' (COA) ruling regarding whether Scottsdale DUI results can be trusted.
Our ongoing legal battle over the defective software used by the Scottsdale Crime Lab (SCL) to measure BAC levels begins its final stage. The Supreme Court granted our request to review the COA's decision permitting prosecutors to rely upon the measurements generated by this software as a basis for a DUI conviction.
WHAT HAPPENED?
Over three years ago a few chromatograms (a graphical representation of a blood alcohol measurement) escaped the Scottsdale crime lab (SCL). It was something we had never seen before. The floodgates of evidence showing forensic malpractice soon opened.
We learned, that for several years, the SCL had known of serious defects in the software used to measure BACs. These malfunctions include assigning an incorrect result with the incorrect person (i.e. John gets Fred's result). No one in the lab had the expertise to explain why this was occurring, or how to "fix" it. According to an internal email we obtained from the SCL, they "buried" this from the rest of us.
Even after the defense brought this to light, the Prosecution continued to prosecute the public using this unreliable software. The penalties for those convicted include mandatorily incarceration and significant monetary fines (a portion of which the crime lab receives). They are currently still using these defective measurements to incarcerate people.
HOW DID WE GET HERE?
There were two primary venues for these debates:
(1) Superior Court; and
(2) Scottsdale City Court.
The Superior Court (felony cases) is where these rulings originated. The City of Scottsdale courts took a different approach. That story will be addressed in a separate post. In the Superior Court, the main case is State v. Herman (on appeal titled In Re Bernstein). There were two challenges in "Herman" that ended up in the COA.
Herman #1 (Re: Discovery)
Because we only had access to the initial documents that appear to have been allowed out of the SCL by accident, we did not know the scope of the problem.
We convinced two Superior Court Commissioners to hold a joint hearing. They agreed with our arguments and issued an order to produce all chromatograms from 2011. The Court also gave the Lab almost two months to provide them. The deadline came and went. The SCL admitted they did not even attempt to comply with the order.
We filed a Motion for Contempt. The prosecution filed a Special Action asking the COA to reverse the order. The morning before the contempt hearing, the COA stayed everything. A few months later...
We did not get the data. Today, the scope of the malfunctions still remains unknown.
Herman #2 (Re: Reliability)
After the COA's ruling, we requested a Daubert (reliability) hearing with the trial court. This would be Arizona's first substantive Daubert hearing (fortunately, the evidence Rules changed in 2012 to permit such a hearing). Combined, it lasted almost nine (9) months. To our surprise, we ended up getting material information in the Daubert hearing (Herman #2) that we did not even think to request in Herman #1.
At the same time, the Arizona Republic started to investigate our claims. Through their public records requests (and later our own) a treasure trove of damming evidence was obtained.
At the hearing, SCL personnel were testifying they understood the issues and put forth an “all was well” message. However, in contrast to their testimony, the Arizona Republic obtained internal emails, that told a much different story than “all is well.” Their "private" communications showed the court that the SCL personnel testifying, were less than forthcoming about the severity of the problems and their ability to comprehend them.
The combination of SLC personnel’s tainted testimony, and the testimony our forensic experts (including an independent forensic toxicologist, a certified quality assurance lab auditor, a and forensic software engineer), presented a powerful case that the SCL’s measurements and supporting testimony were not trustworthy.
Arizona Court of Appeals
As in Herman #1, the prosecution turned to the court of appeals for relief.
Again, as in Herman #1, it was provided.
Arizona Supreme Court
Over a year ago, we filed a Petition with the Arizona Supreme Court requesting that they:
(1) review the court of appeals decision;
(2) and reinstate the trial court's ruling.
A few weeks ago, the Arizona Supreme Court decided to review the matter.
WHAT'S NEXT.
The Court's decision merely means they granted part one of our request: they will hear the case. They have set oral argument on February 17, 2015 at 11:00 am. It will be a road game for the Court, as it will be held at ASU Law School. The oral argument is open to the public, but it is expected to be a full house. If you want to attend, get there early.
Lawrence Koplow
February 3, 2015
Body Cameras for Law Enforcement Could Assist in DUI Cases
In the wake of the recent events surrounding Michael Brown’s death, Eric Garner’s death, and other similar incidences raising concerns of excessive force by law enforcement, many police agencies are considering and some actually using body mounted cameras.
In August, The Wall Street Journal reported that, following the use of body-mounted cameras on police in Rialto, California, use of force by police declined by 60 percent and citizen complaints about the police fell 88 percent.
In addition to reducing instances of excessive force by police, how else might body cameras affect criminal investigations? More specifically, how might they affect DUI investigations?
Well, let me ask you this: How valuable might it be to a DUI investigation to see exactly what the officer saw when they arrested a DUI suspect rather than merely relying on a police report?
Unfortunately, officers write their police reports hours after the arrest took place. By the time the officer actually sits down to write their report, memory fades, opinions replace fact, and the decision fabricate in order to justify an arrest is sometimes made.
In my practice as a DUI defense attorney, I cannot remember a DUI police report that didn’t allege that the suspect “had bloodshot watery eyes, slurred speech, and emitted the distinct odor of alcohol.” This was true even in cases when it was later determined that my client was, in fact, not under the influence. While these clients were eventually cleared of driving drunk, the unverified police report led to DUI charges.
Currently, many law enforcement agencies use dashboard mounted camera videos which can capture the DUI stop. They cannot, however, capture whether the officer actually observed bloodshot watery eyes or slurred speech. A body camera would serve to provide the first-hand evidence to justify the allegations made in a police report written hours after the incident occurred. If the officer alleges that a suspect’s eyes are bloodshot or that they have slurred speech in a police report, the footage from a body camera can ensure that those allegations are, in fact, true.
You may remember my previous complaints about law enforcement taking DUI suspects out of the view of the dash-cam to conduct field sobriety tests. In their police report, officers claim that suspects “fail” the field sobriety tests without an explanation as to how the suspect “failed.” As was the case with the supposed bloodshot watery eyes and slurred speech, people are often cleared of DUI charges notwithstanding a police report alleging that they “failed” field sobriety tests. Footage from body cameras can confirm whether the suspect actually “failed” the field sobriety test, thus confirming credibility of the police report or exposing its flaws.
Opponents of body cameras argue that, in addition to being an “encumbrance,” the cost of equipping every officer with a body camera and the cost of storing and managing such a voluminous amount of data outweighs any benefit the footage might provide.
Fortunately, the argument that body cameras are too costly is losing merit with price of technology and cloud-based storage systems dropping precipitously. Ultimately, when a criminal conviction (…and the punishment associated with such a conviction) is on the line, there should not be a price too large to ensure the accuracy and integrity of a criminal investigation.
This entry was posted on Monday, January 12th, 2015 at 2:17 pm and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.
February 1, 2015
DASH CAM vs OFFICER TESTIMONY IN OHIO OVI CASES
If an officer’s testimony about a traffic stop is not corroborated by the officer’s cruiser video, how do judges rule on the justification for a traffic stop? Once a judge makes a ruling, under what circumstances might that ruling be overturned by an appellate court? A recent case decided by the Tenth District Court of Appeals in Columbus, Ohio illustrates the discretion judges are given regarding evidentiary issues in OVI motion hearings.
The case of State v. Comer was decided in December of 2014. In Comer, the defendant was charged with OVI and filed a motion to suppress evidence. The motion claimed all evidence obtained after the stop of the defendant’s vehicle should be suppressed because the traffic stop was unconstitutional. At the motion hearing, the officer testified she observed the defendant’s vehicle “weaving and crossing the lines” and “almost hit the concrete divider”.
The video from the officer’s cruiser did not clearly show the defendant’s vehicle crossing the lane line. The defendant argued the video undermined the credibility of the officer, so the judge should find there was no marked lanes violation and therefore no justification for the stop. The prosecution argued the video was inconclusive regarding the marked lanes violation (due to the glare from streetlights and the distance between the cruiser and the defendant’s vehicle), and the officer’s testimony alone was sufficient evidence the defendant crossed the lane line.
The trial judge found, based on the officer’s testimony, there was a marked lanes violation justifying the traffic stop. The defendant plead No Contest and appealed the trial court’s decision to the Tenth District Court of Appeals.
The Court of Appeals affirmed the decision of the trial court. The Court’s written opinion characterizes the video as unclear and inconclusive as to whether the defendant’s vehicle crossed the lane line. The opinion then cites previous cases in which trial court decisions were affirmed when traffic violations reportedly observed by officers were not visible on cruiser videos. The opinion explains the trial court was in the best position to determine the officer’s credibility, and the trial court found “no evidence submitted to call into question the truthfulness of the trooper”.
Other appellate courts have reached different conclusions in similar cases in the past few years. In State v. Jarosz, the court of appeals concluded the traffic stop was not justified when the cruiser video disputed the officer’s testimony about pacing the defendant’s vehicle to measure its speed. In State v. Ali, the appellate court concluded the defendant’s motion to suppress was properly granted when the cruiser video showed no marked lanes violation. In State v. Larrick, the court of appeals overturned the defendant’s conviction for OVI because the cruiser video contradicted the officer’s claims regarding marked lanes violations.
Why are the outcomes different in these cases which appear to be very similar? First, the outcome often depends on which party is appealing. On appeal, the appellate court accepts the trial court’s factual findings so long as they are supported by competent, credible evidence. In Jarosz and Ali, the prosecution was appealing the trial judge’s decision, and the appellate courts simply concluded the trial judge’s findings (no marked lanes or speeding) were supported by some evidence. In Comer and the cases its opinion cites, the defendant was appealing, and the appellate courts simply concluded the trial court’s factual finding (there was a traffic violation) was supported by some evidence (the officer’s testimony).
Second, the outcome may depend on whether the cruiser video actually contradicts the officer’s testimony or merely fails to corroborate the officer’s testimony. In most of the cases addressing this issue, including Comer, the video was inconclusive. Larrick is the rare case where the video actually contradicted the officer’s testimony. As a result, the appellate court in Larrick reached the unusual conclusion that the trial court’s findings were not supported by competent, credible evidence.
As these cases demonstrate, trial judges have a great deal of discretion when making findings of fact in OVI motion hearings. Their rulings in this regard will only be disturbed if they abuse that discretion by making findings that have essentially no evidentiary support.
January 3, 2015
What is an Administrative Hearing in South Carolina in DUI/Drunk Driving Cases?
First, this is a confusing area of the law for many drivers who find themselves arrested or charged with DUI and also facing an “administrative suspension.” If you are confused it is probably because it is confusing. What is an “administrative suspension” and what is an “administrative hearing?”
The South Carolina law on point is fully listed below, but here are the highlights:
1. An administrative suspension is totally separate and distinct from the DUI charge. It is handled in front of a different court where different rules and procedures apply than the DUI charge.
2. An administrative suspension is usually sought against a driver in a DUI case who either refuses the breath test or takes the breath test and registers .15 percent or higher.
3. An administrative suspension from 30 days on up to six months, generally, is what is at stake for the driver in this administrative action. Any suspension levied administratively is in addition to any license suspensions levied because of a DUI conviction.
4. The hearing takes place before a hearing officer and not a jury. The basic issues are whether or not there was probable cause to justify the DUI arrest, and whether or not the breath test was offered according to SLED procedure.
5. An important point is that this hearing must be requested promptly within 30 days of the date of the arrest or else the driver has forfeited the right for this hearing.
SECTION 56-5-2951. Suspension of license for refusal to submit to testing or for certain level of alcohol concentration; temporary alcohol license; administrative hearing; restricted driver’s license; penalties.
(A) The Department of Motor Vehicles must suspend the driver’s license, permit, or nonresident operating privilege of or deny the issuance of a license or permit to a person who drives a motor vehicle and refuses to submit to a test provided for in Section 56-5-2950 or has an alcohol concentration of fifteen one-hundredths of one percent or more. The arresting officer must issue a notice of suspension which is effective beginning on the date of the alleged violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.
(B) Within thirty days of the issuance of the notice of suspension, the person may:
(1) obtain a temporary alcohol license by filing with the Department of Motor Vehicles a form for this purpose. A one hundred dollar fee must be assessed for obtaining a temporary alcohol license. Twenty-five dollars of the fee must be distributed by the Department of Motor Vehicles to the Department of Public Safety for supplying and maintaining all necessary vehicle videotaping equipment. The remaining seventy-five dollars must be placed by the Comptroller General into a special restricted account to be used by the Department of Motor Vehicles to defray its expenses. The temporary alcohol license allows the person to drive without any restrictive conditions pending the outcome of the contested case hearing provided for in subsection (F) or the final decision or disposition of the matter. If the suspension is upheld at the contested case hearing, the temporary alcohol license remains in effect until the Office of Motor Vehicle Hearings issues the hearing officer’s decision and the Department of Motor Vehicles sends notice to the person that he is eligible to receive a restricted license pursuant to subsection (H); and
(2) request a contested case hearing before the Office of Motor Vehicle Hearings in accordance with its rules of procedure.
At the contested case hearing if:
(a) the suspension is upheld, the person’s driver’s license, permit, or nonresident operating privilege must be suspended or the person must be denied the issuance of a license or permit for the remainder of the suspension period provided for in subsection (I). Within thirty days of the issuance of the notice that the suspension has been upheld, the person must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990;
(b) the suspension is overturned, the person must have his driver’s license, permit, or nonresident operating privilege reinstated.
The provisions of this subsection do not affect the trial for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.
(C) The period of suspension provided for in subsection (I) begins on the day the notice of suspension is issued, or at the expiration of any other suspensions, and continues until the person applies for a temporary alcohol license and requests a contested case hearing.
(D) If a person does not request a contested case hearing, he waives his right to the hearing, and his suspension must not be stayed but continues for the period provided for in subsection (I).
(E) The notice of suspension must advise the person of his right to obtain a temporary alcohol driver’s license and to request a contested case hearing before the Office of Motor Vehicle Hearings. The notice of suspension also must advise the person that, if he does not request a contested case hearing within thirty days of the issuance of the notice of suspension, he waives his right to the administrative hearing, and the suspension continues for the period provided for in subsection (I). The notice of suspension also must advise the person that if the suspension is upheld at the contested case hearing or if he does not request a contested case hearing, he must enroll in an Alcohol and Drug Safety Action Program.
(F) A contested case hearing must be held after the request for the hearing is received by the Office of Motor Vehicle Hearings. The scope of the hearing is limited to whether the person:
(1) was lawfully arrested or detained;
(2) was given a written copy of and verbally informed of the rights enumerated in Section 56-5-2950;
(3) refused to submit to a test pursuant to Section 56-5-2950; or
(4) consented to taking a test pursuant to Section 56-5-2950, and the:
(a) reported alcohol concentration at the time of testing was fifteen one-hundredths of one percent or more;
(b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;
(c) tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and
(d) machine was working properly.
Nothing in this section prohibits the introduction of evidence at the contested case hearing on the issue of the accuracy of the breath test result.
A written order must be issued to all parties either reversing or upholding the suspension of the person’s license, permit, or nonresident’s operating privilege, or denying the issuance of a license or permit. If the suspension is upheld, the person must receive credit for the number of days his license was suspended before he received a temporary alcohol license and requested the contested case hearing.
The Department of Motor Vehicles and the arresting officer shall have the burden of proof in contested case hearings conducted pursuant to this section. If neither the Department of Motor Vehicles nor the arresting officer appears at the contested case hearing, the hearing officer shall rescind the suspension of the person’s license, permit, or nonresident’s operating privilege regardless of whether the person requesting the contested case hearing or the person’s attorney appears at the contested case hearing.
(G) A contested case hearing is governed by the Administrative Procedures Act, and a person has a right to appeal the decision of the hearing officer pursuant to that act to the Administrative Law Court in accordance with its appellate rules. The filing of an appeal stays the suspension until a final decision is issued on appeal.
(H)(1) If the suspension is upheld at the contested case hearing, the person must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 and may apply for a restricted license if he is employed or enrolled in a college or university. The restricted license permits him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The restricted license also permits him to drive to and from the Alcohol Drug Safety Action Program classes or to a court-ordered drug program. The department may issue the restricted license only upon showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment, place of education, or location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program.
(2) If the department issues a restricted license, it must designate reasonable restrictions on the times during which and routes on which the individual may drive a motor vehicle. A change in the employment hours, place of employment, status as a student, status of attendance of Alcohol and Drug Safety Action Program classes, status of attendance of his court-ordered drug program, or residence must be reported immediately to the department by the licensee.
(3) The fee for a restricted license is one hundred dollars, but no additional fee may be charged because of changes in the place and hours of employment, education, or residence. Twenty dollars of this fee must be deposited in the state general fund, and eighty dollars must be placed by the Comptroller General into a special restricted account to be used by the Department of Motor Vehicles to defray the expenses of the Department of Motor Vehicles.
(4) Driving a motor vehicle outside the time limits and route imposed by a restricted license by the person issued that license is a violation of Section 56-1-460.
(I)(1) The period of a driver’s license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to, an arrested person who has no previous convictions for violating Section 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug within the ten years preceding a violation of this section, and who has had no previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is:
(a) six months for a person who refuses to submit to a test pursuant to Section 56-5-2950; or
(b) one month for a person who takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.
(2) The period of a driver’s license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to, an arrested person who has been convicted previously for violating Section 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug within the ten years preceding a violation of this section, or who has had a previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is:
(a) for a second offense, nine months if he refuses to submit to a test pursuant to Section 56-5-2950 or two months if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more;
(b) for a third offense, twelve months if he refuses to submit to a test pursuant to Section 56-5-2950 or three months if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more; and
(c) for a fourth or subsequent offense, fifteen months if he refuses to submit to a test pursuant to Section 56-5-2950 or four months if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.
(J) A person’s driver’s license, permit, or nonresident operating privilege must be restored when the person’s period of suspension under subsection (I) has concluded, even if the person has not yet completed the Alcohol and Drug Safety Action Program in which he is enrolled. After the person’s driving privilege is restored, he must continue the services of the Alcohol and Drug Safety Action Program in which he is enrolled. If the person withdraws from or in any way stops making satisfactory progress toward the completion of the Alcohol and Drug Safety Action Program, the person’s license must be suspended until the completion of the Alcohol and Drug Safety Action Program. A person must be attending or have completed an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 before his driving privilege can be restored at the conclusion of the suspension period.
(K) When a nonresident’s privilege to drive a motor vehicle in this State has been suspended under the provisions of this section, the department must give written notice of the action taken to the motor vehicle administrator of the state of the person’s residence and of any state in which he has a license or permit.
(L) The department must not suspend the privilege to drive of a person under the age of twenty-one pursuant to Section 56-1-286 if the person’s privilege to drive has been suspended under this section arising from the same incident.
(M) A person whose driver’s license or permit is suspended pursuant to this section is not required to file proof of financial responsibility.
(N) An insurer may not increase premiums on, add surcharges to, or cancel the automobile insurance of a person charged with a violation of Section 56-1-286, 56-5-2930, 56-5-2933, or 56-5-2945, or another law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug based solely on the violation unless he is convicted of the violation.
(O) The department must administer the provisions of this section and must promulgate regulations necessary to carry out its provisions.
(P) If a person does not request a contested case hearing within the thirty-day period as authorized pursuant to this section, the person may file with the department a form after enrolling in a certified Alcohol and Drug Safety Action Program to apply for a restricted license. The restricted license permits him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The restricted license also permits him to drive to and from Alcohol and Drug Safety Action Program classes or a court-ordered drug program. The department may issue the restricted license at any time following the suspension upon a showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment, place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program. The department must designate reasonable restrictions on the times during which and routes on which the individual may drive a motor vehicle. A change in the employment hours, place of employment, status as a student, status of attendance of Alcohol and Drug Safety Action Program classes, status of his court-ordered drug program, or residence must be reported immediately to the department by the licensee. The route restrictions, requirements, and fees imposed by the department for the issuance of the restricted license issued pursuant to this item are the same as those provided in this section had the person requested a contested case hearing. A restricted license is valid until the person successfully completes a certified Alcohol and Drug Safety Action Program, unless the person fails to complete or make satisfactory progress to complete the program.
HISTORY: 1998 Act No. 434, Section 8; 1999 Act No. 115, Sections 7, 8, 13; 1999 Act No. 100, Part II, Section 11; 1999 Act No. 115, Section 15; 2000 Act No. 390, Sections 15 to 22; 2001 Act No. 79, Sections 2.I.1. and 2.I.2.; 2002 Act No. 296, Sections 2, 3; 2002 Act No. 348, Sections 10 and 11; 2002 Act No. 354, Sections 4 and 5; 2003 Act No. 61, Section 7; 2006 Act No. 381, Section 7, eff June 13, 2006; 2008 Act No. 201, Section 10, eff February 10, 2009; 2012 Act No. 212, Section 4, eff June 7, 2012; 2012 Act No. 264, Section 5, eff June 18, 2012.
South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.
January 1, 2015
WHAT IS THE IRONY OF URINE TESTING IN OHIO DUI/OVI CASES?
Most states acknowledge urine testing is not an accurate way to measure blood alcohol concentration, and Ohio is one of the few states which still uses urine alcohol testing for DUI/OVI cases. Ohio law makes urine tests admissible in court so long as law enforcement agencies follow state regulations. Some of those regulations address scientific reliability, and some of those regulations address administrative issues. As a result, urine tests are often inadmissible, not because they are scientifically unreliable, but because the government did not follow its own rules.
Ohio law makes urine tests admissible in DUI/OVI cases. Ohio Revised Code section 4511.19(D) states urine tests may be admitted as evidence if the urine sample is analyzed in accordance with regulations approved by the Ohio Director Of Health. The regulations approved by the Director Of Health (DOH) are found in chapter 3701-53 of the Ohio Administrative Code.
Some Ohio regulations for urine testing promote reliable test results. For example, the regulations establish what testing methods are acceptable (e.g., gas chromatography and immunoassay) and require confirmatory testing by an additional method. The regulations also require that testing methods have documented sensitivity, specificity, accuracy, precision and linearity.
Some Ohio regulations for urine testing are more administrative in nature. For example, the regulations require that urine specimens are collected in a certain type of container with a certain type of lid. The regulations further require that the container have a label which contains certain information. The regulations also contain requirements for record keeping, laboratory accreditation, and laboratory personnel permits.
For a urine test to be admissible as evidence in a DUI/OVI trial, law enforcement must comply with the DOH regulations. If a defendant files a motion to suppress the urine test based on the regulations, the prosecution has the burden of proving substantial compliance with the regulations. A recent case of mine is a good illustration of how this plays out in court.
My client was arrested for OVI, submitted a urine sample, and the result was reported as .123. We filed a motion to suppress the urine test, and the laboratory technician who performed the urine test was subpoenaed to court for our motion hearing. The prosecutor and I met with the lab tech before the hearing started. The lab tech opened the bag containing the urine sample…[insert dramatic music here]…the label on the jar did not contain the name of the suspect or the date and time the specimen was collected. The prosecutor agreed the urine test would be suppressed, and the OVI charge was reduced to a lesser offense.
This case demonstrates the irony inherent in Ohio’s urine testing system. The truth is my client’s urine test shouldn’t be used against him because it has doubtful accuracy, and we don’t want to convict people based on inaccurate tests. The lack of accuracy, however, is not what made the urine test inadmissible. Instead, the urine test was going to be inadmissible because the officer overlooked writing some basic information on a label. I think most people would say my client ‘got off on a technicality’: the reality is this was the right result, but probably for the wrong reason.
December 23, 2014
Pennsylvania House Passes Bill Increasing Penalties in Certain DUI Cases
![By TwinsMetsFan (Own work) [Public domain], via Wikimedia Commons](/PA-blank2disvg-300x300.png "By TwinsMetsFan (Own work) [Public domain], via Wikimedia Commons")
The Pennsylvania General Assembly passed a bill in June 2014 that increases the minimum penalties for certain vehicular homicide convictions. The bill provides for an increased minimum prison sentence and permanent license suspension for the offense of “homicide by vehicle while driving under the influence.” It would apply to defendants with previous convictions for any DUI offense, not just felony DUI, or for other serious traffic offenses. The bill’s sponsor cites the danger of repeat offenders, but the bill casts a very wide net, applying to anyone with a prior DUI offense at any level.
Representative Dan Moul (R-Adams/Franklin) introduced House Bill 1733 in October 2013. He nicknamed the bill “Angie’s Law,” after a woman who was reportedly killed in an automobile accident in September 2012. The other driver had an arrest for DUI from the previous year and had reportedly entered a rehabilitation program prior to the accident. He pleaded guilty to homicide by vehicle while DUI, and the court sentenced him to three and a half years in prison.
Rep. Moul argued in support of the bill that it is necessary to increase the penalties for vehicular homicide because of “the enhanced risk a repeat offender poses to the public.” The House passed the bill on June 10, 2014. Before the bill becomes state law, the Pennsylvania Senate must pass corresponding legislation, and the Governor must sign it. It does not appear that anyone has introduced a bill in the state Senate.
The offense of homicide by vehicle while DUI is defined as “unintentionally caus[ing] the death of another person as the result of” a DUI, along with a conviction of DUI. Under current state law, it is a second-degree felony with a minimum prison sentence of three years, regardless of the state’s sentencing guidelines. If more than one person died as a result of the offense, the court must impose additional three-year sentences for each victim, to be served consecutively. A conviction for homicide by vehicle while DUI also results in a mandatory three-year driver’s license suspension.
House Bill 1733 increases the grading of the offense of homicide by vehicle while DUI to a first-degree felony for individuals with prior convictions for DUI, felony convictions for other serious traffic offenses, including homicide by vehicle and aggravated assault by vehicle, and similar offenses from other jurisdictions. This includes any DUI conviction, not just felony DUIs. The offense of DUI – general impairment is generally graded as a misdemeanor and increased to a second-degree misdemeanor for subsequent offenses. Higher rates of alcohol, or the serious injury to or death of a person, may increase the grading of the offense. Under HB 1733, the minimum prison sentence is increased to five years, with additional, consecutive five-year sentences for additional victims. License suspension would be permanent under the bill.
If you have been arrested for DUI in Pennsylvania , it is critical that you consult with a qualified DUI lawyer to determine the best way to handle your defense. The attorneys at Levow & Associates have dedicated 100% of our practice to DUI defense. We are available to help you 24/7. Please contact us online or at (877) 975-3399 for a free and confidential consultation.
More Blog Posts:
New Pennsylvania Law Closes Alleged Loophole that Encouraged Drunk Drivers to Flee the Scene of Certain Accidents, Pennsylvania DUI Lawyers Blog, July 21, 2014
Pennsylvania DUI Defendant Argues on Appeal that Verdict Went against Weight of Evidence, Gets New Trial, Pennsylvania DUI Lawyers Blog, May 13, 2014
Aggravated Assault Charges Allowed to Proceed by Pennsylvania Court in DUI Case, Pennsylvania DUI Lawyers Blog, April 10, 2014
Photo credit: By TwinsMetsFan (Own work) [Public domain], via Wikimedia Commons.
December 22, 2014
The Two Types of Reckless Driving Charges in the California Vehicle Code, and Why it Matters in DUI Cases, Pt. 2
As previously discussed, the wet reckless charge is a tool prosecutors use to "split the baby" when there is a DUI case with problems for them. The wet has reduced punishments, but it is also priorable if the defendant gets another DUI.
The differences can be significant. For these purposes, I will use the San Diego Superior Court Standard Sentencing Guidelines for Infractions and Misdemeanors.
First, the Standard DUI, California Vehicle Code Sections 23152(a) or (b):
Five Years Summary Probation (terms, among others, to Violate No Laws (VNL))
$2,064, fine including $100 SAAU (Substance Abuse Assessment Unit) fee
PSP (Public Service)- days of PSP are dependent on BAC
.15% - .19% is 5 Days
.20% - .24% is 10 Days
.25% and above is 15 Days
FCP (First Conviction Program) is mandatory, and the length also depends on the BAC
.19% and below is three months
.20% and higher is Nine months
Driving under the influence victim impact panel (MADD)
*DMV handles license suspension, mostly
Refer to SAAU (Substance Abuse Assessment Unit)
VC 23593 advisal (upon being given, if defendant drinks and drives again, and kills someone, they can be charged with murder).
*Judges/Commissioners are advised to give "heightened consideration" to IID if the BAC is greater than .15%
Some notes, while VNL is the term that specifically states that violating no laws is a term of probation, the entire sentence becomes individual terms of probation. For instance, if a person does not attend the MADD victim impact panel, or report to SAAU, a notice of probation violation will be sent to the court and the defendant. A bench warrant will be issued for the non-compliant defendant. They will have to go into the court and request that probation be reinstated and the bench warrant dismissed. If not, the court has all statutory options from the original charge available to them. For a DUI, that means up to six months in jail or $1,000 fine (not including penalties and assessments).
The substance abuse assessment unit (SAAU) is an office in the courthouse that helps the defendant assess if they have a drinking problem. Depending on the responses, there may be additional terms of probation to help reduce the likelihood of recidivism. For instance, speaking with a counselor, or attending AA meetings.
The PSP, or public work service, is a program that is administered by the San Diego Sheriff's Department. The most common public service is cleaning up trash at the side of a road. Those performing public service must be present at 8:00am, then they are assigned to work crews that clean trash. They may also clear invasive vegetation from waterways.
Sometimes, if the person is physically challenged, handicapped, otherwise infirm, or otherwise logistically challenged, public work service can be satisfied by volunteer work service. Volunteer work service is volunteering for a non-profit organization, and 8 hours of volunteer work service satisfies one day of public work service. I recently got a clients public work service transferred into volunteer work service because she was going to be attending college out of the county and participating in collegiate athletics.
Volunteer work service is much less demanding, and can be more satisfying. I advise my clients to look up organizations and non-profits that they may be interested in and contact them. For instance, one client volunteered at a state park during a clean up. Volunteer work service is satisfied with a letter on the organizations letterhead saying that defendant performed so many hours of volunteer work.
In the next blog entry we will go over the dry and wet reckless standard sentences and why they are beneficial for most people charged with a DUI in San Diego County. As always, I am available to discuss either specific DUI cases, or general topics in DUI law and I can be reached here.
December 12, 2014
California DMV & Chemical Test Refusals In DUI Cases
If you are driving a vehicle in California, you have agreed to a chemical test of your breath or blood to determine the alcohol and/or drug content, if you are lawfully arrested and suspected of driving under the influence of alcohol, drugs, or a combination of alcohol and drugs, (implied consent). The required chemical test must be given after a lawful arrest. If you refuse, you may suffer harsher consequences through the DMV and in the court.
The preliminary alcohol screening (PAS) test, the handheld breath test that is given at the scene, is just a field sobriety test. You can and should refuse to take that test, as well as any other field sobriety tests, unless you are under 21 or on DUI probation.
Once arrested, you must provide a sample of your breath or blood. However, in some instances, such as the other tests are not available, drugs are suspected and you cannot provide a blood test, or you have a medical condition that does not allow you to provide a breath or blood sample, a urine test may be offered instead.
If you fail to submit to a chemical test after a lawful arrest, the DMV will take immediate action on your driving privileges. You will be given notice that your driver’s license will be suspended 30 days after the arrest unless you request a hearing within 10 days after the arrest date. If you fail to request the hearing, or if the DMV does not set aside the license suspension after the hearing, your license will suspended for one year on your first offense, revoked for two years on your second offense within 10 years, and revoked for three years on your third offense within 10 years. (Note, this is separate from any action that the court may take against your license in the criminal portion of your case.)
If a DMV hearing is requested, the Administrative Per Se (APS) Hearing will only address four issues:
Did the peace officer have reasonable cause to believe you were driving under the influence? Where you lawfully arrested? Did you refuse to submit to, or did you not complete, the test as requested by the officer? Were you properly told that your license would be suspended or revoked if you refused the test?There are several defenses that a skilled DUI defense attorney can assert in your APS Hearing. They included: 1.) You were not lawfully arrested; 2.) You were not properly admonished that your license would be suspended or revoked if you refused the test; 3.) You refused or failed to complete the test due to a medical condition or injury; and, 4.) The officer did not reasonably believe you were DUI at the time of the arrest.
If you were arrested for drunk driving, you owe it to yourself to immediately contact a DUI defense attorney to discuss your rights. Call the Law Offices of Susan L. Hartman for your FREE phone consultation today: (619) 260-1122. Do not just allow the DMV to automatically suspend your driver’s license. Challenge the suspension at the APS Hearing.
This blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a DUI defense lawyer in your area.
December 11, 2014
Jury instructions for Orlando DUI cases
In this blog we’ll be walking about the ins and outs of Orlando DUI defense, so I thought it might be helpful to post a quick entry on the actual jury instructions for an Orlando DUI case.
In every Orlando drunk driving case (actually, that’s a bit of a misnomer – as you’ll see in the jury instructions, they don’t have to prove you were “drunk,” they just have to prove that you were “impaired”), the government must prove 2 separate elements before an Orlando driver can be convicted of driving under the influence.
Here are the official jury instructions that an Orange county judge will read when charging the jury in an Orlando DUI trial.
28.1 DRIVING UNDER THE INFLUENCE
§ 316.193(1), Fla. Stat.
To prove the crime of Driving under the Influence, the State must prove the following two elements beyond a reasonable doubt:
[Defendant] drove or was in actual physical control of a vehicle.While driving or in actual physical control of the vehicle, [defendant]Give 2a or b or both as applicable.
was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].Give if applicable. (Offenses committed prior to October 1, 2008, alcohol level of .20 or higher.)
If you find the defendant guilty of Driving under the Influence, you must also determine whether the State has proven beyond a reasonable doubt whether:
the defendant had a [blood] [breath]-alcohol level of .15 or higher while driving or in actual physical control of the vehicle.the defendant was accompanied in the vehicle by a person under the age of 18 years at the time of the driving under the influence.Definitions. Give as applicable.
Vehicle is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks.
Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.
Actual physical control of a vehicle means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.
Alcoholic beverages are considered to be substances of any kind and description which contain alcohol.
( ) is a controlled substance under Florida law. Ch. 893, Fla. Stat.
( ) is a chemical substance under Florida law. § 877.111(1), Fla. Stat.
When appropriate, give one or more of the following instructions on the presumptions of impairment established by § 316.1934(2)(a), (2)(b), and (2)(c), Fla. Stat.
If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level of .08 or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. But this evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.Defense of inoperability; give if applicable.
It is a defense to the charge of Driving under the Influence if at the time of the alleged offense, the vehicle was inoperable. However, it is not a defense if the defendant was driving under the influence before the vehicle became inoperable. Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty. However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty, if all the other elements of the charge have been proved beyond a reasonable doubt.
Comment
A misdemeanor instruction was adopted in 1981 as part of Standard Jury Instructions In Misdemeanor Cases. In 1992, a similar instruction was adopted for Florida Standard Jury Instructions In Criminal Cases. That instruction was amended in 1995 and 1998; both instructions were merged into a revised instruction in 2000, which was amended in 2009.
Standard jury instructions in Orlando DUI cases (PDF version)
December 9, 2014
Accident Cases: The EDR is Crucial
An item that should be obtained as quickly as possible in an accident case – especially one involving death or serious injury – is the event data recorder (EDR). These devices can store data including engine speed, vehicle speed, airbag deployment, seatbelt use, and the state of the brakes before and during a crash. While these devices have aided insurance adjusters and researchers, they have also served as electronic witnesses that have sent drivers to jail. By the mid-1990’s when all automobiles had an airbag, microprocessors, solid state memory, and in-car networks gave designers all the tools they needed for capturing system performance and driver reaction data during a crash. One of GM’s early data recorders was responsible for the recall of more than 850,000 Chevrolet Cavaliers and Pontiac Sunfires for inadvertent airbag deployment. The early EDR’s captured data for approximately five seconds before a collision. However, the newer models record data for forty to fifty seconds before impact.
To read this information special equipment is needed, and manufacturers have not adopted the same stance vis-?-vis the ease with which the data from their automobiles may be downloaded. GM, for example, will not share information about a crash event except: (1) With the consent of the vehicle owner or lessee; (2) In response to an official request of police or similar government office; (3) As part of GM’s defense of litigation through the discovery process; (4) As otherwise required by law. Mercedes and BMW have designed their EDR’s so they cannot be deciphered unless the manufacturers cooperate in a particular case.
Documenting driver digressions is the most controversial application of the crash data recorders. A recorder can, for example, reveal if a driver was speeding or braking before an accident. Although it is generally agreed that the recorded information belongs to the vehicle owner, that does not mean it can always be easily concealed. Many motorists do not even know that their vehicles have the recorders and that disclosure of information from the recorder may be an invasion of privacy. Nevertheless, insurance companies and lawyers have frequently been successful in their attempts to obtain court orders to extract data after an accident. One of the most popular pieces of information is the crash pulse information from the onboard accelerometers that activate airbags. Information about this change in velocity and direction of force may indicate the cause of the crash or the severity of injuries.
Vetronix Corporation was one of the first vendors to offer a CDR (crash data retrieval) system that downloaded pre-crash and crash data from the air bag module of most GM and Ford models to a laptop computer. This CDR system included hardware and Windows based software to present crash data in graphs and tables. Depending on the make and model of the vehicle, the CDR program retrieved vehicle speed, engine speed, brake status, throttle position, seatbelt usage, whether the passenger side airbag was enabled, and other data. Bosch offered a competitive product and acquired Vetronix several years ago.
The attorney should exert every effort to ensure that the client’s vehicle is secure. The data may be lost due to an inadvertent police “error” such as starting the car, connecting it to a power source, or improperly downloading the data. Any of these events can “erase” the EDR’s memory, and with that erasure may go your chances for an acquittal. The data may be downloaded from one of three points on a large number of models, including the DLC (data link connector or direct link connector) plug under the dash, the airbag control module, or the PCM (primary control module). Although the “black box” can be removed without necessarily damaging the instrument, most engineers see no need for removal and perform their downloads with the EDR still in the automobile.
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.
December 8, 2014
Actual Physical Control in Orlando DUI Accident Cases
The state may establish actual physical control in an Orlando DUI case through circumstantial evidence, including expert witness testimony.In every Orlando DUI case, the government must prove that
The defendant drove, or was in actual physical control of a vehicle, andWas under the influence of either alcohol beverages or controlled substances to the extent that the driver’s normal faculties are impaired, or had a BAC over .08See Standard jury instructions in Orlando DUI cases (Word version)
In most Orlando DUI cases, the State can prove that a defendant was the driver of the vehicle because, well, the police officer sees the person driving the car. Easy. No problems at all.
But if the DUI case arises out of an accident, proof of actual physical control isn’t as easy to establish.
When the DUI investigators from the Orange County Sheriff, Florida Highway Patrol, or Orlando Police are investigating a DUI accident, they usually don’t arrive on scene contemporaneously with the accident. Depending on other issues in the area, it may be 20 minutes, 30 minutes, even hours before the DUI investigators arrive.
By the time they arrive, the drivers of the vehicles involved have usually gotten out of their cars to inspect the damage or to exchange information.
Unless civilian witnesses are available to testify that they saw the defendant driving, there may not be any direct evidence placing the defendant behind the wheel (and in actual physical control) of an operable vehicle.
Without direct testimony, the State must rely upon circumstantial proof to establish that the Defendant actually drove the vehicle. However, the state may prove this through expert testimony, as they did in West v. State, 745 So.2d 414 (Fla. 5th DCA 1999)
Orlando-DUI-circumstantial-evidence-of-driving-West-v-State-745_So2d_414-Fla-5th-DCA-1999
photo credit: Jean Henrique Wichinoski via photopin cc
October 8, 2012
New Concept from Canada: Licenses Suspended “Indefinitely” in DUI Cases
I’ve written in the past about the guilty-until-proven-innocent approach to DUI license suspensions and the almost complete lack of due process. See, for example, "Due Process" for DUI License Suspensions, Secret Memo: DMV License Suspension Hearings Rigged and Judge: DUI License Suspension Hearings "Unacceptable".
In California, for example, when a citizen is suspected of drunk driving and is arrested, the cop confiscates the license and gives the suspect a "Notice of Suspension". The citizen has 10 days in which to call the DMV to demand a hearing, or the right to contest the cop’s automatic suspension is lost. If a hearing is granted, it will be at the DMV’s offices; the prosecutor will be a DMV employee with a high school degree. Oh yes, and the judge will be….the same person. Right: judge, jury and executioner — without any legal training and answerable only to his/her employer — the DMV.
As bad as this is, apparently our northern neighbors in the province of Alberta have gone a step further: unlike DUI suspensions in the U.S., which are for a specific period of time, those in Alberta are for an indefinite period — until the criminal charges are "resolved" in court. In other words, the accused — guilty or innocent — is coerced into pleading guilty if he wants his license back.
Lawyers Call Alberta’s Drunk Driving Penalties Unconstitutional
Edmonton, Alberta, Canada. June 19 – Civil Liberties Association lawyer Joseph Arvay has been retained by Alberta firm Roadlawyers, which specializes in drunk driving cases, one of several that are decrying the Alberta government’s decision to indefinitely suspend licences of drivers who blow over the Criminal Code limit of .08 blood-alcohol content.
Drivers police deem are over the .08 limit will immediately have their licences suspended without even seeing a judge, a penalty that will remain in place until the charge is resolved in court.
“I think it’s clearly contrary to the Constitution and clearly contrary to the Charter (of Rights and Freedoms),” said Roadlaywer attorney Tim Foster.
“We intend to challenge the legislation as soon as we get retained on a file dealing with one of these — we’re going to bring a Constitutional challenge to try to strike the law down.”…
In what’s being called a first for Canada, Transportation Minister Ric McIver came out Monday saying drivers who blow over .08 will be hit hard with an indefinite suspension starting July 1, one of several get-tough measures rolled out in the Traffic Safety Amendment Act passed last year.
McIver said drivers simply weren’t refraining enough from tipping their glasses before hitting the roads and harsher penalties were needed to ensure “all of us feel more secure when we go out on Alberta roadways.”
Many lawyers, however, say the new penalties are nothing more than a tactic that will strong-arm drivers into issuing guilty pleas rather than challenge their cases in court.
“There’s some good and bad about that from a public policy perspective,” said Alan Pearse, who specializes in DUI cases in Calgary.
“The good news is you will almost certainly force guilty people to plead guilty. The bad news is you’re likely going to force some innocent people to plead guilty as well.”
Lawyer Bob Sawers called it the government’s way to “extort” guilty pleas from Albertans who can’t afford to lose their licences for several months and said he would demanding trial dates be set within two months.
Apparently, Transportation Minister McIver’s idea that "harsher penalties were needed to ensure all of us feel more secure" is to simply force anyone suspected of drunk driving to plead guilty.
I can imagine prosecutors, cops and Mothers Against Drunk Driving drooling over the idea of adopting this approach in the States….
September 10, 2012
Civil Compromise in California Hit & Run Cases
If you are charged with a Hit and Run under California Vehicle Code 20002(a), one of the options you should think about having your lawyer pursue is what is known as a "Civil Compromise". A civil compromise allows the parties to agree to dismissal upon monetary compensation for reasonable damages. It is one of the rare situations in which an alleged victim can "drop the charges" against an accused.
I recently employed this strategy in a recent Hit and Run Case out of the West Covina Courthouse. My client had already compensated the other party for her damages. I contacted her and explained the civil compromise arrangement - now that she had been compensated, I asked if she would be willing to dismiss the charges against my client. She was reluctant to do so and wanted to think about it. I informed her that was ok and she could call me back when she had an answer.
I didn't hear from her for a couple of weeks and decided to follow up. I received no call or email in return. At this point I did not want to continue to ask her because I didn't want to seem like I was harassing her. I realized she did not want to cooperate and agree to a dismissal, but I had to think of another way to get this misdemeanor dismissed for my client - Hit and Run is 2 points with the DMV and he needed to avoid those extra points because he drove a lot as part of his job.
My next strategy was to approach the District Attorney with my client's witness statements as well as proof that the alleged victim had been fully compensated and we had attempted to do a civil compromise with her. After some negotiation, he agreed to dismiss the Hit and Run charge against my client and have him plead to an infraction with no DMV points and a small fine. My client was very happy and this definitely suited his situation.
Civil Compromises aren't just available in Vehicle Code 20002(a) Hit and Run Cases, but they are also available in other types of cases such as vandalism and even embezzlement. Even though I was unable to get a straight dismissal for my client, I did not give up and pursued another course of action that still resulted in a dismissal of the misdemeanor.
July 30, 2012
Kansas Moves To Punish Refusing to Incriminate Yourself in DUI Cases
I’ve posted long and hard over the years about the inaccuracy and unreliability of breathalyzers. See How Breathalyzers Work – and Why They Don’t. But at least you could always refuse to take the test. You aren’t required to incriminate yourself, right? I mean, this is America and we have the Constitution to protect us.
Maybe not. This looks like yet another in a long list of constitutional rights that are slowly disappearing in DUI cases. See, for example, The DUI Exception to the Constitution, The Disappearing Right to Jury Trial…in DUI Cases, DUI and the Disappearing Right to Counsel, Are DUI Roadblocks Constitutional? and Forced Blood Draws by Cops: Constitutional?.
House Votes to Criminalize DUI Test Refusals
Topeka, KS. May 17 — After a lengthy discussion of constitutional rights, the House has approved a bill that makes it a crime for suspected repeat offenders to refuse a drunk-driving test…
Under Senate Bill 60, drivers with a DUI conviction or prior refusal of a DUI test would automatically be guilty of a misdemeanor if they refuse a test. The penalty would be the same as for a DUI conviction.
The House passed the bill 103-13, but not without some concerns expressed by members that it “tramples” the right to remain silent when accused of a crime.
Rep. Sean Gatewood, D-Topeka, said he’s seen many drunk driving crashes and the harm they cause working as a firefighter and paramedic.
But he said he was not comfortable with making it a crime to refuse to take a breath or blood test.
“These are American citizens and they have the right to remain silent, which this bill sort of tramples on, because if you just stand there silent … then you’re a criminal,” Gatewood said. “You have your 4th and 5th Amendment rights … and I just think there is no greater ridge to stand on than the Constitution of the United States.”
Gatewood proposed to send the measure back to a House-Senate conference committee for further work, but that motion died on a 23-88 vote.
Rep. Pat Colloton, R-Leawood, who carried the bill on the floor, acknowledged that its impact on constitutional rights was an important issue, but on balance she supported it.
She said courts are being clogged with repeat offenders who refuse the DUI test and take their chances with a jury.
Some lawmakers said stopping drunk drivers outweighed the constitutional questions.
“I would gladly walk the line, breathe into the tube and draw my blood if it would get repeat drunk drivers off the road,” said Rep. Bill Otto, R-LeRoy. “This is about people who are killing people.”
“This is not about constitutional rights,” he continued. “What about the constitutional right to life, liberty and the pursuit of happiness? (a phrase from the Declaration of Independence, not the Constitution) When you’re killed by a drunk driver, they’ve deprived you of your life. Death penalty, when you did nothing wrong.”
So….if you refused to incriminate yourself, you would be convicted of a crime and given the same sentence as if you had been convicted of drunk driving. In other words, you are basically convicted of drunk driving because you wouldn’t incriminate yourself!
Another constitutional right slowly fades away….
January 11, 2012
Pennsylvania Police Officer Admits to Lying in DUI Cases
We all want to trust the police and see them as upright protectors of justice. While many police officers are very professional and take their responsibility very seriously, there are others who are corrupt and use unscrupulous tactics that harm the common citizen.
Bad cops exist everywhere and there is no shortage of them in Pennsylvania. Some of them will even go as far as to lie under oath:
Pennsylvania Police Officer Admits to Lying Under Oath in DUI CaseHERMITAGE — As a citizen, Raymond Bogaty wants to believe the police.
“We all want to believe the police,” he said.
But, as Mercer County Public Defender, Bogaty has occasionally suspected that a story told by a policeman has not been the whole truth.
“I’ve been doing this for 37 years,” he said. “You always have concerns about truthfulness. You, at times, suspect the truth is not being told.”
Still, it’s rare to catch a policeman in a lie, or to get an admission that someone has lied, he said.
That unusual event occurred Tuesday when Mercer County District Attorney Robert G. Kochems and Hermitage Police Chief Patrick B. McElhinny released statements saying that Hermitage patrolman Dennis Best had admitted lying under oath in a 2008 case.
Criminal justice is intrinsically a human endeavor and due to the lack of transparency and oversight when it comes to the police, the situation is ripe for honest mistakes, purposeful and conscious misleading actions (lies) and even corruption. This can lead to false conviction if we do not successfully expose the lies and mistakes in the police officer’s account. This is why it is important to have an attorney who had trial experience in DUI cases and who has the guts to cross-examine the police.
If you feel the police have violated your rights call The McShane Firm to protect your freedom and liberty. Call 1-866-MCSHANE.
February 14, 2011
The Breath Machine (EC/IR) in DUI Cases
At this point we all know that the breath machine, in Maryland it's the EC/IR, in DUI/DWI cases is a vital part of the DUI conviction process; that's why the legislature has its very own law for blowing a number of .08 or greater into the contraption. The law is known as Maryland Transportation Article 21-902(a)2 or the per se law. This law says that if you blow a .08 or higher, your are in violation of this statute and therefore you are GUILTY of this crime, irrespective of any other details regarding your case. Pretty stringent huh? Particularly if you consider that these machines are not particularly accurate in determining a person's BAC (blood alcohol content).
How can I say these machines are not particularly accurate? Well, don't take my word for it, I'm just a lawyer. However we should take the word of very learned and highly regarded experts in the field who have written numerous articles on these machines. In a nutshell, the machine utilizes a partition ratio (a formula) to calculate the ethanol that it senses on ones breath and to extrapolate out what it believes a person's blood alcohol content should be. The machine then spits out that number on a cash register sized piece of paper and you then have to fight the machine or be convicted of DUI.
The problem is that the machine utilizes a constant partition ration number of 2100:1 for all people. So the machine multiplies the parts of alcohol that it senses in the breath, it calculates that number by 2100 and it says the result is your BAC or blood alcohol content. Big, small, tall, short, male, female, black, white, Asian makes no difference the machine calculates 2100:1 partition ratio. Are all people made alike? Does the 6'8" NFL player have the same body makeup as the 5'2" soccer mom? I don't think so and either do the experts in the field.
The reality is that we all have different partition ratios that can range from as low as 1500:1 to as high as 2500:1 or higher. The machines however are programmed to take an average number of the average person. The problem is that we are all not average people, if we were we would all be 5'9" and 170lbs. So when the machine uses the wrong number, which does not match the partition ratio of the person tested there is a substantial chance that the number the machine yields will be erroneous; it could be erroneous by as much as 10-20% or more.
In addition to the foregoing, the method of the blow, or how you blow into the machine also has an impact on your number. There is a saying among those that work in field "the harder you blow, the higher you go" so when the breath test technician tells you to hold your breath and blow in the machine as hard as you can he is really saying "lets artificially maximise the number that you blow so that I can get an easier conviction in court."
The machine requires a steady exhalation from the defendant which should last roughly 5 seconds in duration, the machine then measures the volume of ethanol in the trailing exhalation right before the volume of breath dissipates. If you hold your breath and blow as hard as you can, you are artificially maximizing the volume of ethanol exhaled into the machine from the deep lung which is then calculated at the partition ration as described above.