Archive for September, 2006

The 19 Driving Symptoms Cops Look For

Thursday, September 14th, 2006

‘Ever wonder just what the police are looking for when they’re out at night looking for drunk drivers?  And how you can avoid looking like one?

The following list of DUI driving symptoms, from a publication issued by the National Highway Traffic Safety Administration (DOT HS-805-711), is widely used in training officers to detect drunk drivers on the roads.  After each symptom is a percentage figure which, according to NHTSA, indicates the chances that a driver is under the influence of alcohol.  For example, NHTSA’s research indicates that “the chances are 65 out of 100″ that a driver who is straddling a center or lane marker has a blood-alcohol concentration of .10% or higher (the pre-.08% standard).

Turning with wide radius     65
Straddling center or lane marker     65
Appearing to be drunk     60
Almost striking object or vehicle     60
Weaving     60
Driving on other than designated roadway     55
Swerving     55
Slow speed (more than 10mph below limit)     50
Stopping (without cause) in traffic lane     50
Drifting     50
Following too closely     45
Tires on center or land marker     45
Braking erratically     45
Driving into opposing or crossing traffic     45
Signalling inconsistent with driving actions     40
Stopping inappropriately (other than in lane)     35
Turning abruptly or illegally     35
Accelerating or decelerating rapidly     30
Headlights off     30

Just to reenforce this as a mathematical science thoroughly impressive to juries, NHTSA further claims — and officers are taught — that there is also a quick-and-easy formula for multiple symptoms:  “When two or more cues are seen, add 10 to the highest value among the cues observed”.

Of course, if these suspiciously precise figures are to be believed, then almost half of the folks who tailgate you every day are drunk – and almost half of the time you don’t brake smoothly you are, too.  Further, only 60% of drivers “appearing to be drunk” to the officer actually are. (Query:  How does a driver “appear to be drunk” to an officer following 100 feet behind? Slurred speech?  Alcohol on his breath?)  And speeding — one of the most common reasons for pulling DUI suspects over — is not even on the list. 

Science marches on…


Sleeping Under the Influence

Monday, September 11th, 2006

Yes, you can be arrested in many states for “sleeping under the influence” in your parked car — on the shaky theory that you were probably driving some time earlier and were probably intoxicated at the time.  

There are two issues involved.  First, the legal issue:  Although under the influence, was the individual driving?  The various states have slightly different definitions of what constitutes “driving”, but they usually involve “operating” or being “in physical control” of a motor vehicle.  Second, the public policy issue:  Shouldn’t we encourage conduct that seeks to avoid danger to the public and/or commission of a crime?

Looking at the legal issue first, how can a person be “operating” or “in physical control” of a vehicle if he is asleep?  Well, in their stampede to “get tough” on drunk drivers, many states have stretched their definitions of “driving” to the breaking point — and beyond.  In State v. Lawrence, 849 S.W.2d 761, for example, the Tennessee Supreme Court held that a defendant who was asleep on the driver’s side of his parked vehicle with the keys in his pants pocket was in “physical control” within the meaning of the DUI statute — and thus guilty of drunk driving.  Similarly, in State v. Peterson, 769 P.2d 1221, the Montana Supreme Court held that the defendant was in “actual physical control” of the vehicle when he was found parked off the roadway, asleep in the driver’s seat with the keys in his pocket.  There are, fortunately, other courts which have held that this does not constitute driving.  See, for example, State v. Bugger, 483 P.2d 404 (Utah).

Most courts do not address the second issue:  legalities aside, as a public policy matter should such conduct be punished?   This is possibly because judges may feel  that is a matter for the legislature to address.

Question:  If an individual begins driving home from a restaurant and realizes he has had too much to drink, what do we want him to do — if we are truly interested in preventing an accident? 

Answer:  We would like to see that person pull over and sleep it off.

Question:  How do we encourage that conduct? 

Answer:  We don’t punish him for doing it.

Question:  Then why do police continue to arrest and the courts to convict these folks for drunk driving?

Answer:  Because they can.

Despite the rhetoric about preventing traffic fatalities, the real concern seems increasingly focused on punishment rather than prevention.  But consider the holding of an Arizona court in reversing a DUI conviction:

The interpretation we place on the legislature’s imprecise language is compelled by our belief that it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control.  To hold otherwise might encourage a drunk driver, apprehensive about being arrested, to attempt to reach his destination while endangering others on the highway.  Arizona v. Zavala, 666 P.2d 456.

Makes sense.  Of course, angering MADD is not a good way to get reelected to the bench.


The Necessity Defense to DUI

Thursday, September 7th, 2006

Let’s say that after dinner — and too many drinks — at a friend’s house, your husband is driving you home.  He suddenly feels intense pain shooting up his left arm, swerves off the road and loses consciousness.  You jump behind the wheel and start driving at high speed for the hospital.  As you pull up to the emergency center, a police car follows in after you, its lights flashing.  Shortly afterwards, you are arrested for drunk driving.


Maybe — and maybe not.  The courts, as is common in DUI cases, are in considerable disagreement.  Some states recognize the affirmative defense of necessity, or as it is sometimes called, the choice of evils defense.  As one New Jersey judge observed, “When, as here, there is a collision between law and common sense, this court should exert its best effort to vindicate common sense.  Our institutional legitimacy depends on our succeeding in that endeavor.”  State v. Fogarty, 607 A.2d 624.

Other courts prefer law over common sense in DUI cases, or severely limit the defense’s application.  In People v. Slack, 258 Cal. Rptr. 702, for example, the defendant was fleeing across the Mexican border from Tijuana police who had beaten him in the past.  The court held that he had not adequately shown that there was no alternative to drunk driving, or that the emergency was not the result of his own conduct.  More to the point, the court said that “the risk of vehicular destruction is so great that even the risk of physical assault to the intoxicated person pales in comparison.”

Continuing the inconsistencies, some courts permit the defense in criminal cases — but, illogically, not in license suspensions.  As another California court has held:

(The) relevant statutes and their clear public policy preclude the application of the necessity defense to administrative hearings….In contrast to criminal prosecution for drunk driving, the administrative remedy involving the suspension of driver’s licenses was designed to be a “swift and certain” method of deterring such conduct. 

However, yet another California court had earlier come to the opposite conclusion, saying that “It is undeniably true that under any reasonable concept, right and justice would be defeated by the erroneous suspension of (his) driver’s license.”  Curtin v. DMV, 123 Cal. App.3d 481.

To muddy the waters further, there is a separate but related defense of duress which is often confused with the necessity defense. 

So….Was driving your husband to the hospital a criminal act?  As is often the case, that may depend upon what state you were in, or what cases the judge chooses to follow.


MADD Policy: Intimidate Judges and Prosecutors

Monday, September 4th, 2006

The following is from Mothers Against Drunk Driving's official website:

To truly reduce drunk driving, it takes law makers, law enforcement and the judicial system working in concert.  That's why MADD's Court Monitoring Program trains volunteers to observe and gather data on DUI/DWI court proceedings, including arraignments, pretrial hearings, trials and sentencing…

But there's more to court monitoring than collecting data — there's MADD's presence in the courtroom.  The presence of court monitors sends a clear message to judges, prosecutors, defense lawyers and court staff: MADD cares about what happens and the courts are being held accountable. 

Big Mother is watching.


If the Driver is Sober, Then Arrest the Passenger

Friday, September 1st, 2006

From the Someone-Has-To-Go-Down Department:

Driver + Sandwich = Passenger DUI

Carlisle, PA (CBS/AP) A Pennsylvania man is fighting a DUI charge with an unusual twist: He was in the passenger seat at the time.

A state trooper says he pulled over a car after it swerved from a turning lane into the travel lane of a highway in Carlisle on Dec. 26. When he approached the vehicle, the trooper says the driver was holding a sandwich in both hands ? and the passenger, Derek Randall Pittman, told him he had been steering while his friend took a bite, reports the Patriot-News in Harrisburg.

Police say the driver passed a breath test, but the passenger had a blood-alcohol content nearly three times the legal limit for driving in Pennsylvania.

So much for designated drivers…