Archive for June, 2011

Is It a Crime to Turn Over the Keys to a Drunk Driver?

Thursday, June 30th, 2011

Is it possible to be an accomplice to drunk driving – that is, to be convicted of “aiding and abetting” a person who was driving under the influence of alcohol?

In one case in Maine, two men were drinking together in a bar.  When they left, the owner of the car had his friend drive since the friend was less intoxicated.  The two were stopped by the police, and the owner/passenger was taken to a police station — where he refused to take a breath test because he said he had not been driving.  He was subsequently charged with operating or attempting to operate a motor vehicle under the influence.  At trial, the jury found him guilty as both a principal and an accomplice. 

On appeal, the court held that the accomplice statute applied to drunk driving offenses, and that the evidence was sufficient for a jury to find both the intent and the solicitation necessary for accomplice liability.  The defendant, said the court, had the specific intent to enlist his accomplice/friend in driving under the influence.  State v. Stratton, 591 A.2d 246 (Me. 1991). 

How far can this go?  Can you be guilty of letting a friend drive while intoxicated?

The majority rule in American courts today is that any passenger, including the owner, can be held criminally liable as an aider/abettor in the commission of the offense of DUI.  Nor is there any requirement that the accomplice be a passenger in the vehicle.  In Guzman v. State, 586 S.E.2d 59 (Ga. App. 2003), for example, the defendant was convicted of two counts of vehicular homicide when he allowed a 14-year-old to drive his bother and a friend in the defendant’s vehicle after having given beer to the boys.  His criminal intent was inferred by his conduct in giving the driver alcohol and the car keys, then standing silently by as the 14-year-old got behind the wheel and drive away.

Note:  Drunk driving is a general intent crime — that is, it doesn’t require proof of an intent to drive under the influence.  Accomplice liability ("aiding and abetting"), on the other hand, is a specific intent offense — it requires proof of an intent to assist the commission of a crime.  Query:  Assuming the validity of an accomplice theory, could not the accomplice’s own intoxication degate the specific intent required to be an accomplice?
 

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The Death Penalty for Drunk Driving?

Friday, June 24th, 2011

Yes, the death penalty. In a drunk driving case. In these United States. For murder…… No, not involuntary manslaughter. Not vehicular homicide. Murder. And first-degree murder. As in pointing a gun at someone and pulling the trigger. MADD has been so successful in their political pressure campaigns that they’ve actually gotten some courts and legislatures to create a new type of crime: DUI murder.

Wait a minute, you say. I thought you had to INTEND to kill a person before it’s murder. You have to "premeditate" and that kind of thing, right? Well, yes and no. Each state is a little different, of course, but most follow similar laws. And those laws generally break a homicide ("the killing of another human being") into different categories. The first is excusable homicide — where, because of self-defense or other justification, the death is not considered a crime. Next is "manslaughter" — basically, a killing that is not murder. There are usually two kinds of manslaughter: voluntary and involuntary. Voluntary manslaughter is sometimes called a killing in the "heat of passion"; you lacked the time or ability to reflect on the act. Involuntary manslaughter is an unintentional homicide: you didn’t mean to do it, but you caused a death by your negligence or recklessness.

When a drunk driver causes an accident in which someone is killed, he is usually going to be facing involuntary manslaughter charges. Some states use different terms, such as "vehicular manslaughter" or "vehicular homicide". Either way, the death was unintentional, but it was caused by the driver’s negligent or reckless conduct.

And then there’s murder. That’s what you see on TV and read about in the papers: someone plans to kill someone else and, in cold blood, takes his life. But just to complicate things, in most states there are two kinds of murder: first degree and second degree. Murder in the first degree usually requires meaningful premeditation: you thought about it, planned it, carried it out. Second degree murder only requires a mental state known as "malice". What is malice? Well, usually it means the intent to kill someone: you intended to kill that person, but it may have happened so quickly that you never really thought it out. Intent, but no premediation.

So where does DUI fit into all of this?

It seems pretty obvious that it belongs in the "involuntary manslaughter" category — an unintentional accident but with negligence/recklessness. However…. This idea of "malice" is pretty vague. Very vague. Actually, it can pretty much mean whatever you want. Perfect, really, for a group like MADD looking for new ways to "get tough " on drunk drivers.

A prosecutor in California came up with a bright idea a few years ago. He simply ignored the vehicular manslaughter statute and charged a drunk driver with second-degree murder. And, DUI being a pretty unpopular crime, actually managed to convict him. The defendant appealed, saying the prosecution can’t just invent new crimes: he has to charge the offense specified by the legislature. The California Supreme Court disagreed, saying that he could be charged and convicted of murder if he acted with "malice" — that is, if he "does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life".

Base antisocial motive? What’s that? The Court tried to clarify:

"One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he must operate a motor vehicle, thereby combining sharply impaired physical and mental facilities with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others." People v. Watson, 30 Cal. 3d 290 (1981)

Well, the problem is that the Court was pretty much describing ANY drunk driver. Recognizing that this opened the gates a bit wide, the courts have tried to limit over-zealous prosecutors by requiring a more serious type of malice. They came up with "conscious indifference": A drunk driver can be charged with murder if his state of mind was, "I know my conduct is dangerous to others, but I don’t care if someone is hurt or killed." Still pretty vague. Doesn’t alcohol itself cause indifference? And how do you know what’s in someone’s head when he’s drunk? Well, it turns out that you can now prove malice if you can show that the defendant knew drinking and driving could be dangerous. Of course, everyone knows that, right?

So where does that leave us? Any DUI defendant who knows drunk driving is dangerous can be charged with murder?

Apparently so. In People v. Murray, 275 Cal.Rptr. 498 (1990), the appellate court upheld a DUI murder conviction where the prosecution proved he had attended a DUI education class and told someone he had learned a lot from it. This was enough to show that he was aware that drunk driving was dangerous and so he acted with "malice". And, thus, murder.

With this kind of legal reasoning, it’s only a matter of time before we’re looking at the death penalty in a drunk driving case, right? Well, on April 8, 1997, a jury in Winston-Salem, North Carolina, came back with a first degree murder conviction in a DUI case involving a traffic accident with two deaths. They recommended a sentence of life without the possibility of parole.

The prosecutor had argued for the death penalty.
 

 

 

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A Modest Proposal (with apologies to Jonathan Swift)

Friday, June 17th, 2011

For the past decade we have seen increasingly severe punishment for misdemeanor drunk driving offenses, often exceeding those imposed for serious felonies.  Spurred on by MADD’s “War on Drunk Driving”, this never-ending flood of politically-popular laws has continued to blindly accept the idea that imposing harsher sentences will reduce DUI-caused traffic fatalities.  With each new law, MADD issues press releases trumpeting their latest achievement with promises of an end to the “carnage on the highways” — along with solicitations for contributions to their $51 million annual revenue. 

Has it worked?  Well, not much has changed since the following news article appeared some time ago:


NTSB: Nation Stuck in ‘Decade-Long Plateau’ of Drunk Driving Deaths

Wash., DC.  Nov 1, 2007  –  More needs to be done to get drunk drivers off the nation’s streets and highways. That was the message of National Transportation Safety Board Chair Mark V. Rosenker, testifying last week before the Senate Committee on Environment and Public Works Subcommittee on Transportation Safety, Infrastructure Security, and Water Quality. Addressing the effectiveness of federal drunk driving programs, Rosenker noted that, “while alcohol-related fatalities have decreased since 1982, there has been little improvement in the last 10 years.” The nation has been stuck in “a decade-long plateau” where alcohol-related fatalities are concerned, he said.


Albert Einstein once defined insanity as "Doing the same thing over and over again and expecting different results". Maybe it’s time for a change….

I have not dealt with 1000s of DUI clients over the years without drawing certain conclusions:

1. The system, clearly, does not work: despite unfair laws, constitutional violations and increasingly harsh penalties, the problem remains – and people continue to die on the highways.

2. Playing games with statistics, as MADD and the government are so fond of doing, only obscures the problem.

3. The problem is not black-and-white, but involves shades of gray. It is convenient to punish anyone with a .08% blood-alcohol concentration, but neither fair nor productive. It is easy to lump all offenders into the same category of "drunk drivers" and simply adjust jail time by a reading on a machine, but neither fair nor productive.

4. You cannot simply identify what the problem is ("drunk drivers are dangerous"), but who the problem is. The problem is not people who drive with .08% BAC or higher, but people who represent a real danger to others on the highway. Who are they?

The problem is the person who severely abuses alcohol and chooses to drive. You can call him an "alcoholic", but it has been my experience in dealing with those 1000s of clients that there are different kinds of "alcoholics" and that using a simple label is no answer (we do love to put things in neat categories).

Statistics repeatedly show that the vastly disproportionate majority of alcohol-caused injuries and deaths are caused by a few "problem drinkers" (for want of a better term). Thus, the first objective in any solution is to identify these individuals. In my experience, they can usually be identified by a combination of factors:

1. Their blood-alcohol level is not just high – it is very high, say .16% to .30% or more.

2. This is probably not the first DUI – and prior incidents are likely to be relatively recent.

3. There is a genetic flag: the individual is likely to have one or two alcoholic parents.

All right, we've identified some markers for who the problem is , but what do we do with them? To begin, let's understand what we don't do: we don't hit them with stiff jail sentences. If we do, we simply remove the person from society for a few days or months – and on the day he gets out, he gets in his car and drives directly to a bar. What has been accomplished? Is society being protected – or are we simply punishing people for drinking too much?

Since the punishment model clearly doesn't work for the problem drinker, we must consider the other criminal justice models: isolation, deterrence and rehabilitation.

1. Isolation. Yes, we can put the problem drinker in jail for a few months or even a few years, and we are safe from him for that period. But can we really afford to house tens of thousands more inmates? For how long? And what happens when they get out? For that matter, given the evidence, aren't we punishing them for a genetic condition?

2. Deterrence. How do you deter an alcoholic?

3. Rehabilitation. Once the favored approach in the criminal justice system, rehabilitation fell into widespread disfavor many years ago. Yet, this would appear to be the only logical approach with problem drinkers.

Ok, but what about the driver who is not a problem drinker but who is simply impaired from drinking too much? Answer: Treat him like any other misdemeanant. Statistically, we know he is unlikely to cause serious injury or death, but there is undeniably some risk there. Can this individual be deterred from such future conduct? Unlike with the alcoholic, statistics show he can. Thus, it may be fair and productive to impose a fine on the typical first-offender, perhaps even suspend his driver's license for a short period; if a high blood-alcohol level is involved, say .15%, the punishment may include a 2-day jail term. But certainly not the punishments so destructive to families and careers that are now being administered to all caught up in the dragnet.

While we're at it, a refreshing approach – and a healthy one for society – would be to reinstate constitutional rights in DUI cases: due process, presumptions of guilt, denial of right to counsel, double jeopardy, the 5th Amendment right against self-incrimination, the right to confront witnesses, 4th Amendment roadblock violations, ad nauseum….all of which have been curtailed or eliminated in MADD's decades-old "War on Drunk Driving". (See The DUI Exception to the Constitution.)

Does all of this finally solve the drunk driving problem? No: people will always drink and drive. But it will focus on the real threat – the truly dangerous driver – rather than on drinking and driving per se. And, in the process, reinstate the essential fairness and due process that has been slowly removed from the criminal justice system.

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Life in Prison for a DUI?

Saturday, June 11th, 2011

In today’s DUI double standard department…


Waco Man Gets Life Sentence for Driving Drunk

Waco, TX.  June 10 — A man has been sentenced to life in prison after being convicted of drunken driving — his ninth such charge since 1984.

Defense attorney Melanie Walker had told jurors no one was seriously injured in last year’s rollover accident and her client suffers from alcoholism.

However, prosecutor Lauren McLeod said alcoholism is no excuse for criminal behavior.

The Waco Tribune-Herald reports that the 52-year-old Sneed and his wife both testified that she was driving. Karroll Sneed told jurors she fled over fears of being jailed on misdemeanor warrants. Sneed said he took the blame out of concern for his wife, who had recently suffered a stroke.


Life in prison for a DUI?  Rape gets 15 years, 2nd degree murder 25.  Just an aberration, right?  Wrong.  See, for example, Third DUI = Life in Prison (Mississippi, alcoholic with 2 priors), Another Life Sentence for Drunk Driving (Texas, alcoholic with 9 priors), 99 Years for Drunk Driving (Texas, alcoholic with 7 priors). 

One of the premier DUI attorneys in the country, Troy McKinney of Houston, made an Open Records Act demand on the Texas Department of Criminal Justice, asking:  How many Texans are serving sentences of 60 years to life in prison for drunk driving? Not for drunk driving resulting in injury or death — just for drunk driving (or driving over .08%). The response from the Department:

21 to 25 years    125 
26 to 30 years     39 
31 to 40 years     55 
41 to 59 years     16

And finally:

60 to 98 years     23 
99 years 6 Life     13

Repeat: These are sentences just for drunk driving or driving over .08% — not for DWI causing death or serious injury. To trigger the longer sentences, the DWI was at least the offender’s fourth offense.

It would be a fairly safe assumption that these prisoners are alcoholics. In other words, life in prison for having a genetically-predisposed disease and being unable to control it…..without help.

So, what if they got help? What does it cost to keep a citizen in prison for the rest of his life? For even one year? And what does it cost to offer that person rehabilitative therapy? Even, perhaps, to involuntarily commit him to a facility for treatment of the disease?

Justice and humanity aside, do the math….

For a more effective, inexpensive and humane approach to dealing with drunk drivers who are suffering from alcoholism, see Time for a Change.
 

 

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Going to Jail for Not Giving Evidence Against Yourself

Thursday, June 9th, 2011

Most Americans believe that there is a constitutional right against being forced to provide evidence against yourself.  And certainly, most Americans could not imagine that a citizen arrested for a criminal offense could actually be charged with a separate criminal offense of not giving possibly incriminating evidence — in other words, if you don’t provide evidence against yourself, you will be convicted of refusing to do so and be thrown in jail.  Not in the U.S., right?

Wrong.  But then most Americans aren’t familiar with "the DUI Exception to the Constitution".

Most people don’t realize it, but it is a criminal offense in a growing number of states for a citizen arrested for drunk driving to refuse to give a breath or blood sample; in most other states, a refusal increases the penalty for the DUI itself.  After the DUI arrest, the police will tell the suspect to submit to a blood or breath test; if he refuses, he will be charged with drunk driving — and with refusing to submit to testing.  And he can be convicted and sentenced for both.  In some states, the penalty for refusing is the same as for the DUI offense itself.

Wait a minute….Is it a criminal offense to refuse to provide semen in a rape case?  Nope.  Can you be thrown in jail for not providing a hair sample for DNA analysis in a murder case?  Uh-uh.  Then why only in drunk driving cases?  Ask MADD — and the politicians who cater to them.

The New Jersey Supreme Court addressed this issue a couple of weeks ago:


Judge: Failure to Provide Proper DUI Breath Test Akin to Refusal 

Gloucester Co., NJ.  May 27, 2011 – The failure of a motorist suspected of drunk driving failing to provide proper breath samples — of sufficient volume and length — constitutes a refusal that enables police to file an additional charge, the state Supreme Court ruled Thursday…

Woolwich Sgt. Joseph Morgan pulled over a motorist on Nov. 29, 2007 for allegedly swerving between the east and westbound lanes of a road within the township’s borders. The motorist cited a physical handicap that would prevent him from performing field sobriety tests.

At the Woolwich station, he consented to provide breath tests that would eventually be administered by a Logan Township officer. The motorist provided samples of 1.2 liters over 4.9 seconds and 1.2 liters over 3.3 seconds, Stern noted in his opinion. The officer needed a minimum 1.5 liter sample.
 

So unlike with any other criminal offense, a DUI suspect can be charged with drunk driving….and with refusing to give the officer possibly incriminating evidence.

It gets worse.

The various breath machines all require the suspect to breath through a narrow breath tube hard enough to lift an inner piston, permitting the sample to enter the sample chamber. The reason is that blowing hard forces the suspect to produce the air from the deepest part of his lungs (alveolar air) — air with the highest percentage of alcohol; the harder the blow, the higher the blood alcohol level. When there is insufficient pressure from the suspect to activate the sample-capturing mechanism, the machine will signal that the test is invalid. At that point, the officer assumes that the suspect is purposely not breathing hard enough in order to avoid incrimination, so he discontinues the test and reports it as a refusal.

But how does the officer know that the reason for the failure to produce a breath sample is intentional? He doesn’t, of course; being a police officer, he merely assumes it. But the amount of pressure required to lift the valve can be misadjusted, and many of them begin sticking after constant use. And the tube can be too narrow; the manufacturers of one breath machine, the Intoxilyzer 5000, had to enlargen the breath tube in later models because of large numbers of complaints.

Many individuals, particularly the elderly and cigarette smokers, simply do not have the lung power. And then there are the millions suffering from emphysema or asthma.

Researchers in one scientific study of asthmatics found that only 2 of 51 subjects were able to breathe hard enough to activate a breathalyzer. P.J. Gomme et al., “Study into the Ability of Patients with Impaired Lung Function to Use Breath Alcohol Testing Devices”, 31 Medical Science and Law 221 (1991). In other words, 49 of them would have been prosecuted and punished for “refusing” a breath test.

The law, in its wisdom and majesty, continues to punish citizens for not breathing hard enough to activate these machines — with little or no evidence as to the reasons why. And as is common in DUI cases, the reasons are presumed (see “Whatever Happened to the Presumption of Innocence?”) — and, of course, who is going to believe the defendant’s denial?

Welcome to the insanity of MADD’s "war on drunk driving".


(Thanks to Dr. Ronald Henson.)
 

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