What is the Most Dangerous State for Drunk Driving?

Posted by Lawrence Taylor on May 25th, 2016

In which state would you think your chances of being injured by a drunk driver is the highest?  Which state has the highest incidence of DUI?  Which has the highest percentage of DUI arrests?  The highest fatality rate from drunk driving?

If you guessed California, you’d be wrong.  New York?  Wrong again.  Ditto all the usual suspects — Texas, New Jersey, Florida, Michigan, Louisiana, etc.

According to a recent study based upon statistics from the National Highway Traffic Safety Administration, the Federal Bureau of Investigation and Mothers Against Drunk Driving, the winner (loser?) is….North Dakota.

Right.  Sleepy, rural, midwest North Dakota!  The state was tied (with Montana) for #1 in DUI arrests and #1 in DUI fatalities.  Based upon these two statistics, as well as such others as DUI penalties, types of DUI laws and cost per fatality, the "Peace Garden State" was rated #1 overall.  

The dubious "top 10" contains a few more surprises:

1.  North Dakota

2.  Montana

3.  Idaho

4.  Wisconsin

5.  South Carolina

6.  South Dakota

7.  Pennsylvania

8.  New Mexico

9.  Rhode Island

10.  Vermont

Beware the scenic and peaceful byways and highways of Vermont!

Entrapment as a Defense to a California DUI?

Posted by Jon Ibanez on May 10th, 2016

Many of my clients, especially those who have been arrested at a DUI checkpoint, often ask whether entrapment can be a defense to a California drunk driving charge. Another scenario where the defense of entrapment is inquired about is when an officer parks his vehicle outside of some alcohol-serving establishment and waits for an unsuspecting patron to hop behind the wheel after having one too many drinks.

Unfortunately in both scenarios entrapment cannot be used as a defense.

According to People v. West, (1956) 139 Cal.App.2d Supp. 923, 924, “Entrapment is the conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Persuasion or allurement must be used to entrap.”

People v. Barraza, (1979) 23 Cal.3d 675, 689, simplified the definition of entrapment when it concluded, “[T]he proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense?”

In other words, for purposes of a California DUI charge, law enforcement must compel a person to drink and/or compel them to drive when that person would not have otherwise done either.

An example of this would be when an officer finds an intoxicated person in a vehicle who does not plan on driving and the officer then forces them to drive. Since the person would not have driven but for the officer’s demand, an entrapment has occurred. Although unlikely, it has happened.

While DUI checkpoints may be viewed upon as a “trap,” it does not fall within the definition set forth above. People who drive drunk are already driving drunk when they happen upon a DUI checkpoint. Law enforcement is not compelling the drunk driver to drink nor drive.

Furthermore, DUI checkpoints time and time again have been held by numerous courts to be constitutional. In fact, in California, one of the requirements a DUI checkpoint must adhere to in order to be constitutional is that drivers must be allowed to lawfully turn away from the checkpoint. Yes, that’s right. Drivers cannot be forced to go through a DUI checkpoint.

Often times, officers will park themselves outside of a bar or other alcohol-serving establishment and wait until they see a patron drive away. This is when the officer pulls the person over.

If the person voluntarily drives away from the establishment drunk, the officer has not forced the person to neither drink nor drive. The officer is merely observing the illegal acts of a person from a public place where he or she has a right to be.

Now, the officer must have probable cause to believe that a person is driving drunk before an arrest can be made. The mere leaving a bar does not give the officer probable cause that a person is driving drunk, although the officer may suspect the person is driving drunk. If, however, an officer observes a person commit a traffic violation after leaving a bar, they can be pulled over. The traffic violation stop can be used as a pretext to investigate for a DUI.

Unfortunately, while both California DUI checkpoints and law enforcement bar stakeouts are intended to “trap” drunk drivers, neither give rise to the entrapment defense.

New Mexico and MADD take to Shaming Drunk Drivers on Twitter

Posted by Jon Ibanez on May 2nd, 2016

We live in a digital era where everything, literally everything, can get posted for the world to see. Social media outlets like Facebook, Snapchat, and Twitter can let anyone know where you live and work, who you’re associated with, and what you’re doing at any given moment. There are, however, somethings that we don’t want the world to know about and that we deliberately withhold from social media, like a DUI conviction.

Although criminal convictions are public record, one would not expect anyone in the world to have access to that information without taking the trouble to actually find it. And why would they?

Well now in New Mexico, they won’t have to. Thanks to the ever hyper-vigilant organization, Mothers Against Drunk Driving (MADD), information on a person’s DUI conviction, sentence, and judges whom they believe are too lenient on the DUI offenders will be posted on the social media website Twitter for all of the world to see.

New Mexico Governor, Susana Martinez announced earlier this month that the state will pay MADD staffers to attend DUI hearings and publicize the information in tweets. How much money, you might ask. MADD was granted a whopping $800,000 contract for this program of public shaming.

“Too many lives have been shattered by drunk drivers, and too often our justice system fails our families by going easy on the criminals,” Martinez said at a news conference in Albuquerque.

The number of people killed in drunk driving related accidents last year in New Mexico decreased by 28 percent, marking a 36-year low in a state that has long struggled with high DUI rates, officials said last month.

New Mexico follows several municipalities that have taken to social media to shame DUI offenders. In March, I wrote a post on the Chesterfield Sheriff’s Office in Chesterfield, Virginia, who took to posting the mugshots of people who had been arrested for driving under the influence.

If you ask me, there are a number of very serious problems with this.

The first issue I have is what many have express about this program. Couldn’t New Mexico’s money be better spent elsewhere?

Second, there is the possibility that a program such as this could violate the privacy rights of those whose information is being posted. I can’t say one way or another without doing more legal research into the issue. Sure seems like an invasion of privacy though.

What’s more, it’s not out of the realm of possibility that posting this information will lead to retaliation by the public. It goes without saying that people have very strong feelings about people who have been convicted of DUI. Those feelings, if you ask me, have led to a disproportionate villainization and stigmatization of those who have been convicted of drunk driving. New Mexico could possibly be putting these people at risk of harm with this program.

Lastly, this program is likely to place political pressure on judges to give harsher punishments for DUI convictions when the facts of the case may not warrant it. It is within the judge’s authority to determine the punishment for a DUI conviction. It’s their job.

Democratic state Representative Antionio “Moe” Maestas correctly made the comparison that “[b]laming a judge for not enough conviction rates is like blaming [a baseball] umpire for not enough strikeouts.”

What Happens when a DUI Causes Injury to Someone?

Posted by Jon Ibanez on April 26th, 2016

Typically, a California DUI of either alcohol or marijuana is charged as a misdemeanor when the DUI does not involve injuries to anyone other than the driver. Given the fact that alcohol impairs a person’s ability to operate a vehicle safely, it is entirely foreseeable and often the case that a person’s drunk driving leads to injuries of someone else. When a DUI causes injury to someone other than the driver, the DUI may be charged as a felony.

California Vehicle Code section 23153 makes is unlawful for a driver to be under the influence of alcohol and/or drugs, or have a blood alcohol content of 0.08 percent or more, engage in an act forbidden by law (typically a traffic violation other than the DUI itself), and the act causes injury to someone other than the driver.

A violation of California Vehicle Code section 23153 is what’s known as a “wobbler.” This means that it can be charged as either a felony or a misdemeanor.

If convicted of the misdemeanor 23153 charge, a driver can be sentenced to informal probation for three to five years, serve five days to one year in county jail, pay between $390-$5,000 in fines, attend DUI school, serve a one to three year suspension of their driver’s license, and pay restitution to person or persons injured. A misdemeanor is usually charged when the injuries are minimal.

However, if the injuries are substantial, the prosecutor will likely charge a felony. If a person is convicted of a felony 23153 charge, they can be sentenced to 16 months, two years or four years in a state prison, forced to pay between $1,015-$5,000 in fines, attend DUI school, serve a five year revocation of your driver’s license, and pay restitution to person or persons injured.

What’s more, if the injuries are substantial, which leads to felony charges, prosecutors can and will likely also allege a “great bodily injury” enhancement to the DUI charge. A conviction of the DUI with the enhancement will lead to an additional and consecutive three years in state prison for each additional person injured, and a “strike” on their record under California’s Three Strikes Law.

The Penal Code and California Jury Instruction defines “great bodily injury” as one which is significant or substantial physical injury and one which is more than minor of moderate harm. Needless to say, this doesn’t give much guidance on what is and what isn’t considered great bodily injury. This forces the court to determine which injuries are severe enough to consider “great bodily injury” on a case-by-case basis. However, I can tell you that the courts have interpreted it broadly to include injuries such as broken bones and severe bruising.  

It goes without saying that a California DUI causing injury charge is extremely serious, by far more serious than a California DUI without injury. It may be that the injuries are in fact minor, but in my experience, prosecutors will allege the “great bodily injury” enhancement anyways. It takes a skilled California DUI attorney to argue that injuries were minor and possibly that the DUI with injury charge itself should be a misdemeanor or even dismissed.

Idaho Court: Cops Can’t Forcefully Draw Blood

Posted by Lawrence Taylor on April 22nd, 2016

Hours before the U.S. Supreme Court began hearing arguments as to whether refusing to submit to blood-alcohol testing could be criminally prosecuted (see my post yesterday, Supreme Court Dubious of Making Refusal to Give Blood Sample a Crime), the Idaho Supreme Court handed down the following decision:

Idaho Supreme Court Scales Back DUI Law

Boise, ID.  April 20 – The Idaho Supreme Court earlier this month rejected the police practice of forcibly drawing blood from motorists suspected of driving under the influence of alcohol (DUI). In a 4 to 1 decision, the justices agreed that a local sheriff’s deputy should not have forced a blood test on Brant Lee Eversole after his April 16, 2011 arrest….

Eversole was convicted, but he appealed, winning last year before the state Court of Appeals. Then it was the prosecutors who appealed, asking the high court justices to re-instate the ability of police to draw blood from motorists by force. They cited Idaho’s implied consent law, which states that all motorists agree to be tested in the event that they are pulled over and accused of drunk driving.

The high court refused to accept this interpretation, insisting that the Fourth Amendment requires the use of a warrant for such a search… 

Another state court rejecting forced blood draws and/or criminalizing refusal to consent.  Is our justice system finally beginning to back off of "The DUI Exception to the Constitution"?

(Thanks to Joe.)