DUI-E is here

Posted by Lawrence Taylor on July 25th, 2017

Jon Ibanez and I have posted in the past about the dangers of "distracted driving" — that is, driving while using a cell phone, reading a map, putting on makeup, etc.  See, for example, Jon’s recent post Is Distracted Driving as Dangerous as Drunk Driving?.  And over 12 years ago I commented in Drunk Drivers vs Distracted Drivers on a wide range of research concerning the relative dangers of using cell phones while driving, such as:


A detailed study on the effects of cell phone use on driving was conducted by researchers at the University of Utah, and reported in a paper entitled Fatal Distraction? A Comparison of the Cell-Phone Driver and the Drunk Driver given at the Second International Driving Symposium on Human Factors in Driving Assessment, Training and Design (July 2003). Using a simulator, the researchers measured how subjects reacted to vehicles braking in front of them…The conclusion of the researchers: Drivers on cell phones showed greater impairment, less responsive behavior and more accidents than drunk drivers. 


Yet, our legislators’ continuing fixation with alcohol — largely fueled by MADD’s political influence — has resulted in ignoring the ultimate goal of saving human life. 

This appears to finally be changing….


Washington’s New DUI-E Law Takes Effect Sunday

Spokane, WA.  July 18 – ….The DUI-E law, for driving under the influence of electronics, outlaws holding a cell phone at any time while driving, unless you’re calling 9-1-1 in an emergency. The law even prohibits picking up the phone at stoplights.  The first ticket for an DUI-E will cost you $136. Get a second ticket within five years, and it’ll cost $234. The new law also tickets drivers $99 for grooming, smoking, eating or reading while behind the wheel. (Governor) Inslee says that in many cases a distracted driver is more dangerous than a drunk driver.

"When you are driving with a cell phone, you are a more dangerous driver than if you’re driving drunk with a .08 alcohol level," said Governor Inslee. He continued by saying this is a situation we deal with on a daily basis.


While this is encouraging, the news article continues with an observation by law enforcement that highlights the drunk vs distracted double standard:
 

Spokane County Sheriff’s deputy Craig Chamberlain says the new law isn’t meant to punish people.  "The bottom line with the new changes in this law is that we want folks to be safe on the roadway."


So…the new distracted driving laws aren’t meant to punish people — only to make the roads safe?  Then why do our drunk driving laws continue to be focused on punishment — of admittedly "less dangerous" drivers?  
   

(Thanks to Joe.)
 

Miranda Warnings and the California DUI

Posted by Jon Ibanez on July 20th, 2017

An officer pulls over a person and begins asking questions. “Where are you going?” “Where are you coming from?” “Have you had anything to drink?”

The driver says, “I’m going home from the bar and I had two beers.” Boom. The next thing that the driver knows is that they’re getting arrested and only then did the officer read the Miranda Warnings to the driver.

Why did the officer not read the driver the Miranda Warnings before they arrested him or her? And more importantly, can this be used to help the driver’s DUI case?

All statements given to law enforcement must be voluntarily given, even those given during a DUI stop. The United States Supreme Court in the landmark case of Arizona v. Miranda said that a statement cannot be voluntarily given if a person doesn’t know they have a right not to say anything under the 5th Amendment. Therefore, in order for a statement to be voluntarily given, a person must be made aware that they have a right to remain silent.

Thus, was we have the Miranda Warnings.  

So, when must law enforcement actually read a person their Miranda Warnings?

Courts have held that an officer must read a person their Miranda Warnings before a “custodial interrogation.” This means after an arrest and before an interrogation.

When a person is stopped on suspicion of a DUI or even a traffic violation that leads to a DUI investigation, the person is not arrested even though they may be temporarily detained. And inevitably the officer is going to ask questions after stopping the person.

Now, the person has the right not to speak to the officers or answer their questions. But the officer’s duty to advise the driver of the Miranda Warnings has not yet been triggered because the person is not yet under arrest.

Questions asked during this time are considered merely preliminary in nature. And yes, any answers given by the driver during this time are fair game for officers and prosecutors to use in a DUI case against the driver.

It would be a different story if, after the DUI stop, the driver is arrested, but not given Miranda Warnings. If the officer then proceeds to ask the driver questions and the driver answers, those answers would be in violation of Miranda and thus in violation of the 5th Amendment.

So whether it’s before a driver is arrested or after with Miranda Warnings given, a person never has to talk to officers or answer questions. The 5th Amendment right to remain silent exists whether the Miranda Warnings are given or not. Use it! When stopped on suspicion of a California DUI, simply respond to any questions with, “I respectfully decline to answer any questions under the 5th Amendment. Am I under arrest or am I free to leave?”

Bill to Help Veterans Avoid a California DUI

Posted by Jon Ibanez on July 6th, 2017

A new California Senate bill would allow veterans to avoid a California DUI conviction with a treatment diversion program.

Senate Bill 725 would expand a current military diversion program. The bill, if passed, would provide veterans with the opportunity to receive treatment for issues stemming from their service and which often leads them to drink and drive. If the treatment program is completed successfully, veterans could have their case dismissed and avoid a California DUI conviction

To qualify, veterans must have been diagnosed with post-traumatic stress disorder, traumatic brain injury, military sexual trauma or other conditions related to their service.

The Legislative Counsel’s Digest on the bill states, “This bill would…specify that a misdemeanor offense for which a defendant [veteran] may be placed in a pretrial diversion program…includes a misdemeanor violation of driving under the influence or driving under the influence and causing bodily injury. The bill would not limit the authority of the Department of Motor Vehicles to take administrative action concerning the driving privileges of a person arrested for a violation of those provisions.”

Advocates, myself included, argue that the bill’s intent is rehabilitative and deals with the underlying causes of driving drunk.

“We want to get those people into treatment as early as possible. We don’t want them going out jeopardizing future victims,” said the executive director of the California Veterans Legal Task Force in San Diego. “Everybody on both sides of this thing is pro public safety.”

However, not all are fans including district attorneys and other prosecuting agencies.

“We’re very much pro-veteran and pro-treatment, but we want it to be balanced with the needs of public safety,” prosecutor Harrison Kennedy told NBC 7.

Among their primary complaints are that the bill does not address restitution to victims of DUI related collisions which cause injury and that the bill does not limit the number of times that a veteran offender can utilize the program.

“This creates potential for a dangerous cycle of diversion that jeopardizes the safety of our streets and highways,” said the California District Attorneys Association.

The bill does not affect the DMV’s ability to suspend a veteran offender’s license through the administrative action.

If the bill does not pass, veterans face the same consequences of a California DUI as the rest of the public; informal probation, a DUI program lasting three, six, or nine months, between $390 and $1,000 in fines and fees, possibly AA meetings, possibly a Mothers Against Drunk Driving lecture, possibly a hospital and morgue program, and possibly even jail.

The bill easily passed through the Assembly public safety committee last week and will soon be voted on by the full Assembly.

Avoid a 4th of July DUI

Posted by Jon Ibanez on June 29th, 2017

The 4th of July is the annual celebration of the day that the original thirteen colonies declared independence from Great Britain. On this day in 1776, delegates from the colonies formed the Continental Congress which drafted and adopted the Declaration of Independence and announced that the United States of America was its own country.

In fact, John Adams wrote that Independence Day “will be the most memorable epoch in the history of America. I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival. It ought to be commemorated as the day of deliverance, by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires, and illuminations, from one end of this continent to the other, from this time forward forever more.”

Amen!

And John Adams was right. The 4th of July is celebrated with pomp and parade…and now also fireworks, barbeques, and alcohol.

Although the holiday lands on a Tuesday this year, it’s not going to stop drunk drivers from hitting the roads nor is it going to stop law enforcement from taking to the streets in full force to catch those drunk drivers.

CHP’s “maximum enforcement period” will begin at 6pm on Friday evening and will conclude at 11:59pm on Tuesday night.

Last year during the enforcement period, CHP arrested 1,118 motorists statewide on suspicion of a California DUI and CHP investigated 35 traffic collisions in which people were killed. According to the National Highway Traffic Safety Association (NHTSA), between 2011 and 2015, a total of 751 people were killed in DUI related traffic collisions during the 4th of July enforcement period.

Don’t celebrate America’s independence by losing your own with jail. Plan ahead to avoid a 4th of July DUI.

Appoint a designated driver. Make sure that the designated driver remains sober. Often is the case that “designated drivers” just don’t drink as much as their passengers. This is not a designated driver, but someone who runs the risk of getting arrested for drunk driving themselves.

Use alternative means of transportation. We live in a time where a trolley is not the only way to get somewhere without driving. Take a taxi…if you can get one. Good luck with that. Use Uber or Lyft or another ridesharing app. Although a little more expensive, they more available and a little nicer than a cab.

Stay the night. Unless you want to be arrested for drunk in public, don’t try this one at the bar you go to. However, if you attend a 4th of July party, ask the host if you can crash on the couch.

Don’t drink. This may not be the most appealing option if you want to partake in the festivities. However, it is the only surefire way to avoid a California DUI if you plan on driving this 4th of July.

 

Is a New .05% Law Coming to Your State?

Posted by Lawrence Taylor on June 27th, 2017

On January 15th of last year, the National Highway Traffic Safety Board (NHTSA) issued the following news release:


Feds Want to Lower the Legal Limit to One Drink

Washington, DC. Jan. 15 – The National Transportation Safety Board wants to decrease the legal driving limit to one drink, lowering the legal limit on blood-alcohol content to 0.05 “or even lower.”…

The agency issued the recommendation while admitting that “the amount consumed and crash risk is not well understood.”

“We need more and better data to understand the scope of the problem and the effectiveness of countermeasures,” they said….

A 0.05 BAC level would reduce the number of drinks an average-weight man of 180 pounds could have to two, according to Blood Alcohol Calculator. Women could only have one drink before they exceeded the limit. A 100-pound woman reaches .05 BAC with just one drink, but two drinks would put any woman under 220 pounds at or above the government’s desired limit.

Under the current level of 0.08, an average weight man can have four drinks until reaching the limit.


On the next day, I posted the following on this blog:


To give all of this some context, let me offer a history of this focus on the lowering of blood-alcohol limits rather than on the more important issue of alcohol-caused impairment….

The original drunk driving laws were simple and fair: Don’t drive under the influence of alcohol (DUI). Then, many years ago, law enforcement came up with crude devices to measure alcohol on the breath of drunk driving suspects. But what did, say, a .13% blood-alcohol concentration (BAC) mean? They turned to the American Medical Association which, in 1938, created a "Committee to Study Problems of Motor Vehicle Accidents". At the same time, the National Safety Council set up a "Committee on Tests for Intoxication".

After some study, these two groups came up with their findings: a driver with .15% BAC or higher could be presumed to be "under the influence"; those under .15% could not. That’s right: .15%. And that recommendation lasted for 22 years. But prosecutors and certain groups of "concerned mothers" were not happy with the low DUI arrest and conviction rates.

Under increasing political pressure, the committees "revisited" the question in 1960 and agreed to lower the presumed level of intoxication to .10%. Had the human body changed in 22 years? Had the AMA been negligent in their earlier studies? Or were politics and law once again trumping scientific truth?

Well, the arrest and conviction rates shot up, but there were still too many people escaping the DUI net. Then MADD was formed. Soon after, legislation began appearing in many states that created a second crime, in addition to driving under the influence: driving with a BAC of .10% or higher.

This new crime did not require the driver to be affected by alcohol: even if sober, he would be guilty if his blood-alcohol was .10%. In effect, it completely ignored the questions of intoxication, driving impairment and individual tolerance to alcohol. And, despite questions of double jeopardy, the individual could be charged and even convicted of both the traditional DUI and the new .10% crimes! This gave police and prosecutors a powerful new weapon, and drunk driving arrests/convictions jumped once again.

This was not good enough. Under increasing pressure from an ever more powerful MADD, in 1990 four states lowered the blood-alcohol level in DUI cases to .08%; others soon followed and, ten years later, federal politicians (with one eye on MADD) passed an appropriations bill in effect coercing all states into adopting the new .08% BAC standard.


Since I wrote this, three months ago Utah enacted a new law lowering the blood-alcohol level drunk driving to .05%. See Jon Ibanez’ DUIblog post Utah Lawmakers Vote to Lower State’s BAC Limit to 0.05%.

Interestingly, on June 17th — shortly after the new .05% law was enacted — the Salt Lake City Tribune published the following comments from the original founder of MADD, Candy Lightner:


Founder of MADD Says Utah’s New Drunk Driving Law is an Unhealthy Distraction

Salt Lake City, Ut.  June 17 – While drunk driving remains a serious concern, other threats are mounting on our roadways. According to a recent report from the Governors Highway Safety Association and the Foundation for Advancing Alcohol Responsibility, 43 percent of drivers involved in fatal crashes tested positive for some sort of drug, legal or illegal. And with the rise of smartphones and other gadgets, people are distracted more than ever while driving.

As the founder of Mothers Against Drunk Driving (MADD) I can attest that there is a new kind of madness on the roads. And new approaches are needed to save lives.

Unfortunately, the necessary debate on how to solve these new challenges isn’t happening in earnest. The traffic safety community is distracted by an issue that will do little to save lives: lowering the drunk driving arrest threshold from .08 to .05.

Back in the early years at MADD we focused on getting serious drunk drivers off the road…In the more than 35 years since MADD’s founding, we have fought drunk driving ferociously and saved countless lives in the process.

But today, the pendulum has swung too far in the other direction — with government agencies pushing states to arrest people for having little to drink before driving instead of pursuing strategies to tackle serious distraction and impairment. Anyone who works in traffic safety knows that most highway deaths are not caused by drivers with low blood alcohol content levels, but are the result of drivers with substance abuse disorders. Focusing finite resources on casual drinkers instead of drug and alcohol abusers is a miscalculation with deadly consequences…

 
Maybe it’s time for the decades-old "War on Drunk Driving" to redirect its fixation away from alcohol and towards the real problem today:  drugs and distracted driving….