Monthly Archives: January 2015

Proposed Law would Ban DUI Offenders from Buying Alcohol

Ban the instrumentality used during the commission of a crime and that will stop the crime, at least that’s the thought.

Sen. Patrick Anderson (R) of Oklahoma has introduced a new bill which would allow a court to ban people convicted of driving under the influence from purchasing alcohol for a probationary period of time. Those convicted of driving under the influence would be required to carry a license that indicates they are “alcohol restricted.”

Similarly, those who purchase alcohol for someone who is “alcohol restricted” is would be subject to felony charges. Individuals who “knowingly sell, deliver or furnish alcoholic beverages to a person who has been order to abstain” could face a fine of up to $1,000 or one year in prison.  

Oh, where to begin listing the problems with this proposed law?

First, does a state with one of the highest incarceration rates really want to send someone to jail or prison for something as trivial as buying and selling alcohol? What’s more, Oklahoma is currently undergoing a budget deficit for local law enforcement agencies. I think most people would agree that maybe Oklahoma should allocate its resources to fighting bigger battles than this.

Whether you agree or not, alcohol addiction is a disease. Those suffering from alcohol addiction will find a way to obtain alcohol. Banning alcohol will not reduce drunk driving deaths. Remember, it’s not the alcohol that causes alcohol-related collisions. It’s the decision to drive while drunk.

However, the biggest concern this proposed law raises is enforcement. How in the world does Oklahoma intend on enforcing this law?

This law would force every party host to ask every guest if they have been convicted of drunk driving before offering them a beer or a glass of wine. It would force priests to ask every parishioner if they have been convicted of drunk driving before they offer communion. A wife could not purchase wine “for the family” at the grocery store if her husband is “alcohol restricted.”

Anderson’s bill comes months after Oklahoma passed another law aimed at curbing its relatively high drunk driving death rate. Oklahoma legislature recently passed a law making it easier for prosecutors to confiscate the vehicle of a person charged with driving under the influence once the case is in court.

According to the nonprofit investigative journalism group “Oklahoma Watch,” drunk driving deaths in the state increased 10 percent between 1994 and 1012. However, during the same period, the figure dropped 20 percent nationwide.

The Oklahoma State Senate will begin discussing Anderson’s proposed legislation in February. Let’s just hope they realize the ramifications of such an ill-advised law. If it doesn’t, however, maybe the Oklahoma State Senate should also consider banning the purchase of cell phones for anyone caught texting and driving.

 
 

Supreme Court Refuses to Decide Warrantless Forcible Blood Draw Dispute

The United States Supreme Court has announced that it will not hear an appeal from Colorado by prosecutors on whether officers should be allowed to forcibly take blood from a DUI suspect without a warrant. The United States Supreme Court’s refusal to hear the case means that the decision of the Colorado Supreme Court on the issue will stand.

In 2012, Jack Schaufele caused a collision and the responding law enforcement suspected that Schaufele was driving under the influence. Schaufele was transported to the hospital. While at the hospital, Schaufele fell asleep or otherwise became unconscious. While unconscious, law enforcement ordered that Schaufele’s blood be withdrawn without a search warrant to determine his blood alcohol content. As a result of the blood withdrawal, it was later determined that Schaufele’s blood alcohol content was approximately three times the legal limit.

Schaufele was charged with driving under the influence, along with other charges, partly based on the blood alcohol content obtained through the warrantless blood withdrawal. At trial, the judge excluded the blood evidence because it was obtained without warrant, in violation of Schaufele’s 4th Amendment right against unreasonable searches and seizures. On appeal, the Colorado Supreme Court affirmed the trial court’s decision.

Prosecutor’s appealed to the United States Supreme Court arguing that the natural dissipation of alcohol in the body justifies a warrantless, forcible blood withdrawal. The argument being that, by the time it takes officers to obtain a warrant, the blood alcohol content of the suspect will decrease, thus resulting in the loss of evidence.

The Colorado Supreme Court’s decision as well as the decision of the United States Supreme Court’s decision to not hear the matter was, in part, influence by the 2013 landmark case of Missouri v. McNeely.

In Missouri v. McNeely, the United States Supreme Court held that a blood withdrawal was, in fact, a search which is protected under 4th Amendment of the Constitution. Although the United States Supreme Court has carved out exceptions to the warrant requirement, a forcible blood withdrawal, by itself, does not fit into any exception. Prior to this, a forcible blood withdrawal fell within the “exigent circumstances” exception based on the risk of losing a DUI suspect’s blood alcohol content through its dissipation in the body.

Missouri v. McNeely, one of the few good recent decisions by the United States Supreme Court, will stand for now.

In declining to hear Colorado prosecutors’ appeal in Schaufele’s case, the United States Supreme Court has essentially affirmed that our body is, in fact, the most private thing we own. As such, if law enforcement wants to breach that which we hold most private, it will have to strictly adhere to the requirements of the 4th Amendment.

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.

Over 100 Cops Destroy DUI Suspect’s Home…for Failing to Appear in Court

What happens when a citizen arrested for drunk driving doesn’t show up for his court hearing?  Well, a warrant is issued for his arrest….and if he refuses to surrender, over 100 cops destroy his home.


New York Deputies Destroy Man’s Home During Standoff to Force "Peaceful Outcome"

Ithaca, NY.  Jan. 7 – A New York sheriff’s department said it destroyed a man’s home during a standoff in order to reach a peaceful resolution as well as to protect the armed suspect inside, but the man ended up killing himself anyway.

Nevertheless, the Tompkins County Sheriff’s Office is satisfied that none of the more than 100 officers from multiple agencies were hurt during the 60 hour standoff.

Sheriff officials say David Cady, 36, took his own life because he had made up his mind not to go back to jail.

His crime: failure to appear in court on a felony drunk driving charge…


For a frightening YouTube video of what was left of the DUI suspect’s home after the police were finished, and his wife and kids left homeless, see Tompkins County Sheriff’s Department NY Destroys House.  And yes, this massive assault by paramilitary forces on a man’s home for failing to appear in court apparently happened right here in the United States.
 

How to Get Through a Sobriety Checkpoint?

So you’re driving along the highway one evening, minding your own business, and suddenly looming up in front of you is a DUI sobriety checkpoint…

No problem!  You just pull a small printed sign out of your glove compartment and hold it up to the unopened car window for the cop to read.  He reads it through the glass with his flashlight, a quizzical look on his face…and then reluctantly waves you through the checkpoint.

Fantasy?  Watch this YouTube video of a DUI sobriety checkpoint in Florida, in which the driver held such a note up to the window for the cop to read.  The note stated (with Florida state statutes cited):  


I REMAIN SILENT

NO SEARCHES

I WANT MY LAWYER

Please put any tickets under windshield washer.

I am not required to sign – 318.4(2).

I am not required to hand you my license – 322.15.

Thus I am not opening my window.

I will comply with clearly stated lawful orders.


It worked, and the driver got through the checkpoint without opening his window — and possibly having the cop claim that his speech was slurred or that he had alcohol on his breath.  But a word of warning: it may not work for you in your state.  Your laws may be different….and cops generally don’t take well to having their authority challenged.