Monthly Archives: July 2015
U.S. Representative Kathleen Rice has announced that she will be introducing legislation that will require ignition interlock devices to be installed on all new vehicles coming off the production line of American automakers.
Recall that ignition interlock devices (IID) require the driver of a vehicle to provide a breath sample indicating a blood alcohol content below a specified limit before the driver can start the vehicle. Laws regarding the installation of ignition interlock devices vary widely amongst the states.
Here in California, generally, ignition interlock devices are not mandatory as part of a DUI sentence. They may, however, be ordered as part of a DUI sentence at the discretion of the judge and usually when the DUI involved aggravating circumstances such as a particularly high blood alcohol content or a chemical test refusal.
However, as of 2010, certain California counties became subject to a pilot program requiring the installation of ignition interlock devices to be installed for a first time DUI offense. California Vehicle Code section 23700 requires the five-month installation of ignition interlock devices for first-time DUI offenders in Alameda, Tulare, Sacramento, and Los Angeles.
“Advancing the progress we’ve made combating drunk driving demands bold action,” said Representative Kathleen Rice. “It demands that we take a stand and say we refuse to keep letting drunk drivers take 10,000 lives each year. We refuse to keep seeing families torn apart when we know we can do more to prevent it. Strict enforcement is important, holding drunk drivers accountable is important, but we can and must do more to stop drunk drivers from ever hitting the road in the first place. That’s why I’m working on legislation to require ignition interlock devices in all new cars. This technology saves lives, it saves money, and I’m going to fight to make it standard equipment in American cars.”
To support her position, Rice cited a recent study conducted by researchers at the University of Michigan. According to the study, requiring interlock technology in all new vehicles would, over a 15 year implementation period, prevent an estimated 85 percent of drunk driving-related deaths and 84-89 percent of drunk driving-related nonfatal injuries. Also according to the study, preventing those deaths and injuries would save an estimated $343 billion over 15 years, and the cost of installing the technology would be recovered in the first three years.
These numbers however are based on the assumption that the cost of the device is $400 per vehicle and that the ignition interlock device operates accurately 100% of the time.
However, as with many components of a vehicle, very few function properly 100% of the time.
Rice also failed to mention, although acknowledged by the study itself, that “current devices are not technologically advanced enough for placement in all new vehicles, primarily due to slow reading times, the need for frequent calibrations, and mouthpiece care requirements.”
Not surprisingly, Representative Rice is a former prosecutor who has been named “[New York’s] toughest DWI prosecutor” by the New York Daily News and who recently received a Lifetime Achievement Award from Mothers Against Drunk Driving (MADD).
Ironically, not even over-zealous MADD supports Rice’s position. One of the questions posed on MADD’s website FAQ page is “Does MADD advocate for ignition interlocks in all cars?”
“No. MADD advocates requiring ignition interlocks only for convicted drunk drivers with an illegal blood alcohol concentration of .08 or greater.”
There has been an explosion in recent years of personal breathalyzers. These are small, portable devices which — to varying degrees of accuracy — can give you rough readings of the blood-alcohol concentration (BAC) of your own breath….and possibly save you from a DUI arrest.
But which are the best models for you?
New York DUI defense attorney Carl Spector offers a study entitled “The Breathalyzer Breakdown: An Analysis of Breathalyzers on the Market”. This informative article analyzes the different personal breathalyzers that are on the market that are both portable and easy to use. With a price range from $40 and up, these are affordable tools that few drivers are using because they don’t have the proper information on them.
Spector’s article breaks the flood of products down into the following groups:
Top 5 Highest-Rated Breathalyzers. The winner: AlcoMate Revvo TS200.
5 Best Budget-Friendly Breathalyzers. In number one position: BACtrack Keychain Breathalyzer ($39.99)
3 Best Smartphone Compatible Breathalyzers. Top pick: BACtrack Smartphone Breathalyzer
5 Department of Transportation-Approved Breathalyzers. DOT’s choice: Breathkey.
While it’s not a bad idea to have some idea of your blood-alcohol level before getting behind the wheel of a car, you should be aware that many factors can affect the accuracy of any reading. These products are relatively crude devices, and should not be relied upon other than as a rough idea of what your BAC may be. Certainly, if it’s close to the .08% legal limit — say, .11% — you should consider getting a taxi.
I’ve recently represented several people in California DUI cases who, after having been convicted, needed to travel to Canada. They were all surprised to learn that traveling to visit our neighbors to the north after a California DUI conviction was not as easy as they thought.
Canada considers driving under the influence as a very serious crime, so much so in fact, that they consider it an “indictable offense.” This is the functional equivalent to a felony under California law. Unlike California where a DUI is, for the most part, considered a misdemeanor for a first, second and third offense and punishable up to a year in jail, as an indictable offense in Canada, a DUI is punishable up to five years in jail.
Because all DUIs are, for all intents and purposes, considered felonies, anybody convicted of a DUI or even a wet reckless is excludable from entry into Canada under their Immigration Act.
Not all hope is lost. There are several exceptions where Canadian law allows a non-Canadian entry into the country despite a California DUI conviction.
The first exception is to be “deemed rehabilitated.” To be deemed rehabilitated, the maximum term of imprisonment for the DUI conviction was less than 10 years, the sentence for the California DUI conviction was completed at least 10 years ago, and no other indictable offenses were committed during those 10 years. If someone meets these criteria, they do not need to do anything further to gain entry into Canada, although it would be a good idea to have proof of this when trying to cross the border.
The second way to gain entry into Canada notwithstanding a California DUI conviction is “individual rehabilitation,” otherwise known as “rehabilitation by application.” The first requirement is that at least five years must have passed since the completion of the sentence for a California DUI conviction. It gets tricky however in trying to calculate the five-year wait period. The five-year wait period can be calculated in the following ways: 1.) five years from the date of sentencing if given a suspended sentence; 2.) five years from the date a fine was paid if given a suspended sentence and a fine; 3.) five years from the end of a prison term with no parole; 4.) five years from the end of parole or probation if sentenced to either; or 5.) five years from the end of a driver’s license suspension.
If someone meets the criteria needed for individual rehabilitation, they will need to fill out an application and submit it to a Canadian visa office located in the U.S. The application requires the applicant to explain why they are rehabilitated. The submission of the application for individual rehabilitation also requires a non-refundable application fee.
Another option to enter Canada even if someone has a California DUI conviction on their record is to obtain an expungement of the conviction. An expungement is the equivalent to a Canadian “record suspension.” Under Canadian law, a person cannot be denied entry for a DUI conviction where a record suspension has been issued for that conviction. To be eligible for an expungement of a California DUI conviction, a person must have successfully completed probation and must not have any criminal actions pending against them including criminal charges, probation on another case, or serving a sentence for another case.
While an expungement is the most common and efficient way to obtain entry into Canada, it would be wise to consult an immigration attorney to ensure that the expungement will meet the requirements of a “record suspension.”
The last way to enter Canada with a California DUI conviction on the record is to apply for a “temporary resident permit.” A temporary resident permit may be given when an applicant must enter Canada for a specific purpose and only for a limited period of time. The applicant must also so that the need to enter Canada must outweigh any risk to Canadian public safety. Like individual rehabilitation, an applicant must pay a non-refundable application fee.
Anyone wishing to enter Canada following a California DUI conviction through any of the abovementioned avenues should consult with both a criminal defense attorney as well as an immigration attorney.
I’ve posted repeatedly in the past about the inaccuracy and unreliability of breath and blood alcohol testing in crime labs. See, for example, How Breathalyzers Work (and Why They Don’t) and Report: Breathalyzers Outdated, Unstable, Unreliable.
The following are just a few recent examples of a never-ending series of revelations about dishonest and incompetence in DUI chemical testing. The following is from San Antonio, Texas, but it could as easily have been from your home state….
Hundreds of DWI Tests Mishandled
San Antonio, TX. Mar 18 – News 4 San Antonio has uncovered hundreds of DWI blood test have been mishandled.
That’s the word confirmed Tuesday by Bexar County District attorney Nico Lahood. The controversy now raises questions about cases in the prosecutors office.
Darian Trotter has the exclusive details from the District Attorney and how the problem will be addressed going forward. It’s supposed to be one of the most reliable tests officers can use to determine if a person is driving under the influence Of alcohol. But News 4 San Antonio discovered blood tests for hundreds of cases were mishandled due to a personnel issue at the lab Bexar County uses to process blood tests for all alcohol related cases…
And more recently in Fort Worth….
Tarrant County DA’s Office Questions Credibility of Lab Tech
Ft. Worth, TX. June 17 — Tarrant County prosecutors have notified dozens of defense attorneys regarding the credibility of a lab technician who testified for the state in numerous DWI cases.
The Tarrant County district attorney’s office also said that the technician, Elizabeth Feller, has been barred from further testimony because she failed to disclose that she had been reprimanded for mishandling blood samples at a previous job.
Prosecutors sent out more than 180 Brady notices in mid-May that dealt with the misdemeanor DWI cases, and several others involving felonies.
This batch of disclosures is not related to the more than 4,000 Brady notices the DA’s office has sent to criminal defense attorneys after learning that the credibility of 16 officers and three breathalyzer operators had previously been brought into question, officials said. The Star-Telegram reported Sunday that District Attorney Sharen Wilson launched an exhaustive review after 22 3-inch binders, which contained more than 6,000 handwritten notes entered by past prosecutors, were found in misdemeanor offices and brought to her attention after she took office in January.
In 19 of the notes, the prosecutors accused the officer or breathalyzer operator of lying, though not always on the witness stand, Wilson has said…
Do you still think blood and breath testing in DUI cases is accurate and reliable? Beyond a reasonable doubt?
Do you think that this is limited to Texas…that it isn’t also happening where you live?
(Thanks to Joe.)