Monthly Archives: May 2017
Don’t Laugh at DUI Victims
A Michigan woman learned not to mock DUI victims the hard way; she was thrown in jail.
Amanda Kosal, 25, was in court and waiting to be sentenced for a DUI-related collision that killed Jerome Zirker, a father of five. While Zirker’s sister was giving the court a victim impact statement in court, Kosal’s mother, Donna, and Donna’s boyfriend could be heard laughing in the audience of the courtroom.
Judge Quiana Lillard heard the laughing and kicked Donna’s boyfriend out of the courtroom calling him a clown.
“It’s time for him to go … Whoever can sit here at a tragic moment like this and laugh and smile when somebody has lost a family member, I mean the entire time that Mr. Zirker’s sister was speaking, that clown, and that’s what I am going to call him, a clown, was sitting there smiling and laughing,” said Judge Lillard.
While Donna followed her boyfriend out of the courtroom, Judge Lillard said to her, “You can go too because if you don’t know how to act, you can go to jail, so leave.”
Donna could be heard saying something as she stepped out of the courtroom. Almost immediately after leaving the courtroom, Judge Lillard ordered her bailiff to bring Donna back into the courtroom where she was given 93 days in jail for contempt of court.
“Take her, she’s going in the back,” the judge said to the bailiffs.
Then Judge Lillard addressed the rest of the courtroom audience saying, “Anybody else wanna go? You can go too.”
“These are very serious matters. I understand that you all are very upset because your loved one is going to prison, but guess what, she’s going to prison for the choices that she made. These people are here grieving, saddened because a senseless act took away their loved one and you’re sitting here acting like it’s a joke?”
After spending the night in jail, Donna apologized to Judge Lillard the following morning saying, “I deeply apologize for what I did. I was under a lot of stress.”
Judge Lillard took pity on Donna and reduced her 93 days in jail to 92 days and was given credit for the night she spent in jail. She was then released.
“What you have to understand is as hard as this is for you to see your baby going to prison, imagine what that family feels like when their child is dead. I hope that you learned a valuable lesson from this,” said Judge Lillard.
Amanda Kosal, Donna’s daughter, was ultimately sentenced to three to 15 years in prison for the deadly DUI collision that killed Zirker. Kosal admitted that she was drunk when she veered into oncoming traffic colliding with Zirker’s SUV, killing him and severely injuring his fiancée, Brittany Johnson.
I represent DUI defendants like Kosal every day. I also represent people who have been charged with contempt of court. But that doesn’t mean that I condone either Kosal or her mother’s actions. In fact, I find them reprehensible.
The video of the incident can be found here:
Can a DUI Attorney Challenge Breathalyzer Results?
When people think of a DUI stop, two things immediately come to mind; the field sobriety tests and the breathalyzer. I can tell you without going into much detail here that field sobriety tests are designed for failure. If you would like more details, see many of the previous articles I’ve written on the fallacies of field sobriety tests.
But what about the breathalyzer? Are they inaccurate as well and can the results of a breathalyzer be challenged?
A number of studies have shown that breathalyzers are often inaccurate. That too is a discussion for a different time. But the more important question, since breathalyzers are generally inaccurate, is whether a breathalyzer result can be challenged in court.
Unfortunately, the California Supreme Court in 2013 ruled that, although breathalyzers are generally inaccurate, scientific evidence challenging the accuracy of breathalyzers in California is not admissible as evidence in DUI trials.
The ruling stems from the 2007 DUI stop of Terry Vangelder. Vangelder was stopped for speeding in San Diego. Although having admitted to consuming some alcohol, Vangelder passed field sobriety tests. Vangelder then agreed to a preliminary screening alcohol test (an optional roadside breathalyzer) which indicated that Vangelder’s blood alcohol content was 0.086 percent. Based on that, Vangelder was arrested and transported to the police station where he submitted to a chemical breath test (a required post-arrest breathalyzer). This breath test showed a blood alcohol content of 0.08 percent. Vangelder then submitted to a blood test which indicated that his blood alcohol content of 0.087 percent.
At trial, Vangelder called Dr. Michael Hlastala, a leading authority on the inaccuracies of breathalyzers.
“They are (inaccurate),” Dr. Hlastala testified before the trial judge. “And primarily because the basic assumption that all of the manufacturers have used is that the breath that [is] measured is directly related to water in the lungs, which is directly related to what’s in the blood. And in recent years, we’ve learned that, in fact, that’s not the case.”
The judge however, did not allow the testimony and Vangelder was found guilty. Vangelder appealed and the appellate court reversed the decision in 2011. San Diego City Attorney, Jan Goldsmith, then appealed the appellate court decision arguing that such testimony would undermine California’s a per se law making it illegal to drive 0.08 percent blood alcohol content or higher.
Unfortunately, the California Supreme Court sided with Goldsmith.
“[T]he 1990 amendment of the per se offense was specifically designed to obviate the need for conversion of breath results into blood results — and it rendered irrelevant and inadmissible defense expert testimony regarding partition ratio variability among different individuals or at different times for the same individual,” Chief Justice Tani Gorre Cantil-Sakauye wrote for the court. “Whether or not that part of expired breath accurately reflects the alcohol that is present only in the alveolar region of the lungs, the statutorily proscribed amount of alcohol in expired breath corresponds to the statutorily proscribed amount of alcohol in blood, as established by the per se statute.”
The Court went on to say that, “Although Dr. Hlastala may hold scientifically based reservations concerning these legislative conclusions, we must defer to and honor the legislature’s reasonable determinations made in the course of its efforts to protect the safety and welfare of the public.”
Sounds to me like the Supreme Court is willfully ignoring science simply because the legislature was well intentioned. Sounds like flawed logic.
While people can no longer challenge the accuracy of breathalyzers in general, people who are suspected of DUI in California can still challenge the accuracy of the particular breathalyzer used in their case.
Texalyzer to Help Cops Crack Down on Distracted Driving
You heard me right. Not a breathalyzer, but a texalyzer. A new device has been developed that could help law enforcement determine whether a person was using a cell phone at the time a traffic collision occurred.
Just as a breathalyzer can help determine whether alcohol in a person’s system played a part in a traffic collision, the texalyzer can help law enforcement and prosecutors determine whether a driver’s texting possibly played a part in a traffic collision.
By connecting the phone via a cord to the device, law enforcement would be able to know what apps were open and in use with a time stamp.
Lawmakers in New York and several other cities are considering allowing law enforcement to use the device to crack down on texting while driving. It is currently illegal in California to “drive a motor vehicle while holding and operating a handheld wireless telephone.” This provision includes texting while driving.
Cellebrite is the company behind the device and has been working with Ben Lieberman of New Castle, N.Y. whose son was killed in a 2011 car crash.
The driver who collided with the car whom Lieberman’s son was a passenger originally told law enforcement that he had fall asleep behind the wheel which led his car veering into oncoming traffic.
Law enforcement could not check the driver’s phone to see if he was lying without a warrant.
"We often hear, ‘just get a warrant’ or ‘just get the phone records.’ … The implication is that the warrant is like filling out some minor form," said Leiberman. "It’s not. In New York, it involves a D.A. and a judge. Imagine getting a D.A. and a judge involved in every breathalyzer that’s administered, every sobriety test that’s administered."
Leiberman was able to eventually get the phone records through a civil lawsuit which showed that the driver had been texting before the collision.
Privacy advocate groups have concerns with the device which is still in development.
"Distracted driving is a serious concern, but this bill gives police power to take and search our phones after almost every fender-bender," says Rashida Richardson, legislative counsel for the New York Civil Liberties Union. "This is a concern because our phones have some of our most personal and private information — so we’re certain that if this law is enforced as it is proposed, it will not only violate people’s privacy rights, but also civil liberties."
The bill that Richardson is referring to is New York Senate Bill S2306 which provides for the field testing of mobile telephone and portable electronic device usage while driving after an accident or collision.
Recent studies have shown that distracted driving, like texting while driving, is just as dangerous a drunk driving.
A new study by the Cambridge Mobile Telematics, a leader in smartphone-centric telematics, is one such study.
Some of the study’s key findings included: Distracted driving occurred during 52 percent of trips that resulted in a crash; on drives that involved a crash, the average duration of distraction was 135 seconds; phone distraction lasts for two minutes or more on 20 percent of drives with distraction, and often occurs at high speeds; the worst 10 percent of distracted drivers are 2.3 times more likely to be in a crash than the average driver, and 5.8 times more likely than the best 10 percent of distracted drivers.
You can be sure we’ll be keeping our eyes and ears open for whether law enforcement usage of such a device gains any traction here in California.
Do Drugged Drivers Cause More Traffic Deaths than Drunk Drivers?
The increase in DUI of drugs has led some to ask whether drugged drivers cause more fatal traffic collisions than drunk drivers. At least according to a new study, the answer is yes.
The Governors Highway Safety Association (GHSA) and the Foundation for Advancing Alcohol Responsibility, a nonprofit funded by alcohol distillers, released a report in April of this year that found in 2015, drivers killed in vehicle collisions were more likely to be under the influence of drugs than alcohol. This was the first recorded time where it is suggested that drugged driving is responsible for more traffic fatalities than drunk driving.
“Drug impaired driving is increasing,” said Jim Hedlund a private consultant from Ithaca, New York who conducted the study for the Governors Highway Safety Association. “We have new data that show drugs are more prevalent to drivers than alcohol is for the first time.”
The study showed that 43 percent of drivers tested in fatal vehicle collisions in the United States had used either a legal or illegal drug. According to the study, 37 percent of drivers tested had a blood alcohol content above the legal limit of 0.08 percent.
Marijuana was the most common drug detected. 9.3 percent of drivers who had their blood tested had amphetamines in their system and in many cases, drivers had multiple drugs in their system.
While the result of the study may be accurate, those who are suggesting that the results indicate that drugged driving causes more traffic fatalities than drunk driving is somewhat misleading.
The presence of alcohol in a person’s system does not necessarily mean that they are under the influence. However, the legislature has created a per se blood alcohol content limit of 0.08 because science has shown that the mental or physical abilities of those with a blood alcohol content of 0.08 are likely so impaired that they can no longer operate a vehicle with the caution of a sober person, using ordinary case, under similar circumstances.
Thus, while the study only tested whether drivers had a 0.08 percent blood alcohol content or higher and not actual impairment, we know that if the driver had a blood alcohol content of 0.08 percent or higher, they were also likely impaired.
Therefore, to conclude that more drugged drivers cause fatal vehicle collisions than drunk drivers is inaccurate. In other words, we cannot compare driving statistics of those with a blood alcohol content of 0.08 percent and those with drugs in their system.
Furthermore, drugs such as marijuana can stay in a person’s system for far longer than alcohol, sometimes for up to weeks at a time. Therefore, the likelihood of drugs being present in a person’s system, whether they used recently or not, is far higher than the likelihood of alcohol being present in a person’s system.
For once, Mothers Against Drunk Driving (MADD) and I actually agree on something.
Like myself, MADD officials questioned the methodology of the results, noting that there is no scientifically agreed level of impairment with drugs such as marijuana.
Another of MADD’s concerns is that the study is leading people to believe that the country is doing better than we have been in terms of drunk driving.
“There is no way you can say drugs have overtaken alcohol as the biggest killer on the highway,” said J.T. Griffin, chief government affairs officer at MADD. “The data is not anywhere close to being in a way that would suggest that … We’re doing a lot of good things on drunk driving, but the public needs to understand this problem is not solved.”
According to NORML, with whom I tend to agree, the study merely reflects the increased detection of drugs and alcohol, but does not reflect any direct connection to fatal vehicle collisions.
Hospitals Have to Call Police if Patient’s Blood Test Shows .08% Alcohol?
Imagine that you’ve had a nice evening out, highlighted by a fine dinner accompanied by a glass of wine. On your way home from the restaurant, however, you and your companion are rear-ended by another vehicle. Minutes later, an ambulance arrives and takes you to a nearby hospital. You are examined and treated in the emergency room.
Soon after the attending physician is finished, you are released — and promptly arrested by waiting police officers for DUI.
Unknown to you, the hospital had called the police and reported that blood tests taken as part of your medical examination revealed a blood-alcohol level over .08%.
They can’t do that, you say? This isn’t a police state? Consider a recent court decision from Oregon where exactly this situation happened…and continues to happen:
Feds Force Hospitals to Report Alleged DUI Patients to Police
Portland, OR. April 27 – This month, an Oregon Appeals court agreed with a district court ruling which forces first responders to become state actors.
"Oregon statue 676.260 says a health care facility “shall notify” a law enforcement officer in the course of treatment when a person’s blood alcohol level exceeds .08 percent or their blood contains a controlled substance."…
"As part of defendant’s medical treatment, hospital staff had drawn a sample of his blood and tested it, ascertaining that his BAC was .333 percent. After defendant refused to consent to a blood draw, Trooper Dunlap did not seek a warrant for a blood draw. Nor did he ask hospital staff for the results of the blood test. However, pursuant to their duty under ORS 676.260, hospital staff verbally disclosed to Dunlap that defendant’s BAC was .333 percent and Dunlap included that information in his police report."…
The District court ruled that police couldn’t violate a person’s Constitutional rights because it was the hospital that informed the police.
"After a hearing, the trial court denied defendant’s motion, concluding, as relevant here, that the hospital’s disclosure of defendant’s BAC test result to Dunlap did not violate defendant’s constitutional rights because it did not constitute state action."
"We need not, and do not, consider whether the fact that OR S676.260 required the hospital staff to disclose defendant’s BAC to law enforcement means that the disclosure constituted state action."…
In other words, it would have been a violation of the driver’s constitutional rights if a governmental agency had reported the test results. But the hospital was a private organization, and so there was no "state action" involved. Yet, it was a state law that forced that private organization to report the test and the results to the police.
(Thanks to Joe.)