Monthly Archives: July 2018
Iowa will begin keeping track of where drunk drivers had their last drink under a new pilot program called “Place of Last Drink.”
The hope is that the program will put pressure on alcohol-serving establishments to refrain from over serving patrons who might then get behind the wheel.
If you ask me, that’s a little like keeping track of sporting goods stores every time one of their patrons misuses a piece of sports equipment which injures someone. The pursuit to stamp out the cause of wrongdoing is being misdirected at those who have no control over it.
Why don’t you be the judge.
Iowa is preparing to track where drunk drivers had their last drinks
July 26, 2018. Des Moines Register – Soon, Iowa officials will gather information on where drunken drivers got drunk.
Officials with the Iowa agency that approves liquor licenses are pairing up with a national organization to track where intoxicated drivers were last served or provided alcoholic beverages.
Iowa is one of three states piloting “Place of Last Drink” tracking through a program overseen by the National Liquor Law Enforcement Association, a nonprofit group based in Maryland. While 12 states have Place of Last Drink, the national organization wants more states to adopt the program, which has been shown to reduce the over-service of alcoholic beverages and arrests for drunken driving.
“You can’t put a cost on lives saved,” said Justin Nordhorn, president of the national organization. “When establishments cut people off when they’ve had too much to drink, when they help them find safe rides home, we have safer roads.”
Nordhorn, who also is chief of Washington state’s liquor and cannabis enforcement and education division, said the association received federal money to develop a nationwide database that will allow law enforcement officers to input information about where an intoxicated person was drinking before a crime, incident or alcohol-related crash.
Data collected through the program will help law enforcement officers track problem establishments and pressure owners to change practices and train employees on ways to avoid over-serving alcohol to customers, Nordhorn said.
If problems persist, the database will provide local law enforcement officials and liquor licensing agencies evidence for possible punishment, he said.
Twenty months ago, an Iowa coalition made 66 recommendations on ways to get impaired drivers off the road through prevention, enforcement, education and adjudication. Place of Last Drink was included in the proposals.
The coalition was formed because of concern over the number of people driving while intoxicated. Since 2005, more than 1,100 people have been killed in alcohol-related crashes in Iowa, Iowa Department of Public Safety data shows.
“We have an over-service problem in Iowa and (Place of Last Drink) seems like a good way to address it,” said Josh Happe, regulatory compliance program bureau chief for Iowa’s Alcoholic Beverages Division. “You start with outreach and education, and if that doesn’t work, sanctions on a liquor license can be an enforcement tool.”
Proving an establishment over-served a customer is difficult, said Steve Larson, the division’s administrator.
Since 2008, just 24 complaints of serving alcohol to an intoxicated person have been filed against the 6,750 Iowa establishments with liquor licenses, a Des Moines Register review found. Seventeen of the complaints resulted in sanctions.
However, Larson said that if the licensing agency can show that numerous people arrested for drunken driving had their last drink at a certain establishment, “we can hold those licensees accountable.”
The agency has begun to reach out to law enforcement agencies to encourage them to take part in the pilot program. Missouri and Vermont are also participating.
Des Moines Police Chief Dana Wingert said his department would be interested in learning more about the program. In March 2016, two Des Moines police officers and the inmate they were transporting were killed in a head-on crash caused by a drunken driver.
“We live in an age of accountability,” Wingert said. “It wouldn’t be like we’re trying to be heavy-handed. There’s an informational component to the bar owners; there’s a training component. It gives you a system of tracking whether a business is making progress.”
Roxann Ryan, Iowa Department of Public Safety commissioner, wrote in an email to the Register that the Iowa State Patrol would work with Larson’s agency on a “gradual implementation” of Place of Last Drink.
Ryan wrote that creation of the database is just one component to improving the safety of Iowa’s roads.
“It may be looking at options for alternative rides, or focusing on a designated-driver program, or just talking about the dangers of impairment in the community where the high-crash areas are located,” she wrote.
Unsurprisingly, the restaurant and bar industry opposes Place of Last Drink.
“Our industry is perpetually frustrated in the idea that the vast majority of people who are over-served alcohol are people coming out of our establishments,” said Jessica Dunker, president and CEO of the Iowa Restaurant Association. “The state of Iowa chose to make everything in the world a liquor store or bar. … Every place you go — the gas station, convenience store, Walgreens — you can buy single-service alcoholic drinks.
“If we really want to do something about the over-consumption of alcohol, then we need to look at the root of the problem: addiction and repeat offenders.”
A 2005 federal study found that about half of the people arrested for driving while intoxicated had their last drink at a bar or restaurant.
That study, coupled with the inability nationally to reduce the percentage of people killed in alcohol-related crashes, prompted the National Transportation Safety Board in 2012 to recommend nationwide implementation of Place of Last Drink programs.
Dunker acknowledge there are establishments in Iowa that serve patrons alcohol when they are intoxicated.
“We have no sympathy for the bad actors,” she said.
She said local law enforcement agencies typically know which bars and restaurants over-serve alcohol to customers and can talk with owners and suggest changes. In addition, if problems persist, authorities can ask that liquor licenses be suspended or not renewed.
“Another reporting tool is not going to help,” she said.
The Iowa Restaurant Association this past legislative session successfully pushed for changes in Iowa’s dram shop law, including putting a cap on some damage awards.
The changes also included dropping language in the law that stipulated servers could not provide alcohol to a patron if they either “knew or should have known” the person was drunk or would become drunk.
The change, which went into effect July 1, now makes it illegal to serve someone who is “visibly” drunk.
Jessica Dunker, the association’s president and CEO, said it was difficult to provide training on the previous standard.
“Visible intoxication has very specific standards — signs you can teach servers to look for,” she said. “You can eyeball somebody and pretty quickly know that they’ve been served enough alcohol to have a high BAC.”
In March of last year, I wrote about how Utah had passed a law which would lower its blood alcohol content limit from 0.08 percent to 0.05 percent. Well, the law is set to take effect in a mere five months for Utah and the state is getting ready for the change.
Using studies that indicate impairment begins to take effect with a blood alcohol content of 0.04 percent to support its position, the National Transportation Safety Board has supported a 0.05 percent blood alcohol content limit for all states.
Utah, however, is the first of any state to drop its blood alcohol content from 0.08 percent to 0.05 percent.
“We’ve put together a task force on how we are going to usher this in,” said Utah Highway Patrol Captain Steve Winward to state lawmakers this week.
According to Winward, Utah Highway Patrol officers will get four hours of training that will include a review of Utah policy on breathalyzers and other indicators of intoxication. Other police agencies as well as prosecutors from the state will also receive training.
“We really don’t want to change the way we do business,” Winward told members of the Law Enforcement and Criminal Justice Interim Committee. “We want to ensure that we are arresting those that are DUI. We want to educate troopers to focus on impairment and not the number 0.05.”
Winward said the department soon will launch a public relations campaign “to let the public know that it’s coming” and to correct misinformation that has been circulating.
“People think that you can only have one drink and you are over the 0.05,” Winward said. “We want to dispel those myths.”
According to the National Highway Traffic Safety Administration, a male weighing 140 pounds would be at, or close to, a 0.08 percent blood alcohol content having had three drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.08 percent blood alcohol content having had just two drinks within an hour. Regardless of gender, your blood alcohol content will not be as high if you weigh more. Conversely, your blood alcohol content will be higher if you weigh less.
On the other hand, male weighing 140 pounds would be at, or close to, 0.05 percent blood alcohol content having had two drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.04 percent blood alcohol content having had just one drink within an hour.
Of course, these figures are approximate and depend on several factors which include, but are not limited to, whether the person ate, what they ate, what they drank, and how fast they drank it. But based on these approximate numbers, we can see that for both males and females, the difference between a 0.08 and a 0.05 percent blood alcohol content is about one less drink in an hour.
According to Winward, the Utah Highway Patrol will use software to track DUI arrests under the new legal limit.
You can be sure I’ll be keeping track of the law’s “success,” but until then, I’ll make a bold prediction: DUI arrests will increase significantly, but whether drivers are actually under the influence will remain as much of a question mark as it always has been.
A woman was arrested this week after she was caught driving with a blood alcohol content over three times the legal limit and with five children in the car.
Rhode Island State Police were notified by a staff member of the Lincoln Woods State Park about a woman who appeared to be drunk and preparing to drive away in a minivan with five children, ages ranging from seven months to ten years old.
When officers confronted Leah Beatriz Duran, 41, of Woonsocket, Rhode Island, she backed into one of the officer’s vehicles in an attempt to flee, according to police.
Once officers were able to stop Duran, they determined that her blood alcohol content was 0.279 and 0.277.
Duran was charged with drunk driving with a child under the age of 13, driving with a suspended or revoked license, driving without insurance, failure to carry a license, and failure to maintain reasonable and prudent speeds.
The children were turned over to relatives and Duran is due in court later this month where she will be facing up to a year in jail based on a new law passed by the Rhode Island legislature.
“Drunken or drugged driving becomes something much worse when a child is in the car,” said Rhode Island Senate Majority Whip Maryellen Goodwin, who sponsored the bill which increased penalties for DUI when children are in the vehicle. “Besides threatening his or her own safety and that of everyone else on the road, that driver is risking the life of a child for whom he or she is supposed to be responsible — a child who has no choice or control over their presence in that car. That’s a more serious crime that warrants stiffer penalties. Tougher sentences will send a strong message that makes people think twice about endangering kids in this way.”
While not the same as Rhode Island, California also treats DUI with children in the car very seriously. Not only is a person looking at the punishment under California’s DUI law, they are also looking at additional penalties under California Vehicle Code section 23572, also known as California’s DUI child endangerment enhancements.
Under California Vehicle Code section 23572, a first time DUI conviction where a minor under the age of 14 is in the car will bring an additional 48 hours in a county jail on top of any jail time the underlying DUI sentence might carry. A second time DUI conviction will bring an additional 10 days in jail. A third time will bring an additional 30 days in jail. A fourth will bring an additional 90 days. Furthermore, these penalties are to be served consecutively, not concurrently with the underlying DUI penalties.
The prosecutor need only prove that you were driving under the influence and that there was a minor child under the age of 14 in the car while you drove.
In 2016, the United States Supreme Court held that law enforcement must obtain a warrant before forcibly withdrawing blood from a suspected drunk driver.
Writing for the majority, Justice Samuel Alito said, “It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.”
Notwithstanding the precedent, the Wisconsin Supreme Court seems to think that it can continue to issue decisions that allow that law enforcement to withdraw an unconscious DUI suspect’s blood without a warrant in violation of both the Constitution and the United States Supreme Court. It did so again this week in the case of Gerald Mitchell.
“Nothing in the opinion indicates the Supreme Court considered how its analytical structure would apply in the context of an unconscious suspect arrested for OWI, and it would be too much like reading tea leaves to give any substantive weight to a statement that simply gives the Court’s reasons for not addressing the question we are deciding,” Wisconsin Justice Daniel Kelly wrote.
Mitchell was arrested back in 2013 on suspicion of driving under the influence, or “operating while intoxicated” as Wisconsin calls it. Mitchell passed out after he was arrested, but before he could give consent for officers to withdraw blood. While unconscious, an officer told Mitchell that he could refuse. Not surprisingly, Mitchell didn’t respond. The officer then directed hospital staff to withdraw Mitchell’s blood.
The blood sample indicated that Mitchell’s blood alcohol content was 0.22 percent, well above the legal limit of 0.08 percent.
Based on that information, Mitchell was convicted of driving under the influence.
Mitchell appealed arguing that the blood withdrawal was a violation of his right to be free from unreasonable searches and seizures. An appellate court sent the case to Wisconsin Supreme Court for clarification because the Wisconsin Supreme Court had previously decided that warrantless blood withdrawals were allowed in urgent situations where delay in obtaining consent could lead to the loss of evidence, namely the dissipation of alcohol in the driver’s blood.
The Wisconsin Supreme Court in Mitchell’s case justified the holding by citing Wisconsin’s Implied Consent law stating that drivers automatically consent to blood withdrawals when they have a driver’s license.
Writing for the majority, Chief Justice Patience Roggensack said, “Through drinking to the point of unconsciousness, Mitchell forfeited all opportunity…to withdraw his consent previously given.”
Justice Roggensack went on to cite the legislature’s efforts at stamping out drunk driving to justify the court’s position.
“Just as Wisconsin drivers consent to the above-listed obligations by their conduct of driving on Wisconsin’s roads, in the context of significant, well-publicized laws designed to curb drunken driving, they also consent to an evidentiary drawing of blood upon a showing of probable cause to believe that they operated vehicles while intoxicated,” she wrote.
However, this rationale goes against exactly what the United States Supreme Court said in 2016.
“It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quire another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit,” Supreme Court Justice Samuel Alito wrote. “There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.”
Wisconsin Supreme Court Justice Ann Walsh Bradley dissented from Justice Roggensack arguing exactly what Supreme Court Justice Alito had enunciated two years ago.
“This language compels a single conclusion: law enforcement needed a warrant here,” she said.
Bradley said the majority was merely using Wisconsin’s implied consent law to overrule the guarantees of the Constitution.
“Under the lead opinion’s analysis, however, the opportunity to refuse an unconstitutional search is merely a matter of legislative grace. If the ability to withdraw consent is merely statutory, could the legislature remove the ability to withdraw consent entirely? For the Fourth Amendment to have any meaning, such a result cannot stand,” she wrote.
What’s the point of precedent if states continue to refuse following case law set by the highest court in this country, and refusing to follow it at the expense of constitutionally guaranteed rights?