Archive for March, 2019

School Bus Driver DUI with 26 Students Onboard, Abandons Bus and Students

Thursday, March 21st, 2019

When parents send their children off to school, they expect that the adults in charge maintain a certain level of care and maintain a level of responsibility towards the children once in their care. It is not outrageous to think that that expectation extends to the time that the children are onboard a school bus traveling to and from school.

Sadly, one school bus driver broke parents’ and children’s trust with her erratic driving caused by alleged intoxication.

On March 1, a Pennsylvania school bus driver, later identified as Lori Ann Mankos, was driving 26 middle and high school students home around 2:50 p.m. Initial reports mentioned a disturbance on the bus that caused Mankos to pull the bus into a gas station. There, she parked the bus, exited, and handed the keys to a gas station employee and proceeded to walk away.

As shocking as this seems, thankfully no children were harmed. Some parents picked their children up from the gas station and others were taken home by a different bus driver.

A further investigation revealed that this seemingly innocuous, but nonetheless irresponsible, act by a school bus driver was far worse than merely abandoning the bus at the gas station. The police reported that soon after the students were picked up by Mankos, some of the students noticed a change in Mankos’s driving pattern. She wasn’t taking the usual route to the students’ home. Additionally, the students became concerned when Mankos took a right-hand turn too fast and the bus ended up almost halfway into the opposing lane. The students then started to record their wild ride and protested the erratic driving. This, apparently was the disturbance that caused Mankos to pull the bus into the gas station.

Students reported that in response to their protests, Mankos swore at them and flipped them off. In one of the videos recorded by the students, she can be heard asking if the children preferred that she stop the bus and the students call their parents to pick them up. When they agreed to her suggestion, she parked at a nearby gas station where she then proceeded to hand her keys to the station attendant and walk away. She initially refused to let the students off the bus, but the students were able to open the emergency door and get themselves out of the bus. She can be heard telling the students to “go f**k themselves.”

Police found Mankos at her residence and took her into custody. She has been charged with DUI, one count of careless driving, one count of reckless driving, and 26 counts of child endangerment (one count for each student aboard the bus).

Mankos’s mother told reporters that her daughter hadn’t been herself since she started to drive that bus route and that she believed that her daughter had a nervous breakdown.

Information has not been released regarding what substances may have been the cause of Mankos’s erratic behavior or if she has suffered any previous DUI convictions. However, in a profession where the primary responsibility is to children and their wellbeing, one would hope that the school district and bus contractor will take this opportunity to be more selective with their employees or perhaps provide better emotional and/or mental health support for their employees.

“This is not what we expect of any of our drivers,” said a spokesman for the bus contractor, Cincinnati-based First Student, which employs the driver. “Our first priority is the safety of the students, which is why we sent a reliever bus to pick them up and take them to their homes once we found they were stranded. All students are safe and accounted for. If there’s appropriate action warranted against the driver as a result of this investigation, that action will be taken.”

“Nothing like this has ever happened before in my 28 years with the district,” Northampton School District Superintendent Joseph Kovalchik told the Morning Call. “We’re extremely upset by this, but very thankful that none of the students were hurt.”

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Canadian Immigration Crackdown on Foreign DUI Offenders

Friday, March 15th, 2019

As of December 18, 2018, Canada’s Bill C-46 became law, classifying impaired driving offenses as “serious criminality” rather than “simple” within the Immigration and Refugee Protection Act.

So how does the passing of Bill C-46 affect us stateside?

First, we should understand what the Immigration and Refugee Protection Act of Canada is. This is “[a]n Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger.” As such, the act details under what circumstances immigration and refugee status is given to a non-Canadian citizen. Of those details existed Section 36 (1), which states that “a permanent resident or foreign national is deemed inadmissible to Canada if he or she is convicted of an offence that is considered serious criminality.”

Previously, serious criminality included offenses such as murder, aggravated sexual assault and drug trafficking. Now, with this new bill, impaired driving fits in this category. Even offenses such as wet reckless, which are reduced DUI offenses (see What are the Benefits (and Disadvantages) of a Wet Reckless?), are now considered in the serious criminality category.

Not only did the amendment change the categorization of DUIs, it also increased the penalty as well. What was a maximum term of imprisonment of five years is now 10 years. Canadian immigration officials are not pulling any punches.

Having a DUI offense on your record made it slightly inconvenient when travelling to Canada, but now, it can mean that it becomes extremely difficult for you to obtain a work visa in Canada or even to simply visit as a tourist (see Traveling to Canada after a California DUI Conviction).

Many of the same rules apply if you want to visit Canada after you have been convicted of a DUI with this new bill. However, one of the exceptions we mentioned in the previously noted post, is “deemed rehabilitation.” With the new bill, this method is no longer an option for those inadmissible to enter Canada due to a DUI conviction. Leaving only what is called “rehabilitation by application” as a method to entering Canada legally.

You are eligible to apply for rehabilitation if five years has passed from the completion of the sentence and are able to demonstrate that they are no longer a risk for criminal activity. Demonstrating that you are no longer a risk can come from showing a stable lifestyle, community ties, or proof that the offense was an isolated event. Simple, right? Well, the difficulty comes when we start counting the five years. Below are some of the most common sentences and the correct way to calculate the waiting period:

Suspended sentence: Five years from the date of sentencing.

Suspended sentence with a fine: Five years from the date the fine was paid. For any varying payment, the count will start from the date the final payment was paid.

Imprisonment without parole: Five years from the end of the term of imprisonment.

Imprisonment and parole: Five years from the completion of parole.

Probation: Probation is considered to be a part of the sentence. Thus, five years from the end of the probation period.

Driving prohibition: Five years from the end date of the prohibition.

You must also remember that because the new characterization of DUI is more serious than before, the immigration officials will be looking at your application with more scrutiny than they had before. The redefinition will undoubtedly make some of the applications more difficult to accept.

One saving grace is that currently this amendment is only being considered for offenses that happen after its passing. Therefore, if your offense happened before December 18, 2018 then you may be unaffected. For any permanent residents or foreign nationals already living in Canada, the amendment is not grounds for expulsion.

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Can an Unconscious Driver Give Consent to have a Blood Alcohol Test?

Friday, March 8th, 2019

The Founding Fathers drafted the Constitution, specifically the first 10 Amendments, mindful that the government could and may at some point in our country’s future subvert our individual rights, such as the right to be free of unreasonable governmental searches and seizures. Specifically, the Fourth Amendment prohibits the government from “unreasonable searches and seizures.” Simply put, if a person has a reasonable expectation of privacy in a particular place, the government cannot search it unless, amongst other things, it has a warrant to do so or if it obtains voluntary consent to the search.

That was then. Mitchell v. Wisconsin is now.

The United States Supreme Court is currently deciding a case that will determine if police can withdraw blood from an unconscious suspected drunk driver without their express consent.

In May of 2013, Gerald Mitchell was arrested on suspicion of driving under the influence of alcohol. While en route to the police station, Mitchell became lethargic and the officers instead took him to a hospital. There, the officers attempted to read Mitchell his rights as well as a statutorily mandated form regarding Wisconsin’s implied consent law. Mitchell, however, was already too close to unconsciousness to understand, if not unconscious already. That didn’t stop the officers. They ordered hospital workers to withdraw blood from Mitchell without his express consent. The blood test revealed a blood alcohol content of 0.22 percent, almost double the legal limit.

Implied consent laws, which exist in every state, declare that every driver, through merely having a government-issued driver’s license and using state-owned roadways, has impliedly agreed to take a blood-alcohol test if arrested on suspicion of driving under the influence.

Mitchell was charged with a DUI (or OWI – operating while intoxicated – as it’s called in Wisconsin). He moved to suppress the results arguing that the officers did not have a warrant and that he did he did not give his express consent. Prosecutors argued that neither a warrant nor express consent were required because of the implied consent law. The trial court sided with the prosecutors and Mitchell was convicted.

Mitchell appealed and the court of appeals certified the case to the Supreme Court of Wisconsin on the issue of “whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent law…violates the Fourth Amendment.” The Supreme Court of Wisconsin accepted the certification and upheld Mitchell’s conviction. Earlier this year, however, the United States Supreme Court decided to take on the case.

It couldn’t come at better time either. State court stances on the issue have been all over the place.

Some states have struck down laws that allow prosecution of someone who refuses a blood alcohol test in violation of the implied consent law. Some states have held that warrantless, consentless searches are unconstitutional and, therefore, the evidence obtained by the search is inadmissible against the driver at a DUI trial. Others, like Wisconsin, have held that the Constitution and the Fourth Amendment don’t matter as long as implied consent laws allow law enforcement to search DUI suspects carte blanche.

Let’s take this step by step. The officers in Mitchell’s case do not need a warrant if Mitchell does not have a reasonable expectation of privacy in the place that law enforcement is searching. We’re not talking about Mitchell’s garage. We’re not talking about his car. We’re not even talking about his home. We’re talking about the thing that we as humans consider to be the most private; our body. I’ll even take it a step further and say that we’re talking about a search of the contents of someone’s blood. You damn well better believe that we have a reasonable expectation of privacy in our bodies and our blood.

Since Mitchell had a reasonable expectation of privacy, the Constitution requires that the officers either get a warrant or get Mitchell’s consent. They did not have a warrant nor did Mitchell give consent because he was, for all intents and purposes, unconscious. Yet, they searched and found what they were looking for.

Wisconsin’s Supreme Court, in allowing Mitchell’s blood and blood alcohol content to be used against him in a criminal case, has essentially said that unconscious drivers can give consent, and have already done so.

How? Because the state legislature has subjectively and in contradiction to the Constitution of the United States created a law that gives the government the right to search without a warrant or consent.

The Founding Fathers were right to be wary of the government, clearly. Let’s just hope that the United States Supreme Court decides Mitchell’s issue bearing in mind what the Founding Fathers had intended and what they wrote in the Constitution.

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Could DUI Fines be on the Upswing?

Wednesday, March 6th, 2019

In a previous post, we covered potential costs of a DUI. That was based on our current understanding of California DUI law. However, Mississippi may be a trendsetter to legislatures throughout the country in increasing the fines and fees associated with a DUI arrest and conviction.

The Mississippi House of Representatives just passed House Bill 1445 which would essentially double the fine for DUI violations. The bill, which calls for the increase of the general fund amount for implied consent law violation, also known as driving under the influence, would, according to state assessment, increase the current fine of $243.50 to $493.50. The funding that is raised with the increase in fines would be used to support trauma care in the state.

During the House floor debate on the proposed law, Rep. Greg Haney (R-Gulfport) asked, “Are we doing this to just raise money or is it for safety?” Rep. Donnie Scoggin (R-Ellisville) admitted that it was a little of both.

Scoggin supported this answer with information and a little bit of history about the state’s trauma care system. The state of Mississippi’s statewide trauma care system was instituted in 1998 after the then-Governor Kirk Fordice and Lieutenant Governor Ronnie Musgrove received severe injuries in separate car crashes. According to the state’s Department of Health, as of Nov. 9th, 2018, there were 86 designated and participating hospitals in the Mississippi Trauma System of Care, with the University of Mississippi Medical Center the only Level 1 trauma hospital in the state.

Scoggin says that the fine wouldn’t fully fund trauma care in the state. However, the increase would bring it up to about three-quarters. He further stated that the original trauma funding bill from the mid-1990s actually listed the DUI fee at $500, but was reduced to its current $243.50.

A bill in 2017, had set the amount from the state’s general fund that could be used for the trauma system at $7,023,197 and reduced the overall spending for trauma care from $40 million to $20 million. Scoggin stated that raising the DUI fine for the purpose of supporting trauma care “…seems to be the right place to do this.”

In an attempt to further support the use of DUI fines for trauma care, Rep. Steve Holland (D-Plantersville) mentioned that crashes that are caused by impaired motorists are responsible for several of the trauma cases in the state.

According to the 2017 statistics by Mother Against Drunk Driving, there were 129 drunk driving deaths in the state of Mississippi and that 19 percent of traffic fatalities were connected to driving under the influence.

Although the lawmakers are attempting to tie drunk driving to the funding of trauma care, personally it seems to be contradictory. The raising of funds is important in making sure that severely injured have the best possible care in order to save lives and it makes sense that if raising a fine could help to support that, they should raise it where they can. However, something like a DUI fine is also imposed in order to dissuade people from breaking that law of driving under the influence. If, by raising the fine, it does what it was intended to do, namely to dissuade drivers from getting behind the wheel under the influence, then essentially, the state has less cases to collect the fine. Which in turn, would mean that the actual amount collect by fines is less than what was initially proposed or considered.

Perhaps it is designed to be a temporary remedy to the bigger issue of how to raise more money for the trauma center. Or perhaps the Mississippi legislature just sees an opportunity to collect from an easy target; DUI defendants.

In any event, if the bill is passed in the Senate and signed by the governor, then it would become effective July 1.

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