Archive for July, 2019

The End of Texas’s Driver Responsibility Program Means More DUI Fines

Friday, July 26th, 2019

As of September 1st, 2019, one of the most hated programs ordered by the state of Texas for traffic violations will be no more, but that means more fines for DUI offenses.

The Driver Responsibility Program imposed surcharges on Texas drivers who were convicted of charges such as driving under the influence or driving without a license. These surcharges were in addition to the standard fines for the convictions themselves, and could range from $250 per year (for three years for driving with an invalid license) to $2,000 per year for three years (for a DUI with a blood alcohol of 0.16 or higher). Surcharges could be imposed on those who had one too many simple moving violations as well.

For most, it was a nuisance fee that was added onto whatever they may have done, but for others who were in tighter financial constraints, these fines would add up if they were unable to pay, resulting in suspended licenses, and even more tickets and fines.

According to Terri Burke of the ACLU of Texas, “The Driver Responsibility Program has forced thousands of Texans to pay for their liberty, which is no justice at all. Suspending someone’s license only further removes them from the workforce, leaving them without money to pay additional fees.”

A bill was signed by Texas Governor Greg Abbott to end the program about three weeks ago and it is expected that over 630,000 people will have their licenses reinstated with the conclusion of the program, as long as they do not have any fees of suspensions unrelated to the Driver Responsibility Program. An additional 350,000 people will be able to get their licenses reinstated with the payment of a restatement fee. Seeing these numbers, it is amazing to see how many people were affected by this program.

Now, with the revenue that the state will no longer be able to make from the program, the money must be offset somehow. The bill called for a $2 increase on state-mandated car insurance fees, which would be specifically allocated to trauma hospitals, and the remaining revenue is to be offset by an increase in the fines for DUI offenses. A first time DUI offense currently imposes a fine of $2,000, but with the conclusion of the Driver Responsibility Program, it will be increased to a whopping $6,000 penalty.

The fight to repeal the Driver Responsibility Program had been going on for years with part of the argument against it being that it violated the Equal Protection Clause with its unfair license suspension system. It seems though that advocates finally got their say. Unfortunately, it also seems that there are still many issues to work through. What the drivers who are currently part of the Program need to do with the fees that they have incurred thus far is still unclear. What is also unclear are the repercussions in terms of license points and/or fees between now and September 1st (when the program officially is repealed). It does not seem that the Texas Department of Public Safety has yet made any official announcements in how those details will be handled and how drivers should handle their remaining fees. Hopefully, an announcement with clear directions to the public will be made soon regarding the transition in the next few months.

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While drivers in Texas might be spared from paying more money for traffic violations in general as a result of the program’s end, drivers in Texas would also be wise to avoid driving drunk because it could now break the bank.

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Robotic Bartenders: Great Idea or Drunk Driver Enabler?

Monday, July 22nd, 2019

If you have been fortunate enough to step into Google’s developer conference, or perhaps on one of Royal Caribbean’s cruises, you may have gotten your cocktail, not from a human, but from a robotic bartender.  

Back in 2013, Makr Shakr’s Bionic Bar graced our presence and this piece of smart technology is starting to change the way that we order some of our favorite drinks. While many bars may still not have the budget to incorporate this technology into their enterprises, engineers have scaled down the technology to smaller versions like the Somabar Robot Bartender for smaller businesses and even personal use within the home.

On the outset, this idea of a robot bartender sounds like a fascinating idea. You won’t have to shout across the bar to try and get the bartender’s attention and you don’t have to worry about the bartender getting your correct order over the sounds of the DJ’s turntable, people conversing, and the other noises typical of a bar. You have the capability of customizing your drink to your heart’s content and the Nino, which is the updated version of the Bionic Bar, will allow you to place your order via phone app.

I’m also sure that it is fascinating to watch the robotic arms pull the bottles from their vault of liquors on the ceiling and create your concoction. The arms on the Nino were programmed to be like the “dance-like” movements of humans.

While in California, it is not the legal responsibility of the bartender to prevent a drunk patron from getting behind the wheel (see Should Bars be Allowed to be Sued when they Serve Alcohol to Someone who Later Causes a DUI-Related Accident? ), bartenders can still act as a “gatekeeper” of alcohol to someone who has already had too much to drink. My concern comes from how these “bartenders” will be able to stop a customer from indulging too much.

We know of many lawsuits in other states by grieving family members against bartenders and the bar owners for having not restricted the number of drinks served to an individual before that individual made the decision to get back into their car and drive their vehicle. One can only imagine the lawsuits that people are going to file against bars who are using robotic bartenders who are, in turn, incapable of determining whether someone is to intoxicated to drive and should not continue to be served alcoholic drinks.

We are starting to see advancements in vehicle technology aimed at being able to determine the driving capabilities of a person, including whether they are intoxicated, when they get into their vehicle.

So how are these robotic bartender systems equipped with being able to determine how much is too much? Sure, they may be able to track an amount of alcohol purchased, but we all know that person who always buys rounds for their friends, or that friend who buys a cute girl/boy across the bar a drink in order to start up a conversation. A watchful bartender would be able to determine if the person ordering is actually drinking alcohol or purchasing it for others. A robot, however, will not be programmed with those capabilities, not yet anyway.

While these robots are not yet mainstream, it will be interesting to see if the larger robotic bartender systems that have made their way to tech-savvy cruise ships and Las Vegas hotels will expand their reach into the everyday bar and how that may change how bar owners keep an eye on their clientele. It will also be interesting to see exactly how they might affect or be affected, if at all, by some legal changes that are currently being discussed in California such as extending last call and lowering the BAC limit.

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DUIs Are Not Just for Alcohol

Thursday, July 18th, 2019

Last month, Illinois became the 11th state to legalize marijuana and since just a few weeks ago, we reminded our readers about The Basics of a California DUI, this may be a good time to also remind our readers that a DUI is not just about alcohol.

We tend to think about drunk driving only in terms of alcohol, primarily because it is the more dominant of legal substances that leads to a DUI. However, marijuana is also becoming more widespread and legal in recreational applications.

While marijuana may still be used by many for its medical properties, there has definitely been an increase in recreational use here in California, thus making DUI of marijuana more prevalent than it has been in the past.

California Vehicle Code section 23152 (f) states, “It is unlawful for a person who is under the influence of any drug to drive a vehicle.” “Any drug” includes those that are legal. The important factor here is “under the influence.” Although, prescription drugs and other legal drugs fall within this purview of “any drug,” a person must also have his or her mental or physical abilities impaired to such a degree that

he or she is unable to drive a vehicle with the caution of a sober person to be “under the influence.”

A recent survey by the AAA revealed that many Americans don’t believe that they will get caught when driving high on marijuana. An estimated 14.8 million Americans admitted to driving within one hour of using marijuana.

We have previously covered topics that have dealt with the insufficient methods of determining impairment, especially when it comes to the effects of THC and other drugs. This may add to the public’s belief that they may not get caught.

However, according to Executive Director of the AAA Foundation for Traffic Safety, Dr. David Yang, “Marijuana can significantly alter reaction times and impair a driver’s judgement. Yet, many drivers don’t consider marijuana-impaired driving as risky as other behaviors like driving drunk or talking on the phone while driving.”

While it is true that no research has proven an exact correlation between impairment and specific levels of THC, unlike how we can calculate a correlation between heightened BAC levels, law enforcement is taking measures to train their officers to better detect impaired drivers. It is only a matter of time before a more consistent method of determining marijuana-impairment will be developed. There are already scientists and researchers hard at work in attempting to create a breathalyzer-type test for determining THC levels and even impairment.

Even current alcohol-testing breathalyzers (used for both the roadside test and for the mandatory “chemical test”), which have been around for quite some time, are by no means perfect. Depending on the officers administering them, how they are administered, and how they’re maintained, breathalyzer results can be challenged by competent DUI attorneys.

While probable cause may seem harder to prove with marijuana, or other drugs, when compared to alcohol, it does not mean that you are not actually impaired. The AAA website summed it up nicely, “AAA recommends all motorists avoid driving while impaired by marijuana or any other drug (including alcohol) to avoid arrest and keep the roads safe. Just because a drug is legal does not mean it is safe to use while operating a motor vehicle. Drivers who get behind the wheel while impaired put themselves and others at risk.”

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Massachusetts Fails to Process Out-Of-State Violations Including DUI

Thursday, July 11th, 2019

Many of us have heard the rumors of state agencies not being able to play nice with each other or failing to share important information through a central database as a way to more efficiently catch travelling criminals. Well, here is a story of an agency having received the information, but never utilizing it to its potential.

According to the Massachusetts Department of Transportation, the Registry of Motor Vehicles received, but never processed notifications that their Massachusetts drivers suffered out-of-state violations, including DUI.

Governor Charlie Baker was quoted, “The fact the RMV failed to act on information related to the driver responsible for this is deeply troubling and completely unacceptable.”

The unfortunate and sad part is that this lapse in process came to light as a result of the arrest of one Volodymyr Zhukovsky, who holds a Massachusetts commercial license and who was suspected of killing seven motorcyclists with his pickup truck and trailer in New Hampshire after crossing a double yellow line.

Zhukovsky was charged with operating under the influence and refusing to take a chemical test in Connecticut only a few months prior. The Massachusetts RMV was notified of the charge in May but never processed the incident which should have been enough to suspend his license. It was found that Zhukovsky also had drug and traffic related incidents on his record from six different states.

An internal review by the Massachusetts Department of Transportation, though preliminary, found issues with the processes for out-of-state violations of both commercial and personal driver’s licenses.

Many of the commercial license violations are automated. However, unless the information is entered automatically in a very specific way, the information must be entered manually. In the recent months, no employee was tasked to handle the manual notifications. It was also discovered that the notices that were sent via mail by other states were sorted, but never processed. Thousands of notices were found in a records room and being stored a whopping 53 bins. The past week has already seen hundreds of alcohol-related offenses that were serious enough to trigger a suspension in Massachusetts.

As of July 1st, 655 new license suspensions had been processed, all alcohol-related violations, and more are expected as they continue to sift through the 53 bins of notifications.

It has been reported that the state is going to be running all Massachusetts driver’s licenses through a national database to make sure that all violations relating to that license are recorded in Massachusetts.

It is hard to imagine that no one caught on to the fact that the notifications were not being processed. In both the manual processing of electronic notifications, as well as the increasing pile of unsorted mail notifications, no one questioned anything.

In most circumstances, I imagine that the individuals who thought they lucked out in that their charge was never fully processed are going to see their insurance rates go up once the state’s records catch up to the most updated information. And this is quite minor in terms of consequences that are catching up to them. Unfortunately, there are those who we wished were processed earlier so as to prevent such tragedy as was the case with the seven motorcyclists in New Hampshire. Nothing will bring them back, but hopefully this incident will cause other agencies and other states to consider their current processes and make sure that their information is up to date and shared information is also taken into consideration and processed so as to prevent such fatalities in the future.

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Supreme Court Rules Cops Can Withdraw Blood from an Unconscious Driver

Monday, July 1st, 2019

Yes, you read that title correctly. The United States Supreme Court just ruled that police can withdraw blood from an unconscious person suspected of driving under the influence.

Six years ago, police found Gerald Mitchell on a beach in Wisconsin and suspected he was intoxicated after a neighbor reported that he was drunk and suicidal. After being arrested, Mitchell was transported to a hospital. However, by the time he arrived at the hospital, he was unresponsive and law enforcement ordered hospital staff to draw his blood, which revealed a blood alcohol content of 0.22 percent.

Although Mitchell tried to exclude his blood alcohol content from evidence, he was denied and ultimately convicted of driving under the influence. After losing in the Wisconsin state courts, he appealed to the United States Supreme Court arguing that the withdrawal of his blood while he was unconscious without a warrant violated his 4th Amendment right against unreasonable searches and seizures.

Justice Samuel Alito, writing for the majority which included Chief Justice John Roberts, Justice Stephen Breyer, Justice Brett Kavanaugh, and himself, concluded that the 4th Amendment, generally, does require a warrant to conduct a search. However, he went on to say that there are exceptions to the warrant requirement including “exigent circumstances” where, as here, a warrantless blood withdraw was necessary to “prevent the imminent destruction of evidence.” Alito continued that the alcohol in a person’s system is “literally disappearing,” which justifies the need to obtain the evidence before taking the time for law enforcement to obtain a warrant.

“Indeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk,” Alito wrote. “It would be perverse if the more wanton behavior were rewarded — if the more harrowing threat were harder to punish.”

Alito also noted that the condition of a driver who is unconscious creates additional burdens on law enforcement since the driver will likely be taken to a hospital rather than the police station where a breath test can be administered.

“It would force them to choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value and all the compelling interest served by BAC limits,” he wrote. “This is just the kind of scenario for which the exigency rule was born – just the kind of grim dilemma it lives to dissolve.”

Justice Clarence Thomas concurred with the result, but not Alito’s rationale. Thomas maintained that since alcohol automatically leaves a person’s blood within a certain amount of time, police should be able to forcibly withdraw blood whether the driver is conscious or not.

Justice Sonia Sotomayor wrote a dissenting opinion that was joined by Justice Ruth Bader Ginsburg and Justice Elena Kagan. Sotomayor argued that Alito’s rationale had missed the point. Sotomayor emphasized that, in this case, law enforcement admitted that there was time to obtain a warrant for Mitchell’s blood, but that they didn’t because of “implied consent.” Implied consent, which exists here in California, is a law that a driver has impliedly agreed to a chemical test by mere virtue of having a driver’s license.

“Wisconsin has not once, in any of its briefing before this Court or the state courts, argued that exigent circumstances were present here,” Sotomayor wrote. “In fact, in the state proceedings, Wisconsin ‘conceded’ that the exigency exception does not justify the warrantless blood draw in this case.”

She went on to say, correctly so in my opinion, that, while “drunk driving poses significant dangers that Wisconsin and other States must be able to curb…the answer is clear: If there is time, get a warrant.”

Justice Neil Gorsuch dissented separately also taking issue with the fact that the case had been decided on grounds that were not the basis for the appeal; whether implied consent laws violate the 4th Amendment.

“We took this case to decide whether Wisconsin drivers impliedly consent to blood alcohol tests thanks to a state statute,” Gorsuch wrote. “That law says that anyone driving in Wisconsin agrees — by the very act of driving — to testing under certain circumstances. But the Court today declines to answer the question presented. Instead, it upholds Wisconsin’s law on an entirely different ground—citing the exigent circumstances doctrine.”

Take a second to ask yourself what place you expect to be more private than any other place, including your home. I expect that the most prevalent answer is “our bodies.” Yet, for the place that we consider to be the most private, law enforcement does not need a warrant to intrude into it as long as we have a driver’s license.

Sound like a loophole for law enforcement? It is!

I am not saying that we shouldn’t be testing the blood of suspected drunk drivers. But the Constitution protects all of us, suspected drunk drivers included. And if the Constitution requires a warrant to search, especially the thing most of hold to be the most private, then law enforcement should have to get one.

It’s not like law enforcement is sending the warrant application by raven! How long (or difficult) would it really take to obtain a warrant? A few minutes if done digitally? Alito and the majority don’t seem to care as they continue to make it easier for law enforcement to violate constitutional rights.

Justice Sotomayor said it best. If there is time, get a warrant.

 

 

 

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