Author Archives: admin

Non-Lawyer Judge Throws Out DUI Against Prosecutor

Most of us will agree that we want the courtroom to be a place of fairness and justice. Sadly, some days that just doesn’t seem to be the case. According to Mississippi Department of Public Safety Commissioner, Marshall Fisher, the day a judge made the decision to throw out a DUI case against the Tupelo city attorney was such a day.

According to Fisher, “Judges are to use the law and facts when deciding whether police actions are constitutional, and Justice Court Judge Chuck Hopkins had neither the law nor the facts on his side when he dismissed the case against Tupelo city attorney Ben Logan.”

Back in December, Mr. Logan was stopped at a Mississippi Highway Patrol safety checkpoint and arrested for driving under the influence. He had been seen attempting to avoid the checkpoint by pulling into a private lot of a closed business. Multiple officers witnessed Logan showing visible signs of intoxication such as glassy eyes and slurred speech. He was taken to the Lee County jail but was never booked. He was, however, released to his girlfriend who was allowed to drive him home.

Although hearing was scheduled at the Lee County Justice Court, Logan’s attorneys filed a motion claiming that the checkpoint was unconstitutional. Judge Hopkins agreed with the motion and dismissed the case on July 11th citing court records which apparently did not show that the troopers who conducted the checkpoint had permission from their supervisors.

However, according to Fisher, “No Mississippi Supreme Court case requires law enforcement have permission from their superior before conducting a safety checkpoint. But even if that permission was required, the troopers in this case had it. The Master Sergeant was present and even witnessed Ben Logan avoid the safety checkpoint.”

Mississippi Justice Court is the only court in the state where judges are not required to be attorneys. They are elected positions and according to Jackson County’s website, Justice Court Judges are elected officials serving four-year terms. To qualify to serve as a Justice Judge the candidate must meet the following requirements:

  • High School diploma is mandated
  • Justice Court Training Course provided by the Mississippi Judicial College of the University of Mississippi Law Center
  • Annual continuing education requirement prescribed by the Judicial College
  • Resident of the County at least two years prior to serving.
  • Hold at least one session of court per month, but not more than two.

Guess what? Judge Hopkins is not an attorney and, according to Fisher, “created his own requirements for [the] safety checkpoint.”

Does this bother anyone else? Does it bother anyone else that Judge Hopkins doesn’t need a license to practice law, doesn’t need a law degree, and doesn’t even need an undergraduate college degree?  What’s more, according to the Mississippi Code, newly elected justices have six months to complete their Justice Court Training Course. This essentially means that someone could potentially finish the courses in less time than that.

Attorneys in every other state, for the most part, are required to obtain a four-year undergraduate bachelor’s degree before attending law school. Law schools then select only a handful of top-performing undergraduate students to attend and obtain a law degree. After three grueling years of law school, students obtain a law degree…if they survive law school. Then, if they graduate law school, students can take the bar exam for their respective state, the pass rate of which is often very low (especially here in California). If they pass the bar exam, only then can they become lawyers who can later become judges. This is a screening process to ensure that only qualified, legally versed professionals are able to make important decisions which affect the lives of citizens.

Now contrast this with Mississippi’s lax (to put it mildly) standards.

Lives are literally in the hands of judges and justices. It takes years to learn the law so that it can be applied properly to achieve a just result. It does not and should not take a high school diploma and a six-month (likely less) course. Otherwise, as Fisher pointed out, you have lay-people sitting on judge benches making decision which affect the lives of people, not based on the law, but based on their own personal beliefs, gut feelings, or political preferences.

I find this appalling.

“This case is nothing more than local politics getting the end result they wanted by blaming a state agency,” Fisher said. “When non-lawyer judges start making decisions on what is considered constitutional under the law, these types of mistakes will continue to happen.”

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

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.

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.

Robotic Bartenders: Great Idea or Drunk Driver Enabler?

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.

DUIs Are Not Just for Alcohol

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.”

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

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.