Stricter DUI Law Trend Across the U.S.

Monday, January 7th, 2019

Each state has their own traffic laws and has their own driving under the influence laws. Some are stricter than others. That said, until this year, all states have set the blood-alcohol (BAC) level of 0.08 as the per se standard of driving under the influence. DUI law in every state is much more complicated than simply having a BAC limit (see recent article California DUI Law 101, for a recap on DUI law in California), although it is an important number to remember. One state, however, has made the leap to lower the allowed BAC level, making it the strictest in the country. If you are knowledgeable about the history of anti-drunk driving laws in the U.S., you may not be surprised to hear that that state is Utah, which has in the past been a trailblazer for stricter DUI laws in the country.

Utah was the first state to lower the BAC limit from 0.1 to 0.08 back in 1983, and now in 2019, it will be the first state to lower the BAC limit from 0.08 to 0.05. Utah has put this new limit to effect on December 30, right before the New Year festivities. Although the BAC level will change, the punishments for being convicted of a DUI will not. In Utah, that includes suspended licenses and fines over $1,000. Those in favor of the new limit feel that this new lower BAC level will help to deter drivers from drinking before getting behind the wheel. However, this lower limit also means that law enforcement will be casting a wider net and many more people could have their licenses suspended with thousands of dollars in fines, and possibly other penalties. Unlike California, Utah does not have a policy for restricted licenses, which means that in areas with few public transit options, even first-time offenders will have a difficult time adjusting to the penalties of a first-time DUI in Utah.

Although the idea that a lower BAC limit will help to deter those who have had a few alcoholic drinks from getting behind the wheel is well-intentioned, and though there are many state lawmakers who hope that other states will soon follow in Utah’s footsteps, there are still many details that should be addressed in order to ensure that a lower BAC limit law does not unfairly overreach to people who might be sober.

Utah is not the only state to be making changes. Pennsylvania passed legislation in October that took effect on December 23, that created the state’s first felony DUI. Until now, Pennsylvania was one of four states in the U.S. that did not consider elevating a DUI to a felony after multiple DUI convictions. Now with the new law in effect, a third time offender of driving under the influence with a BAC level of 0.16 (twice the legal limit in Pennsylvania) can be charged with a felony. The new law will also consider a fourth DUI offense or higher, with any BAC level or intoxicating substance presence, as a felony.

The new Pennsylvania law also increased the penalties for homicide by vehicle while driving under the influence, increased jail time for DUI’s where there was a prior DUI, and increased the fines and fees for a DUI. In addition, the penalty amount for driving under suspension has been increased. What was previously a minimum $500 fine and up to 60 days in jail for a second offense is now a mandatory minimum of 90 days in jail and a fine of $1,000, with a third offense to resulting with six months in jail and a mandatory $2,500 fine.     

Considering that a majority of the states have already put in place the felony categorization for a DUI following multiple offenses, Pennsylvania is late in the game. However, Pennsylvania had been seeing an annual number of approximately 10,000 alcohol-related crashes and around 300 fatalities. With one source citing about 250,000 repeat DUI offenders in the state, it is no wonder Pennsylvania turned to the trend of stricter DUI laws.

Hopefully enforcement of these new laws will help to promote a safer driving environment for all, but not at the cost of arresting sober people on suspicion of a DUI.

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Utah Now has the Lowest BAC Limit in the Country

Wednesday, January 2nd, 2019

In 2016 Utah passed a law which would lower its blood alcohol content limit from 0.08 percent to 0.05 percent, making it the toughest DUI law in the country in terms of a BAC limit. Well, as of January 1st, 2019, Utah’s new law took effect.

Prior to Utah’s change, all states had the same blood alcohol content limit of 0.08 percent. However, states differed with what punishments a DUI carries.

Although the National Transportation Safety Board recommended that all states lower their blood alcohol content limits from 0.08 percent to 0.05 percent, only Utah has done so. The National Transportation Safety Board based its recommendation on studies suggesting that impairment begins when the blood alcohol content reaches 0.04 percent.

Utah will now have the task of transitioning into enforcing the new limit.

“We’ve put together a task force on how we are going to usher this in,” Utah Highway Patrol Captain Steve Winward told state lawmakers late last year.

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 last year. “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.”

Leading up to the new year, Utah underwent a public relations campaign to inform the public of the new limit.

“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.

However, 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.

“I have no doubt that proponents of .05 laws are well-intentioned, but good intentions don’t necessarily yield good public policy,” Jackson Shedelbower, The American Beverage Institute spokesman, said in a statement.

Shedelbower added, and I agree, that the new law focuses on moderate and responsible drinkers, as opposed to drivers with far higher BAC levels who are responsible for the majority of alcohol-related traffic fatalities, according to The Washington Post.

 

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Should Every Step of the DUI Arrest be Recorded?

Thursday, August 30th, 2018

A report about a South Carolina law has raised the question, “Should every step of the DUI arrest be recorded?” If you’ve my previous posts, you know my answer is a vehement, “yes.”

A South Carolina law requires that the entirety of a DUI stop and arrest must be recorded otherwise the driver’s charges could get dismissed. And a new report suggests that DUI conviction rates have decreased significantly as a result of the law.

Many drunken drivers walk free in SC because of strict law, report says

August 29, 2018. The Post and Courier – In South Carolina, a police dash camera pointed the wrong way could be considered cause for a judge to throw out a drunken driving case, even when deputies say a motorist was clearly impaired.

State law, which critics describe as one of the strictest in the country, requires videotaping virtually every step of a DUI arrest. If the suspect is out of the shot of a dashcam or body camera or the video does not work, courts could dismiss the charges.

Greenville-area prosecutors who handle nearly 1,000 DUI cases a year say that loophole in state law, along with others, hurts conviction rates that have been criticized by Mothers Against Drunk Driving in a report released this week.

The report examined the outcome of hundreds of DUI cases in the Greenville and Columbia areas and found less than half resulted in drunken driving convictions.

An assistant solicitor handling a pending DUI case said she’s preparing arguments for why the judge should accept video into evidence because part of an arrest wasn’t captured on screen. Another Greenville prosecutor said a judge dismissed a case this year because a suspect couldn’t be seen being given Miranda rights, even though a dashcam captured the audio.

“It’s just a really odd and unreasonable requirement,” said Jennifer Tessitore, assistant solicitor for the 13th Circuit.

Technical glitches often spur prosecutors to offer suspects plea deals for lesser crimes, such as reckless driving, she said.

The issue is highlighted in a new report from the South Carolina chapter of Mothers Against Drunk Driving that calls on S.C. leaders to bring down the state’s more than 330 drunk driving deaths a year, which ranks sixth in the nation.

A majority of misdemeanor DUI cases in the Greenville area, or roughly 49 percent, are pleaded down to a lesser charge, while roughly 45 percent result in convictions, according to the 13th Circuit’s analysis of more than 1,200 cases between 2016-17 that was released Tuesday.

That conviction rate is much lower than other major crimes, 13th Circuit Solicitor Walt Wilkins told reporters Tuesday. He pointed to the state requirements on video evidence as a key hurdle.

“Our ability to (prosecute) is hindered by this current statute,” Wilkins said. “It makes it more difficult than it could, or that is allowed by other states.”

For the Columbia area, the conviction rate was 48 percent and another 48 percent of cases were pleaded down, according to MADD’s own analysis of 160 cases between 2016-17.

Defense lawyers who have handled drunken driving cases said the video requirement is no excuse for a poor conviction rate.

“They say it’s a burdensome technicality, but there’s nothing technical about a fair process,” said Joe McCulloch, a Columbia lawyer who handles dozens of DUI cases a year.

Then-state Rep. Ted Vick had a DUI charge thrown out in 2014 because officers failed to videotape the lawmaker being read his Miranda rights. The state has required some form of video evidence in DUI cases since 1998, said Sen. Brad Hutto, a Democratic Orangeburg attorney who worked on the legislation.

Requiring officers to record their interactions has actually strengthened evidence in DUI cases for juries to consider, Hutto said.

“If you have two people there, it’s your word against mine,” he said. “Who are you supposed to believe? If you have a video tape, you can see who’s actually right.”

More than $220,000 in grants from the S.C. Department of Public Safety funded the MADD study. Another $72,000 grant is funding a similar study of the Charleston area, which is expected to be published next year.

Fresh concerns about impaired driving in Charleston were raised in July when a motorist careened onto a sidewalk, fatally striking an 11-year-old girl. Though the driver had no alcohol in his system, police suspected that he had used drugs before the crash.

In June, police said a woman with a blood-alcohol content nearly twice the legal limit swerved into the wrong lane, causing a head-on collision with congressional candidate Katie Arrington, who was traveling on the Savannah Highway in Charleston County.

 

Guess what, critics of the law? You have it because we can no longer trust the arresting officer’s word that the stop was lawful, that procedures were done properly, and that the driver was actually drunk! If prosecutors want a higher conviction rate, how about training officers better or making sure that the equipment is functioning properly?

I’ve been doing DUI defense long enough to know that police lie in DUI police reports more often than I’d like to admit.

In a recent case of mine, a driver told the officer who stopped him that he had one glass of wine with dinner. This prompted the officer to have the driver perform field sobriety tests. Although there was sufficient space in front of the officer’s vehicle and within view the dashcam to perform the tests, the officer took the driver out of the camera’s view. Lo and behold, the officer’s report indicated that the driver failed all of the tests. However, after the driver was arrested and submitted to a chemical test, it was revealed that he had a blood alcohol content of only 0.02 percent, a mere ¼ the legal limit of 0.08. Either the driver failed the field sobriety tests while being sober, which is a problem in and of itself, or the officer lied in his report. I tend to believe the latter.

This shouldn’t be about giving the prosecutors more convictions. It must be about truth, fairness, and transparency with officers who make DUI stops. I applaud South Carolina, and every state should have similar laws.   

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LAPD Officer Charged with DUI Murder

Tuesday, April 24th, 2018

A Los Angeles Police Department officer was arrested last week on suspicion of three counts of murder as the result of a suspected DUI-related collision in Whittier last fall.

On September 26, 2017, Edgar Verduzco, 27, was allegedly speeding in the carpool lane under the influence of alcohol on the 605 freeway in Whittier, California, when his Chevy Camaro collided into the rear of a Nissan. The Nissan burst into flames and Verduzco’s vehicle went on to hit a second vehicle.

A family of three – Mario Davila, 60, Maribel Davila, 52, and their son, Oscar Davila, 19 – were the occupants of the Nissan and all three died as a result of the collision. The occupant of the second vehicle suffered minor injuries. Verduzco suffered a broken nose.

Before the collision, Verduzco posted a video on Instagram from a bar and included the hastag #Dontdrinkanddrive. The video depicted a male in a police uniform with a badge with the name “Verduzco.” The video also showed an animated person sitting in a car which appeared to be sitting on the bar counter with beers.

Although the LAPD could not verify the authenticity of the post or the account’s owner, KTLA reported that other videos on the account show a Chevy Camaro and a police officer which appears to be Verduzco in an LAPD patrol car.

For anybody else, officers responding to a collision where drunk driving was suspected would have whipped out their breathalyzers quicker than a gunslinger in the old west. Suspiciously, however, the officers who responded to the collision did not give Verduzco a breathalyzer to determine his BAC at the scene even though, according to California Highway Patrol, he showed signs of intoxication. Instead, a blood test was later conducted and Verduzco was subsequently released on bail pending the outcome of the blood test.

Although it is unclear whether the blood result is in, Verduzco was re-arrested at a friend’s house in Long Beach last week and was booked on three counts of second degree murder, three counts of gross vehicular manslaughter while intoxicated and drunk driving causing injury.

Last Friday, Verduzco continued his arraignment to May 16th. However, it was not before Judge Deborah S. Brazil set his bail at $6.1 million.

It is unclear why Verduzco is being charged with murder in addition to the “lesser-included” vehicular manslaughter. If you’ve read my numerous posts on a DUI-murder charge (also known as “Watson murder”), you’ll know that to charge murder, prosecutors need to prove that the driver was expressly aware of the dangers of driving drunk, yet they did so anyways. This is usually proven when the driver suffered a prior DUI conviction and is admonished on the dangers of driving drunk. Since there is no indication that Verduzco suffered a prior DUI conviction, my guess would be that his position as a law enforcement officer, whose job it is to arrest people on suspicion of DUI, makes him expressly aware of the dangers of driving drunk.

Verduzco is an Army veteran who joined the LAPD in 2015 after returning from a tour of duty in Afghanistan.

“There’s never an excuse for driving under the influence, and if Officer Verduzco is found guilty of whatever he is accused of, then he should suffer the consequences for his reckless actions,'’ said the Los Angeles Police Protective League in a statement issued shortly after the collision.

“My heart goes out to the victims and families so tragically impacted by Verduzco’s criminal actions,” said police Chief Charlie Beck. “Police officers have a moral and legal obligation to abide by the laws that they enforce. [The] arrest demonstrates how seriously we take that obligation.

Stay tuned for updates.

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Do BAC Limits Discriminate Against Alcoholics?

Thursday, February 15th, 2018

A Texas man who was convicted of a fourth DUI claimed that blood alcohol content limits discriminate against alcoholics.

Ralph Alfred Friesenhahn of San Antonio was convicted of his fourth DUI in 2016 and was sentenced to four years in prison after he rolled his vehicle outside of San Antonio, Texas. A later blood test revealed that Friesenhahn’s blood alcohol content was 0.29 percent, more than three times the legal limit of 0.08 percent.

Although some states are considering lowering the legal limit to 0.05 percent, all states currently have a limit of 0.08 percent.

At trial, Friesenhahn’s attorney motioned the court to dismiss the indictment against Friesenhahn arguing that the state’s legal limit discriminated against alcoholics. Not surprisingly, the judge denied the request and Friesenhahn was convicted of felony driving while intoxicated, the Texas equivalent to California’s “driving under the influence,” and was sentenced to four years in prison due to his prior convictions.

Friesenhahn’s attorney appealed the conviction, once again arguing that the state’s blood alcohol content limit of 0.08 percent discriminated against alcoholics in violation of the right to equal protection guaranteed under the United States Constitution and Texas Constitution. Specifically, she argued that the legal limit ignored the “protected class of alcoholics,” who have a high tolerance to alcohol, to be prosecuted for DUI charges when there is no indication that the alcohol impaired their ability to safely drive a vehicle even though they might be over the legal limit.

Sammy McCrary, chief of the felony division for the Comal County District Attorney’s Office argued that it’s absurd to suggest that the law treats alcoholics differently.

“You’re not being punished for being an alcoholic. It’s the driving that’s the problem,” McCrary said. “It’s making the decision to get into a 3,000-pound vehicle … after drinking.”

The Austin-based 3rd Court of Appeals agreed with McCrary with an opinion issued last week.

In denying that Friesenhahn and other alcoholics fall within a “protected class,” the court said that Texas law “provides two alternative definitions of intoxication. The first involves the loss of the normal use of mental or physical faculties; the second involves an alcohol concentration of at least 0.08…The alternative definitions are presented disjunctively…indicating that only one must be satisfied to establish that a person is legally intoxicated. Further, these alternative definitions apply to all persons charged with an intoxication offense…Thus, the alcohol concentration definition of intoxicated allows for a finding of intoxication based on an alcohol concentration of 0.08 or more without showing the loss of mental or physical faculties – whether the defendant is an alcoholic or not. Therefore, there is no classification in the statute that treats any persons, including [Friesenhahn’s] defined ‘class’ of alcoholics, differently than similarly situated persons: the 0.08 alcohol concentration level applies to all offenders prosecuted for DWI.”

In short, the court said that since the law treats all persons equally, there can be no violation of equal protection.

Let Friesenhahn’s case serve as a reminder that, while you may not be “impaired” when driving your vehicle, as long as you’re over the legal limit of 0.08 percent blood alcohol content, you’re putting yourself at risk of a DUI arrest, charge, and possible conviction.

 

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