Tag Archives: BAC
It is no secret that some states prioritize enforcing certain laws over other laws. Similarly, some states have much harsher penalties for certain crimes than other states do. For instance, some states, like California, are known for strict gun laws. Other states, like Virginia and New Jersey, are known for imposing strict penalties on thieves. Each state’s decision on how strictly it will enforce a law and how severe the penalties are for violating it, in part, comes down to what each state prioritizes. These decisions are related to public policy and what each state’s populous values. On that note, there are certain states that are known for their strict enforcement of DUI laws and others that are known for imposing strict penalties on DUI law violators. Keep this in mind if you find yourself in the following states as the ramifications of driving under the influence of drugs or alcohol can be severe.
Arizona: The Grand Canyon State is known for deserts, sunshine, hiking, and . . . being the worst state to get a DUI in. Arizona’s DUI laws, like most states, prevent all motorists from driving a vehicle with a blood alcohol concentration (“BAC”) of 0.08 percent or more. Additionally, Arizona DUI laws prohibit motorists from driving under the influence of drugs or alcohol if the driver is even impaired “to the slightest degree.” Arizona’s impaired “to the slightest degree” distinction is stricter than other states. For instance, California law enforcement officers can arrest motorists with DUI for having a BAC greater than or equal to 0.08 percent or being “under the influence,” which has been held to mean that a driver is not able to drive as a reasonable and sober driver would because of an intoxicant. Finally, Arizona has a “not-a-drop” DUI law for all motorists under the age of 21 years old. This “not-a-drop” law prohibits anyone under the age of 21 years old from driving with any measurable amount of alcohol in their system. Although the “not a drop” law seems harsh, many other states enforce the same or a similar law. Additionally, it is possible to get a DUI in Arizona without actually driving. If an individual is “in physical control” of a car while impaired, they can be cited for DUI. Other states, like California, require actual movement of the vehicle. Arizona’s justification for this particular law is that it helps to stop impaired driving before it starts.
Arizona is also known for being the toughest state on first-time DUI offenders. It was the first state to implement a mandatory interlock device installation policy for first time offenders. Other states have since followed suit and implemented similar policies. Also, Arizona has some of the highest fees for first-time offenders and mandatory jail time as well.
Massachusetts: Like Arizona, Massachusetts DUI laws prevent all motorists from driving a vehicle with a BAC of 0.08 percent or more. Unlike Arizona’s “slightest degree” standard, a driver in Massachusetts can also arrested on suspicion of a DUI if they are “under the influence.” However, the Bay State dishes out the most jail time for a DUI conviction. A first-time DUI offender in Massachusetts can face up to two and a half years in jail. The state also has a strict penalty for driving under the influence with child passengers under 14 years old in the vehicle. If a driver is caught with a child in their vehicle while under the influence, the driver can be convicted of child endangerment—which is separate offense to DUI. The child endangerment offense carries with it up to $5,000 in fines, a one-year license suspension, and 90 days to two and a half years in jail. However, Massachusetts is not alone in imposing additional penalties for DUI with minors in the vehicle. For instance, Pennsylvania and the District of Columbia have similar penalties for this aggravating factor.
Ohio: The Buckeye State is known for lengthy driver’s license suspensions for DUI offenders. If an individual is convicted of DUI in Ohio, it is possible that they could lose their driver’s license for up to three years. This is a stark contrast to some other states. For instance, Kentucky, Michigan, Montana, New Jersey, Pennsylvania, Rhode Island, South Carolina, South Dakota, and Tennessee do not mandate that a DUI offender’s driver’s license be suspended. Also, California generally limits a first-time DUI offense to a six-month license suspension. Therefore, Ohio is undoubtedly tougher on DUI offenders when it comes to license suspensions than many other states. Individuals should keep this in mind before operating a motor vehicle while under the influence in Ohio as it might be difficult to get around for several years if convicted of DUI.
Utah: The Beehive State has the lowest BAC limit of any state. In Utah, any motorist in physical control of a vehicle while having a BAC of 0.05% or higher has per se committed a DUI offense. This is currently the lowest BAC limit in the country, and the only state with such a limit. Also, in Utah, a first or second DUI offense is generally categorized a Class B misdemeanor. However, the DUI offense increases to a Class A misdemeanor if the impaired driver inflicted bodily injury upon another as a proximate result of driving under the influence or the impaired driver has a passenger under the age of sixteen years old in the vehicle at the time of the offense. While Utah’s misdemeanor class distinctions are somewhat comparable to other states, the state’s low BAC limit is entirely unique. Although Utah’s DUI arrest rates have been relatively consistent since the lowering of the BAC limit, other states could follow suit in their own efforts to curb drunk driving. For more info on Utah’s 0.05 percent limit see Utah Now has the Lowest BAC Limit in the Country and How Effective is Utah’s New BAC Limit?
Clearly, some states adopt more stringent measures to prevent individuals from driving under the influence than others. Arizona, Massachusetts, Ohio, and Utah are known for either strictly enforcing their DUI laws or imposing harsh penalties on violators of their DUI laws. Although nobody should get behind the wheel after consuming alcohol, motorists should be aware of the rather harsh DUI laws and penalties they face when driving in other states.
In 2013, the United State Supreme Court in Missouri v. McNeely held that a blood withdrawal was, in fact, a search which is protected under 4th Amendment of the Constitution. And since it is a search of the thing that we hold to be most private, the court held, officers must first obtain a warrant supported by probable cause to be able to forcibly withdraw blood from a DUI suspect. Prior to McNeely, a forcible blood withdrawal fell within one of several exceptions to the warrant requirement. The “exigent circumstances” exception allowed officers to forcibly withdraw blood from a DUI suspect without having to first obtain a warrant because of the risk of losing their blood alcohol content through dissipation in the body.
Since McNeely, the United States Supreme Court has declined to hear several similar cases by prosecutors hoping to overturn the decision. In doing so, the United States Supreme Court has essentially affirmed that our body is, in fact, the most private thing we own. Before law enforcement can forcibly withdraw blood, they must get a warrant.
But how much time does it take to get a warrant? Might someone sober up by the time it takes officers to obtain a warrant from a judge?
Some police agencies in Hawaii are working to address these concerns.
E-warrants cut down on DUI blood draw delays
February 29, 2020. The Maui News – When traffic officers begin using electronic search warrants to draw blood from suspected impaired drivers this weekend, police expect to more quickly obtain key evidence in DUI crashes and arrests.
“When you’re dealing with a DUI crash or DUI arrest, time is of the essence because the alcohol dissipates in the blood,” said Lt. William Hankins, commander of the police Traffic Section. “Four or six hours later can make a significant difference.”
Rather than having officers meet a judge to have a paper search warrant reviewed and signed before it’s executed, the electronic warrants are sent by secure email for a judge to review and return, Hankins said.
“Nothing has changed with the way the warrant looks and acts,” he said. “The only thing that’s changed is the method by which it’s being delivered.
“We’re just exchanging emails back and forth, as opposed to spending 30, 40 minutes, an hour and a half, meeting a judge, then driving all the way back to the hospital” to execute the warrant.
An officer won’t have to leave his vehicle to apply for an electronic warrant, Hankins said.
“We’re saving tons of time and getting a much more true and accurate reading of what someone’s blood-alcohol content is at the time of an arrest or a crash,” he said.
Police are using an $8,600 federal Department of Transportation grant to pay for training, consultation and other costs to implement electronic search warrants under a state law that took effect Jan. 1. The cost is expected to drop by half next year.
“Electronic warrants will enable law enforcement to investigate crimes in a timely and efficient manner,” said Maui County Prosecuting Attorney Don Guzman, who has assigned two deputy prosecutors to handle and review the warrants. “In particular, we need effective strategies to combat impaired driving, which are time-sensitive investigations due to the fast metabolization of alcohol and drugs in a person’s body.
“Electronic warrants will streamline this process, reduce the amount of time lost in gathering vital evidence, and provide police officers and prosecutors an effective system to help keep our community and roadways safe, while ensuring appropriate judicial review and compliance with constitutional rights.”
Police worked with the Judiciary and judges to implement the program, which allows for up to 1,000 electronic warrants this year.
While only traffic officers will be using electronic warrants for now, eventually officers in other divisions also could begin using e-warrants, Hankins said.
In the past, police would use forcible extraction to draw blood from suspected impaired drivers, he said.
But the Supreme Court ruled it was unconstitutional to do so without a warrant.
“It’s made it a little bit more difficult for us to get these blood draws, to get a true and accurate reading of blood-alcohol content,” Hankins said.
For warrants obtained by telephone, officers have to record the conversation with a judge and transcribe it by the next day.
That takes hours that an officer otherwise could spend on the road looking for other impaired drivers, said DUI Task Force Sgt. Nick Krau.
With electronic search warrants, “it’ll literally cut the time it takes us to get a warrant in more than half,” Krau said.
“Maui County has an extremely skilled, hardworking, dedicated DUI Task Force,” he said. “But you can only enforce the laws and use the tools made available to us by our elected officials and the community.
“When the Legislature passed the e-warrant law, it was a huge win for public safety and the safety on our roadways. It is definitely a game changer for what we do.”
Sgt. Kenneth Kihata, who heads the Vehicle Homicide Unit that investigates fatal and near-fatal crashes, said electronic warrants could be returned within a few minutes, compared to three or four hours for paper warrants.
“Basically, it’s making the process more efficient,” Kihata said. “All these fatalities are preventable senseless deaths.”
Last year, traffic officers applied for about a dozen warrants to draw blood from suspected impaired drivers.
Some cases involved fatal crashes and others involved habitual DUI offenders, who have at least two prior DUI convictions within 10 years, and refuse to give blood or breath samples, Hankins said.
“Those are the most dangerous,” he said. “To be able to get blood and get people convicted, it’s all going to save lives in the end.”
He said the use of electronic warrants is another tool for police, who have been working with Mothers Against Drunk Driving and the community to try to prevent an “epidemic” of drunken driving by raising awareness about its dangers.
As of Thursday, police had made 115 impaired driving arrests this year.
This year, police began enforcing a county law allowing police to tow vehicles of drivers arrested for impaired driving. Since enforcement began Jan. 17, about 40 vehicles have been towed, with the registered owners responsible for towing and storage fees generally ranging from $400 to $600.
Hankins said one arrested driver, who had thousands of dollars in tools in his truck, thanked officers for towing the vehicle so it would be safe.
“The people who are getting arrested now know their behavior is wrong,” Hankins said. “The public generally acknowledges that DUI is unacceptable behavior. The hard part is changing the behavior.
“We want to do everything we can to stop impaired driving, to save lives.”
While Maui’s approach may be a novel way to address the issue with the time it takes to obtain a warrant and the natural dissipation of alcohol in a person’s system, let’s just hope that expediency doesn’t affect the quality of warrant or information needed to obtain it.
At least some courts are getting it right.
Late last year, the Washington State Supreme Court struck down 2011 state legislation that required the mandatory impound of vehicles when their owners were arrested on suspicion of driving under the influence, otherwise known as “Hailey’s Law.”
Back in 2009, a woman was stopped in a parking lot for a minor traffic infraction. When the Washington State Trooper approached her vehicle, he found that she was driving without a valid license, had previous DUI offenses, did not have a required ignition interlock device, and appeared to be impaired. The trooper arrested her and took her in to the Whatcom county jail.
Since there was no third part available at the scene to drive the vehicle and wait for the woman, the officer chose to lock the car and leave. This is typical if the car is in a safe location and not impeding traffic.
At the county jail, the woman took a breath test and that determined her blood alcohol content to be above the legal limit. For unknown reasons, she was not booked into the jail, and the trooper drove the woman back to her residence, gave her back her keys with a warning to not drive again until she was sober. Common practice was to drive suspected DUI drivers to a public place like a restaurant or store to let them sober up. Unfortunately, the officer made a mistake.
After the trooper left, the intoxicated woman called a cab and returned to her car’s location. She attempted to drive her car home but crossed the centerline and crashed into another vehicle. The victim, Hailey Huntley, would spend over a month in the hospital as a result of multiple injuries, including a collapsed lung, dislocated hip, and a fractured right leg. Later, the DUI driver was found to have had a blood alcohol concentration higher than what she had earlier at the jail.
Following the accident, multiple rules changed. Administrators at Whatcom county quickly made it mandatory for DUI arrestees to be jailed, and other steps were set in motion to create laws that would prevent similar accidents from happening in the future.
As a result, Washington’s Mandatory Impound Law went into effect two years after the crash. It reads, “In order to protect public safety and to enforce the state’s laws, it is reasonable and necessary to mandatorily impound the vehicle operated by a person who has been arrested for driving or controlling a vehicle while under the influence of alcohol or drugs.”
The state legislature expressly stated the purpose of Hailey’s law was to shift the primary purpose for impounding the vehicle of drunk drivers from avoidance of traffic obstructions to the safety of the public. Additionally, it stated that the law was meant to remove the arresting officer’s discretion as to whether the vehicle should be left of impounded.
A 2018 DUI arrest, and subsequent vehicle impound cast doubt on the constitutionality of Hailey’s Law.
Joel Villela was pulled over for speeding, and when asked to take a breathalyzer test after the officer smelled alcohol on his breath. When he refused the test, he was arrested on suspicion of DUI. Although there were other passengers at the time of the arrest, Villela’s vehicle was impounded in accordance with Hailey’s Law. When the car was searched after the impoundment, law enforcement found sandwich bags, digital scales, pipes, and other paraphernalia related to potential drug dealing. Upon a search of his person, the police found cocaine in Villela’s possession. A charge of possession with intent to deliver controlled substances was added to his list of charges.
Villela’s attorney argued that the seizure of Villela’s car was unconstitutional because Hailey’s Law was the only basis for the search of Villela’s vehicle, when the Constitution required a warrant based on probable cause. As a result, he requested that the contents of the search be suppressed as evidence. The trial court agreed, and eventually the State Supreme Court agreed as well.
“The trial court below found that [Hailey’s Law] violates our constitution because it requires what the constitution allows only under limited circumstances. We agree,” the Court stated in its opinion. “Our constitution cannot be amended by statute, and while the legislature can give more protection to constitutional rights through legislation, it cannot use legislation to take that protection away.”
The Constitution, both state and federal, exist to protect individual rights, including the right to be free from unreasonable searches and seizures, and Hailey’s law allowed officers to engage in unreasonable searches and seizures. Although it might seem like the easy and “right” thing to do when someone has driven drunk, individual rights can never and should never be ignored in the name of “justice.”
You had that extra glass of wine right before the dessert course, but was it too much? Do you make a trip to the bathroom to see if you can make it there in a straight line? Stare at yourself in the mirror to see if you can determine if your eyes are glazed over? Or perhaps attempt to text a friend to see if you can still string together a coherent sentence? Whatever your previous methods may have been, in the near future, it may be as simple as wearing a wristband.
Researchers at the University of Illinois at Urbana-Champaign have been working on a wearable device that can track the wearer’s level of inebriation and they believe it is showing some promise.
The wearable wrist devices have begun to be put to the test, and current data is showing that they can fairly accurately measure how much alcohol a person drank and how intoxicated they may be.
The wristbands have sensors built in that collect raw transdermal alcohol concentration (TAC) data which essentially measures how much ethanol is in your sweat on your skin. The data is then sent to an app via Bluetooth and a graph to shows the amount of alcohol in the wearer’s system. Another version of the wristband works with Apple Watches by swapping the bands with a sensor-equipped band.
The system is not yet perfect as it is no surprise that TAC is not quite as accurate as law enforcement-used blood tests in determining someone’s blood alcohol content (BAC). Studies maintain that the most accurate way to determine the amount of alcohol in one’s system is through a BAC reading from a breathalyzer, blood, or urine test.
Researchers are working to perfect the correlation between the TAC numbers taken from the device and actual BAC. The current data shows that the numbers are close, but aren’t identical. The hope is that by being able to find an accurate correlation between the data points, they will be able to offer a less invasive method of blood alcohol content testing.
One of the issues that researchers are still trying to work out is the initial time lag of the device. It currently takes between 24 and 30 minutes for the readings to start from the start time of drinking. Medical journals have pointed out that “More reliable and robust prototypes will be required. Also, field testing in large and diverse groups of people drinking variable alcohol doses in real-world conditions will be necessary for comprehensive assessment of the relationship between transdermal and blood alcohol concentrations.”
It will be interesting to see how quickly the analysis can be processed with the progress of science. It will also be interesting to see if the integration of such products into the mainstream public will help to reduce the incorrect assumption of some drivers believing that they are not impaired and can safely drive themselves and others home. Or perhaps the first official integration will not be to the public at all, but rather in the hands of law enforcement who will start to use a simple touch to quickly and accurately determine a person’s alcohol level.
We’ve been saying it for years: breathalyzers are inaccurate for a multitude of reasons. Recall just a few months ago The New York Times confirmed exactly this stating that after interviewing “more than 100 attorneys, scientists, executives and police officers and [reviewing] ten of thousands of pages of court records, corporate filings, confidential emails and contracts,” it revealed “the depth of a nationwide [breathalyzer] problem that has attracted only sporadic attention.”
In January of last year, a Massachusetts judge threw out the breathalyzer results of over 400 DUI cases as the result of inaccurate results.
In late 2018, New Jersey’s highest court ruled that 20,667 breathalyzer results were faulty and therefore inadmissible in the DUI cases where the defendant’s blood alcohol content was used to secure the defendant’s conviction.
As if breathalyzer accuracy wasn’t unreliable enough already, now state police in Michigan are looking into the alleged fraudulent certification of breathalyzers used throughout that state.
Accuracy of breathalyzers thrown into question amid Michigan State Police investigation
January 14, 2020. Detroit Metro Times – Michigan State Police are investigating three contract employees who ensure the accuracy of breathalyzers used during traffic stops after authorities discovered “performance-related issues” and possible fraud.
State police notified law enforcement officers across the state to stop using more than 200 breathalyzers from longtime vendor Intoximeters.
The investigation focuses on three Intoximeters contract employees, who were responsible for certifying and calibrating Datamaster DMT breathalyzers to ensure they are accurate.
Investigators said they suspect fraud after finding discrepancies in paperwork.
Stopping the use of the breathalyzers “is an absolutely necessary move to safeguard the integrity of the criminal justice process,” Michigan State Police Director Col. Joseph Gasper said in a news release.
“Upon learning of additional and more egregious discrepancies, I am no longer comfortable having police agencies using these instruments until we can be confident they are certified, calibrated and serviced according to state law and industry standard,” Gasper says.
In a letter to law enforcement officers across the state, state police said prosecutors have been alerted to the suspected fraudulent activity.
“Prosecutors with cases impacted by the contractor errors identified by the MSP have already been notified,” Michigan State Police Maj. Greg Zarotney wrote to law enforcement officials. “However, out of an abundance of caution, we are examining all available data to determine if any additional tests are impacted by the contractor errors.”
The following law enforcement agencies were using breathalyzers with “possible discrepancies”: Alpena County Sheriff’s Department, Beverly Hills Police Department, Detroit Detention Center, Montcalm County Sheriff’s Department, Niles Police Department, Pittsfield Township Police Department, Tecumseh Police Department, and Van Buren County Sheriff’s Department.
In California courts, a person cannot challenge the accuracy of breathalyzers in general. If, however, an individual breathalyzer was inaccurate during a DUI stop, that person may challenge the accuracy of the individual breathalyzer used on them during the stop.
Why risk the uncertainty of a breathalyzer result when so much is on the line?
If an officer requests that a driver submit to a pre-arrest breathalyzer, that breathalyzer is optional. Although the officer may make it seem as though it is mandatory, the law does not require that the driver submit to a pre-arrest breathalyzer.
What is required, however, is that a driver submit to a chemical test, which can either be breath test or a blood test, but only after that driver is lawfully arrested on suspicion of a DUI. Until then, don’t do it.