Different DUI Standard for Police?

Tuesday, August 20th, 2019

Anyone who has known someone that has been convicted of a DUI, or who has themselves had the unfortunate experience of suffering the consequences of a DUI, might know that there is the possibility of a obtaining a restricted license during the period of time where driving privileges are suspended. While driving privileges might be restricted during this time, a driver can still drive to and from work with a restricted license.

If a law enforcement officer happens to get caught for a DUI, wouldn’t we expect to hold the officer to the same standard as the rest of us drivers, possibly even a higher standard?

I bring this up because a police officer from Melbourne, Florida is now back behind the wheel of her police cruiser after having been charged with DUI while off duty back in September.

Audrey Poole of the Melbourne Police Department was pulled over for driving 20mph above the speed limit in Palm Bay. Her arrest affidavit as well as a statement from the arresting officer indicates that her eyes were bloodshot, and she smelled of alcohol even before she attempted field sobriety tests. She allegedly failed multiple field sobriety tests and refused to submit to a breathalyzer test, which led to her arrest. The interaction was even caught on dashboard camera footage.

Poole had been working in dispatch since 2012 and was hired as an officer in March 2018. After the arrest, she was suspended for a week without pay, then was placed on administrative leave with pay until Nov. 12th and was assigned desk duty. Under Florida law, she automatically lost her license for one year for refusing a chemical test. A month after the arrest, the state attorney’s office dismissed the DUI charge. According to Assistant State Attorney Leo Domenick, “Although there is sufficient evidence of probable cause for the arrest, based on the lack of a breath (Blood Alcohol Concentration) test, combined with the defendant’s performance on the field sobriety exercises, there is no reasonable likelihood of success at a jury trial.” After two months, Poole was reinstated and allowed to drive a Melbourne police cruiser under a “business purpose only” license which allows her to drive during her on duty hours.

Following the dismissal of charges, she was disciplined for multiple department violations, including conduct unbecoming of an officer, non-compliance with the law, and unlawful consumption of alcohol. In addition, she was also required to complete an alcohol education course and had her probationary status as a new officer extended.

According to some local DUI lawyers, a complete dismissal is unusual for Poole’s case. “It’s pretty rare that you see cases completely dropped, but every case is different. They might get knocked down to a reckless driving or a careless driving sometimes, but with more refusals they won’t negotiate… a dismissal,” says Melbourne-based DUI lawyer Mark Germain.

However, despite earlier reports that Poole failed multiple field sobriety tests, State Attorney spokesperson Todd Brown explained that the lack of a breath test and Poole’s actual performance on the field sobriety tests were sufficient enough to make the burden of proof for trial difficult to meet. Since prosecutors also have an obligation to drop charges that do not meet the burden of proof, it was decided that they would drop the charges. He believes that a member of the public charged in the same circumstances would have resulted in the same conclusion.

Let’s put aside the question that we have regarding the dropped charges for a moment. As an officer of the law, who is supposed to be enforcing the very laws that she disregarded, she was allowed to apply for and was approved for a “business only” license during her license suspension period.

There are multiple factors that can be considered to reach the conclusion that was reached. Poole was off duty, so the charge should have no bearing towards the responsibility she holds during her on duty hours. No chemical test seemed to have taken place, even after her arrest, so there is no factual evidence that she was over the legal limit. Because the charges were dropped, there is no conviction on her record. These are all arguments to allow her to continue to drive for work purposes. Would the same treatment have been given to a non-police officer?

When it comes to the actual charges, at least here in California, Poole would have been charged with a DUI. Prosecutors here in California have actually said that they would rather go to trial and lose a DUI case for lack of evidence than to dismiss it for lack of evidence.  As the local DUI attorneys have pointed out, it’s extremely rare for a prosecutor to dismiss a DUI case give the facts of Poole’s case. In fact, drivers have been charged with a DUI with much less evidence than in Poole’s case.

Again, questions remain: Had Poole been anyone other than an officer, would she have been treated differently? Probably. Would she have been approved for the “business only” driving license? Probably not. Are police held to a different standard when it comes to DUI prosecutions than the rest of us? Although I’d like to answer in the negative, Poole’s case has me thinking otherwise.

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Non-Lawyer Judge Throws Out DUI Against Prosecutor

Thursday, August 15th, 2019

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.”

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BUI Blamed for Boater Death

Thursday, August 8th, 2019

The body of a New Jersey man was recovered from Lake Hopatcong in New Jersey this week. The driver of the pontoon boat that he was a passenger on has since been charged with boating under the influence.

This past weekend, 24-year-old Jason Gill of Mr. Arlington was a passenger on a pontoon boat operated by Nicholas Zarantonello, also 24-years-old and from Lake Hopatcong, the lake from which Gill’s body was recovered from. According to state police, Gill fell into the state’s largest fresh-water lake this past Saturday. Although a search started that evening, it was suspended due to poor visibility and lighting in the area.

Search operations continued on Sunday using a helicopter, side-scan SONAR sub-surface detection equipment, the State Police TEAMS Unit, and rescue boats from a nearby fire department. Gill’s body, however, was not recovered until Monday.

Zarantonello, the boat’s operator, has since been arrested, charged with boating under the influence, and has since been released from custody with a future court date.

The drowning took place in an area of the lake that had been under an advisory to avoid swimming because of high levels of harmful algae bloom. Boating, however, was not affected by the advisory.

It goes without saying that DUI laws exist to protect us and others on the road from drivers whose judgment and motor skills have been impaired as the result of alcohol and other intoxicants. The same logic can be applied to laws that prohibit operating a boat while under the influence; namely to protect ourselves and others on the water from boat operators whose judgment and motor skills have been impaired.

Don’t think that because it’s a boat out on the open water that drunk driving laws don’t apply to you.

Boating under the influence is treated in very much the same way as a DUI is treated here in California.

California Harbors and Navigation Code section 655 states in pertinent part: 

(b) No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.

(c) No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood.

The Harbors and Navigation Code also provides a zero tolerance for aquaplanes and water skis.

What’s more, the penalties for boating under the influence in California are similar to those for a California DUI; up to six months in jail, up to $1,000 in fines and fees, and a California DUI school.

Unlike a California DUI, however, any prior boating under the influence or driving under the influence conviction will only enhance a future boating under the influence charge if the prior conviction occurred within seven years. If you are charged with a California DUI, any California DUI or BUI that occurred in the last 10 years will increase the penalties of the current DUI.

Also, while the passengers of vehicles cannot drink alcohol within the vehicle under California open container laws, passengers of boats can legally drink alcohol on the boat.

In addition to running the risk of getting arrested, charged and convicted, boaters need to also realize the danger to themselves and others when boating under the influence. There are no lanes, no rules of the road, just open water.

 

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How a DUI Conviction Affects “Dreamers”

Thursday, June 20th, 2019

In the years that President Trump has led from the Oval Office, there have been significant changes to former President Obama’s policies. One of the changes being to the Deferred Action for Childhood Arrivals program, better known by many as DACA. This program, which allowed children who were brought to the United States before the age of 16 by undocumented immigrant parents to apply for deferred status and remain in the United States, was formally rescinded by Trump in 2017.

Under the current policy, for a DACA-eligible immigrant to gain deferred status to continue to stay in this country, they cannot have a felony conviction, a significant misdemeanor conviction, or three or more misdemeanor convictions. They must also pose no threat to national security or public safety. These eligible immigrants are referred to as “Dreamers.” However, under the current policy, there was no path to legal residency or ultimately citizenship.

Democrats have authored a bill to be considered by the House that would affect the process of gaining permanent residency for Dreamers and the conditions that would disqualify them from completing the process. Part of the new bill allows Dreamers to be deported if they have a felony DUI offense, three or more misdemeanor offenses, or if their DUI record can be interpreted by the Secretary of Homeland Security to be a threat. Although this is the main focus of the bill, there is also a section in the bill that allows the Secretary of Homeland Security to grant waivers for undocumented immigrants in regards to up to two DUI misdemeanors being counted against them if they have not had similar convictions in the 10 years leading up to their application for legal status. On the flip side, the Secretary may also deny someone’s legal status with one DUI offense if that offense leads to the belief that the person can be considered a public threat.

Supporters of this bill feel that it would be hypocritical for Congress to hold the Dreamers to a different standard than themselves. There have been several members of Congress who have a history of DUI and, for them, apologies seemed to have sufficed to allow them to continue in their positions. Examples of current members include Texas Representative Kevin Brady who pled no contest to a DUI charge in 2005, Idaho Senator Mike Crapo who pled guilty to DUI in 2013, and former Rhode Island Representative Patrick Kennedy who pled guilty to DUI in 2006.

Opposition to the bill feels that this new bill does not consider the severity of DUI convictions. Ohio Representative Chabot was quoted, “We should not be passing laws which shield drunk drivers from removal or reward them for their dangerous conduct by fast tracking them to get a green card.”

Committee Chairman Jerrold Nadler of New York feels that “people make mistakes and laws and policy decisions should reflect that. [They are] no more or no less a public safety threat than a member of Congress who has a DUI conviction from several years ago.” Nadler continued, “This legislation is intended to recognize reality, that these people are Americans, that they are Americans in every sense except for a piece of paper, and to say, to imply, there’s one standard for members of Congress with a DUI conviction and another … where a single DUI can automatically expel them from the country is wrong.”

As an immigrant myself with permanent residency I agree that it does seem unfair to judge a person from a past DUI conviction when that mistake was just that; a mistake. Although I agree that society as a whole should be well aware of the seriousness and consequences of driving under the influence, setting a different standard for those children who had no say in coming into this country to begin with and have known no other home but this country, seems to be unfair. Obviously, if a Dreamer racks up multiple DUI, misdemeanor, or felony convictions, then at that point they would start to pose a threat to society, and the Secretary of the Department of Homeland Security might have cause to deny legal status. Whether the bill passes or not, let’s hope that even the prospect of the bill becoming law is enough to deter Dreamers from getting behind the wheel while under the influence.  

 

 

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Are High-Tech Breathalyzers in the Offing?

Thursday, June 13th, 2019

The Maui Police Department hope to be able to start enforcing their DUI laws in a more time efficient manner with the purchase and arrival of six new high-tech breathalyzers.

The current Intoxilyzer 8000 models have been used by the department since May 2015 and the introduction of the newer Intoxilyzer 9000s will hopefully allow the officers to spend less time documenting their tests results.

The new device is equipped with a touchscreen rather than a keyboard for easier data entry and its updated software will allow for some of the departmental forms to be incorporated into the device. This will allow the device to create reports rather than the officers manually typing out the reports as they did previously.

A grant totaling $63,000 through the state Department of Transportation allowed for the purchase of the new devices, and the Maui Police Department will be the first department in the state to transition to the Intoxilyzer 9000. The Honolulu Police Department also hopes to soon make the same transition.

DUI Task Force Sergeant Nick Krau has been tasked with the training as well as the writing of policy and operating procedures for the Intoxilyzer 9000 that will eventually be reviewed by the state Department of Health before being distributed. Official training and use of the new devices will take place soon thereafter.

A total of twelve officers, coming from multiple islands, spent time at a two-day training course at the Kihei Police Station in order to familiarize themselves with the new devices. The attending officers will be the ones primarily training other officers.

According to Lieutenant William Hankins, the commander of the police Traffic Section, “The technology is still the same as far as how it analyzes breath readings. It just makes it easier for the officers. Everything’s going to be faster.”

Six devices may not seem like a lot for an entire police department. however, these are not the same devices that patrol officers will have out on the street. The new Intoxilyzer 9000 devices will be analyzing results after the preliminary tests are administered and are to become the tests that are admissible in court.

Each police station in Maui County will have a new Intoxilyzer.

“We always strive to have the most updated technology possible for our officers and our community. It will allow us to get our officers back on the road faster,” said Krau.

I hope that the state departments and various police department heads do their very best to make sure that statement rings true.

A quick Google search revealed that the Intoxilyzer 9000 series has been in circulation as early as 2013. Some of the first states to implement the new model were Georgia and Colorado. Texas made a slower transition as there where a few deficiencies with the device that became apparent after other states had already begun using it but aimed for full implementation in 2015.

Although not quite as new and novel as Krau made it out to be, Hawaii’s implementation of the Intoxilyzer 9000 might signify an emerging trend of modernizing breathalyzers. Perhaps they were merely waiting for all of the deficiencies of the earlier 9000 series to work themselves out.

 

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