DUI on a Lawnmower

Thursday, May 30th, 2019

According to the Florida DMV website, “Driving under the influence (DUI) is defined as operating a motor vehicle while impaired with a blood alcohol content (BAC) of 0.08% or higher, a chemical substance, or a controlled substance. Those under 21 years old will be charged with a DUI if their BAC is 0.02% or over and commercial drivers will be charged if their BAC is 0.04% or over.”

The term “motor vehicle” is used by most states and has a wide range of interpretations. In previous posts, we have covered DUI for unusual vehicles such as drones and electric scooters. Well, another “vehicle” has popped up in the news that made me question the thought processes of man; a lawnmower. Yes, that’s right, a lawnmower. Granted, it wasn’t one that you pull the string to get the motor going and push across your lawn. It was a larger type that you sit on and “drive” across your lawn and one that actually had a trailer attached to it, but still, what need would one have to drive it in a parking lot?

I get it. If my neighbor Farmer John needed to borrow my John Deere tractor, someone may drive it across the street to his farm, but I’ll say it again, a lawnmower?

What’s more, the man was caught because he ran into and damaged a police car!

On May 4, a police officer had parked his police cruiser in a parking lot in Haines City, Florida, and stepped inside a nearby business to deal with a dispatch call when he heard a loud noise outside of the business. The officer stepped outside to check the situation to find Gary Anderson, 68, sitting atop of a lawnmower with a trailer containing a cooler. Although he admitted to hitting the patrol car, he denied causing any damage to it. However, upon inspection, the officer saw that there was some damage to the bumper of the cruiser.

Anderson admitted to having “consumed a pint of wine prior to the crash.” The officer conducted field sobriety tests, which Anderson failed. According to the affidavit, Anderson “almost fell to the ground multiple times while walking and standing.” While in custody, Anderson’s demeanor changed from jovial to belligerent with foul language and racial slurs. After a while, he started to accuse the police of poisoning him and asked to be taken to a hospital. Tests were done at the Heart of Florida Regional Medical Center, where results showed Anderson of having a 0.241 percent blood alcohol content, approximately three times the legal limit. The blood tests also revealed cocaine in his system. Anderson, however, accused the officers of poisoning him with the cocaine.

According to one source, Anderson had been convicted of DUI twice within the last 10 years and was charged with a third DUI in 10 years and refusing to submit to a chemical test. However, other sources say his most recent charge was back in 1987. This discrepancy can make a huge difference. According to the Florida Vehicle Code, if Anderson’s third conviction is within 10 years of a prior conviction, then there is a mandatory jail sentence of at least 30 days. If his conviction is more than 10 years of a prior conviction, then imprisonment is for not more than 12 months. Not only is there a difference in possible jail time, if the third DUI is within 10 years of a prior conviction, then Anderson is possibly guilty of committing a third-degree felony.

Anderson was held in jail in lieu of $3,000 bail.

“I’m proud of the professional demeanor our officers showed when dealing with this heavily-intoxicated, belligerent offender,” Haines City police Chief Jim Elensky said in a statement. “It’s never a good idea to get behind the wheel drunk, even if that wheel is to a Craftsman, Massey Ferguson or John Deere.”

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Pennsylvania Allows Public Input on New DUI Laws

Friday, May 24th, 2019

The Pennsylvania Senate Majority Policy Committee held a hearing on Monday, May 13th, seeking public input on new DUI laws.

The hearing was motivated after a fatal DUI related crash in February. The crash occurred around 9:30 p.m. on February 16th, Deana and Chris Eckman were driving on Route 452 in Upper Chichester, when David Strowhouer’s pickup truck crossed a double yellow line and slammed head-on into their car.

Authorities report that Strowhouer’s blood alcohol level was 0.199 and there were traces of cocaine, diazepam, and marijuana in his system. Court records showed that Strowhouer suffered five prior DUI’s in the last nine years and was on probation at the time of the crash.

Senator Tom Killion, a member of the committee, addressed the hearing, “Since the accident, everyone has been asking the same questions. How could this happen? How could someone who had already had five DUI’s once again get behind the wheel while intoxicated and end someone’s life, and what can we do to prevent this from happening again?”

Deana’s parents had done their homework and came to the hearing with some of the state’s DUI related data. One of them being that the minimum sentences for repeat offenses remain at one year and early release on “good-time” credit is a normal occurrence. As in Strowhouer’s case, a 2017 DUI incident gave him both his fourth and fifth DUI’s. He was given a total sentence of 18 to 36 months in state prison as his sentences were concurrent, rather than consecutive. Strowhouer’s arrest following the crash with the Eckmans would be his sixth DUI.

Deana’s father, Richard DeRosa, stressed that real change can only come from technological changes to the system, such as the Driver Alcohol Detection System (DADSS) which works to immobilize the vehicle when it detects that the driver is over the 0.08 percent legal blood alcohol concentration limit. Others, such as Mothers Against Drunk Driving representative Debbie D’Addona, suggested items such as the SCRAM continuous alcohol monitoring bracelet, which notifies law enforcement when those monitored imbibe.

According to Chris Demko of Pennsylvania Parents Against Impaired Driving, state statistics showed that 300 people are killed every year by drunk drivers in the state and that around 40% of that number involve repeat offenders.

Killion noted that there is a hope for more focus on repeat offenders with repeated high blood alcohol contents and that it was necessary to change the public perception of an initial DUI from “something that is not a big deal to a wake-up call.”

Delaware County District Attorney Katayoun Copeland was open to the idea of implementing more technology to monitor parolees and probationers, and assured that the ideas would be explored further, but also noted that the committee has made progress in the last few years.

The committee’s push for harsher penalties resulted in a new homicide by vehicle while driving under the influence law which carries a mandatory minimum seven-year prison sentence. Although it was small consolation to the family of the Eckmans, Strowhouer was the first person in Delaware County to be charged under the new law.

Copeland also suggested during the hearing that additional laws be enacted in the current session, such as increasing minimum penalties to two or more years for repeat third tier offenders and removing the possibility for early release for repeat offenders.

Given Pennsylvania’s current statistical profile when it comes to DUI’s, it’s no wonder many in the public believe DUI offenders, including repeat offenders, are getting the benefit of the doubt. While I am all for giving someone a second chance, at some point it must be acknowledged that a problem exists when a person suffers multiple DUI offenses with a particularly high blood alcohol content.

Thus, several questions are begged: How do lawmakers address the problem of repeat DUI offenders? Do they punish more severely with the hope of a deterrent effect? Or do they try to keep drunk drivers off the road from the get-go?

DeRosa and D’Addona’s wish to implement more technology also comes with a price, literally. Those items are costly. Will the offenders be able to pay for them? DeRosa suggested during the hearing that Pennsylvania start requiring all new vehicles have the DADSS system installed. That’s nice, but not all of these offenders will be driving a brand-new car. Someone who is driving a 30-year-old clunker is just as likely to have too much to drink.

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Pomona Man Charged with Murder for DUI that Killed 6-Year-Old

Wednesday, May 15th, 2019

Last week, Franky Provencio, 19 and from Pomona, was arrested for murder amongst other charges after it was suspected that he drove drunk, collided with another vehicle, and killed the six-year-old passenger of the other vehicle.

On Tuesday of last week, Provencio veered his GMC Yukon into oncoming traffic on White Avenue in Pomona and collided with a pickup truck. The pickup truck, driven by Peter George of Upland, was also carrying his six-year-old son, Julian Anthony George. While Peter George was hospitalized in critical condition, Julian Anthony George was pronounced dead at the scene. Provencio and his passenger were also hospitalized, although the passenger was released shortly thereafter.

Officers responding to the scene determined that Provencio was under the influence of alcohol and/or drugs. Officers also determined that George had been drinking prior to the collision. Julian was not properly secured in a child seat.

Provencio was found to have suffered a prior DUI conviction from last year that he was still on probation for. Additionally, Provencio was driving on a suspended license.

Provencio was arrested after he was released from the hospital late last week and now faces charges of murder, DUI causing great bodily injury, and possession of a controlled substance. He is being held on $2.63 million at the Men’s Central Jail in Los Angeles.

While the crime of murder is generally reserved for people who intend on killing another person, California has created an exception that allows prosecutors to charge murder for DUI-related collisions that kill someone else if the suspect has suffered a prior DUI conviction.

Prior to 1981, a person who killed someone while driving under the influence could not be charged and convicted of murder. However, the landmark case of People v. Watson changed that.

California Penal Code section 187(a) provides that “Murder is the unlawful killing of a human being…with malice aforethought.” “Malice” refers to the deliberate intention to unlawfully kill someone else. However, malice can be also be “implied” and implied malice exists when a person knowingly engages in an act that is dangerous to human life and they engage the act with a conscious disregard for human life.

The court in the Watson case found that if the facts surrounding a DUI-related fatality support a finding of “implied malice,” second degree murder can be charged. In other words, if a person engages in driving under the influence when they know that it is dangerous to human life to do so, and they kill someone, they can be charged with murder.  

Now the question becomes, “Did the person know it was dangerous to human life to drive drunk?”

While we all know that it’s dangerous to drive drunk, since Watson, courts started expressly advising people who have been convicted of DUI, on the record, that it is, in fact, dangerous to drive drunk. This was not because the court actually thought that the defendant didn’t know it, but rather to ensure that the prosecutor could charge murder instead of manslaughter upon a subsequent DUI causing the death of someone.

Having handled hundreds of DUI cases myself in Los Angeles County, I can tell you almost positively that Provencio was told the “Watson advisement” by the judge while being convicted in his first DUI case, or at a minimum signed a document acknowledging the “Watson advisement,” or both.

Provencio is due at the Pomona Courthouse on June 5th.

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Should the Law Require that Video be Taken during DUI Stops?

Thursday, May 9th, 2019

South Carolina, a state that carries the unfortunate honor of having one of the highest rates of DUI-related deaths in the country, also has one of the most unique DUI laws in the country. But it’s not a law that you would have expected, such as a lower BAC limit or unusually high punishment for a DUI. Rather, the law requires that law enforcement video record all DUI stops.

The law and the repercussions for not following the law has led to law enforcement, prosecutors and even the media to call the law a “camera loophole” that allows drunk drivers “off the hook.”

This week, WBTW News13 reported on this so-called “loophole.”

News13 investigates: ‘Camera loophole’ still letting drunk drivers off the hook

May 9, 2019 – WBTW News13 – South Carolina’s per-mile rate of DUI fatalities is among the highest in the nation every year.

A report released last year ranks the Palmetto State second in the U.S. for drunk driving deaths.

Police and prosecutors say current state law is putting you and your family in danger, because drunk drivers that should be getting convictions are walking away scot-free.

They say one contributing factor is a loophole in the state’s DUI law. It’s called the “camera loophole.”

News13 investigated the camera loophole in 2016. Since then, there has been little effort to fix the law. 

The South Carolina chapter of Mothers Against Drunk Driving released a three-year report last year. It found that DUI cases that were resolved in less than a year resulted in a 52 percent conviction rate compared to 33 percent in cases that dragged on for more than a year.

South Carolina law requires police to videotape DUI traffic stops. Any small misstep could jeopardize a case — if the driver stumbles out of frame, the driver’s feet can’t be seen, or the shot is too dark.

One video shows a Horry County officer giving a field sobriety test to a man who ran off the side of the road. He can’t walk in a straight line, and the officer said he also failed an eye test.

But because you can’t clearly see his face, Horry County Solicitor Jimmy Richardson said this situation probably wouldn’t hold up in court.

“You’re not all the way on. Or, if your feet as you get closer to the car cut off for a second then that throws the case out,” Richardson said.

You read that correctly: a blip, static, or stumble doesn’t just get the video dismissed, it can get the whole case dropped.

PFC Shon McCluskey with the Myrtle Beach Police Department said a lot of effort goes into setting up the perfect shot.

“It is a process. We’ve actually joked around at times saying sometimes you feel like you have to have an entire live PD scene with you to get every aspect of the case to make sure that everything is perfect.”

McCluskey said he takes extra precaution to make sure his dash cam video frame is wide enough and that there is nothing blocking the shot. But some things are out of his control.

“We’re not working in perfect environments out here every day. It’s not always sunny, it’s not always calm. Sometimes it can be a little windy, it can be rainy.”

Efforts at the legislative level in recent years to change the video requirements have failed. Bills introduced in the House and Senate in 2015 adding more wiggle room to the video requirements never moved out of committees.

None have been introduced in the current session.

News13 asked Jimmy Richardson why little progress has been made.

“Some of my best friends are in the legislature,” Richardson replied, “So present company excluded, about 40 percent of our legislature are attorneys. Only two or three of them are former prosecutors, the other 39.9 percent are defense attorneys. And this is where defense attorneys make their money. So, I would suggest that’s probably why the law is so complicated.”

Attorney and South Carolina Senator Stephen Goldfinch said it’s so complicated, because lawmakers are trying to balance the constitutional rights of everyone.

“Even if they are the lowest of the low, the murderers, the DUI drivers that kill people, the people that none of us want to protect, we have a legal duty, a constitutional duty to protect,” Goldfinch said.

Goldfinch said video evidence isn’t being tossed out of cases as often as law enforcement and advocates claim, but he admitted there are problems with the law.

“There are cases out there that show us that there have been problems in past history in regards to the loophole that you’re talking about,” Goldfinch said. “And I think there are some cases where we could probably close that loophole on. But we’ve got to be careful not to interject ourselves into the middle of the court system and the judicial system and the province of the judge.

Richardson also said that closing any DUI loopholes may need to come from the judges instead of the lawmakers.

“Case law will probably be the way to change that, saying that it doesn’t have to be 100 percent, it’s what is reasonable under the circumstances,” Richardson said. “And just with those four or five words you fix the entire system.”

But is it really fair to call the South Carolina law a loophole?

The purpose of the law is transparency, plain and simple, and for good reason. At a time when the public trust in law enforcement is waning, due in large part to police getting caught engaging in less-than-honest interactions with people, transparency with law enforcement is absolutely essential.

I can tell you firsthand that there is a problem with law enforcement fabricating information in DUI police reports. I have personally handled a case where the police deliberately took a DUI suspect out of dashboard camera range to perform the field sobriety tests, stated in the police report that the suspect failed the tests, and then the person’s blood alcohol content later turned out to be only 0.02 percent, well below the legal limit and an extremely strong indication that the suspect was sober. When handling the case, the prosecutor, who I personally knew, admitted that this was a problem she had seen with several DUI cases.

Let me simplify what I’ve just said. The police deliberately tried concealing their own lie just to put someone in jail for a DUI when that person wasn’t even drunk!

This South Carolina law is not “loophole.” It is ensuring transparency to protect the rights of the public. And if people who are actually driving drunk are “let off the hook,” it’s not because there’s a problem with the law. Rather, it’s because there’s a problem with law enforcement’s ability to abide by the law.

Here are some suggestions: Give better training to your officers, invest in some better dash cam equipment, or better yet, get some body cameras.

Personally, and I hope you would agree, I would rather see law enforcement take a few extra steps towards ensuring transparency than see wrongful DUI arrests by police who just want to add a notch on their belt.

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Wisconsin Looks to Criminalize Drunk Driving

Tuesday, April 30th, 2019

Wisconsin state law makers are continuing the trend of proposing bills that call for more stringent driving under the influence laws.

Under current law in Wisconsin, operating while intoxicated, or “OWI” as it’s called in Wisconsin, is a civil violation with the first offense subject only to a fine of no less than $150 and no more than $300. A second offense will only have increased penalties if the person has committed the OWI within ten years of the first offense or if the OWI offense caused death of great bodily harm to another.

A bi-partisan plan of bills was introduced, with one of the bills pushing to make the first offense a misdemeanor and would call for a fine of up to $500, imprisonment for up to 30 days, or both. This same bill will also subject a second offense to increased penalties regardless of the offense occurring within ten years of the first OWI-related offense.

There is another bill within this plan that calls for a mandatory minimum jail sentence of five years for committing a homicide while driving drunk. Current penalties include imprisonment of up to 25 years if a Class D felony and up to 40 years if a driver is found to have had prior convictions and thus charged with a Class C felony. However, neither one of these penalties have a minimum imprisonment limit.

A public hearing at Wisconsin’s Capitol was held to address several bills, including those mentioned above. The hearing included testimony from families who have lost family and loved ones through the actions of drunk drivers and many of them have called for stricter punishments for under the influence offenders.

In comparison to other states that have already categorized driving under the influence as a criminal offense, this change may seem fairly minor and certainly a long time coming. If you recall one of our earlier posts about states with the most DUIs (States with the Most Drunk Drivers), Wisconsin clocked in at number 4. It is quite possible that part of the reason why their numbers are so high in the survey is that their citizens have less incentive to refrain from getting behind the wheel after a few too many drinks. Republican Representative Jim Ott, who authored the bills, was quoted “I think it would be a deterrent effect. I think if people recognized and were taking drunk driving more seriously in Wisconsin than we have in the past, that it would cause people to not drive drunk and be a first offender.”

According to the Wisconsin Department of Transportation there were 25,734 OWI citations in 2015, 93% of which were found guilty. In theory, categorizing a first offense OWI as a criminal act and processing a drunk driver’s sentence as such should be a deterrent and keep those who are considering the additional drink from climbing behind the driver seat. However, I am fairly certain that there is a significant number of people who didn’t want to deal with civil action and simply plead guilty since the penalty was only a fine. However, if that were to be a criminal mark on your record, people will undoubtedly start to pay a little more attention to the seriousness of the situation. Consequently, criminal defense attorneys can apply their expertise to make sure that the arrests are legitimate before allowing their clients to plead guilty to what is now a criminal action with more serious consequences.

There is also a major question that will need to be addressed should these bills go forward: Is Wisconsin’s court system actually prepared for this change? The bills still have to go through another group of lawmakers before being presented to the floor for a vote, but if they do go through, there are changes to the court system and the entire criminal process that may make things difficult in other ways.

Because even first offenses will be considered criminal, all OWI cases will need to start going through the District Attorney’s office. If there is a lack of sufficient personnel to handle such an increased caseload at the District Attorney’s office, the delays in charges being filed that would result is likely inevitable. Not only that, are the jail systems prepared to handle the increase for if offenders as a result of the new laws?

Time will only tell what happens with the new laws, whether they get passed, and, if so, what effect it will have on deterrence, the court system, and the district attorney’s office.

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