Supreme Court to Decide if Cops Can Draw Blood from Unconscious Driver

Tuesday, January 22nd, 2019

The United States Supreme Court has agreed to hear and decide a case that challenges a Wisconsin law that allows law enforcement to withdraw blood from an unconscious driver that they suspect was driving under the influence.

The case stems from the 2013 arrest of Gerald Mitchell in Sheboygan County, Wisconsin. After receiving reports that the driver of a gray van may have been intoxicated, officer Alex Jaeger pulled Mitchell over. A pre-arrest breathalyzer revealed that Mitchell had a blood alcohol content of 0.24 percent, three times the legal limit. Officer Jaeger then arrested Mitchell and drove him to a hospital to withdraw a blood sample.

By the time Mitchell and officer Jaeger had arrived at the hospital, Mitchell had lost consciousness and could not be woken. While at the hospital, Mitchell appeared to be too intoxicated to answer questions from a blood-withdrawal consent form. Notwithstanding his unconscious state, blood was taken from Mitchell without a warrant and without his expressed consent.

The blood test revealed that Mitchell’s blood alcohol content was 0.22 percent.

At trial, Mitchell challenged the results arguing that the warrantless blood withdrawal amounted to an unreasonable search and seizure in violation of the 4th Amendment. Mitchell’s suppression motion, however, was denied and the jury convicted him of driving under the influence.

The Wisconsin Supreme Court took up the case to address whether implied consent under “implied consent laws” (laws that require a person to submit to a breath or a blood test if they are legally allowed to drive and if law enforcement has probable cause to believe a person is driving under the influence) is constitutionally sufficient to allow a blood withdraw without expressed consent while a driver is unconscious.

The Wisconsin Supreme Court held that, by virtue of Mitchell’s mere possession of a driver’s license, Mitchell had already impliedly provided consent to allow law enforcement to withdraw blood if law enforcement had the probable cause to arrest him on suspicion of driving under the influence. To boot, the court concluded that officer Jaeger had the probable cause to arrest Mitchell on suspicion of driving under the influence, and therefore law enforcement could withdraw blood from Mitchell while he was unconscious.

In its opinion, the court stated, “…we conclude that consent given by drivers whose conduct falls within the parameters of [Wisconsin’s Implied Consent law], is constitutionally sufficient consent to withstand Fourth Amendment scrutiny…” Furthermore, the court concluded that Mitchell, having consumed alcohol to the point of unconsciousness, “…forfeited all opportunity, including the statutory opportunity…to withdraw his consent previously given; and therefore, [Wisconsin’s Implied Consent law] applied, which under the totality of circumstances reasonably permitted drawing Mitchell’s blood. Accordingly, we affirm Mitchell’s convictions.”

The United States Supreme Court is set to hear Mitchell’s case and it could be decided by late June of this year.

In 2016, the United States Supreme Court ruled that it was lawful for states to impose penalties for drunk driving suspects who refused to take a breath test under the state’s Implied Consent law. However, the Court went on to conclude that while their “prior opinions have referred approvingly to the general concept of implied consent laws,” that “there must be a limit to the consequences to which motorists may be deemed to have consented to only those conditions that are ‘reasonable’ in that they have a ‘nexus’ to the privilege of driving.” Thus, Implied Consent laws that punish people who refuse a blood test are too intrusive and, therefore, unconstitutional.

“[If] criminal penalties for refusal are unlawful because they too heavily burden the exercise of the Fourth Amendment right to refuse a blood test, can it really be that the state can outright abolish the very same right?” Mitchell’s attorneys asked.

Mitchell’s attorney’s question is a valid and one that I hope the Court concludes the answer is “no.”

 

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New Canadian DUI Law: Police can Breathalyze in Homes, Bars, and Restaurants

Tuesday, January 15th, 2019

I know I complain a lot about the DUI laws here in California. There is much improvement to be made with regard to how law enforcement enforces drunk driving laws and how prosecutors prosecute drunk driving laws. Having said all that, at least we’re not in Canada.

Section 253 of the Criminal Code of Canada was effectively changed in December of 2018 which gave law enforcement the authority to seek breath samples from people who might have been driving under the influence of alcohol.

Here in California, an officer must have probable cause that a person was under the influence before they could arrest them on suspicion of a DUI. Only then was a person required to provide either a breath or a blood sample. Prior to that arrest, any breath sample provided was voluntary on behalf of the driver.

Under Canada’s new law, police officers no longer need to have “reasonable suspicion” that a person had consumed alcohol to force that person to take a breathalyzer. Police could demand breath samples from people at their home, in a bar, or at a restaurant. If the person refuses, they could be arrested and charged, and if convicted, can face a fine and a driving suspension.

Notwithstanding the potential to arrest a person who was not driving under the influence of alcohol, but rather lawfully drinking in their home or elsewhere, supporters of the law point to the use of another “tool” in combating drunk driving.

“Police miss a lot of impaired drivers,” said Toronto police spokesman Sgt. Brett Moore. “It’s just a really good, strong message that there’s a real high likelihood that if you get stopped by police, you’re going to get asked to submit to a breath test.”

Not surprisingly, Mothers Against Drunk Driving Canada also supports the new law asserting that mandatory alcohol screening will make the roads safer.

Don’t get me wrong, I too support making roads safer, but not at the risk of arresting, charging, and punishing people for doing something perfectly lawful. I’m not the only one.

“It’s ridiculous, it’s basically criminalizing you having a drink at your kitchen table,” Paul Doroshenko, a Vancouver criminal defense lawyer who specializes in impaired driving cases, told Global News. “If you start to drink after you get home, the police show up at your door, they can arrest you, detain you, take you back to the (police station) and you can be convicted because your blood alcohol concentration was over 80 milligrams (per 100 millilitres of blood) in the two hours after you drove.”

The Canadian Civil Liberties Association also expressed concern about Canada’s new law saying that mandatory alcohol testing will disproportionally affect racial minorities who might be unfairly targeted by law enforcement.

Notwithstanding its problems, Minister of Justice and Attorney General Jody Wilson-Raylould believes that the law with withstand judicial scrutiny when it is challenged in court and is in support of the new law.

“Impaired driving is the leading criminal cause of death and injury in Canada,” said Wilson-Raybould in December. “I believe these reforms will result in fewer road deaths and fewer Canadian families devastated by the effects of an impaired driver. This is one of the most significant changes to the laws related to impaired driving in more than 40 years and is another way that we are modernizing the criminal justice system.”

It could take years for legal challenges to make their way through Canada’s appeal courts and even the Supreme Court of Canada. Until then, people, all people in Canada, are subject to a law that could find them in legal trouble even though they’ve done nothing wrong.

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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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Visiting Canada with a DUI Conviction

Thursday, August 2nd, 2018

Canada considers driving under the influence a very serious crime, so much so in fact, that they consider it an “indictable offense.” This is the functional equivalent to a felony under California law.  Unlike California where a DUI is, for the most part, considered a misdemeanor for a first, second, and third offense and punishable up to a year in jail, as an indictable offense in Canada, a DUI is punishable up to five years in jail.

Because all DUI’s are, for all intents and purposes, considered felonies, anybody convicted of a DUI or even a wet reckless is excludable from entry into Canada.

Notwithstanding a DUI conviction, however, a person can currently enter Canada if they are “deemed rehabilitated.” To be deemed rehabilitated, the maximum term of imprisonment for the DUI conviction was less than 10 years (which it almost always is unless you’ve been convicted of certain felony DUI’s), the sentence for the California DUI conviction was completed at least 10 years ago, and no other indictable offenses were committed during those 10 years. If someone meets these criteria, they do not need to do anything further to gain entry into Canada, although it would be a good idea to have proof of this when trying to cross the border.

In other words, to gain entry into Canada, you must have completed your sentence more than 10 years ago and you cannot have picked up any more “indictable offenses” since.

This, however, may soon change under a new Canadian law which would make it even harder to enter Canada with a DUI on the books.

The new law which will take effect this October is part of Canada’s Cannabis Act, which legalizes recreation marijuana.

“Those people that have been entering into Canada after that 10 years had passed can now have that undone and now become inadmissible again,” said immigration attorney Jamie Fiegel who is a partner at the law firm Fiegel & Carr, which specializes in immigration cases in Canada and the United States.

Under the new law, people will no longer be able to automatically enter Canada following the 10 year-wait period.

“There will be no time period that will be able to be passed that would allow you to automatically regain the right. You will have to file at the Canadian consulate in order to regain the right to enter back into Canada,” said Fiegel.

Fiegel is referring to what is called “individual rehabilitation,” otherwise known as “rehabilitation by application.” The first requirement is that at least five years must have passed since the completion of the sentence for a California DUI conviction. It gets tricky however in trying to calculate the five-year wait period. The five-year wait period can be calculated in the following ways: 1.) five years from the date of sentencing if given a suspended sentence; 2.) five years from the date a fine was paid if given a suspended sentence and a fine; 3.) five years from the end of a prison term with no parole; 4.) five years from the end of parole or probation if sentenced to either; or 5.) five years from the end of a driver’s license suspension.

If someone meets the criteria needed for individual rehabilitation, they will need to fill out an application and submit it to a Canadian visa office located in the U.S. The application requires the applicant to explain why they are rehabilitated. The submission of the application for individual rehabilitation also requires a non-refundable application fee that will also be increasing in October.

While our neighbors to the north might have a reputation for being friendly, they most certainly are not when it comes to past DUI convictions, eh.

If you plan on traveling to Canada and you have a DUI on your record, regardless of how long ago it was, I suggest you contact an immigration attorney to make sure you’re not turned away at the border.

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