Can Technology End Drunk Driving?

Thursday, October 17th, 2019

If you’re anything like me, the speed with which technology is advancing is almost too much to keep up with. No doubt, while some technology is proving to be a detriment to society, like the diminishment of person-to-person interaction, other technology serves to benefit technology, like the various ways lives can be saved as a result of technology. Two law makers are hoping that new technology can stop drunk driving and save lives in the process.

Recall the post Can Alcohol Sensors in All Cars Eliminate Drunk Driving? where I discussed the prospect of introducing alcohol sensing technology into all new vehicles available for purchase.

Since then, as expected, alcohol sensing technology has advanced and Tom Udall, a democratic senator from New Mexico, and Rick Scott, a republican senator from Florida, have said in a recent interview with Reuters that they plan on introducing bi-partisan legislation making the technology a requirement for all new vehicles off the lot.

“This issue has a real urgency to it,” Udall said in an interview with Reuters. “The industry is often resistant to new mandates. We want their support but we need to do this whether or not we have it – lives are at stake.”

According to the National Highway Traffic Safety Administration (NHTSA), almost 30 people die in the United States as a result of drunk driving. In 2017, that amounted to 10,847 fatalities involving drunk driving.

The technology that Udall and Scott are referring to are devices implanted within a steering wheel or a push-button ignition that can detect the blood alcohol content of a driver through infrared lights shined through the driver’s finger tips. They are also looking at sensors that monitor a driver’s eye movement and breath. Whatever the method, should the technology detect a blood alcohol content higher than the legal limit, the driver will not be able to start their vehicle.

A similar bill has been introduced in the U.S. House of Representatives by Debbie Dingell, a Democrat, that would require setting rules for advanced vehicle alcohol detection devices by 2024.

The NHTSA has invested over $50 million spanning 10 years in similar technology to what Udall and Scott are seeking to implement. The technology is already undergoing limited field testing in Maryland and Virginia, according to Udall.

Earlier this year, Volvo announced plans to install cameras and sensors in its vehicles by the early 2020’s to monitor the driver for distractions, errors, and even drunk driving. And should the technology detect anything that could result in a collision, the vehicles internal system would limit the vehicle’s speed, alert the “Volvo on Call” assistance service, or slow down and parking the car.

Udall and Scott’s Reduce Impaired Driving for Everyone Act, or RIDE Act, can be read here.

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Are Drunk Drivers More Likely to Commit Violent Gun Crimes?

Friday, October 4th, 2019

According to a group of researchers at the University of California, Davis, people who have been convicted of a California DUI are at a higher risk for committing violent gun crimes.

Building upon prior research that suggested a correlation between alcohol and gun violence, researchers from the university monitored nearly 80,000 people who purchased guns between 2001 and 2013. They found that nearly three percent of gun purchasers with a prior California DUI conviction later committed a violent gun crime. Additionally, according to the researcher’s finding, which were published in the Journal of the American Medical Association, only 0.05 percent of people without any prior DUI conviction went on to later commit a violent gun crime.

Can DUI convictions help keep guns out of the hands of people prone to violence?

October 2, 2019. Los Angeles Times – Drinking and driving is already a deadly cocktail. New research finds that adding gun ownership to the mix heightens the risk for violent outcomes.

A study that set out to track about 80,000 legal gun purchasers in California found that handgun buyers with a DUI on their record were more likely to go on to be arrested for a violent crime. That was the case even if driving under the influence of alcohol was the only criminal conviction in his or her past.

In the roughly dozen years after purchasing a gun in 2001, Californians who had already been convicted of drunk driving were 2.5 times more likely than those with no DUI convictions to be arrested on suspicion of murder, rape, robbery or aggravated assault, according to the study published this week in JAMA Internal Medicine. If the range of violent offenses was broadened slightly to include crimes like stalking, harassment or child neglect, handgun buyers with a prior DUI were more than three times likelier than those with no DUI conviction to be arrested.

The new findings come as the California Assembly considers a bill that would revoke a person’s right to own a gun for 10 years if he or she has been convicted of two or three (depending on the offense) misdemeanors involving alcohol in a span of three years.

Senate Bill 55 was passed in May by a vote of 26 to 10. It is opposed by Gun Owners of California, a gun rights group, and by the American Civil Liberties Union, which argues the bill would disproportionately affect black people and fails to address the “root causes” of substance abuse and violent behavior.

Under California law, people who have a felony conviction can’t receive a gun license from the state. In addition, people with misdemeanor convictions for crimes involving violence, hate, the unlawful use of firearms and certain other things aren’t eligible to receive a license for 10 years. SB 55 would add convictions for public intoxication, disorderly conduct under the influence of alcohol, and drunk driving to that list.

The new research goes some way toward filling a gap in research that prompted then-Gov. Jerry Brown to veto an earlier version of the bill in 2013. In blocking the proposed law, Brown wrote that he was “not persuaded that it is necessary to bar gun ownership on the basis of crimes that are non-felonies, non-violent and do not involve misuse of a firearm.”

The study comes from researchers at UC Davis’s Violence Prevention Research Program. Its findings suggest that denying gun ownership rights to those with a history of drunk driving convictions would reduce violent crimes and might save lives. In 2017, 14,542 homicides and more than 400,000 violent victimizations involved the use of a firearm.

But the researchers did not draw a causal line between drunkenness and criminal violence. Although roughly a third of all firearms deaths in the United States are thought to have involved alcohol, these new findings do not suggest that alcohol itself prompts or predisposes a gun owner to victimize others.

Instead, they suggest that, across broad populations, many people who engage in risky behavior involving alcohol will also engage in the kinds of risky behavior that endanger other people’s lives. And in cases where heavy drinking and gun access are combined, impaired judgment might heighten the risk that an individual predisposed to violent behavior will act out.

In that sense, the new findings zero in on a subgroup of gun owners who may have driven some of the sobering findings of a 2011 study by Dr. Garen Wintemute, the director or the Violence Prevention Research Program and senior author of the new report.

Drawing from a survey of Americans’ risk behaviors, Wintemute found that gun owners in general were twice as likely as those who do not own guns to drink heavily, and 2.5 times more likely to get behind the wheel after having drunk, by their own admission, “perhaps too much.”

The new study makes clear that lawless behavior is not the norm among gun owners. The researchers were able to track 65,387 Californians between the ages of 21 and 49 who bought a handgun legally in 2001 and could still be found in the state in 2013. Of those overwhelmingly male and mostly white gun buyers, 1,495 — fewer than 2% — had a prior conviction on a drunk driving charge. And just over 14% of that small group of gun owners were arrested for violent crimes during the 12-year study period.

That is much higher than the 3% rate at which gun buyers with no DUI or other convictions went on to be arrested for a violent crime. (After adjusting for factors such as age, gender and ethnicity, the researchers found the risk for those with a prior DUI conviction was 2.5 to three times higher than those with no such conviction.)

In focusing on DUIs, “we’ve identified a risk factor for future violence among people who buy handguns, and the association is fairly strong — an almost threefold increase in risk,” said study leader Rose M.C. Kagawa, an assistant professor of emergency medicine at UC Davis.

At the same time, she acknowledged, the number of gun sales blocked by a measure like SB 55 would be small, as would the number of violent crimes prevented.

“It’s a bit of a balancing act,” Kagawa said.

Such reasoning riles Sam Paredes, executive director of Gun Owners of California.

Using past or present behavior as a predictor of future violent acts — “that whole concept is very difficult,” he said.

“You’re being stripped of your rights because someone believes you are a danger in the future?” Paredes said. “I cannot even contemplate what the future consequences of such a perspective could be. It’s not just guns. This could translate to all manner of things.”

A prior conviction for drunk driving seems to be a better predictor of future criminal violence than a prior conviction for other, non-alcohol-related, nonviolent misdemeanors, the study results suggest, but just by a little bit. Lawful buyers of handguns with a conviction like that on their rap sheet were more than twice as likely as buyers with squeaky clean records to be arrested for a violent crime over the next dozen years.

“These findings unmistakably support the pending California DUI convictions legislation,” according to an editorial that accompanied the study.

Though the number of potential wrongdoers barred from gun ownership “may seem small,” the broad adoption of such laws “has the potential to avert larger numbers of acts of firearm violence,” wrote the editorial authors, a trio of injury prevention experts from the University of Pennsylvania and Columbia University.

Adoption of a federal law like SB 55 — an unlikely prospect in the current Congress — would “decisively signal that, as a nation, we are as intolerant of mixing alcohol and firearms, so-called drunk firing, as we are of drunk driving,” they wrote.

 

As I’ve said in the past, while I’m not the biggest proponent of guns and gun ownership, it troubles me that legislators are attempting to use DUI convictions to prevent gun ownership.

Given the numbers, it is difficult to argue that there is at least some correlation. However, based on those same numbers, there are a lot of people out there who have been convicted of a California DUI that have not subsequently engaged in a violent act involving a firearm.

Surprisingly, I agree with Sam Paredes. Predicting future gun violence based on a weak, albeit real, relationship to a DUI conviction seems like a step too far. What’s more, stripping an entire class of people (who all made a mistake, but by no means are all at risk for future gun violence) of their constitutional right based on what a few within the class might do sometime in the future should not be law.  

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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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Should Bars be Allowed to be Sued when they Serve Alcohol to Someone who Later Causes a DUI-Related Accident?

Thursday, April 11th, 2019

The question has been raised recently several times: Should victims of DUI-related collisions be allowed to sue the bar who served the drunk driver that caused the collision?

Relatives of an entire family that was killed by a drunk driver certainly think so.

Relatives of the Abbas family have filed a wrongful death lawsuit against two Kentucky bars who are accused of over-serving a customer, and against the customer’s estate.

According to the police report, in January of this year, Joey Lee Bailey consumed at least two 22-ounce beers and three double White Russians at the restaurant, Roosters Wings in Georgetown. Bailey then drove to Horseshoes Kentucky Grill & Saloon in Lexington. There he was served at least one beer and four more double White Russians.

After Bailey left the last bar, Lexington police said they received a report of a white pickup truck traveling in the wrong direction on the interstate. Shortly thereafter, a collision was reported.

Bailey had collided with an SUV carrying a family of five who were headed home from a vacation in Florida. Bailey did not survive and unfortunately neither did the occupants of the SUV; 42-year-old Issam Abbas, and Issam’s wife, 38-year-old Rima Abbas, along with their three children, 14-year-old Ali Abbas, 13-year-old Isabella Abbas and 7-year-old Giselle Abbas.

“For the surviving family members, as well as for their many friends left behind, the nightmare and grief caused by that crash will never go away,” said Greg Bubalo, an attorney representing the Abbas family. “By filing the lawsuit, the family hopes to hold those responsible accountable and ensure that this type of tragedy does not occur to another family. This is a second time fatalities have been alleged to have resulted from over-serving alcohol by Horseshoes.” 

According to the coroner, Bailey’s blood alcohol content level was 0.306 percent, more than three times the legal limit in Kentucky (and California) of 0.08 percent.

While I agree with Mr. Bubalo’s first statement, I wholeheartedly disagree with his second.

I’m sorry, but it is not the job of bars and restaurants to babysit customers. It is not their job to make sure they don’t drink and then drive. And it is not their job to monitor whether someone is too intoxicated to drive.

Bailey, an adult, made the decision to have that many drinks and then, after having left the bars, get behind the wheel. What were the bars supposed to have done? Breathalyze Bailey before he left? Were they supposed to take his keys away? Were they supposed to have someone monitor the exit of the parking lot?

Fortunately, thus far, the California legislature feels the same.

Fortunately, California sees it the same.

While other states such as Kentucky may hold a bar liable for injuries caused by a drunk driving customer, in California it is the customer’s willful decision to drink and then drive which is the cause of any subsequent DUI collision. Thus, in California, bars and restaurants are shielded from liability when a customer over drinks, drives away, and causes injury or damage.

California’s “Dram Shop Laws” (California Civil Code section 1714) read as follows:

(b) It is the intent of the Legislature to . . . reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.

(c) Except as provided in subdivision (d), no social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.

(d) Nothing in subdivision (c) shall preclude a claim against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person under 21 years of age, in which case, notwithstanding subdivision (b), the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.

As you can see, the laws are different if the customer is under the age of 21. It is the responsibility of bar to ensure that their customers are of legal drinking age before serving them alcohol. People under the age of 21 are legally deemed incapable of making good decisions regarding alcohol use…like the decision not to drive after drinking at a bar.

While California’s law differ from other states with respect to civil liability, like Kentucky, a bar may be held criminally liable if they serve alcohol to an “obviously intoxicated person.”

According to California Business and Professions Code section 25602(a), “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.”

Having said that, I’ve been practicing criminal law for 10 year and I’ve never seen California Business and Professions Code section 25602(a) charged. My guess is that it’s difficult to prove that a bar knew that someone was “obviously intoxicated,” as might have been the case with the bars that served Bailey.

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