The Rights of People, Not Necessarily Drunk Drivers

Monday, December 21st, 2015

On December 16, 2015, the Los Angeles Times published an editorial entitled “Sobriety tests and the Constitution.” The article can be found here:

http://www.latimes.com/opinion/editorials/la-ed-1216-drunk-driving-20151216-story.html

The editorial was partly in response to the United States Supreme Court’s decision to decide whether people can be criminally punished for refusing a post-DUI arrest chemical test absent a warrant.

The author’s stance is clear when they say, “It seems clear that it’s wrong to criminalize the refusal to submit to a test for which police haven’t obtained a warrant. Not only do such laws punish suspects for asserting their rights under the 4th Amendment; they also effectively provide an end run around the court’s 2013 decision [to require law enforcement to obtain a warrant prior to a forcible blood withdrawal].”

I wholeheartedly agree.

On December 18, 2015, the Los Angeles Times published responses to the December 16th editorial in a section entitled “Readers React – The risk of giving more rights to drunk driving suspects.”  The responses can be found here:

http://www.latimes.com/opinion/readersreact/la-le-1218-friday-dui-checkpoints-20151218-story.html

In the first of two responses, a retired deputy district attorney for Santa Barbara County wrote, “Let drunk-driving suspects refuse a mandatory biological sample (such as the option of breath or blood in California) without consequences, and watch alcohol-related roadway deaths spiral upward. Why? Without the objective and usually conclusive evidence of a breath or blood sample available for trial, prosecutors will be left with largely subjective evidence. That enables defense attorneys to endlessly second-guess officers’ observations. This will leave legions of drivers undeterred by the perceived legal consequences of alcohol-impaired driving.”

Another response, in part, says, “Your defense of individual rights as they relate to prosecuting suspected drunk drivers goes too far. Police personnel have to do their job, and a drunk driver endangering people’s lives on a road needs to be punished, end of story.”

Plain and simple, the 4th Amendment was included in the Bill of Rights to protect the people from unreasonable and warrantless governmental searches and seizures of places and things where there existed a reasonable expectation of privacy.

Nowhere do we have a higher expectation of privacy than with our bodies. Consequently, nowhere does the 4th Amendment become as important as it does when it comes to searches of our bodies.

Just as the 5th Amendment requires that people cannot be punished for asserting their right to remain silent, so too can they not be punished for asserting their right against a search of their body without a warrant.

Requiring law enforcement to obtain a warrant prior to subjecting a person to a chemical test, which is a search for 4th Amendment purposes, will not leave prosecutors without “objective and usually conclusive evidence of a breath or blood sample” nor will “prosecutor be left with largely subjective evidence,” as the first response asserts. All it is doing is requiring that law enforcement play by the rules before getting what they want. Play by the rules (i.e. the Constitution), and get the evidence needed to legally prosecute drunk drivers. Stop looking for shortcuts and prosecute drunk drivers within the parameters of the Constitution.

Yes, police personnel “have to do their jobs,” but, again, they must do it lawfully. And the law requires that they obtain a warrant before searching.

I agree with the notion that “A drunk driver endangering people’s lives on a road needs to be punished.” But this statement has nothing to do with refusing a warrantless chemical test.  A person cannot be punished before they are found guilty beyond a reasonable doubt of drunk driving. At the time a person submits to a chemical test, they have not been found guilty of anything.

Furthermore, they most certainly cannot be punished for doing something that the Constitution of the United States absolutely gives them a right to do.

Share

Not All Drunk Drivers are Alcoholics

Monday, November 23rd, 2015

For as much education (…and a rigorous one at that) as lawyers have to go through to practice law, it sometimes amazes me that some attorneys still lack some very basic and common sense. A recent interaction with a high ranking prosecutor reminded me of this and prompted me to write this blog

Not all drunk drivers are alcoholics.

The case that prompted said interaction with the prosecutor involved a drunk driver who caused a collision. The driver’s blood alcohol content was admittedly high at a 0.20 percent. After discussing the matter with the prosecutor, her reaction was "Well, his blood alcohol content was a 0.20 and he caused this crash, so he clearly has a drinking problem."

As lawyers, we are trained to think logically. In fact, the Law School Admission Test (commonly referred to as "LSAT") devotes one third of the exam to specifically test the logic of would-be law students. This portion of the exam was suitably called "Logic Games." This is exactly why it was such a shock to hear that conclusion come from an attorney with so much authority behind their position.

And this was such an obvious logical flaw; the "False Cause Logical Fallacy" to be specific. The name might not sound familiar, but how the fallacy works certainly will.

A causes B when there is no causal relationship exists or when there is merely a correlation between A and B.

The drunk driver in my case was not a heavy drinker nor was he a regular drinker. He drank occasionally when he was out to dinner or with friends. It can hardly be said that he had a drinking problem. He merely made the poor decision to drive after one of his infrequent drinking occasions.

In 2008, a study was published in the journal Alcoholism: Clinical & Experimental Research which suggested that almost half of who drove while intoxicated were only occasional drinkers.

Medical epidemiologist at the U.S. Centers for Disease Control and Prevention, Dr. Nicole T. Flowers along with her colleagues analyzed data from a 2006 survey where more than 350,000 adults were questioned about behavioral risks such as drinking and drunk driving. They found that 84 percent of drunk drivers had been binge drinking. "Binge drinking" was defined as four or more drinks in one sitting for women and five or more drinks in one sitting for men.

The researchers, however, also identified "heavy drinkers" as women who consumed more than one drink a day and men who consumed more than two drinks a day. And after categorizing the two groups, they found that binge drinkers who were not heavy drinkers made up 49 percent of those who drove while under the influence.

While I’ve devoted my career to defending drunk drivers, I understand that drunk driving is a problem and I would never condone it. But I also understand that people are people who will always make mistakes.

So here’s my plea to anyone finding themselves agreeing with the prosecutor’s conclusion: Please don’t let your social distain for drunk driving affect your ability to think logically and make judgments about a person without knowing the individual circumstances of that person or their case.

Share

Report Ranks which States are Toughest on Drunk Drivers

Monday, June 22nd, 2015

Wallethub.com, a financial services website, has attempted to rank states based on how tough and lenient their laws are on DUI offenders.

Wallethub cited a National Highway Traffic Safety Administration statistic that 31 percent of motor vehicle fatalities in 2012 involved alcohol impairment. This number, however, has dropped significantly since 1980 when states began taking a serious stance on drunk driving. The reason for the decline, according to Wallethub, is the tough laws and penalties that states have enacted to combat and punish drunk driving.

Using a point system, states were ranked depending on if and how that state imposed a certain DUI laws.

For example, states were given 10 points if the law required at least 10 days in jail for a first offense, eight points for eight to nine days in jail, six points for six to seven days in jail, four points for four to five days in jail, two points for two to three days in jail, and zero points for zero to one day in jail. 

Other assessments included whether the state imposed additional penalties if a drunk driver had a high blood alcohol content, the range in fines and fees, the range in "administrative" license suspension, and whether an ignition interlock device was required following a DUI conviction.

So how did the states fare?

Arizona, according to Wallethub, is the toughest state on drunk driving.

Amongst some of its penalties include the following:  Arizona requires a minimum of 10 days in jail for a first time DUI and a minimum of 90 days in jail for a second DUI. A DUI automatically becomes a felony on the third offense. A DUI conviction will lead to a three month administrative license suspension. An ignition interlock device is mandatory for 12 months upon a first conviction.

South Dakota, on the other hand, came in dead last when it came to laws punishing drunk drivers.

Some of South Dakota’s DUI penalties (…or lack thereof) include some of the following:  The state does not have a minimum jail term for either a first time DUI or a second time DUI. A DUI automatically becomes a felony on the third offense. There is no administrative license suspension nor is a person required to install an ignition interlock device is required upon a DUI conviction.

And how did sunny California do?

California came in 31st with some of its laws including the following: California requires a minimum of two days in jail for a first time DUI conviction and a minimum of 10 days for a second time DUI conviction. A DUI becomes a felony on the fourth offense. A person convicted of a DUI in California faces a four month administrative license suspension.

Although Wallethub indicated that California does not require an ignition interlock device upon a first time DUI conviction, some counties in California, Los Angeles included, do in fact require an ignition interlock device.

Wallethub’s report can be found here: http://wallethub.com/edu/strictest-states-on-dui/13549/

Share

Can Raising Taxes on Alcohol Reduce Drunk Driving Accidents?

Monday, April 13th, 2015

A new study published in the American Journal of Public Health suggests that raising the taxes on alcohol could reduce the number of drunk driving related collisions.

Researchers from the University of Florida studied the results of a 2009 tax increase on alcohol in the state of Illinois. In that year, the state increased its excise tax on beer by 4.6 cents a gallon, on wine by 66 cents a gallon and on distilled spirits by $4.05 a gallon, or by 1 cent more that consumers pay per glass of beer or wine and nearly 5 cents more for a serving of spirits.

According to the researchers, alcohol-related traffic deaths in Illinois fell 26 percent. The decrease was higher among young people, at 37 percent. Fatal crashes involving alcohol-impaired and extremely drunk drivers fell 22 percent and 25 percent, respectively.

"Similar alcohol tax increases implemented across the country could prevent thousands of deaths from car crashes each year," Alexander Wagenaar, a professor in the Department of Health Outcomes and Policy at the University of Florida, said in a university news release. "If policymakers are looking to address dangerous drivers on our roads and reduce the number of fatalities, they should reverse the trend of allowing inflation to erode alcohol taxes.”

Wagenaar’s comments reflect the study’s observation that alcohol has become less expensive in recent years as the result of a decrease in alcohol tax rates. The study notes that having 10 or more drinks a day would have costs the average person approximately half of their disposable income in 1950. Modernly, however, having 10 or more drinks a day would cost the average person about three percent of their disposable income.

"This goes against the conventional wisdom of many economists, who assert that heavy drinkers are less responsive to tax changes, and has powerful implications for how we can keep our communities safer," said Wagenaar.

As with many studies, you have to ask yourself, “Is this a true cause and effect situation?”

U.S. News reported that David Ozgo, vice president for economic and strategic analysis for the Distilled Spirits Council of the United States, had the same question. According to Ozgo, fatal collisions involving alcohol were decreasing before the tax increase.

 “In fact, the largest annual decline over the last eight years occurred in 2008, the year before the tax rate changed,” he said. “Importantly, Illinois alcohol-related traffic fatalities declined faster than the national average before the tax increase and this has not been the case since the tax increase.”

Ozgo’s observation makes us wonder whether it really is the tax that is causing the decrease in DUI related fatalities in the state.

Think about the averages alcohol abuser. Is the rather trivial increase in alcohol taxes mentioned above really going to stop someone from purchasing the alcohol? Is it going to keep them from driving after drinking?

Share

California Lawmaker wants Ignition Interlock Devices for All DUI Offenders

Monday, January 5th, 2015

For those of you who are unfamiliar with ignition interlock devices (IID), it is a device which is installed on a vehicle’s dashboard. The device works like a breathalyzer that must be blown into and provided a breath sample. If the sample is registered as being below the preset blood alcohol content level, the vehicle will be allowed to start. However, if the sample is above the preset limit, the device prevents the engine from being started.

The IID requires further breath samples at random times after the vehicle has been started. The purpose is to prevent someone else from blowing into the IID just to start the vehicle and ensure that the driver is sober throughout the drive. If a sample is not provided or if the sample contains alcohol above the preset limit, the device warns the driver, and initiates an alarm (flashing lights and honking horn) until the vehicle is turned off or the IID is provided a clean breath sample.

Currently, IID are required for first-time drunk driving offenders in four California counties participating in a pilot program. Alameda, Los Angeles, Sacramento, and Tulare counties require installation of an IID for five months in all vehicles that a driver operates following a California DUI conviction.

Senator Jerry Hill, D-San Mateo, has proposed a bill that would expand the IID requirement for first-time offenders throughout California.

“California needs to do a better job of reducing deaths and injuries from drunk drivers,” said a statement from Hill. “Ignition interlocks save lives and can be an effective counter measure to reduce DUI recidivism.”

The issue is personal for Hill whose best friend was killed by a drunk driver thirty years ago.

“It’s something that’s personal to me. I know the pain his family and we felt… I hate to see other families go through that.”

In addition to the other thousands of dollars associated with a California DUI conviction, people required to install the IID will have to pay between $50 and $100 per month to have the device installed. This can prove to be quite a financial burden on some. This, however, is the least of my concerns with IIDs.

Not only can they be inaccurate for a number of reasons, just as breathalyzers can be, they can also be dangerous.

Talk about distracted driving. Having to blow into a device installed on the dashboard whilst driving sounds more dangerous than talking on a phone while driving. And how dangerous is it to drive with the lights flashing and horn honking because a sample is not provided in time?  That would most certainly prove to be a distraction for the driver of the vehicle with the IID as well as a distraction for other motorists on the road. 

That’s a big risk for something that does not even tackle the underlying cause of DUI-related fatalities, which is what Hill claims the new law will prevent. The majority of DUI-related fatalities do not come from first-time offenders who register a blood alcohol content of between 0.08 percent and 0.15 percent. Rather, the vast majority of DUIs that cause death or injury come from repeat offenders who register well over 0.20 percent blood alcohol content; drivers with serious alcohol problems, not social drinkers.

I’m not against getting drunk drivers off of the road, but Hill’s legislation misses the mark.

Share