How Effective is Utah’s New DUI BAC Limit?

Thursday, June 6th, 2019

Back in January, we covered Utah and its new DUI law that lowered their blood alcohol content limit to 0.05 percent. (Utah Now Has the Lowest BAC Limit in the Country)

FOX13 of Salt Lake City did a deep dive into new DUI statistics in Utah since the new law’s start. It was reported by the Utah Department of Public Safety that of the 844 people who had been arrested statewide and 38 of them were arrested for having a blood alcohol concentration of between 0.05 and 0.079.

FOX13 took it a step further and broke down the numbers within the 38 who were arrested.

  • 7 were found to be under the legal age of drinking
  • 24 were alcohol restricted drivers and had previously been arrested for a DUI
  • 2 were arrested with a combination of drugs, either prescription or illegal, in their system along with alcohol
  • 1 refused a field sobriety test or chemical blood draw, the results which were positive after a warrant was issued
  • 4 were arrested with the BAC being the only issue with the results between 0.05 and 0.079

Interestingly, the number of underage drinking violations do not show a change prevalence and, according to Michele Corgliano of the Salt Lake Are Restaurant Association, the breakdown and its supporting numbers show that the majority of the DUI arrests are not of drivers who registered a BAC that fell within the new lowered range.

 “These results are in line with our stand prior to the law: 33 of these arrests would have been illegal under the previous law: underage drinking, drugs, suspended license, etc. This is in line with our research, in that it does NOT show .05 is the reason for impairment,” Corgliano said to FOX13.

The average time it takes for the labs to return with the toxicology results to confirm blood alcohol contents is approximately 60 days. Therefore, we have yet to find out if the more recent months show a similar trend. However, since the time that the new law had been implemented, it seems that most of the arrests were for violations of DUI laws that were already in place before the new 0.05 DUI limit took effect. It may still be too early to make any deductions, but if this trend continues, the effectiveness of the new law could face some scrutiny.

Supporters of the 0.05 DUI law have been focused on the reduction of the crashes, injuries, and deaths, noting that it was never about the number of the arrests, but rather saving more lives from the act of driving under the influence. While that may or may not be true, we do not yet have the numbers of injuries and deaths since the implementation of the new law to determine if this law is making a difference. And having said that, I’m sure they’re not crying that at least some people were arrested under the new lowered BAC limit.

Other states such as California have been contemplating following in Utah’s footsteps and lowering their legal limit from 0.08 percent to 0.05 percent. It will be interesting to see if California lawmakers take into account the numbers that Utah produces before making a decision. Given the aforementioned statistics for Utah’s new law, and if the current trend of seeming ineffectiveness continues, I certainly hope that California takes Utah’s numbers into account.

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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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Police in Washington Double their DUI Arrest Rate

Thursday, May 2nd, 2019

So far in 2019, the Bellingham Police Department of Washington state has seen 110 DUI arrests through April 19, 2019. That is approximately one DUI arrest per day. According to Lieutenant Claudia Murphy that’s a 134% increase from the 47 arrests made in the same period in 2018.

It is not that there is all of a sudden a huge increase in the number of drivers who appear to be imbibing and getting behind the wheel, but rather that the Traffic Division of the Bellingham Police Department is emphasizing on what they believe is the first step in keeping their community safe. According to Sergeant Carr Lanham, the department’s success in achieving this arrest rate has much to do with the $20,000 grant they received from the Washington Traffic Safety Commission’s Target Zero Program.

The Target Zero Program aims to achieve “Zero Deaths & Zero Serious Injuries by 2030.” The grant money allowed the department to train their officers in recognizing drug use through a mentoring program with the department’s drug recognition expert, Officer Zack Serad. According to Sgt. Lanham, the grant and mentoring program allowed Officer Serad to take other officers with him to gain knowledge and experience in properly spotting and processing impaired drivers as well as allow him to do ride-alongs with other officers. Serad was also able to focus on training other officers in testing for intoxicants other than alcohol.

In addition to the mentoring program, increased staffing has allowed for more officers to be on duty on the streets during the peak DUI hours which Lt. Murphy has also credited for the higher arrest rates. Murphy has also attributed the “success” to a more “mature” staff in comparison to 2018.

The Bellingham Herald called this “an impressive start to 2019.” But is it really?

Sure, the number is much higher than last year, but the number doesn’t necessarily reflect the number of convictions. We have no real data about how many of these arrests are legitimate DUI arrests. Other counties in the area are not seeing this huge jump in arrest numbers. Remember, an arrest means nothing without a conviction because without a conviction a driver suspected of DUI is innocent.

We recently posted an article about “experts” in the police force being used in court (see article Should Courts Allow Cops to be “Experts” in Drug Intoxication for DUI Cases). Is a mentoring program by a police force drug recognition expert enough to gain the proper knowledge and experience to have made such a huge impact on the arrest rate? Or is there a possibility that, as a result of the mentoring program and focus on DUIs, the officers are a bit more quick to arrest drivers with DUI? If you recall from the article, “proficient” in the eyes of law enforcement is a 43% to 49% accuracy rate.

It would be interesting to know how the mentoring program may have focused on recognizing marijuana use as recreational use of marijuana has been legal in the state of Washington since 2012. Washington state does not utilize roadblocks as part of their system in controlling impaired drivers so it would also be interesting to receive more details about how the officers are even able to spot impaired drivers on the road. Sure, having more officers out on the roads will raise the probability of an impaired driver being recognized, but to the extent of a 134% increase? Seems a bit suspicious.

If in fact, a majority of the arrested drivers were legitimately impaired and the Bellingham police force was able to get them off the streets so that other drivers can have a safer environment to drive, then all the power to them. Being able to get the potentially dangerous drivers off the roads is an incredible feat, but if these numbers are just a façade making it look like they are 134% more effective than last year at catching drunk drivers, then we may need to take another look at a breakdown of this number.

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Should California Lower its BAC Limit?

Friday, March 29th, 2019

It’s not a novel question. Should California lower the blood alcohol content limit before someone can be arrested, charged, and convicted of a DUI in the state?

Although a nationwide blood alcohol content limit was suggested prior, it was not until 2001 that the Department of Transportation said it would cut funding to states that did not maintain a blood alcohol content limit of 0.08 percent for DUI cases. As a result, all states adopted a 0.08 percent blood alcohol content limit. However, as of January 1st of this year, Utah became the first state to lower the blood alcohol content limit to 0.05 percent making it the strictest in the country.

A new bill introduced in California hopes to follow in Utah’s footsteps.

Introduced by Assemblywoman Autumn Burke (D-Marina del Rey), AB1713, otherwise known as Liam’s Law, would lower California’s BAC limit to 0.05 percent.

The bill was named in honor of a 15-month old who was struck and killed by a drunk driver in 2016 when his aunt was pushing his stroller across Hawthorne Boulevard. Liam was the son of former mixed martial art fighter Marcus Kowal and his wife, Mishel Eder. Since then, both have been pushing for a lower BAC limit and Burke said that she had been influence by them.

“Every year, we see drunk drivers kill or injure our friends and loved ones because they thought they were OK to drive,” said Assemblyman Heath Flora (R-Ripon), who co-authored the bill and who also introduced a bill to increase the penalties for repeat DUI offenders. “Lowering the [blood alcohol content] limit to .05 percent has [been] shown to decrease DUI-related traffic fatalities by serving as a deterrent to folks driving drunk in the first place.”

Flora is referring to studies that suggest people begin to start feeling the effects of alcohol at 0.04 percent, and which have been used by the National Transportation Safety to justify its support of a 0.05 percent limit.

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.

On the other hand, 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.

This raises another question: Is this law merely changing the definition of “drunk” to cast a wider net, thus creating more “criminals”?

“When (a bill) is first introduced, the 10,000-foot view is, ‘This is a law that’s tough on drunk driving. It should pass pretty easily,’” said Jackson Shedelbower, spokesman for the American Beverage Institute. “But in reality, it’s not tough on drunk driving. It’s punishing moderate, social drinkers. It’s focusing traffic safety resources away from people who are the real problem toward people who aren’t the problem.”

Shedelbower went on to say that most DUI-related collisions are caused by drivers with BAC levels higher than 0.05 and repeat offenders, and that having a BAC level of 0.05 is less impairing than talking on a hands-free cell phone while driving.

Should the bill become law, many could be arrested after having a single drink and certainly when they’re not even drunk. I’m sorry, but I thought DUI laws were meant to protect against impaired driving. I’m not so sure that the hoped effect of the bill is worth the collateral consequence of arresting, charging, and convicting non-impaired drivers.  

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School Bus Driver DUI with 26 Students Onboard, Abandons Bus and Students

Thursday, March 21st, 2019

When parents send their children off to school, they expect that the adults in charge maintain a certain level of care and maintain a level of responsibility towards the children once in their care. It is not outrageous to think that that expectation extends to the time that the children are onboard a school bus traveling to and from school.

Sadly, one school bus driver broke parents’ and children’s trust with her erratic driving caused by alleged intoxication.

On March 1, a Pennsylvania school bus driver, later identified as Lori Ann Mankos, was driving 26 middle and high school students home around 2:50 p.m. Initial reports mentioned a disturbance on the bus that caused Mankos to pull the bus into a gas station. There, she parked the bus, exited, and handed the keys to a gas station employee and proceeded to walk away.

As shocking as this seems, thankfully no children were harmed. Some parents picked their children up from the gas station and others were taken home by a different bus driver.

A further investigation revealed that this seemingly innocuous, but nonetheless irresponsible, act by a school bus driver was far worse than merely abandoning the bus at the gas station. The police reported that soon after the students were picked up by Mankos, some of the students noticed a change in Mankos’s driving pattern. She wasn’t taking the usual route to the students’ home. Additionally, the students became concerned when Mankos took a right-hand turn too fast and the bus ended up almost halfway into the opposing lane. The students then started to record their wild ride and protested the erratic driving. This, apparently was the disturbance that caused Mankos to pull the bus into the gas station.

Students reported that in response to their protests, Mankos swore at them and flipped them off. In one of the videos recorded by the students, she can be heard asking if the children preferred that she stop the bus and the students call their parents to pick them up. When they agreed to her suggestion, she parked at a nearby gas station where she then proceeded to hand her keys to the station attendant and walk away. She initially refused to let the students off the bus, but the students were able to open the emergency door and get themselves out of the bus. She can be heard telling the students to “go f**k themselves.”

Police found Mankos at her residence and took her into custody. She has been charged with DUI, one count of careless driving, one count of reckless driving, and 26 counts of child endangerment (one count for each student aboard the bus).

Mankos’s mother told reporters that her daughter hadn’t been herself since she started to drive that bus route and that she believed that her daughter had a nervous breakdown.

Information has not been released regarding what substances may have been the cause of Mankos’s erratic behavior or if she has suffered any previous DUI convictions. However, in a profession where the primary responsibility is to children and their wellbeing, one would hope that the school district and bus contractor will take this opportunity to be more selective with their employees or perhaps provide better emotional and/or mental health support for their employees.

“This is not what we expect of any of our drivers,” said a spokesman for the bus contractor, Cincinnati-based First Student, which employs the driver. “Our first priority is the safety of the students, which is why we sent a reliever bus to pick them up and take them to their homes once we found they were stranded. All students are safe and accounted for. If there’s appropriate action warranted against the driver as a result of this investigation, that action will be taken.”

“Nothing like this has ever happened before in my 28 years with the district,” Northampton School District Superintendent Joseph Kovalchik told the Morning Call. “We’re extremely upset by this, but very thankful that none of the students were hurt.”

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