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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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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San Clemente Woman Faces DUI Vehicular Manslaughter Charges After OC Crash

Thursday, March 29th, 2018

A few weeks ago, I posted on the different ways that a DUI can be charged as a felony. One of the ways is if a DUI-related collision causes death or injury to another person. Additionally, if the DUI leads to the death of someone, the driver could also be facing felony vehicular manslaughter charges, possibly even second degree murder charges.

27-year-old Bani Duarte, of San Clemente, found this out the hard way when her Hyundai Sonata rear-ended a Toyota causing it to burst into flames. Three of the occupants were killed and one seriously injured.

In the early morning hours of Thursday, March 29th, a Toyota carrying four Las Vegas residents was stopped at Pacific Coast Highway and Magnolia Street in Huntington Beach. That’s when Duarte collided with the vehicle causing it to burst into flames.

Alex Martinez, 20, of Huntington Beach, witnessed the collision and described the incident with the OC Register.

“Martinez…was in a car with his friends returning from the gym when they saw the woman’s white vehicle swerving, at times speeding and hitting sidewalks.

‘She went to the far right side of the lane and hit the sidewalk really bad and that’s when we decided to call the cops,’ Martinez said Thursday.

“He told police he believed it was a drunken driver going northbound on Pacific Coast Highway. He and his friends followed the woman’s car until it stopped on metered parking by Orange Street.

“Martinez and his friends pulled up to Duarte and asked if she was okay, he said.

“‘I told her she hit two sidewalks back there and she said “Really? No way,”’ he said. Martinez’s friends offered her a ride home. She turned them down and soon was off driving again.

“As she approached Magnolia Street, he said, there was a red car stopped in a middle lane of the intersection. She braked, but then sped up and hit the car which immediately caught fire, Martinez said.

“Martinez said he and his friends reported the crash to police and saw someone leave the red car. He described the male as appearing to be unhurt.

“‘I think he was in shock because he walked towards us all confused, not really knowing what just happened,’ he said. ‘So he sat down and we asked him if there were other people in the car and he said there was three more in the car.’

“‘The car was already in flames and the backseat doors were just crushed by the impact.’

“Martinez said he and his friends and some others who stopped at the crash tried to help but couldn’t get to the people inside. Firefighters extinguished the blaze as Duarte remained in her car after the crash, he said.

“‘I felt powerless and guilty,’ Martinez said.

“He said he was told by officers on scene that the fatalities appeared to be teenagers. Some social media posts have also indicated the victims were young people visiting the area for Spring Break. Huntington Beach police did not release information about the ages or identifies of the victims.

“Martinez described the experience as traumatizing.

“‘Such young people dying in the worst possible way.’ Martinez said. ‘They had their whole life ahead of them and for it to be taken away by a drunk driver is just awful.’”

News outlets have reported that the victims were Las Vegas high school students on spring break. The victims have also since been identified as AJ Rossi, Dylan Mack, and Brooke Hawley. The injured passenger was identified as Alexis Vargas.

Duarte will certainly be facing felony DUI with injury charges and vehicular manslaughter charges. It is unclear, however, whether Duarte will be facing murder charges. Prosecutors will increase the charges to murder if Duarte has previously been convicted of a DUI-related conviction.

I’ll take this opportunity to remind readers that it is easy to jump to conclusions about the guilt of Duarte (and all DUI defendants for that matter), especially given the facts of the incident. However, the law requires that we presume that people are innocent until they are proven guilty beyond a reasonable doubt by a prosecutor or until they accept a plea deal. If Duarte is, in fact, guilty, I am not defending her actions, I am merely reiterating one of the most fundamental canons of American criminal law.  And if she is guilty of what she is being accused of, then she will be punished within the confines of the law.

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