Should a DUI Prevent You from Owning a Gun

Monday, January 18th, 2016

Lawmakers in Indiana are considering whether their state’s application to own a gun license should include a question about whether the applicant has been convicted of misdemeanor driving under the influence.

Currently, the application used by Indiana State Police to grant licenses to carry a gun asks whether the applicant has previously been convicted of a DUI. Indiana Senate Bill 36, written by Sen. James Tomes, R-Wadesville, seeks to remove that question.

"All I was trying to do was just get the State Police to remove those words, ‘Including DUI? Not changing anything else," said Tomes. "State Police can still do these checks on handgun applications. Anybody in the system is gonna get pulled up. You’ve got domestic violence. You’ve got DUIs to the point where you’ve got a felony. You’re through."

Other who agreed with Tomes believed that misdemeanors should not be grounds for automatically refusing a permit, only felonies and domestic violence convictions.

Many of these who testified at a Judiciary Committee meeting on Wednesday, however, strongly disagreed with Tomes.

"Essentially what we’re saying is the combination of alcohol and access to handguns is a lethal combination in situations of domestic abuse," said Kathy Williams, a representative from The Indiana Coalition Against Domestic Violence. "And given the very mild nature of the existing statute, it is only a small stop gap.”

She also provided statistics from Indiana law enforcement agencies to show that up to 80 percent of their domestic violence cases involve alcohol abuse.

“Gun licenses are more than just pieces of paper," said Jody Madeira, a professor at Indiana University-Bloomington’s Maurer School of Law. "That paper conveys an important right. A right that a lot of people, including me in this room, want to uphold and protect the right to carry a handgun. But multiple studies as well as the Centers for Disease Control link alcohol abuse to gun violence.”

While I’m not the biggest fan of guns, it troubles me that legislators are using DUI convictions to prevent gun ownership.

Refer to my previous post: https://www.duiblog.com/2015/11/23/not-all-drunk-drivers-are-alcoholics/

The flawed logic in Indiana’s inquiry into whether a person has suffered a DUI conviction is this:  Many incidences of domestic violence involve alcohol abuse and if a person has suffered a DUI, they must have an alcohol problem. Therefore, they cannot and should not own a gun.

Once again we see the “False Cause Logical Fallacy;” A causes B when there is no causal relationship between the two, but merely a correlation.

A DUI conviction does not mean that the defendant has an alcohol problem. Nor does it mean that they will be involved in domestic violence. In fact, many people who have been convicted of a DUI are not regular drinkers nor are they heavy drinkers, but rather people who made a one-time mistake.

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California Proposes New Law to Allow Roadside Marijuana Test

Monday, April 27th, 2015

Assembly Bill 1356 has made its way to Capitol Hill and, if passed, would allow law enforcement to use a device similar to a breathalyzer that could detect the presence of marijuana and a number of other drugs in a driver’s system in a matter of minutes.

“It’s very clear that the usage of marijuana is becoming more and more common,” said Assemblyman Tom Lackey from Palmdale, California, who proposed the law.

The law would expand California’s current implied consent law to “provide that a person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or oral fluids for the purpose of determining the drug content of his or her blood or oral fluids.”

Currently, if law enforcement want to test for the presence of drugs in a driver’s system following the lawful arrest of that driver, they need to withdraw blood which could take hours.

According to CBS San Francisco, officers would be able to use a portable drug detection device called Alere™ DDS®2 that would allow law enforcement to perform a test on drivers’ oral fluids gathered from the gum line and cheeks. The swabbed fluid samples could provide results within five minutes according to the device’s developers.

"We’d be testing for marijuana, cocaine, opiates, amphetamines, methamphetamines and benzodiazepine," said Fred Delfino, spokesperson for Alere DDS 2, the company behind the new device.

You may recall from my previous posts that the Los Angeles Police Department had been given a federal grant to test these devices.

“The number of drugged drivers is increasing rapidly, and those of us in law enforcement simply do not have the tools necessary to determine the level of impairment on anything other than alcohol,” said Ron Lawrence, chief of police for Rocklin. “If the legalization of marijuana is in our future, we in California law enforcement need to be prepared to deal with the roadways and safety precautions of tomorrow."

The problem is that the device does not test for impairment. It only tests for the presence of the drugs.

It has yet to be determined what amount of drugs found in a person’s system will constitute impairment. According to Lackey, that part of the bill has not yet been worked out.

There is an established correlation between blood alcohol content, specifically the legal limit of 0.08 percent, and alcohol impairment. Unlike alcohol, however, there is no such correlation between the presence of drugs and impairment.

"I think that people want to have a clear-cut, black-and-white solution," says Mason Tvert, the communications director for the Marijuana Policy Project, a pro-legalization group. "They want a specific number that we can use to just say that this person is impaired or not. Unfortunately, it’s a little more of a gray area than that."

Unfortunately, Tvert is correct and that gray area can lead to sober drivers getting arrested for DUI of marijuana.

Tetrahydrocannabinol or THC is the active component of marijuana. Unlike alcohol which dissipates after several hours, THC can stay in a person’s system for weeks at a time and well after the person has smoked.

Simply put, the mere presence of THC in a person does not necessarily mean that the person is impaired and incapable of safely operating a vehicle and the new device, if AB1356 passes, could be used to prosecute sober drivers.

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Lawmakers Seek to Close “Loophole” in SC DUI Law

Monday, March 2nd, 2015

In 2009, an amendment to South Carolina’s DUI laws required arresting agencies to video record any field sobriety testing during a DUI arrest. Prosecutors and law enforcement are now complaining that it is nearly impossible to convict a person of a DUI because the word “any” is being used as a loophole to get DUI cases thrown out.

 Earlier this month, in a room at the South Carolina capitol, 16th Circuit Solicitor Kevin Brackett presented examples of such cases to a crowd of over 100 people including lawmakers, advocates and law enforcement officials. The cases he presented never made it to a jury trial because of video  “problems” such as the suspects’ feet being briefly obscured by the police cruisers’ hoods, shadows partially obscuring a person’s head, and a person’s back foot obscuring the view of their front foot as they perform field sobriety tests.

"A person could wreck into another vehicle, blow a .25 (BAC), have thrown up all over themselves and admit to drinking 20 beers over the course of the day," Assistant Solicitor Matthew Shelton explained to NBC Charlotte, "but if your feet are blocked by the officers patrol car hood during the field sobriety test, the case is being thrown out before it even goes to a jury. We’re not talking about just the video being tossed out as evidence. The whole case. A jury never gets to see the case."

I’ve written in the past on the need for transparency in DUI investigation and I am fully in favor of requiring law enforcement agencies to be equipped with dashboard cameras. You may remember my previous complaints, however, about law enforcement taking DUI suspects out of the view of the dash-cam to conduct field sobriety tests. In their police report, officers claim that suspects fail the field sobriety tests without an explanation as to how the suspect failed. Then, notwithstanding the officer’s report indicating that they failed, it is later determined that these DUI suspects were not actually driving under the influence.

The 2009 amendment was intended to prevent such devious methods of circumventing the transparency provided by a dash-cam.

This notion is lost on lawmakers as they have since introduced bill H.3441 into the South Carolina House. The proposed law changes the wording of the 2009 amendment to no longer require that any field sobriety test given be recorded. Additionally, the law would prevent a case from being totally dismissed due to a technicality in the video.

The wording of the proposed law reads in part:

“When a law enforcement officer is investigating a person suspected of [driving under the influence] that officer or another officer participating in the investigation or arrest should make a reasonable attempt to video record the person’s conduct at the incident site and the breath test site.”

Furthermore, under the H.3441, the original words of the 2009 amendment “The video recording at the incident site must include any field sobriety test administered” are completely stricken.

If the investigating officer is unable to record the incident, they “shall submit a sworn affidavit” stating one or several enumerated justifications for not being able to do so.

Unfortunately, this proposed change once again opens the door to potential dishonesty by law enforcement in investigating DUIs. In my experience, officers are often dishonest in writing their police reports which, by law, must be truthful. If such is the case, what good is requiring them to submit an affidavit that the video was unavailable under the proposed law? Dishonesty is dishonest regardless of the title of the document.

There is nothing wrong with the 2009 amendment and if law enforcement and prosecutors want to convict people of driving under the influence, they need to do a better job adhering to the law.

The only thing to ensure accuracy and truthfulness in DUI investigations is actual transparency, not the promise of accuracy and truthfulness.

 

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Can Out-of-State Priors Increase a California DUI Sentence?

Monday, July 28th, 2014

If a person suffers a California DUI conviction, any subsequent California DUI conviction within a ten year period carries with it an increased punishment.

Generally a first-time California DUI conviction carries three to five years of summary (informal) probation, up to six months in jail, between $390 and $1,000 in fines, completion of a court-approved three month DUI program, and a six-month license suspension.

A second-time California DUI conviction carries three to five years of summary probation, a minimum of 96 hours to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court-approved 18 month DUI program, and a two-year license suspension.

A third-time California DUI conviction carries three to five years of summary probation, a minimum of 120 days to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court approved 30-month DUI program, and a three-year license revocation.

What if someone suffers, say, a Florida DUI conviction in 2007 and then gets arrested this year in California for DUI? Can the Florida conviction be used to increase the punishment in the California DUI conviction?

As the answer is with many legal questions: It depends.

It depends on whether the conduct that led to the Florida conviction (or any out-of-state conviction) meets the elements of a California DUI charge.

In Florida, the DUI statute reads:

“A person is guilty of the offense of driving under the influence… if the person is driving or in actual physical control of a vehicle within this state and…[t]he person is under the influence of alcoholic beverages…when affected to the extent that the person’s normal faculties are impaired…”

Florida’s statute requires that a person impaired “to the extent that the person’s normal faculties are impaired.” This standard is less strict than California. California requires that a person be impaired to an appreciable degree. Thus, a person may be deemed impaired under Florida’s standard, but not necessarily under California’s.

Florida’s statute also requires that someone drives or is “in actual physical control of a vehicle.” This makes Florida what is called a “dominion and control state.” A person can have dominion and control over a vehicle by simply being in the driver’s seat. California’s DUI law, on the other hand, requires that a person actually drive the vehicle. Therefore, a person can be convicted under Florida’s DUI law by sitting in the driver’s seat while intoxicated. However, someone sitting in the driver’s seat while intoxicated cannot be convicted under California’s DUI law.

Let’s put this into context as it relates to whether an out-of-state prior can be used to increase the punishment in a California DUI case.

In 2007, John Doe is arrested and convicted in Florida under Florida’s DUI law because he was drunk and unconscious in the driver’s seat of a parked vehicle. Seven years later (and within the 10 year “washout period”) in 2014, John Doe is arrested in California under California’s DUI law when he is spotted swerving on the highway by law enforcement.

Prosecutors will be unable to use John Doe’s Florida conviction to increase the penalties in his California case because the facts which gave rise to the Florida conviction would not meet the elements of California’s DUI law because California requires that a person actual drive the car.

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Proposed “Gun Violence Restraining Order” Could Affect DUI Offenders

Monday, June 2nd, 2014

In the wake of the tragic shootings last weekend at UC Santa Barbara, two Democrats in California’s State Assembly have announced their plans to introduce a new gun control measure which could prohibit those who have been convicted of a DUI from owning and carrying a gun.

The “gun violence restraining order,” proposed by Nancy Skinner (D-Berkeley) and Das Williams (D-Santa Barbara), would create a system where a legal gun owner can have their guns confiscated if a family member believes they have a mental health problem that the state is not aware of. The “restraining order” could be issued upon gun owners who have passed NICS background checks, registered their firearms with the state, and have not broken any laws.

The idea for the “gun violence restraining order” is part of a recommendation from the Consortium for Risk-Based Firearm Policy which also suggests firearm prohibitions for other “risk factors” including “drug or alcohol use (linked to DUI convictions or misdemeanors involving a controlled substance).”

I won’t comment on the “restraining order” as it applies to those who have been identified by family members as having mental health problems, although I do have my opinions.

However, when it comes to prohibiting those who have suffered from a DUI conviction from owning a gun, I have an issue that I will express.

This isn’t the first time that legislators have attempted to place gun ownership restrictions on DUI offenders.

Last year, Democratic Sen. Lois Wolk of Davis introduced SB 755, a bill which would have prevented some DUI offenders from having guns for a period of 10 years. Fortunately, California Governor Jerry Brown vetoed the bill saying, “I am not persuaded that it is necessary to prohibit gun ownership on the basis of crimes that are non-felonies, non-violent and do not involve misuse of a firearm.”

Also last year, Connecticut Governor Dannel P. Malloy proposed a law that would ban DUI offenders from owning a firearm. Supported by Connecticut democratic senator Martin Looney, the proposed law was intended to prohibit possession of firearms by people who have demonstrated “irresponsible behavior” and a “willingness to break the law.”

I’ve never been the biggest advocate for gun rights, but the suggestion that a DUI offense is a “risk factor” which should prevent someone from owning a gun is absurd.

The Consortium’s recommendation for a prohibition on gun ownership targets groups at heightened risk of violence. According to the Consortium, that includes individuals convicted of two or more DUIs in a five-year period. What is it about a DUI that’s violent? Taking into account DUIs which involve injuries or death, the “violence” involved unintended violence which has nothing to do with the propensity to misuse a gun.

Currently, certain convictions can prevent individuals from possessing a firearm. However, those convictions at least have a causal link to potential future gun violence. Driving under the influence, however, does not.

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