DUI on a Lawnmower

Thursday, May 30th, 2019

According to the Florida DMV website, “Driving under the influence (DUI) is defined as operating a motor vehicle while impaired with a blood alcohol content (BAC) of 0.08% or higher, a chemical substance, or a controlled substance. Those under 21 years old will be charged with a DUI if their BAC is 0.02% or over and commercial drivers will be charged if their BAC is 0.04% or over.”

The term “motor vehicle” is used by most states and has a wide range of interpretations. In previous posts, we have covered DUI for unusual vehicles such as drones and electric scooters. Well, another “vehicle” has popped up in the news that made me question the thought processes of man; a lawnmower. Yes, that’s right, a lawnmower. Granted, it wasn’t one that you pull the string to get the motor going and push across your lawn. It was a larger type that you sit on and “drive” across your lawn and one that actually had a trailer attached to it, but still, what need would one have to drive it in a parking lot?

I get it. If my neighbor Farmer John needed to borrow my John Deere tractor, someone may drive it across the street to his farm, but I’ll say it again, a lawnmower?

What’s more, the man was caught because he ran into and damaged a police car!

On May 4, a police officer had parked his police cruiser in a parking lot in Haines City, Florida, and stepped inside a nearby business to deal with a dispatch call when he heard a loud noise outside of the business. The officer stepped outside to check the situation to find Gary Anderson, 68, sitting atop of a lawnmower with a trailer containing a cooler. Although he admitted to hitting the patrol car, he denied causing any damage to it. However, upon inspection, the officer saw that there was some damage to the bumper of the cruiser.

Anderson admitted to having “consumed a pint of wine prior to the crash.” The officer conducted field sobriety tests, which Anderson failed. According to the affidavit, Anderson “almost fell to the ground multiple times while walking and standing.” While in custody, Anderson’s demeanor changed from jovial to belligerent with foul language and racial slurs. After a while, he started to accuse the police of poisoning him and asked to be taken to a hospital. Tests were done at the Heart of Florida Regional Medical Center, where results showed Anderson of having a 0.241 percent blood alcohol content, approximately three times the legal limit. The blood tests also revealed cocaine in his system. Anderson, however, accused the officers of poisoning him with the cocaine.

According to one source, Anderson had been convicted of DUI twice within the last 10 years and was charged with a third DUI in 10 years and refusing to submit to a chemical test. However, other sources say his most recent charge was back in 1987. This discrepancy can make a huge difference. According to the Florida Vehicle Code, if Anderson’s third conviction is within 10 years of a prior conviction, then there is a mandatory jail sentence of at least 30 days. If his conviction is more than 10 years of a prior conviction, then imprisonment is for not more than 12 months. Not only is there a difference in possible jail time, if the third DUI is within 10 years of a prior conviction, then Anderson is possibly guilty of committing a third-degree felony.

Anderson was held in jail in lieu of $3,000 bail.

“I’m proud of the professional demeanor our officers showed when dealing with this heavily-intoxicated, belligerent offender,” Haines City police Chief Jim Elensky said in a statement. “It’s never a good idea to get behind the wheel drunk, even if that wheel is to a Craftsman, Massey Ferguson or John Deere.”

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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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Could DUI Fines be on the Upswing?

Wednesday, March 6th, 2019

In a previous post, we covered potential costs of a DUI. That was based on our current understanding of California DUI law. However, Mississippi may be a trendsetter to legislatures throughout the country in increasing the fines and fees associated with a DUI arrest and conviction.

The Mississippi House of Representatives just passed House Bill 1445 which would essentially double the fine for DUI violations. The bill, which calls for the increase of the general fund amount for implied consent law violation, also known as driving under the influence, would, according to state assessment, increase the current fine of $243.50 to $493.50. The funding that is raised with the increase in fines would be used to support trauma care in the state.

During the House floor debate on the proposed law, Rep. Greg Haney (R-Gulfport) asked, “Are we doing this to just raise money or is it for safety?” Rep. Donnie Scoggin (R-Ellisville) admitted that it was a little of both.

Scoggin supported this answer with information and a little bit of history about the state’s trauma care system. The state of Mississippi’s statewide trauma care system was instituted in 1998 after the then-Governor Kirk Fordice and Lieutenant Governor Ronnie Musgrove received severe injuries in separate car crashes. According to the state’s Department of Health, as of Nov. 9th, 2018, there were 86 designated and participating hospitals in the Mississippi Trauma System of Care, with the University of Mississippi Medical Center the only Level 1 trauma hospital in the state.

Scoggin says that the fine wouldn’t fully fund trauma care in the state. However, the increase would bring it up to about three-quarters. He further stated that the original trauma funding bill from the mid-1990s actually listed the DUI fee at $500, but was reduced to its current $243.50.

A bill in 2017, had set the amount from the state’s general fund that could be used for the trauma system at $7,023,197 and reduced the overall spending for trauma care from $40 million to $20 million. Scoggin stated that raising the DUI fine for the purpose of supporting trauma care “…seems to be the right place to do this.”

In an attempt to further support the use of DUI fines for trauma care, Rep. Steve Holland (D-Plantersville) mentioned that crashes that are caused by impaired motorists are responsible for several of the trauma cases in the state.

According to the 2017 statistics by Mother Against Drunk Driving, there were 129 drunk driving deaths in the state of Mississippi and that 19 percent of traffic fatalities were connected to driving under the influence.

Although the lawmakers are attempting to tie drunk driving to the funding of trauma care, personally it seems to be contradictory. The raising of funds is important in making sure that severely injured have the best possible care in order to save lives and it makes sense that if raising a fine could help to support that, they should raise it where they can. However, something like a DUI fine is also imposed in order to dissuade people from breaking that law of driving under the influence. If, by raising the fine, it does what it was intended to do, namely to dissuade drivers from getting behind the wheel under the influence, then essentially, the state has less cases to collect the fine. Which in turn, would mean that the actual amount collect by fines is less than what was initially proposed or considered.

Perhaps it is designed to be a temporary remedy to the bigger issue of how to raise more money for the trauma center. Or perhaps the Mississippi legislature just sees an opportunity to collect from an easy target; DUI defendants.

In any event, if the bill is passed in the Senate and signed by the governor, then it would become effective July 1.

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Supreme Court to Decide if Cops Can Draw Blood from Unconscious Driver

Tuesday, January 22nd, 2019

The United States Supreme Court has agreed to hear and decide a case that challenges a Wisconsin law that allows law enforcement to withdraw blood from an unconscious driver that they suspect was driving under the influence.

The case stems from the 2013 arrest of Gerald Mitchell in Sheboygan County, Wisconsin. After receiving reports that the driver of a gray van may have been intoxicated, officer Alex Jaeger pulled Mitchell over. A pre-arrest breathalyzer revealed that Mitchell had a blood alcohol content of 0.24 percent, three times the legal limit. Officer Jaeger then arrested Mitchell and drove him to a hospital to withdraw a blood sample.

By the time Mitchell and officer Jaeger had arrived at the hospital, Mitchell had lost consciousness and could not be woken. While at the hospital, Mitchell appeared to be too intoxicated to answer questions from a blood-withdrawal consent form. Notwithstanding his unconscious state, blood was taken from Mitchell without a warrant and without his expressed consent.

The blood test revealed that Mitchell’s blood alcohol content was 0.22 percent.

At trial, Mitchell challenged the results arguing that the warrantless blood withdrawal amounted to an unreasonable search and seizure in violation of the 4th Amendment. Mitchell’s suppression motion, however, was denied and the jury convicted him of driving under the influence.

The Wisconsin Supreme Court took up the case to address whether implied consent under “implied consent laws” (laws that require a person to submit to a breath or a blood test if they are legally allowed to drive and if law enforcement has probable cause to believe a person is driving under the influence) is constitutionally sufficient to allow a blood withdraw without expressed consent while a driver is unconscious.

The Wisconsin Supreme Court held that, by virtue of Mitchell’s mere possession of a driver’s license, Mitchell had already impliedly provided consent to allow law enforcement to withdraw blood if law enforcement had the probable cause to arrest him on suspicion of driving under the influence. To boot, the court concluded that officer Jaeger had the probable cause to arrest Mitchell on suspicion of driving under the influence, and therefore law enforcement could withdraw blood from Mitchell while he was unconscious.

In its opinion, the court stated, “…we conclude that consent given by drivers whose conduct falls within the parameters of [Wisconsin’s Implied Consent law], is constitutionally sufficient consent to withstand Fourth Amendment scrutiny…” Furthermore, the court concluded that Mitchell, having consumed alcohol to the point of unconsciousness, “…forfeited all opportunity, including the statutory opportunity…to withdraw his consent previously given; and therefore, [Wisconsin’s Implied Consent law] applied, which under the totality of circumstances reasonably permitted drawing Mitchell’s blood. Accordingly, we affirm Mitchell’s convictions.”

The United States Supreme Court is set to hear Mitchell’s case and it could be decided by late June of this year.

In 2016, the United States Supreme Court ruled that it was lawful for states to impose penalties for drunk driving suspects who refused to take a breath test under the state’s Implied Consent law. However, the Court went on to conclude that while their “prior opinions have referred approvingly to the general concept of implied consent laws,” that “there must be a limit to the consequences to which motorists may be deemed to have consented to only those conditions that are ‘reasonable’ in that they have a ‘nexus’ to the privilege of driving.” Thus, Implied Consent laws that punish people who refuse a blood test are too intrusive and, therefore, unconstitutional.

“[If] criminal penalties for refusal are unlawful because they too heavily burden the exercise of the Fourth Amendment right to refuse a blood test, can it really be that the state can outright abolish the very same right?” Mitchell’s attorneys asked.

Mitchell’s attorney’s question is a valid and one that I hope the Court concludes the answer is “no.”

 

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Stricter DUI Law Trend Across the U.S.

Monday, January 7th, 2019

Each state has their own traffic laws and has their own driving under the influence laws. Some are stricter than others. That said, until this year, all states have set the blood-alcohol (BAC) level of 0.08 as the per se standard of driving under the influence. DUI law in every state is much more complicated than simply having a BAC limit (see recent article California DUI Law 101, for a recap on DUI law in California), although it is an important number to remember. One state, however, has made the leap to lower the allowed BAC level, making it the strictest in the country. If you are knowledgeable about the history of anti-drunk driving laws in the U.S., you may not be surprised to hear that that state is Utah, which has in the past been a trailblazer for stricter DUI laws in the country.

Utah was the first state to lower the BAC limit from 0.1 to 0.08 back in 1983, and now in 2019, it will be the first state to lower the BAC limit from 0.08 to 0.05. Utah has put this new limit to effect on December 30, right before the New Year festivities. Although the BAC level will change, the punishments for being convicted of a DUI will not. In Utah, that includes suspended licenses and fines over $1,000. Those in favor of the new limit feel that this new lower BAC level will help to deter drivers from drinking before getting behind the wheel. However, this lower limit also means that law enforcement will be casting a wider net and many more people could have their licenses suspended with thousands of dollars in fines, and possibly other penalties. Unlike California, Utah does not have a policy for restricted licenses, which means that in areas with few public transit options, even first-time offenders will have a difficult time adjusting to the penalties of a first-time DUI in Utah.

Although the idea that a lower BAC limit will help to deter those who have had a few alcoholic drinks from getting behind the wheel is well-intentioned, and though there are many state lawmakers who hope that other states will soon follow in Utah’s footsteps, there are still many details that should be addressed in order to ensure that a lower BAC limit law does not unfairly overreach to people who might be sober.

Utah is not the only state to be making changes. Pennsylvania passed legislation in October that took effect on December 23, that created the state’s first felony DUI. Until now, Pennsylvania was one of four states in the U.S. that did not consider elevating a DUI to a felony after multiple DUI convictions. Now with the new law in effect, a third time offender of driving under the influence with a BAC level of 0.16 (twice the legal limit in Pennsylvania) can be charged with a felony. The new law will also consider a fourth DUI offense or higher, with any BAC level or intoxicating substance presence, as a felony.

The new Pennsylvania law also increased the penalties for homicide by vehicle while driving under the influence, increased jail time for DUI’s where there was a prior DUI, and increased the fines and fees for a DUI. In addition, the penalty amount for driving under suspension has been increased. What was previously a minimum $500 fine and up to 60 days in jail for a second offense is now a mandatory minimum of 90 days in jail and a fine of $1,000, with a third offense to resulting with six months in jail and a mandatory $2,500 fine.     

Considering that a majority of the states have already put in place the felony categorization for a DUI following multiple offenses, Pennsylvania is late in the game. However, Pennsylvania had been seeing an annual number of approximately 10,000 alcohol-related crashes and around 300 fatalities. With one source citing about 250,000 repeat DUI offenders in the state, it is no wonder Pennsylvania turned to the trend of stricter DUI laws.

Hopefully enforcement of these new laws will help to promote a safer driving environment for all, but not at the cost of arresting sober people on suspicion of a DUI.

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