BUI Blamed for Boater Death

Thursday, August 8th, 2019

The body of a New Jersey man was recovered from Lake Hopatcong in New Jersey this week. The driver of the pontoon boat that he was a passenger on has since been charged with boating under the influence.

This past weekend, 24-year-old Jason Gill of Mr. Arlington was a passenger on a pontoon boat operated by Nicholas Zarantonello, also 24-years-old and from Lake Hopatcong, the lake from which Gill’s body was recovered from. According to state police, Gill fell into the state’s largest fresh-water lake this past Saturday. Although a search started that evening, it was suspended due to poor visibility and lighting in the area.

Search operations continued on Sunday using a helicopter, side-scan SONAR sub-surface detection equipment, the State Police TEAMS Unit, and rescue boats from a nearby fire department. Gill’s body, however, was not recovered until Monday.

Zarantonello, the boat’s operator, has since been arrested, charged with boating under the influence, and has since been released from custody with a future court date.

The drowning took place in an area of the lake that had been under an advisory to avoid swimming because of high levels of harmful algae bloom. Boating, however, was not affected by the advisory.

It goes without saying that DUI laws exist to protect us and others on the road from drivers whose judgment and motor skills have been impaired as the result of alcohol and other intoxicants. The same logic can be applied to laws that prohibit operating a boat while under the influence; namely to protect ourselves and others on the water from boat operators whose judgment and motor skills have been impaired.

Don’t think that because it’s a boat out on the open water that drunk driving laws don’t apply to you.

Boating under the influence is treated in very much the same way as a DUI is treated here in California.

California Harbors and Navigation Code section 655 states in pertinent part: 

(b) No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.

(c) No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood.

The Harbors and Navigation Code also provides a zero tolerance for aquaplanes and water skis.

What’s more, the penalties for boating under the influence in California are similar to those for a California DUI; up to six months in jail, up to $1,000 in fines and fees, and a California DUI school.

Unlike a California DUI, however, any prior boating under the influence or driving under the influence conviction will only enhance a future boating under the influence charge if the prior conviction occurred within seven years. If you are charged with a California DUI, any California DUI or BUI that occurred in the last 10 years will increase the penalties of the current DUI.

Also, while the passengers of vehicles cannot drink alcohol within the vehicle under California open container laws, passengers of boats can legally drink alcohol on the boat.

In addition to running the risk of getting arrested, charged and convicted, boaters need to also realize the danger to themselves and others when boating under the influence. There are no lanes, no rules of the road, just open water.

 

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The End of Texas’s Driver Responsibility Program Means More DUI Fines

Friday, July 26th, 2019

As of September 1st, 2019, one of the most hated programs ordered by the state of Texas for traffic violations will be no more, but that means more fines for DUI offenses.

The Driver Responsibility Program imposed surcharges on Texas drivers who were convicted of charges such as driving under the influence or driving without a license. These surcharges were in addition to the standard fines for the convictions themselves, and could range from $250 per year (for three years for driving with an invalid license) to $2,000 per year for three years (for a DUI with a blood alcohol of 0.16 or higher). Surcharges could be imposed on those who had one too many simple moving violations as well.

For most, it was a nuisance fee that was added onto whatever they may have done, but for others who were in tighter financial constraints, these fines would add up if they were unable to pay, resulting in suspended licenses, and even more tickets and fines.

According to Terri Burke of the ACLU of Texas, “The Driver Responsibility Program has forced thousands of Texans to pay for their liberty, which is no justice at all. Suspending someone’s license only further removes them from the workforce, leaving them without money to pay additional fees.”

A bill was signed by Texas Governor Greg Abbott to end the program about three weeks ago and it is expected that over 630,000 people will have their licenses reinstated with the conclusion of the program, as long as they do not have any fees of suspensions unrelated to the Driver Responsibility Program. An additional 350,000 people will be able to get their licenses reinstated with the payment of a restatement fee. Seeing these numbers, it is amazing to see how many people were affected by this program.

Now, with the revenue that the state will no longer be able to make from the program, the money must be offset somehow. The bill called for a $2 increase on state-mandated car insurance fees, which would be specifically allocated to trauma hospitals, and the remaining revenue is to be offset by an increase in the fines for DUI offenses. A first time DUI offense currently imposes a fine of $2,000, but with the conclusion of the Driver Responsibility Program, it will be increased to a whopping $6,000 penalty.

The fight to repeal the Driver Responsibility Program had been going on for years with part of the argument against it being that it violated the Equal Protection Clause with its unfair license suspension system. It seems though that advocates finally got their say. Unfortunately, it also seems that there are still many issues to work through. What the drivers who are currently part of the Program need to do with the fees that they have incurred thus far is still unclear. What is also unclear are the repercussions in terms of license points and/or fees between now and September 1st (when the program officially is repealed). It does not seem that the Texas Department of Public Safety has yet made any official announcements in how those details will be handled and how drivers should handle their remaining fees. Hopefully, an announcement with clear directions to the public will be made soon regarding the transition in the next few months.

BTW, this is best aliexpress cachback.

While drivers in Texas might be spared from paying more money for traffic violations in general as a result of the program’s end, drivers in Texas would also be wise to avoid driving drunk because it could now break the bank.

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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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