Don’t Laugh at DUI Victims

Friday, May 26th, 2017

A Michigan woman learned not to mock DUI victims the hard way; she was thrown in jail.

Amanda Kosal, 25, was in court and waiting to be sentenced for a DUI-related collision that killed Jerome Zirker, a father of five. While Zirker’s sister was giving the court a victim impact statement in court, Kosal’s mother, Donna, and Donna’s boyfriend could be heard laughing in the audience of the courtroom.

Judge Quiana Lillard heard the laughing and kicked Donna’s boyfriend out of the courtroom calling him a clown.

“It’s time for him to go … Whoever can sit here at a tragic moment like this and laugh and smile when somebody has lost a family member, I mean the entire time that Mr. Zirker’s sister was speaking, that clown, and that’s what I am going to call him, a clown, was sitting there smiling and laughing,” said Judge Lillard.

While Donna followed her boyfriend out of the courtroom, Judge Lillard said to her, “You can go too because if you don’t know how to act, you can go to jail, so leave.”

Donna could be heard saying something as she stepped out of the courtroom. Almost immediately after leaving the courtroom, Judge Lillard ordered her bailiff to bring Donna back into the courtroom where she was given 93 days in jail for contempt of court.

“Take her, she’s going in the back,” the judge said to the bailiffs.

Then Judge Lillard addressed the rest of the courtroom audience saying, “Anybody else wanna go? You can go too.”

“These are very serious matters. I understand that you all are very upset because your loved one is going to prison, but guess what, she’s going to prison for the choices that she made. These people are here grieving, saddened because a senseless act took away their loved one and you’re sitting here acting like it’s a joke?”

After spending the night in jail, Donna apologized to Judge Lillard the following morning saying, “I deeply apologize for what I did. I was under a lot of stress.”

Judge Lillard took pity on Donna and reduced her 93 days in jail to 92 days and was given credit for the night she spent in jail. She was then released.

“What you have to understand is as hard as this is for you to see your baby going to prison, imagine what that family feels like when their child is dead. I hope that you learned a valuable lesson from this,” said Judge Lillard.

Amanda Kosal, Donna’s daughter, was ultimately sentenced to three to 15 years in prison for the deadly DUI collision that killed Zirker. Kosal admitted that she was drunk when she veered into oncoming traffic colliding with Zirker’s SUV, killing him and severely injuring his fiancée, Brittany Johnson.

I represent DUI defendants like Kosal every day. I also represent people who have been charged with contempt of court. But that doesn’t mean that I condone either Kosal or her mother’s actions. In fact, I find them reprehensible.

The video of the incident can be found here:

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Spiked Drink Land Pro Soccer Player DUI

Thursday, December 15th, 2016

I’m a huge fan of England’s top flight soccer league, the English Premier League. While my team is Chelsea F.C. (go Blues!), I keep up with other players and teams. And like many other die-hard fans of the English Premier League, I was surprised when one of the league’s best players was caught driving drunk. Why was I surprised that Yaya Touré, of Manchester City F.C.,  was caught driving drunk? Because he is known for refusing alcohol due to his Muslim religion.

Touré was charged in late November for an incident in which he was pulled over by police for driving with passengers while having a blood alcohol content of twice the legal limit in England of 0.08 percent.

So if Touré doesn’t drink alcohol, how did he get caught driving under the influence? Touré believes that his drink was spike at the party that he had left.

“Over the last two weeks there has been some confusion as to why I was charged with drink driving, as it is well known that I am a Muslim and do not drink,” said Touré on his website. “I have always refused alcohol. Anyone who knows me or follows football will have seen me refuse champagne for Man of the Match performances because of my commitment to my religion.”

Although Touré did not dispute the charges and was ultimately sentenced to a license suspension and a whopping £54,000 fine, he explained to the court that he had not intentionally consumed alcohol.

According to The Telegraph who was present in court for Touré’s sentencing, Touré “told magistrates he had no idea he had been drinking, even though he conceded his Diet Coke tasted odd, and although he felt ‘tired’ he had not suspected he was tipsy.

“He told the court that he had been to a house party where he had poured himself what he thought was Diet Coke from a jug, but later discovered it was mixed with brandy.

“He had been the ‘designated driver’ on the night of the party and drove his car with passengers in it, claiming he just felt tired, despite being double the drink-drive limit.

“He told the court he thought his drink tasted different but only later found out he had been pouring himself a pre-mixed drink.”

Did Touré have to accept responsibility if he unknowingly became intoxicated and then got behind the wheel?

At least here in California, possibly not.

The California jury instruction CALCRIM 3427 states, “A person is involuntarily intoxicated if he or she unknowingly ingested some intoxicating liquor, drug, or other substance, or if his or her intoxication is caused by the force, duress, fraud, or trickery of someone else, for whatever purpose [without the fault on the part of the intoxicated person].” A person who has been involuntary intoxicated cannot be convicted of a crime according to California Penal Code section 24 which states, “All persons are capable of committing crimes except…[p]ersons who committed the act charged without being conscious thereof.”

Touré would have to prove that he became intoxicated through no fault of his own. For example, the defense is not available if he intended to drink alcohol, but someone spiked his drink with more alcohol than you knew of. This might also mean that he had no reason to believe that the drink was spiked or that he had no reason to believe he was intoxicated when he decided to drive.

Based on his statement, he didn’t intent to drink alcohol, however he may have had reason to believe his drink was spiked.

However, the California Court of Appeals in People v. Scott (1983) 146 Cal.App.3d 823, has held that the mistake of fact defense can be based on involuntary intoxication. The mistake of fact defense can be used if you act under an honest and reasonable mistake of fact and commit a crime. This does not apply if you are mistaken of the law. For example, you cannot use the defense if you mistakenly believe the law prohibited you from driving with a .10 or above instead of .08 or above BAC, and you have a .09 BAC. On the other hand, if you honestly and reasonably, but mistakenly believe that you have not ingested any intoxicating substances, you may be able to use the mistake of fact defense.

 

 

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What are the Penalties for a California DUI?

Monday, October 17th, 2016

It goes without saying that the punishment for driving under the influence in California, and across the United States for that matter, continues to increase significantly thanks to the hypervigilance of Mothers Against Drunk Driving and like organizations.

So what are the current penalties for a California DUI conviction?

The following is a list of what a person can expect if arrested and convicted of a first-time California DUI. It should be noted that penalties and punishment increase beyond what is listed below when a person has suffered prior DUI convictions within 10 years. The following is what can be expected out of a first-time conviction only.

The first thing a person can expect are the fines and fees. The statutory minimum fine that a person must pay following a California DUI is $390. The maximum is $1,000. Absent aggravating circumstances such as a collision, a person can expect $390. However, in addition to the $390, a person can expect to pay “penalties and assessments,” which will bring the overall amount to about $2,000, give or take a few hundred. I can’t tell you exactly what “penalties and assessments” means. In fact, I’ve heard judges say that they don’t know what it means. Suffice it to say, they are akin to court taxes.

When convicted of a California DUI, a person will be placed on summary (informal) probation for a period of three to five years. Again, absent aggravating circumstances, a person should expect the lower term of three years. Informal probation simply means staying out of trouble and doing what the court ordered. This includes not picking up any new cases, DUI or otherwise, not driving without a valid license, and not driving with any measurable amount of alcohol in the system. During the probationary period, a person must also complete the terms associated with that probation. This includes paying all fines and fees, completing a DUI program, and completing any other conditions the court might order.

The last of the penalties that are required by law is the requirement that a person complete a DUI program. For a first-time California DUI, a person is facing a three-month, six-month, or nine-month program. Like the probation and fines, the longer programs are given when the facts surrounding the DUI include aggravating circumstance. Otherwise, a person can expect to complete the three-month program called AB-541.

The aforementioned are what a person can expect by law. There are, however, other penalties which are not mandated by law, but rather discretionary.

If arrested and convicted of a California DUI, a person can be ordered to complete a “Hospital and Morgue Program.” The program is self-explanatory and is, in my opinion, the most unpleasant of the penalties. Participants in this program must first visit the hospital and listen to doctors explain the negative consequences of drinking and driving. Then the person must visit the morgue or coroner’s office and view the bodies of victims of drunk driving. Following the completion of both the hospital component and the morgue component, the participant must write an essay on their experience.

 Another discretionary punishment for a California DUI is a Mothers Against Drunk Driving Victim Impact Panel. This is a one-day lecture hosted by the group where victims of drunk drivers speak on the impact that driving under the influence has had on their lives.

The court may order a person to complete a number of Alcoholics Anonymous (AA) meetings. As many people know, AA meetings are hosted by the non-profit organization for the purpose of “stay[ing] sober and help[ing] other alcohols achieve sobriety.”

Lastly, the court can order a person convicted of a California DUI to install an ignition interlock device (IID). An ignition interlock device is essentially a breathalyzer that is installed into the ignition of a person’s vehicle. The device will not allow a person to start their vehicle unless they provide a breath sample free of alcohol. It should be noted that, by law, the DMV already requires the installation of an IID for five months in four California counties; Alameda, Tulare, Sacramento, and Los Angeles.

Again, this is what is commonly ordered and what can be expected. The courts have great discretion as to what can be given as punishment for a California DUI including the unexpected. Believe me, prosecutors are currently pushing for as much punishment as possible and this is precisely why it is extremely important to hire an experienced California DUI attorney if arrested on suspicion of a California DUI.

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New IID Law Signed into Law in California

Monday, October 3rd, 2016

California Governor Jerry Brown signed Senate Bill 1046 into law this past week making ignition interlock devices mandatory for most DUI offenders.

An IID device is essentially a breathalyzer that is attached to the dashboard of an offender’s vehicle. The device will not the offender to start their ignition if it detects alcohol on the offender’s breath.

The bill was authored by Senator Jerry Hill (D-San Mateo) and extended California’s existing pilot program for another two years which required the installation of an IID for all first time offenders for a period of five months in Alameda, Sacramento, Tulare, and Los Angeles counties.

The bill would require an IID in a number of circumstances; a first-time DUI offense involving injury would require an IID for six months, a first-time non-injury DUI offense would require an IID for six months with full driving privilege if a person does not want to serve a one year suspension with a restricted license, a second-time DUI offense would require an IID for a year, a third-time DUI offense would require an IID for two years, and a fourth or subsequent DUI offenses would require an IID for three years.

“This is a great day for California and this bill will clearly save lives. A week doesn’t go by without us hearing about another death from a drunk driver,” Hill said, noting the recent killing of a 3-year-old in the East Bay, as well as the Southern California accident where a drunk driver killed the 10-year-old daughter of a Hillsborough Elementary School District board member. “It’s needless to say the state should not condone this behavior and we need to do something to stop it.”

Not so surprisingly, Mothers Against Drunk Driving pushed heavily for the bill and applauded its signing last week.

“No parent should have to lose their child to the criminal negligence of a drunk driver — especially when technology exists to prevent such a tragedy,” said MADD board member Mary Klotzbach, whose son Matt was killed by a drunken driver in 2001, in a statement.

Opponents of the bill, including Sarah Longwell, executive director of the American Beverage Institute, argue that California should focus its resources on higher risk, multiple DUI offenders rather than first and second-time offenders. Other complaints of opponents are that the bill undermines a judge’s discretion in sentencing DUI offenders and that the IID requirement is expensive to implement and enforce.

“Our argument is there’s a hard-core population of offenders who are out there habitually driving at extreme intoxication levels. Let’s … focus our resources on that hard-core population, make sure they’re complying,” Longwell said. “We think ignition interlocks can absolutely be a useful tool in fighting drunk driving, it’s about at what level do you expand these mandates and at what point is it a diminishing return?”

The bill will go into effect January 1st of 2019 and last until 2026 unless the California Legislature extends or modifies is.

The typical cost of an IID runs between $60 and $80 per month for maintenance and calibration with a $70 to $150 installation fee.

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Man Gets Life for 9th DUI

Monday, June 13th, 2016

A Houston man was sentence to life in prison this past week following his ninth, yes, ninth DUI conviction.

In May of 2015, Donald Middleton, 56, hit a 16-year-old driver head on and subsequently fled to a nearby gas station to hide. The 16-year-old happened to be the son of a Montgomery County Precinct Constable. Middleton was subsequently caught and found to be under the influence of alcohol. Fortunately the teen was not severely harmed as a result of the accident.

During the sentencing hearing, Middleton took the stand and told the court that his drinking problem developed when he was just a freshman in high school after years of being teased and bullied by classmates.

“To me there was no question that we needed to do everything that we could to ensure he wouldn’t be on the roads driving with our friends, our families, our kids on the road putting everyone at risk,” said Montgomery County Assistant District Attorney Justin Fowles.

According to court records, Middleton’s first DUI conviction occurred in 1980 when he was only 20 years old. For that conviction, Middleton was sentenced to a $200 fine and 60 days in jail. Since then, Middleton faced DUI charges in 1983, 1992, 1993, twice in 1997, 1999, and 2008. He also faced a possession of crack cocaine charge in 1993.

Notwithstanding Middleton’s prior criminal history, he maintained a valid Texas driver’s license.

The United States Supreme Court has consistently held that to be constitutional a punishment must be proportionate to the crime. Although the definition of proportionality isn’t always clear, when punishments and crimes are compared, some gaping discrepancies become apparent.

In most states, a life sentence is reserved for people who intend to commit egregious and violent offenses; murder, robbery, rape, etc.

There is no question that when a person drinks and drives, there is a risk of death or harm to bystanders. But the vast majority of people who drink and drive do not intend death or harm to anyone and most of the time no one is hurt or killed. People commit other traffic offenses every day that could also lead to death or harm and they too don’t intend on harming or killing anyone, yet they aren’t villainized or punished like DUI offenders. Are we to send a person for life if they have nine tickets for texting and driving?

If we’re punishing DUI offenders for committing non-violent offenses because of the mere possibility that they could harm someone, then there is a very apparent problem with consistency in our sentencing of non-violent crimes.

Texas’s allowance of life sentences for multiple DUI offenders speaks to a larger, and often publically denied, problem of lack of treatment for alcoholism. Whether the public wants to believe it or not, alcoholism is a disease.

Throwing a person in prison for life means giving up on that person. Although that may be an appropriate punishment for some offenses, it seems particularly cruel to me to give life to someone who made a mistake, who did not intend harm, who has a disease, and because their conduct could cause harm.

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