Utah Council Recommends No Changes to New 0.05 BAC DUI Law

Wednesday, November 22nd, 2017

In March of this last year, I wrote about Utah’s efforts to lower their state’s blood alcohol content limit to 0.05 percent rather than the current nationally consistent limit of 0.08 percent.

In 2013, the National Transportation Safety Board (NTSB) voted to recommend that states lower their blood alcohol limits to 0.05 percent and cited studies that have shown that impairment can occur with a blood alcohol content of 0.05 percent. As of earlier this year, it seemed as though Utah would be the first to implement the lower BAC limit into its state law.

After some backlash from the hospitality industry, Utah Governor Gary Herbert indicated his desire to soften DUI penalties under the new lower BAC law. However, the state’s Substance Use and Mental Health Advisory Council recently voted to keep the lower BAC change in the law without softening any penalties.

SALT LAKE CITY (Associated Press) — A state council studying Utah’s new law setting the country’s strictest DUI threshold is backing away from recommending any changes, despite Gov. Gary Herbert’s wish to soften some penalties following a backlash from the state’s hospitality and ski industry.

The state Substance Use and Mental Health Advisory Council voted unanimously to support the new 0.05 percent blood alcohol limit scheduled to take effect next year after learning that law enforcement officials and Gov. Gary Herbert’s office disagree on how the state could soften penalties for those convicted of a DUI under the lower limit.

The stalemate makes it tougher for legislators and Herbert, who had hoped to make changes to the law in the wake of the backlash and concerns that the lower limit could target responsible drinkers after one alcoholic beverage.

The law lowering Utah’s DUI blood alcohol limit to 0.05 percent from 0.08 percent created a political problem for leaders who worry the strict new limit exacerbates Utah’s reputation as a Mormon-dominated state that’s unfriendly to those who drink alcohol.

Herbert, a Republican, signed the law this spring but said he would call lawmakers into a special session to address unintended consequences. The governor said in September that he’d like to see a tiered punishment system, with lighter penalties for a DUI between 0.05 percent and 0.08 percent.

At Herbert’s request, a committee of prosecutors, law enforcement and officials and others has been working since spring to draft possible changes to the law, which were presented Tuesday to the substance use council.

Paul Boyden, an attorney in the Salt Lake County District Attorney’s Office, said the DUI study committee that he helped lead suggested changing the law so that drivers with a 0.05 to 0.07 blood alcohol limit faced some lighter penalties — such as no mandatory jail time — than a full-fledged DUI.

But the penalties would be harsher than Utah’s lesser crime of impaired driving — an offense that Boyden said most drivers arrested for DUI are convicted of because they strike plea deals with prosecutors.

Drivers convicted of having a 0.05 blood alcohol limit would still face fines of at least $1,330, lose their driver’s license for at least 90 days, and be required to have an ignition interlock device for a year.

Ron Gordon, a member of Herbert’s staff and the executive director of the state Commission on Criminal and Juvenile Justice, said the governor felt the plan didn’t lighten the penalties enough.

Herbert, who is traveling in Israel this week, could not be reached for comment, Kirsten Rappleye, a spokeswoman for his office, said the governor’s position hasn’t changed from when he signed the legislation and he would like to see changes made before the bill takes effect.

Proponents of the 0.05 limit, including the National Transportation Safety Board, say people start to become impaired with a first drink and shouldn’t be driving and the lower limit will discourage people from thinking they can drink up to a point and drive safely.

"If we pass 0.05, people will live that would otherwise die if we do nothing," said Art Brown, president of the Utah chapter of Mothers Against Drunk Driving. "If you walk away from it the way it’s written, you can see it will diminish the effectiveness up and down about getting the impaired driver off the road."

At a blood-alcohol content of 0.05 percent, a driver may have trouble steering and have a harder time coordinating, tracking moving objects and responding to emergencies, according to the National Highway Traffic Safety Administration.

The new law means a 160-pound man could be over the 0.05 limit after two drinks, while a 120-pound woman could exceed it after a single drink, according to data from the California Department of Motor Vehicles.

However, a number of factors, including how much a person has had to eat and how fast they’re drinking, can affect their blood alcohol levels.

If Utah passes the lower limit BAC law, let’s hope that it doesn’t become a trendsetter for the rest of the states. For many people, a 0.05 percent blood alcohol content limit will mean that they’ll be subject to a DUI after only a glass of wine with dinner and who are clearly not under the influence nor a danger to the streets.

The purpose of DUI laws is to keep the streets safe, not to punish people who are not impaired with an arbitrary and subjective standard.

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Wet Reckless vs. California DUI: What are the Differences?

Friday, November 17th, 2017

People who have been charged with a California DUI always ask whether it’s possible to get the case reduced to a wet reckless. They often ask this question without even knowing what the difference is between a DUI and a wet reckless, except that it’s a reduced charge. While it’s true that it is a reduction to a DUI charge, there are a number of other differences.

The wet reckless if the first of several reductions that are sometimes offered in lieu of a DUI. The wet reckless is usually offered when the flaws in the prosecution’s case are relatively small. For example, the wet reckless is often offered when the chemical breath or blood test shows that the driver’s blood alcohol content is at a 0.08 percent or close. Further reductions may be offered when there is no chemical test and/or there is little evidence that the driver was “under the influence. Rather than risk losing at a trial, the prosecutor may offer a wet reckless or another reduction merely to secure a conviction.

If, however, the problems in the prosecution’s case are more than minor, the prosecutor may offer to reduce the DUI charge to a “dry reckless” or an “exhibition of speed.” Discussions on these, I’ll save for another day.

Unlike these other charges, the wet reckless can only be offered as a reduction. In other words, a prosecutor cannot file a criminal complaint with a wet reckless listed as a charge.

If the wet reckless is offered as a reduction and a DUI defendant accepts the reduction, they’ll  be pleading guilty or no contest to California Vehicle Code section 23103 pursuant to 23105.5 which reads, “A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving…If the prosecution agrees to a plea of guilty or nolo contendere to a charge of [reckless driving] in satisfaction of, or as a substitute for, an original charge of a violation of [DUI], the prosecution shall state for the record a factual basis for the satisfaction or substitution, including whether or not there had been consumption of an alcoholic beverage or ingestion or administration of a drug, or both, by the defendant in connection with the offense. The statement shall set forth the facts that show whether or not there was a consumption of an alcohol beverage or the ingestion or administration of a drug by the defendant in connection with the offense.”

Simply put, a defendant who is convicted of a wet reckless is deemed to be guilty of reckless driving involving alcohol.

Now that we’ve clarified exactly what a wet reckless is, let’s talk about the benefits of it.

Well, first off, it’s not a DUI. There is an obvious stigma attached to a DUI conviction and a wet reckless simply isn’t a DUI.

Another benefit to a wet reckless reduction is that there are no mandatory sentencing enhancements. In other words, if a person is convicted for a second-time DUI within 10 years, they face a minimum of 96 hours in jail. If a person is convicted for a third DUI within 10 years, they face a minimum of 120 days in jail. However, when a person is convicted of a wet reckless when they’ve suffered prior DUI convictions within a 10 year period, there is no mandatory minimum jail sentence. If however a person suffers a DUI conviction within 10 years of a wet reckless conviction, the wet reckless will be used to increase the sentencing enhancements of the current DUI and subsequent DUI convictions.

Other possible advantages of the wet reckless include a shorter probationary period, lower fines and fees, and a shorter DUI program. I say possible because it depends on what the prosecutor offers as a sentence to the wet reckless reduction.

The last advantage to a wet reckless conviction is that it does not trigger a 6 month driver’s license suspension with the DMV. It should be noted, however, that a license may still be suspended through the DMV’s admin per se suspension which occurs if a person does not request a DMV hearing within 10 days of their DUI arrest or they lose their DMV hearing. Therefore, the only way to completely avoid any license suspension following a DUI arrest is to request the DMV hearing within 10 days of the arrest, win the DMV hearing, then get the DUI charge reduced to a wet reckless.

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DUI on a Horse

Friday, November 10th, 2017

Over the years, I’ve written about DUI’s on a variety of transportation methods, from a Zamboni to a Power Wheels to a canoe. Although I’ve written about a DUI on a horse before, it has been quite a while and is definitely due. Is there any surprise that this story comes from never-dull state of Florida?

A Florida woman rode her horse on a highway drunk, police say. She was charged with a DUI

November 4, 2017, Washington Post — Nothing’s unusual in Florida, a sheriff department spokesman said Friday. But some things like a woman arrested this week for allegedly riding a horse while drunk down a busy highway — are still surprising.

Around 3 p.m. Thursday, a passer-by saw Donna Byrne, 53, on the horse looking confused and possibly in danger and notified officers, according to her arrest affidavit. Sheriff’s officers found Byrne on Combee Road near North Crystal Road in Lakeland, about 35 miles east of Tampa. She smelled of alcohol and had red watery eyes. When she dismounted from the horse, she staggered from side to side.

Byrne had ridden the horse for a 10 to 15-mile stretch from Polk City, said Brian Bruchey, a spokesman for the Polk County Sheriff’s Office.

Byrne is being charged with driving under the influence while operating a vehicle — which in her case was a horse equipped with a saddle and bridle. She is also charged with animal neglect for putting the horse in danger of being injured or killed.

“We haven’t had a horse DUI that I’m aware of. We’ve had incidents of bicycle DUIs and motorcycle DUIs, so this was a different kind of thing.”

Whether an intoxicated person on horseback can be charged with a DUI or DWI varies from state to state.

In 1993, an appellate court in California ruled in People vs. Fong that people riding animals on the highway are subject to the same rules as the drivers of automobiles, meaning people must ride their animals at a reasonably safe speed and avoid reckless behavior.

The issue was a hot topic in Montana in 2011, when the state’s department of transportation aired an advertisement featuring a horse picking up its owner after a night of drinking at the bar. In Montana, horseback riders can’t be arrested for driving under the influence, because state law’s criteria for a vehicle in a DUI excludes devices moved by “animal power.”

Several criminal defense lawyers in Florida interviewed by The Post are skeptical of whether the DUI charge will hold up in Florida court. Thomas Grajek, a Tampa attorney who specializes in DUI cases, said he thinks Byrne can’t be charged with a DUI because Florida law states that people riding animals on roadways or shoulders are treated as pedestrians, and are not subject to the same rules as automobile drivers. Grajek said that, if anything, someone riding a horse drunk might be charged with disorderly conduct, similarly to a publicly intoxicated pedestrian.

Officers arrested Byrne after conducting a sobriety test, during which Byrne registered blood-alcohol levels of .157 and .161, twice the state’s legal limit of .08. The horse was taken to the Polk County Sheriff’s Animal Control livestock facility, officers said.

“The road she was stopped on was a very busy road,” Bruchey said. “Of course, if somebody hit the horse, then that person would be in danger. And (Byrne) was a danger to herself.”

The Polk County State Attorney’s office could not be immediately reached for comment. Bruchey, the sheriff’s department spokesman, said the officer who arrested Byrne thought he had sufficient probable cause to consider the horse a vehicle.

“I can tell you it’s going to be interesting if (the DUI charge) goes through,” Bruchey said. “The way sheriffs look at it, the woman put a saddle and bridle on this horse and was riding it to get from point A to point B. For all intents and purposes, we look at that as a vehicle.”

Byrne’s criminal history includes five felony and ten misdemeanor charges, consisting of cruelty to animals, drug possession, probation violation and criminal traffic, officers said. She could not be reached for comment.

While there may be questions as to whether Byrne will actually be prosecuted and convicted under Florida law, as the article stated, California fully recognizes DUI on a horse. In fact, California Vehicle Code section 21050 states, “Every person riding or driving an animal upon a highway…is subject to all of the duties applicable to the driver of a vehicle…”

I’ll leave you with a poem written by a dissenting Pennsylvania Supreme Court Justice in a Pennsylvania case which held that a horse is not a vehicle for purposes of driving under the influence:

“A horse is a horse, of course, of course, but the Vehicle Code does not divorce its application from, perforce, a steed as my colleagues said. ‘It’s not vague’, I’ll say until I’m hoarse, and whether a car, a truck or hors, this law applies with equal force, and I’d reverse instead.”

 

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Prosecutors Decline to Prosecute Long Beach Councilwoman for DUI

Thursday, October 26th, 2017

This story is disturbing to me not just because it occurred in my hometown of Long Beach, but because it exemplifies the partiality with which prosecutors and police treat DUI’s of those whom they have a working relationship with versus everyday citizens.

Prosecutors have decided not to prosecute Long Beach Councilwoman, Jeannine Pearce with domestic violence nor driving under the influence in a June 3rd incident involving her former chief of staff, Devin Cotter.

District attorney declines to charge Long Beach Councilwoman with drunk driving, domestic violence

October 26, 2017, Los Angeles Times – Prosecutors have decided not to charge Long Beach Councilwoman Jeannine Pearce with domestic violence or driving under the influence in connection with a June clash with her former chief of staff.

But a district attorney’s memo detailing the decision also raises questions about the Long Beach Police Department’s response to the June 3 incident involving the councilwoman and Devin Cotter.

In its initial statement, the Police Department said it received a call for assistance from the California Highway Patrol about a possible drunk driving incident on the shoulder of the 710 Freeway in Long Beach at 2:40 a.m.

The city’s officers smelled alcohol on Pearce, who admitted to drinking that night, according to the district attorney’s memo. A field sobriety test conducted about 4 a.m. showed she was mildly impaired.

But the memo said a test of the councilwoman’s blood alcohol level was not conducted until 4:20 a.m., nearly two hours after the CHP called. At that point, the test showed Pearce had a blood alcohol level of 0.06%, under the legal limit of 0.08%, the memo said.

The testing device used on Pearce was unreliable, the prosecutor’s memo said. A department toxicologist had recommended it not be used a month before the incident. Additional tests were not performed, according to the district attorney’s memo.

A police spokesman said in a statement that officers initially investigated whether domestic violence had occurred when they arrived, interviewing Cotter and Pearce before realizing that the councilwoman had been drinking. At that point, the officers called for a colleague who is a certified drug recognition expert to investigate, Sgt. Brad Johnson said in the statement.

He said the testing device had been “tagged to be replaced but was not removed from its storage cabinet. The officer who retrieved the device did not realize … and unfortunately used it during the DUI investigation.”

Police at the scene saw Cotter with swelling, redness and a cut to his head and cuts to his hand, according to the district attorney’s memo. Pearce at one point had shoved Cotter, causing him to fall to the ground, the memo said.

Prosecutors ultimately decided that Pearce, who was first elected to the City Council in 2016, could argue she was defending herself when she shoved Cotter.

Pearce said she could not immediately comment. Cotter could not be reached for comment.

 

I can tell you that, had this been an average Joe Schmoe driver, it would not have ended up in a refusal to file DUI or domestic violence charges.

Many DUI cases are filed everyday where the blood alcohol content is below the legal limit or a breathalyzer is faulty. While it may have been true that Pearce was under the limit at the time of the test and that the breathalyzer was inaccurate, had it been a regular member of the public, charges for driving under the influence would still have been filed and prosecutors would have left it to the defendant their attorney to dispute the results.

The same thing can likely be said for the refusal to file domestic violence charges. If prosecutors declined to prosecute domestic violence charges when anybody “could argue [they were] defending [themselves],” then they’d never prosecute anyone. And believe me, in the many domestic violence cases I’ve handled, not once has a prosecutor dropped a case because a person “could argue that they were defending themselves.”

So now let me ask you: Is this a coincidence?

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DUI in a Driverless Car

Friday, October 13th, 2017

Driverless cars are so close to becoming a reality that just this past week, California published new draft rules that provide a clearer picture of how the driverless car industry will be regulated in the state.

Amongst the many proposed regulations that were drafted, which can be found on California’s DMV website here, is that driverless cars must comply with state and local driving laws.  Companies which sell the driverless vehicles to customers must make software updates available to comply with changes in traffic laws.

While the proposed regulations apply primarily to the manufacturers of the driverless vehicles and not necessarily on the owner of the driverless vehicle, it remains unclear how driverless cars will affect another state law that does apply to the owner and, dare I say it, driver of the driverless vehicle; the California DUI.  

As is, the California Vehicle Code’s DUI law makes it “unlawful for a person who is under the influence of any alcoholic beverage…[or] who has 0.08 percent or more…of alcohol in his or her blood to drive a vehicle.”

If driverless cars take to the streets of California in the next year, or possibly even months, the question becomes whether the word “drive” under California’s DUI law still applies. In other words, can a person still be charged, arrested, and convicted of a California DUI while using a driverless car?

At least one country says no.

Australia’s National Transport Comission (NTC) has released a report suggesting that applying drunk driving laws to driverless cars could discourage the use of driverless cars in general and when trying to get home safely after drinking:

Driving Drunk or on Drugs in a Driverless Car Should Be Legal, Expert Body Says

October 6, 2017, CNBC – People under the influence of drugs and alcohol should be able to use driverless cars without falling foul of the law, a regulatory body in Australia has suggested.

The National Transport Commission (NTC), an independent advisory body, said current laws could reduce the uptake of automated vehicles. One of those potential barriers could be any law that requires occupants of self-driving cars to comply with drink-driving laws.

"This would create a barrier to using a vehicle to safely drive home after drinking. Enabling people to use an automated vehicle to drive them home despite having consumed alcohol has the potential to improve road safety outcomes by reducing the incidence of drink-driving," the NTC said in a discussion paper released earlier this week.

"Legislative amendments could be made to exempt people who set a vehicle with high or full automation in motion from the drink- and drug-driving provisions."

The NTC does acknowledge a risk that could involve a person under the influence of drink or drugs choosing to take over the car. If that occurred, the body suggests that drink and drug driving offences would apply. But ultimately, a drunk person in a driverless car is similar to them being in a taxi, the NTC concludes.

"The application of an exemption is clear-cut for dedicated automated vehicles, which are not designed for a human driver. The occupants will always be passengers. The situation is analogous to a person instructing a taxi driver where to go," the paper said.

In many countries drugs are illegal and drink-driving laws differ between jurisdictions.

Australia has been pushing forward legislation to facilitate driverless cars over the past two years. In 2015, the first public self-driving car trials took place in South Australia, after laws were passed there to allow tests.

The NTC also recently released guidelines on driverless car tests across the entire country.

Analysts have forecast that automated vehicles could actually be a boon for the alcohol industry.

"Shared and autonomous vehicles could expand the total addressable market of alcoholic beverages while reducing the incidence of traffic fatalities and accidents," Morgan Stanley analyst Adam Jonas saidin a report last month.

Governments across the world are looking into the implications that driverless cars will have on the law and the insurance industry.

I’ve said it before and I’ll say it again. Anything that helps prevent drunk driving, I’m in favor of. If a driverless car can get people home safely after a night of drinking, then why wouldn’t we use them? But to apply DUI laws to those using driverless cars defeats the purpose of DUI laws in the first place, namely to punish and deter drunk driving. In fact, it may actually discourage people from choosing this new method from traveling, as the NTC’s report suggests.

 

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