Different DUI Standard for Police?

Tuesday, August 20th, 2019

Anyone who has known someone that has been convicted of a DUI, or who has themselves had the unfortunate experience of suffering the consequences of a DUI, might know that there is the possibility of a obtaining a restricted license during the period of time where driving privileges are suspended. While driving privileges might be restricted during this time, a driver can still drive to and from work with a restricted license.

If a law enforcement officer happens to get caught for a DUI, wouldn’t we expect to hold the officer to the same standard as the rest of us drivers, possibly even a higher standard?

I bring this up because a police officer from Melbourne, Florida is now back behind the wheel of her police cruiser after having been charged with DUI while off duty back in September.

Audrey Poole of the Melbourne Police Department was pulled over for driving 20mph above the speed limit in Palm Bay. Her arrest affidavit as well as a statement from the arresting officer indicates that her eyes were bloodshot, and she smelled of alcohol even before she attempted field sobriety tests. She allegedly failed multiple field sobriety tests and refused to submit to a breathalyzer test, which led to her arrest. The interaction was even caught on dashboard camera footage.

Poole had been working in dispatch since 2012 and was hired as an officer in March 2018. After the arrest, she was suspended for a week without pay, then was placed on administrative leave with pay until Nov. 12th and was assigned desk duty. Under Florida law, she automatically lost her license for one year for refusing a chemical test. A month after the arrest, the state attorney’s office dismissed the DUI charge. According to Assistant State Attorney Leo Domenick, “Although there is sufficient evidence of probable cause for the arrest, based on the lack of a breath (Blood Alcohol Concentration) test, combined with the defendant’s performance on the field sobriety exercises, there is no reasonable likelihood of success at a jury trial.” After two months, Poole was reinstated and allowed to drive a Melbourne police cruiser under a “business purpose only” license which allows her to drive during her on duty hours.

Following the dismissal of charges, she was disciplined for multiple department violations, including conduct unbecoming of an officer, non-compliance with the law, and unlawful consumption of alcohol. In addition, she was also required to complete an alcohol education course and had her probationary status as a new officer extended.

According to some local DUI lawyers, a complete dismissal is unusual for Poole’s case. “It’s pretty rare that you see cases completely dropped, but every case is different. They might get knocked down to a reckless driving or a careless driving sometimes, but with more refusals they won’t negotiate… a dismissal,” says Melbourne-based DUI lawyer Mark Germain.

However, despite earlier reports that Poole failed multiple field sobriety tests, State Attorney spokesperson Todd Brown explained that the lack of a breath test and Poole’s actual performance on the field sobriety tests were sufficient enough to make the burden of proof for trial difficult to meet. Since prosecutors also have an obligation to drop charges that do not meet the burden of proof, it was decided that they would drop the charges. He believes that a member of the public charged in the same circumstances would have resulted in the same conclusion.

Let’s put aside the question that we have regarding the dropped charges for a moment. As an officer of the law, who is supposed to be enforcing the very laws that she disregarded, she was allowed to apply for and was approved for a “business only” license during her license suspension period.

There are multiple factors that can be considered to reach the conclusion that was reached. Poole was off duty, so the charge should have no bearing towards the responsibility she holds during her on duty hours. No chemical test seemed to have taken place, even after her arrest, so there is no factual evidence that she was over the legal limit. Because the charges were dropped, there is no conviction on her record. These are all arguments to allow her to continue to drive for work purposes. Would the same treatment have been given to a non-police officer?

When it comes to the actual charges, at least here in California, Poole would have been charged with a DUI. Prosecutors here in California have actually said that they would rather go to trial and lose a DUI case for lack of evidence than to dismiss it for lack of evidence.  As the local DUI attorneys have pointed out, it’s extremely rare for a prosecutor to dismiss a DUI case give the facts of Poole’s case. In fact, drivers have been charged with a DUI with much less evidence than in Poole’s case.

Again, questions remain: Had Poole been anyone other than an officer, would she have been treated differently? Probably. Would she have been approved for the “business only” driving license? Probably not. Are police held to a different standard when it comes to DUI prosecutions than the rest of us? Although I’d like to answer in the negative, Poole’s case has me thinking otherwise.

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Non-Lawyer Judge Throws Out DUI Against Prosecutor

Thursday, August 15th, 2019

Most of us will agree that we want the courtroom to be a place of fairness and justice. Sadly, some days that just doesn’t seem to be the case. According to Mississippi Department of Public Safety Commissioner, Marshall Fisher, the day a judge made the decision to throw out a DUI case against the Tupelo city attorney was such a day.

According to Fisher, “Judges are to use the law and facts when deciding whether police actions are constitutional, and Justice Court Judge Chuck Hopkins had neither the law nor the facts on his side when he dismissed the case against Tupelo city attorney Ben Logan.”

Back in December, Mr. Logan was stopped at a Mississippi Highway Patrol safety checkpoint and arrested for driving under the influence. He had been seen attempting to avoid the checkpoint by pulling into a private lot of a closed business. Multiple officers witnessed Logan showing visible signs of intoxication such as glassy eyes and slurred speech. He was taken to the Lee County jail but was never booked. He was, however, released to his girlfriend who was allowed to drive him home.

Although hearing was scheduled at the Lee County Justice Court, Logan’s attorneys filed a motion claiming that the checkpoint was unconstitutional. Judge Hopkins agreed with the motion and dismissed the case on July 11th citing court records which apparently did not show that the troopers who conducted the checkpoint had permission from their supervisors.

However, according to Fisher, “No Mississippi Supreme Court case requires law enforcement have permission from their superior before conducting a safety checkpoint. But even if that permission was required, the troopers in this case had it. The Master Sergeant was present and even witnessed Ben Logan avoid the safety checkpoint.”

Mississippi Justice Court is the only court in the state where judges are not required to be attorneys. They are elected positions and according to Jackson County’s website, Justice Court Judges are elected officials serving four-year terms. To qualify to serve as a Justice Judge the candidate must meet the following requirements:

  • High School diploma is mandated
  • Justice Court Training Course provided by the Mississippi Judicial College of the University of Mississippi Law Center
  • Annual continuing education requirement prescribed by the Judicial College
  • Resident of the County at least two years prior to serving.
  • Hold at least one session of court per month, but not more than two.

Guess what? Judge Hopkins is not an attorney and, according to Fisher, “created his own requirements for [the] safety checkpoint.”

Does this bother anyone else? Does it bother anyone else that Judge Hopkins doesn’t need a license to practice law, doesn’t need a law degree, and doesn’t even need an undergraduate college degree?  What’s more, according to the Mississippi Code, newly elected justices have six months to complete their Justice Court Training Course. This essentially means that someone could potentially finish the courses in less time than that.

Attorneys in every other state, for the most part, are required to obtain a four-year undergraduate bachelor’s degree before attending law school. Law schools then select only a handful of top-performing undergraduate students to attend and obtain a law degree. After three grueling years of law school, students obtain a law degree…if they survive law school. Then, if they graduate law school, students can take the bar exam for their respective state, the pass rate of which is often very low (especially here in California). If they pass the bar exam, only then can they become lawyers who can later become judges. This is a screening process to ensure that only qualified, legally versed professionals are able to make important decisions which affect the lives of citizens.

Now contrast this with Mississippi’s lax (to put it mildly) standards.

Lives are literally in the hands of judges and justices. It takes years to learn the law so that it can be applied properly to achieve a just result. It does not and should not take a high school diploma and a six-month (likely less) course. Otherwise, as Fisher pointed out, you have lay-people sitting on judge benches making decision which affect the lives of people, not based on the law, but based on their own personal beliefs, gut feelings, or political preferences.

I find this appalling.

“This case is nothing more than local politics getting the end result they wanted by blaming a state agency,” Fisher said. “When non-lawyer judges start making decisions on what is considered constitutional under the law, these types of mistakes will continue to happen.”

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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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Robotic Bartenders: Great Idea or Drunk Driver Enabler?

Monday, July 22nd, 2019

If you have been fortunate enough to step into Google’s developer conference, or perhaps on one of Royal Caribbean’s cruises, you may have gotten your cocktail, not from a human, but from a robotic bartender.  

Back in 2013, Makr Shakr’s Bionic Bar graced our presence and this piece of smart technology is starting to change the way that we order some of our favorite drinks. While many bars may still not have the budget to incorporate this technology into their enterprises, engineers have scaled down the technology to smaller versions like the Somabar Robot Bartender for smaller businesses and even personal use within the home.

On the outset, this idea of a robot bartender sounds like a fascinating idea. You won’t have to shout across the bar to try and get the bartender’s attention and you don’t have to worry about the bartender getting your correct order over the sounds of the DJ’s turntable, people conversing, and the other noises typical of a bar. You have the capability of customizing your drink to your heart’s content and the Nino, which is the updated version of the Bionic Bar, will allow you to place your order via phone app.

I’m also sure that it is fascinating to watch the robotic arms pull the bottles from their vault of liquors on the ceiling and create your concoction. The arms on the Nino were programmed to be like the “dance-like” movements of humans.

While in California, it is not the legal responsibility of the bartender to prevent a drunk patron from getting behind the wheel (see Should Bars be Allowed to be Sued when they Serve Alcohol to Someone who Later Causes a DUI-Related Accident? ), bartenders can still act as a “gatekeeper” of alcohol to someone who has already had too much to drink. My concern comes from how these “bartenders” will be able to stop a customer from indulging too much.

We know of many lawsuits in other states by grieving family members against bartenders and the bar owners for having not restricted the number of drinks served to an individual before that individual made the decision to get back into their car and drive their vehicle. One can only imagine the lawsuits that people are going to file against bars who are using robotic bartenders who are, in turn, incapable of determining whether someone is to intoxicated to drive and should not continue to be served alcoholic drinks.

We are starting to see advancements in vehicle technology aimed at being able to determine the driving capabilities of a person, including whether they are intoxicated, when they get into their vehicle.

So how are these robotic bartender systems equipped with being able to determine how much is too much? Sure, they may be able to track an amount of alcohol purchased, but we all know that person who always buys rounds for their friends, or that friend who buys a cute girl/boy across the bar a drink in order to start up a conversation. A watchful bartender would be able to determine if the person ordering is actually drinking alcohol or purchasing it for others. A robot, however, will not be programmed with those capabilities, not yet anyway.

While these robots are not yet mainstream, it will be interesting to see if the larger robotic bartender systems that have made their way to tech-savvy cruise ships and Las Vegas hotels will expand their reach into the everyday bar and how that may change how bar owners keep an eye on their clientele. It will also be interesting to see exactly how they might affect or be affected, if at all, by some legal changes that are currently being discussed in California such as extending last call and lowering the BAC limit.

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