Driving Under the Influence ::
DUI (Driving Under the Influence of Alcoholic Beverages, Chemical Substances or Controlled Substances). s. 316.193, F.S.
Under Florida law, DUI is one offense, proved by impairment of normal faculties or unlawful blood alcohol or breath alcohol level of .08 or above. The penalties upon conviction are the same, regardless of the manner in which the offense is proven.
TEXTING WHILE DRIVING MORE DANGEROUS THAN DUI
This morning, NBC’s “Today” show featured a story on how driving while texting could be more dangerous than driving while under the influence of alcohol. Car & Driver has developed a test to measure the difference in reaction times when driving while reading an email, actively texting and driving with a blood alcohol level of 0.08, the legal limit. The test takes place on an abandoned air strip.
In terms of reaction time, both reading an email and texting were far worse than being inebriated for the older subject, Car & Driver Editor in Chief Eddie Alterman, 37. A 22-year-old intern also took the same tests and was quicker in all scenarios, with barely a variance between the three.
The “Today” segment only showed Alterman’s more dramatic results, but obviously even a slight delay in reaction time could easily be the difference in causing an accident. The video link is here: TODAY SHOW VIDEO and also see the Car & Driver online video.
You want to SuperSize that Breath Test, Sir?
By Kim Smith
ARIZONA DAILY STAR
Tucson, Arizona | Published: 06.14.2009
Drunken drivers with the late-night munchies soon could get more than just a burger and fries at the drive-through window.
The Pima County Sheriff’s Department’s new anti-drunken driving campaign — called Operation Would U Like Fries, or Operation WULF — hopes to put undercover deputies inside 24-hour fast-food restaurants to spot impaired drivers placing their orders, said Sgt. Doug Hanna, DUI unit supervisor.
If deputies notice someone with any of the classic symptoms of impairment — slurred speech, red or watery eyes, beer breath — they will radio a uniformed deputy stationed just outside, Hanna said.
The second deputy will then pull over the driver and, if field tests confirm what the officer at the drive-through suspected, arrest him or her for driving under the influence.
“The idea is to get them before they get back on the road,” Hanna said.
Bankrolling the intermittent program will be a $128,000 grant the Sheriff’s Department received from the Governor’s Office of Highway Safety for fiscal year 2008-2009, Hanna said. The grant also funds sobriety checkpoints and other anti-drunken driving programs.
Hanna said several local franchise owners and managers are interested in participating in the program, but are waiting for corporate approval. Once they get it, Hanna anticipates Operation WULF would take place every quarter or so.
Tucsonan Carlos Sanchez said he thinks the idea makes a lot of sense, since it’s a popular belief that people under the influence of drugs and alcohol often get hungry while partying.
“It’s just another way to get drunk drivers off the street,” Sanchez said.
Pamela Andrews, another local resident, has mixed feelings.
“I think it’s a good idea, but then again, isn’t it entrapment?” Andrews said. “I’d say do it anyway, though. I’d rather know the kids are safe out there — the ones who aren’t drinking, but are behind the wheel.”
Local defense attorneys and at least two local restaurateurs, were appalled at the idea.
“I have no love for drunk drivers, and I want them off the road, but this is too much like Big Brother,” said Tom O’Connor, owner of Tucson’s 21 Eegee’s.
Watching for impaired drivers from a parking lot is one thing; “fishing” for them from inside a business is another, O’Connor said.
Mike Herndon, who owns seven local Burger Kings, also was opposed.
Defense attorneys Joseph St. Louis, Michael Bloom and Brick Storts all questioned the allocation of resources in these economic times and the legality of such a program.
For example, alcohol on the breath doesn’t mean someone is impaired, Storts said.
St. Louis said law enforcement agencies spend a lot of money training officers to spot impaired drivers — and now those officers will be stuck behind a drive-through window.
“I’ve been practicing law 21 years, and I’ve done in excess of 200 DUI cases, and I can think of one that occurred at a fast-food restaurant,” St. Louis said.
But he did see one upside: “I can’t wait to challenge the first one in court.”
Bloom isn’t sure undercover deputies will have enough time to develop the “probable cause” needed to pull over drivers.
“The deputies will claim the program will deter drinking and driving, but once the word is out, all they are going to do is deter drunk drivers from going through the drive-through. … Project WULF is not going to reduce people’s blood alcohol levels, but it might reduce their cholesterol levels.”
Critics of the program have their own ideas for addressing the problem of drunken driving. Storts suggested more roadblocks. St. Louis advocates dashboard cameras that would provide evidence against impaired drivers while also protecting deputies from allegations of excessive force and other inappropriate behavior.
Local resident Debbie Ammons said she’d rather see grant money used to fund the school resource officer program, which has experienced cutbacks lately.
DUI unit supervisor Hanna said Operation WULF is just another tool for law enforcement agencies to use in battling drunken driving. The more deputies out in the community — whether they are at checkpoints, on the roads, in liquor-serving establishments or at drive-through windows — the more likely the message will get out.
“Hopefully, people will start getting the message, ‘Don’t drive impaired,’ ” he said.
The Royal Canadian Mounted Police were the first ones to come up with the drive-through concept, Hanna said. He learned about their program, Operation WULF, while attending a MADD conference in Dallas.
The sergeant pointed out that former University of Arizona quarterback Willie Tuitama was cited for extreme DUI after McDonald’s employees alerted a Tucson police officer that they suspected he was impaired, Hanna said. Tuitama was placed on 12 months of unsupervised probation last week after pleading guilty to misdemeanor DUI.
“Lots of time we get information from people working the drive-through,” Hanna said. “They’ll say, ‘I wish you’d been here five minutes ago because we had someone who was really smashed just come through.’ “
David Ranck Firing by Katherine Fernandez-Rundle
Former Miami-Dade Assistant State Attorney David Ranck was fired recently after his whistle-blower lawsuit was dismissed by United States District Court Judge Alan Gold.
Here is a link to Mr. Ranck’s response to the firing and its attendant circumstances.
http://publicoccurrenc.blogspot.com/2009/06/state-of-florida-v-stevenson-charles.html
New Link on LOCAL.COM
WWW.DUILAWDEFENSE.COM and Jonathan Blecher have a new link on LOCAL.COM. Please visit our webpage there for more information about our law firm and services.
Sleeping it Off, OK’d by New Jersey Court
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| Drunk behind the wheel of a parked vehicle, even with the engine running and the parking brake off, can’t carry a DWI conviction without proof of intention to drive, a New Jersey appeals court held on Tuesday.
Though unpublished, the ruling is notable for its departure from the New Jersey courts’ usual strict tendency to uphold drunken driving convictions based on observational evidence of any form of operation of a vehicle. In State v. Putz , A-1004-08, the Appellate Division said the trial court ignored credible evidence that the defendant, who was found asleep in his idling pick-up truck after midnight, had no intent to move the vehicle. “The conclusion that defendant intended to move the vehicle cannot have been made with respect to the moment of arrest, but must have been predicated upon his ‘intent’ before he fell asleep,” said Judges Mary Catherine Cuff and Christine Miniman. “Here, defendant’s denial of any intention to drive was at least circumstantially corroborated by the testimony of the other witnesses,” they said. “He was in such a deep stupor at 2:00 a.m. when he was arrested that he could not have had any such intent.” A Lopatcong police officer found Joshua Putz asleep in his truck outside the entrance to a farm where his girlfriend lived at about 2 a.m. on March 8, 2008. The officer noticed the engine was running but the parking brake was off. When questioning Putz, he detected a strong odor of alcohol and performed a breathalyzer test, which showed a blood-alcohol content of .14 percent. Charged in municipal court with driving while intoxicated, Putz testified and called witnesses to testify that he had not driven the vehicle but only occupied it. According to the testimony, Putz lent his truck to a friend, Patrick Fletch, then went drinking with another friend, Jeffrey Hackett, at a restaurant in Phillipsburg. At around 11 p.m. on March 7, Hackett dropped Putz off at his vehicle, which Fletch had left in front of a horse farm where his girlfriend, Kim Gapinski, lived as a tenant. Putz testified that he had planned on spending the night with Gapinski, but although the farmhouse was within walking distance, he waited outside because he had standing orders from the farm’s operator, Tuesday Remsburg, to call before entering the property after dark. Remsburg in her testimony corroborated the arrangement and said Putz had called on at least 20 prior occasions. However, Putz waited until after midnight to call Gapinski, explaining that he assumed he would see her outside attending to chores and would get her attention. She didn’t come out, and it was cold and rainy, so he went and turned on the engine to get some heat and called Gapinski from his cell phone, but she did not answer and he fell asleep. Gapinski testified she had fallen asleep and noticed the following morning that she had a missed call from Putz at 12:12 a.m. Putz did not wake up until the officer began knocking on the truck window. Municipal Court Judge Bruce Jones, finding the testimony incredible, convicted Putz, suspended his license for seven months and imposed $665 in fines and penalties. The Law Division, on de novo review, came to the same result. But Cuff and Miniman said they were troubled by Jones’ determination. “The judge also said, ‘It’s a completely absurd story,’ although he later said that he would keep an open mind with respect to the issue of operation,” the panel said. “We do not believe that he did so. … Many of the details of [the] story were corroborated by other credible witnesses, yet the judge never modified his initial credibility determination.” Though citing a long line of cases that have allowed “operation” of vehicles to be inferred from a variety of circumstances indicating defendants had been driving while intoxicated, Cuff and Miniman said “we have found no reported decision sustaining a conviction based on an intent long since dissipated by the time of arrest.” They saw a factual similarity to State v. Daly , 64 N.J. 122 (1973), where the driver, found asleep with his seat reclined, told police he realized he was drunk when he left a bar and decided it would be best to sleep it off. The state Supreme Court found that merely switching on the engine was not proof of intent to move the vehicle. The Law Division judge had distinguished Daly because in that case, the driver’s seat was reclined while Putz’s was upright. But Miniman and Cuff said, “We are not persuaded by the Law Division judge’s reliance on the fact that the parking brake was not set, defendant’s seat was not reclined, and he did not tell the officer that he was sleeping, but rather that he was waiting for his buddy as sufficient to infer that he had an intent to operate his vehicle at some unspecified point in time. This evidence is simply insufficient to support a reasonable inference of intent to operate given defendant’s prolonged stupor.” |
Breath Testing Errors
All states have now passed laws lowering the blood-alcohol level to .08%. And most people suspected of violating the law are given breath tests to determine the level of alcohol in their blood. The breathalyzer will take a small sample of the suspect’s breath and estimate how much alcohol is in it — and, from that, estimate how much may be in the blood.
And what that machine says is pretty much the end of it. There will be no second tests. There will be no cross-examination of the machine. Are these machines so reliable and accurate that we have permitted them to become judge and jury?
Scientists universally recognize an inherent error in breath analysis, generally of plus or minus .01%. That means that if everything is working perfectly (an unlikely scenario), a .13% breathalyzer test result can be anywhere from .12% to .14%.This has been acknowledged by courts across the country (see, for example, People v. Campos, 138 Cal.Rptr. 366 (California); Haynes v. Department of Public Safety, 865 P.2d 753 (Alaska); State v. Boehmer, 613 P.2d 916 (Hawaii), recognizing an even larger .0165% inherent error).
What does that tell us about the accuracy of these breathalyzers? Well, let’s take a test result of .10%. Taking inherent error into consideration — and assuming the machine was working perfectly, the officer administers the test correctly, and the suspect’s physiology is normal and perfectly average — the true BAC could be anywhere from .09% to .11%. In other words, the true BAC can be 10% in either direction — or, put another way, anywhere within a 20% margin of error.
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Does Marijuana Affect Driving Ability?
It is against the law to drive while under the influence of marijuana. It has always been assumed that cannabis, like alcohol, impairs the perception, coordination, reflexes and judgment necessary for the safe operation of a motor vehicle. And, of course, there have been governmental studies addressing the question: Does marijuana impair driving?
Interestingly, however, the findings do not necessarily support popular opinion….
On the one hand, the California Department of Justice has found that marijuana undoubtedly impairs psychomotor abilities that are functionally related to driving and that driving skills may be impaired, particularly at high-dose levels or among inexperienced users. “Marijuana and Alcohol: A Driver Performance Study”, California Office of Traffic Safety Project No. 087902 (Sept. 1986).
Contradicting these conclusions, however, are two federal studies. The U.S. Department of Transportation conducted research with a fully interactive simulator on the effects of alcohol and marijuana, alone and in combination, on driver-controlled behavior and performance. Although alcohol was found consistently and significantly to cause impairment, marijuana had only an occasional effect. Also, there was little evidence of interaction between alcohol and marijuana. Accidents and speeding tickets reliably increased with alcohol, but no marijuana or combined alcohol-marijuana effects were noted. “The Effects of Alcohol on Driver-Controlled Behavior in a Driving Simulator, Phase I”, DOT-HS-806-414.
A more recent report entitled “Marijuana and Actual Performance”, DOT-HS-808-078, noted that “THC is not a profoundly impairing drug….It apparently affects controlled information processing in a variety of laboratory tests, but not to the extent which is beyond the individual’s ability to control when he is motivated and permitted to do so in driving”. The study concluded that:
An important practical objective of this study was to determine whether degrees of driving impairment can be actually predicted from either measured concentration of THC in plasma or performance measured in potential roadside “sobriety” tests of tracking ability or hand and posture stability. The results, like many reported before, indicated that none of these measures accurately predicts changes in actual performance under the influence of THC…
The researchers found that it “appears not possible to conclude anything about a driver’s impairment on the basis of his/her plasma concentrations of THC and THC-COOH determined in a single sample”.
Note: “THC” stands for Delta-9-tetrahydrocannabinol, which is the intoxicating ingredient in marijuana. THC is fairly quickly converted by the body into inert metabolites, which can stay in the body for hours or even days. It is these metabolites that police blood tests in DUI arrests detect and measure. In other words, (1) marijuana may not impair driving ability at all, and (2) the blood “evidence” only measures an inactive substance which may have been there for days.
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Breath-Test Ruling Jeopardizes Thousands of State DWI Cases
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Minneapolis, MN. May 1 –Minnesota may be forced to drop thousands of driving-while-impaired cases and change the way it prosecutes others in the wake of a state Supreme Court ruling Thursday, prosecutors and defense attorneys agreed.
The state’s highest court ruled that defendants in drunken-driving cases have the right to make prosecutors turn over the computer “source code” that runs the Intoxilyzer breath-testing device to determine whether the device’s results are reliable.
But there’s a problem: Prosecutors can’t turn over the code because they don’t have it.
The Kentucky company that makes the Intoxilyzer says the code is a trade secret and has refused to release it, thus complicating DWI prosecutions…
The Intoxilyzer 5000EN is the standard device used by Minnesota police to determine if a driver is impaired. The state bought 260 of the machines from the manufacturer, CMI of Kentucky, in 1997, and state law presumes the devices’ results to be reliable.
The device is used with nearly eight of every 10 suspected drunken drivers who are tested in Minnesota.
But defense attorneys have argued that if they can’t examine the source code, the computer program that runs the machine, they have no way to tell if the Intoxilyzer is reliable. District judges across Minnesota have handled defense requests for the source code with a patchwork of rulings: Some say a defendant has a right to examine it; others say it isn’t relevant…
The Supreme Court said (defendant Brunner’s evidence) “show that an analysis of the source code may reveal deficiencies that could challenge the reliability of the Intoxilyzer and, in turn, would relate to Brunner’s guilt or innocence.”
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Obama Chooses MADD Official to Lead Safety Agency
Washington, DC. April 8 — President Barack Obama has chosen a top official with Mothers Against Drunk Driving to lead a Transportation agency that oversees safety and fuel efficiency requirements for automakers.
Chuck Hurley was nominated Wednesday to become administrator of the National Highway Traffic Safety Administration. Hurley, a longtime safety advocate, has served as MADD’s chief executive officer since 2005 and worked for the National Safety Council and the Insurance Institute for Highway Safety.
At MADD, Hurley urged states to adopt tougher drunken driving laws and require first-time offenders to use ignition interlock devices on their cars. The devices require drivers to blow into an instrument that measures alcohol and prevent a vehicle from starting if the driver’s blood alcohol concentration exceeds a certain level…
The organization has received funding from several auto companies, including General Motors Corp., Toyota Motor Corp., Ford Motor Co. and others. The General Motors Foundation provided MADD and MADD-related programs with $133,000 in grants in 2007, according to financial records filed with the IRS.
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