Police: Drivers use Twitter, texting to avoid sobriety checkpoints | Should they be Illegal?

mcclatchy.com - FRESNO, Calif. — In a ritual nearly as familiar as Santa Claus and crowded stores, police agencies again have stepped up enforcement of drunken-driving laws this holiday season, setting up sobriety checkpoints that studies show reduce alcohol-related crashes because drivers who've been drinking stay off the road, fearing arrest.

But some public-safety officials say those efforts are now being thwarted by technology, with drivers now using text messaging, Twitter and other tools to keep each other informed about the location of sobriety checkpoints.

There's even an iPhone application specifically designed to identify checkpoints, according to Sgt. Dave Gibeault, head of the Fresno Police Department's traffic unit.

Gibeault says his own daughter often sends him text messages about where she's heard he's running checkpoints.

On Twitter, a free electronic message service that runs on both cell phones and computers, drivers can warn each other with "tweets" listing intersections where police have set up checkpoints.

Fresno attorney Brian Andritch sees nothing wrong with efforts to spread the word about checkpoints.

Andritch, who used to prosecute drunken drivers when he worked in the Fresno County District Attorney's Office, now defends them -- and warns others about sobriety checkpoints on Twitter.

"I don't see how it's any different from what police are doing in promoting checkpoints," he said in an interview.

Gibeault said it's one thing to spread the word about checkpoints in general, which police want. It's quite another to provide information that might encourage people to drive drunk, he said.

Wayne Ziese, a spokesman for the California Office of Traffic Safety, said he's heard a lot of stories about young people using technology to avoid drunken driving arrests.

"Young people continue to be the most dangerous drivers," he said. "They will continue to drink and drive until they have families and realize they have something to lose."

Ziese said law enforcement hasn't figured out how to respond to the more immediate and precise information about checkpoints circulating on the Web and via cell phones. The Office of Traffic Safety provides funding to help with such enforcement, including more than $5 million to Fresno County agencies in the last five years.

"New technology brings us new challenges, whether it's warfare or DUI," Ziese said.

Fresno police are known for their innovative approaches to DUI enforcement, and will likely figure out an appropriate response, Ziese said.

But changing the checkpoints can be a problem, Gibeault said. Police can't easily move them once their location has been broadcast, because of legal requirements and the large number of officers and equipment involved, he said.

In any case, the purpose of the checkpoints isn't to take drunken drivers off the road, Gibeault said. The point is preventing them from getting in the car in the first place. In 2001, experts convened by the Centers for Disease Control and Prevention reached the same conclusion. The group concluded that checkpoints reduced alcohol-related accidents by an average of 20%.

"Although checkpoints may remove some drinking drivers from the road, their primary goal is to reduce driving after drinking by increasing the perceived risk of arrest," the researchers said.

Saturation patrols -- in which police focus on troubled areas with a lot of officers on the move -- are more effective than checkpoints at catching drunken drivers, Gibeault said.

In the last three winter holiday seasons, more than 18,000 vehicles have passed through checkpoints in Fresno and Madera counties, according to the Office of Traffic Safety. Only 1% of the motorists were arrested for driving under the influence.

By contrast, saturation patrols conducted during the same time produced seven times as many arrests for driving under the influence. Valley's young drivers use technology to avoid DUI checkpoints

"I was a hard sell on checkpoints," Gibeault concedes. "I wanted to put drunk drivers in jail."

But he said he learned over time how effective checkpoints are.

He said he remains a strong supporter of checkpoints, even though the number of drunken-driving accidents has gone up during winter holidays in Fresno.

Last winter holiday, motorists charged with driving under the influence were involved in 49 crashes, compared to 36 five years earlier, police figures show.

Some of the increase is likely due to population gains, and the jump would have been higher if not for checkpoints, Gibeault said.

Clovis Police Chief Janet Davis said more people would have been hurt or killed if checkpoints weren't set up, and police must continue the effort.

"We're still doing these campaigns because people aren't getting it," she said.

Should Radar-Detecting Phone Apps Be Illegal?

By ROY FURCHGOTT

 

 

The Trapster app can alert drivers to speed traps.

A few months ago, Washington’s chief of police, Cathy Lanier, said in The Washington Examiner that people who used smartphone applications to avoid red-light cameras, speed traps and sobriety checkpoints were “cowardly.”

A police spokesman said Chief Lanier was misquoted. But new twists in the interpretation of the law raise the question of whether people using the apps are criminals.

An unchallenged quote from the police chief said that applications like PhantomAlert and Trapster were “designed to circumvent law enforcement — law enforcement that is designed specifically to save lives.”
Is it possible that the phones could be designated as radar detectors, which are illegal in Washington and Virginia, and temporarily confiscated just as stand-alone radar detectors are?

According to the Virginia code, it is illegal for any vehicle to have “any device or mechanism, passive or active, to detect” radar. The question is, what does detect mean?


If your phone warns you that you are nearing a speed trap, does that count as detection? It might. But the same code also says “provisions of this section shall not apply to any receiver of radio waves utilized for lawful purposes,” which might also describe a phone.

The definition would appear to be untested in court.

“I’m not aware of any case law that would determine what is a radar detector or not a radar detector,” said Gregory R. Hough II, a Washington lawyer specializing in traffic violations.

Chief Lanier discounted any effort to outlaw software. “With the Internet and all the new technology, it’s almost impossible to stop the flow of information,” she told the Examiner.
However, a new tactic may prove her wrong.


On Sept. 24, the F.B.I. raided the home of Elliott Madison, who had used Twitter to disclose the location of police officers to protesters at Pittsburgh’s Group of 20 summit meeting. Mr. Madison was arrested and charged with, among other things, “hindering apprehension or prosecution,” according to an article in The New York Times.

That description, “hindering apprehension or prosecution,” would appear to apply to using a phone to alert other users how to avoid speed cameras and sobriety checkpoints as well.

“This is a completely new wrinkle, I don’t see it heading that way,” said Joe Scott, chief executive and founder of PhantomAlert, whose Android phone application warns drivers of the presence of traffic enforcement.

If lawmakers try to suppress apps like his, he said, “it’s going to make them look like they are out there to make unsuspecting drivers into criminals and fleece them.”

So what do you think? Should these warning apps be illegal?

Confession of a DUI Driver - I was Forced to Drink

community.fox4kc.com -Society has paved the way for alcoholism. Our judicial system promotes alcoholism as well. I’ll explain how.

My name is Chris , and I am an alcoholic.
I feel as if I was forced into alcoholism by the judicial system and the adolescent need for “alteration of the mind.”

I was 17 years old and succeeding in high school in Lee’s Summit, Mo. I had better than average grades and nearly 100% attendance. I had already lettered in Drama and Cross Country. However, during this time I wasn’t drinking with friends. I hated alcohol! I hated the taste, the feeling it gave me and what it did to my peers.

I chose to alter my sobriety with marijuana. Some friends looked down on me because of my choice of substance. Most of society did as well. But I knew I enjoyed marijuana and I could still function and make sensible decisions. I wasn’t slacking in school, sports, or life, like so many of my friends that drank.

Life was going well. I was all set to graduate a semester early when my life turned upside down. I decided to ride with a friend, who was drinking and driving to a party. We were stopped by police for suspicion of DUI. I had marijuana and he was drunk. That said, we went to jail.

Hundreds of dollars later, after hiring a lawyer, I was put on probation and into the judicial system. A few months into probation, I failed a urine test and tested positive for marijuana. I went back to court and was ordered into drug rehab for my “addiction to marijuana”. I could no longer smoke marijuana at this point. (Marijuana can stay in your system for up to 30* days) It was just too risky!

I decided at this point that I had been making a stupid decision smoking marijuana and that drinking alcohol wouldn’t get me in trouble with the law. So slowly I began to drink alcohol. It didn’t seem to be a problem at first. People didn’t look down on me, it was legal and it was acceptable nearly everywhere.

Beers turned into shots, shots turned into keg stands. I began fighting, skipping school, drinking until 3am. This was okay to people. This was what teens did. My probation officer didn’t seem to care if I drank alcohol, even underage. I got my first DWI right before my 18th birthday and I only got a warning from probation. At this point alcohol no longer bothered me and it seemed the trouble was less. More DWI’s, fights and social problems were to follow and my drinking led to me dropping out of school. Tens of Thousands of dollars went to lawyers and courts keeping me out of jail. I spent 34 days in jail for testing positive for marijuana during the alcohol probation.

In October of 2006 I was arrested for my 6th DWI. I was driving on a hardship drivers license. I knew how the system worked at this point and my lawyer got this DWI nearly tossed out of court, yes, # 6! How was I not in a prison cell?! Because I was able to buy my way out of alcohol problems, I continued drinking. Although I knew I had an addiction and a problem long before this.

New Years Eve 2006 into 2007 I woke up naked next to my best friends wife. I had no idea how I got there or how I even made it to their house. My friend woke me up and when I realized what was going on, I cried and broke down. This had to be my rock bottom. What had I done?! What can I do?! What do I do?! Well this wasn’t enough for me and I continued drinking.

January 16th, 2007 3:15am. I’m headed home on I-70 from Whiskey Tangos in Grain Valley with 2 friends. It’s icy and sleeting. I’m drunk, speeding and feeling untouchable. I come up fast behind an SUV that is driving cautiously because of the weather, when I decide to change lanes abruptly and it sends my Jetta into a spin. We slide off the interstate narrowly missing a bridge post. The front tire dipped into a rut and sent us into a flipping barrel roll. Nobody was wearing a seat belt. Witnesses reported my Jetta flipping at least 7 times and seeing a body tossed from the car. The “body” was my sunroof. When the car came to a stop I just knew my friends had to be dead. I yelled and yelled, “are you all okay?!” They both answered yes. As we stumbled out of the mangled car in extreme pain and confusion, I knew this had to be the end. The end to my alcohol experiences and addiction.

I managed to stay sober until February 25th, 2007. I was in a friends wedding in Florida when the urge came over me to drink. I drank a beer, took a shot of tequila and I felt myself slipping back into alcohol. I realized that wasn’t the route I wanted. I’ve been sober ever since. I have a beautiful family, a successful business and a home. Life is good.

I still smoke marijuana on occasion. The only troubles that ever came with marijuana were the laws that prohibited it. Marijuana never influenced me to make stupid decisions or act like a fool. Alcohol did, and that’s socially alright. Our society and judicial system let me drink and drink and drink with *zero consequences. Yet when I chose the safer, less toxic option, I was ridiculed, looked down upon and thrown in jail.

This is what happens to many Americans. Many are basically "forced" to be alcoholics! And alcoholism is okay.

Thanks for reading MY story. If you choose to alter your state of mind, I hope you choose the safer alternative, marijuana. It’s time to end the ridicule. If marijuana were legal, I don’t think I would be an alcoholic. I’m sure the same goes for millions of others as well.

Who Cares About the Rights of Those Accused of DUI?

Posted by Lawrence Taylor on December 5th, 2009

For many years now I’ve written and lectured extensively on drunk driving litigation –on the science of blood and breath alcohol analysis, the flaws in breathalyzers, the ineffectiveness of field sobriety testing. In recent years, however, my focus has increasingly shifted to the gradual erosion of constitutional rights in DUI cases.

So who cares about drunk drivers and their constitutional rights?

You should care

The importance of what is happening in DUI law and procedures can be summarized in one word: precedent.

We are a nation of laws, more specifically, the common law system inherited from the British. Unlike most nations, which use some version of the French civil law where laws are found in codes, we look to the precedent of judicial decisions interpreting statutory law. When a court looks at the facts in a specific case, it applies not only statutes but decisions in appellate court cases to determine what the law is. The genius of this common law system of precedent is its flexibility; its flaw is what many call "judicial legislation".

The flaw becomes particularly noticeable when dealing with politically unpopular subjects. And few topics are as politically "incorrect" as drunk driving. Judges and politicians are, after all, politically sensitive animals who want to be reelected. Put another way, it is very easy for judges to rule in favor of the prosecution in DUI cases — particularly when powerful pressure groups like Mothers Against Drunk Driving (annual revenues of over $52 million) are so vocal in elections and in legislatures. There are few advocates for the accused or the Constitution during election campaigns.

This judicial attitude is not limited to judges considering re-election. A majority of the U.S. Supreme Court has been consistent in depriving the accused in DUI cases their constitutional rights. To mention just a few examples:

Michigan v. Sitz.The Court held that sobriety roadblocks were permissible — despite the fact that there is no exception in the Fourth Amendment for stopping citizens without reasonable suspicion.

South Dakota v. Neville. The Fifth Amendment right against self-incrimination was held inapplicable in drunk driving cases (refusing to submit to testing).

Blanton v. North Las Vegas. Even though punishable by six months in jail, fines and diver’s license suspension, there is no Sixth Amendment right to a jury trial in a drunk driving case.

California v. Trombetta. Although police normally have to save evidence, they do not have to save breath samples in DUI cases (even though it is easy and inexpensive to do so).

So…we have seen a steady flow of appellate decisions at all levels taking away the constitutional rights of those accused of DUI. Again, so what?

Again, precedent: What happens today to a citizen accused of DUI can happen tommorrow to a person accused of any other crime. If police can set up roadblocks to check everyone for intoxication, they can set them up to search for drugs (which, incidentally, has already happened). If a citizen accused of DUI has no right to a jury of his peers, then the precedent exists to deny the right to citizens accused of possession of marijuana, tax evasion or any other offense.

The danger of precedent in the DUI field is not limited to judicial decisions. Legislatures are also guilty of passing unfair and/or unconstitutional — but politically popular — statutes. Politicians fall over each other in their rush to appear "tough on DUI" to their constituents. We have certainly seen a seemingly unending series of unfair and unconstitutional statutes across the country in recent years: immediate license suspensions at the police station; double jeopardy/punishment (license suspension and criminal prosecution); so-called per se laws (.08% blood-alcohol is illegal, even if sober); presumptions of guilt (if .08%, presumed to be under the influence; if .08% when tested, presumed to be .08% when driving); ad nauseum. And having passed such laws relating to DUI, they are less reluctant to do so in other areas as well.

So who cares about DUI? To paraphrase, "First they came for the drunks, but I was not a drunk so I did not speak up….."

Lowering penalties for marijuana possession and ramping up punishments for DUI

denverpost.com - Sentencing laws and prison costs
As legislators prepare to act on a state commission's proposals, officials first must determine how they'll affect overall costs.  Lowering penalties for marijuana possession and ramping up punishments for repeat drunken drivers are both promising ideas that ought to be considered as part of state sentencing reform.

We're glad to see the Colorado Commission on Criminal and Juvenile Justice pursuing these changes. But before the ideas get too far along, it will be important to get a handle on the economic impact of such a restructuring.

Would the overhaul result in overflowing jails? Will counties have the resources to accommodate changes? Is there any way to realize some savings in prison expenses?

Prison cost reduction is one of the main reasons the commission was formed. As corrections eats up an increasing portion of the state's general fund, it is imperative to figure out a way to slow the growth.

The commission is set to finish its work by the end of December, and then it will forward suggestions to the governor. Ultimately, restructuring sentencing laws will fall to legislators, who convene in January.

State lawmakers need to quickly get their arms around the financial implications of sentencing reform because anything with a significant price tag is going to be a waste of their time given the budget situation. Ideally, they'd realize savings.

The last sentencing reform bill, introduced in the waning days of the last legislative session, was shelved in part because no one knew how it would affect the budget.

The measure, sponsored by state Sen. John Morse, D-Colorado Springs, and Rep. Claire Levy, D-Boulder, offered some good ideas with its reduction in sentencing ranges for non-violent, property and some drug crimes.

It seems like the commission, which most recently met last week, is considering some of the same directions.

Commission members voted to recommend dialing back penalties for marijuana possession. Those caught with up to 4 ounces of marijuana would face a petty offense instead of a criminal misdemeanor. Possession of 8 to 16 ounces would become a misdemeanor instead of a felony.

Those changes are in keeping with trends around the state as voters have been taking a more lenient view about marijuana use.

The commission still is contemplating whether to ratchet up punishment for repeat drunken drivers. We hope there is a way to do this without causing budgetary problems.

On the table is a proposal for drunken drivers to be jailed for at least 30 days on a second offense and 60 days on a third offense.

Arapahoe County Sheriff Grayson Robinson, who headed the commission's DUI committee, also suggested getting repeat offenders counseling while they're dry and in jail, which is an excellent idea.

We're also glad to see the commission is revisiting its prior decision to loosen up penalties for those caught driving without a valid license. A recent legislative audit report saying more than 225,000 people are driving illegally in the state and are involved in a quarter of the state's fatal wrecks was a shocker.

Clearly, easing penalties is the wrong way to go on this problem.

The progress of the state's sentencing reform commission has yielded some encouraging initial progress. We look forward to the finished product.

Confession of a DUI Driver

thefrisky.com - When I heard this weekend that Shayne Lamas, the gal who snagged Matt Grant in season 12 of “The Bachelor,” was the latest reality star to get busted for behind-the-wheel booziness, I groaned but was hardly surprised. Her arrest was as predictable as Stephanie Pratt’s a mere few weeks before. Yet reading both girls’ shocked, defensive responses to their ordeals—But I only had two drinks!

I was practically sober!—I found myself cringing with a pang of empathy. See, a few years ago, just shy of my 21st birthday, I got pulled over for a broken taillight after having a not-yet-legal glass of wine at a dinner party. When the officer asked if I’d be drinking, I reacted the exact same way these two did. As a Dean’s List student at a top college who volunteered at the local children’s hospital, I thought I could do no wrong. I rattled off these accomplishments to the cop, sure that he’d let me off the hook. “Basically,” I said, no doubt looking and sounding like the naïve blonde sorority girl I was, “I am not the type of person who drinks and drives.” Except that, according to the Breathalyzer, I was.

After blowing a .02, the officer promptly placed me under arrest for violating Delaware’s Zero Tolerance Law. As someone who’d never so much as been grounded before, I was at a loss for words. Something else that was lost in the hoopla of my night in jail? The fact that I had done something not just illegal but truly dangerous. While the details of my unlikely arrest circulated around my hometown, I clung to the claim that I had been virtually sober. From my years of high school and college parties, I was convinced that the “designated driver” was the person who drank the least—not one who abstained completely. I still thought I had done nothing wrong.

It was only recently, at age 26, that I stopped making excuses and started focusing on the facts. At the risk of sounding like a M.A.D.D. presentation, driving performance degrades after just one drink. According to the National Highway Traffic Safety Association, by the time someone has three drinks in an hour—the amount that Stephanie Pratt must have had in order to blow a .08—they are 11 times more likely to be involved in a fatal crash than someone who has had nothing to drink. Add that to the fact that 21-to-24-year-olds have the highest involvement in alcohol-impaired driving fatalities, and it’s clear that the celebutante D.U.I. is more than just a young Hollywood rite of passage; it’s indicative of a larger national epidemic.

In the end, my arrest—and its accompanying barrage of paperwork and mandatory court appearance—was a royal pain in the arse. And a sobering dose of reality, reminding me that laws are put in place to save lives. I’m now diligent about not drinking and driving. But I have to wonder how much longer the D.U.I. trend will be fashionable for celebrities—and more importantly, at what cost to the rest of us?

Defining Highway - Defining “Highway” for Purposes of a DUI

 Yodle Local Articles - Claiborne Ferguson is THE Memphis DUI lawyer, with his practice, the Claiborne Ferguson Law Firm in Memphis, Tennessee, devoted to DUI defense and capital murder cases. Both require a vast knowledge of science and law, which is why he has extensive training in both areas. In this article, he talks about what constitutes a “highway”, for purposes of DUI.

Typically, in order to be in violation of DUI statute, a driver must be operating his vehicle not only under the influence but on a highway or other road open to public use. A highway is typically defined as the entire width between boundary lines of every roadway which is open to public use for purposes of vehicular traffic.

“Highway” can also be interpreted to include malls, parking lots, and apartment complexes, so long as these areas are open to each and all public use. In general, the roadway must be open to public use and not limited to a limited group of individuals such as private businesses or any area that requires special license or privilege to enter.

For example, the parking lot of a private corporation which requires the driver to pass a manned security gate showing a badge to enter into that parking lot would not be defined as open to the public, and therefore not driving upon said lot would not be subject to DUI prosecution.

Parking lots or apartment complexes are generally considered open to the public and fall under the definition of public use even if they are restricted to the tenants and their guests. At times, parking lots to private clubs, restaurants, churches and banks have been held subject to DUI laws.

However, testimony concerning those private businesses, restrictions and exclusions of the private citizen in general may show that those roads were not sufficiently open to the public use to come within the definition of “highway” for purposes of DUI prosecution. Clearly, private residential driveways should not be considered open to the public.

10 Scary Myths About the Law - Get the Facts

10 scary myths about the law-DUI is one of them. Find out how you can be arrested for drinking under the influence when you are not legally drunk. There are some misconceptions about tickets, those for DUI and other driving violations that you should know the facts about!


(ARA) news.carjunky.com- Did you know that you don’t have to be legally drunk to be arrested for driving under the influence? That there are many ways to break a contract or that if you receive a ticket and there’s an error on it, it’s still valid? Not knowing the law in some of life’s most common legal situations can lead to unexpected expenses, substantial penalties or could put yourself and others at risk.

Unfortunately, many Americans carry a number of misconceptions about some of the most common laws that affect their everyday lives, here are the top 10 scariest myths about the law:

Myth 1:

You have to be over the legal Blood Alcohol Content (BAC) limit to be charged with Driving Under the Influence (DUI).

Fact: In most states, it's illegal to drive a car or other motorized vehicles (motorcycles, boats, snowmobiles, etc.) while impaired by the effects of alcohol or drugs (including prescription drugs). Many people get to this point before they are at the BAC limit, which is 0.08 percent in all states. That means you do not have to be at or above the legal limit to be charged with a DUI.

Myth 2:

A written contract can’t be broken.

Fact: Actually, parties can get out of written contracts in many ways. For instance, if the contract wasn’t drafted well, a court may declare it not to be binding. A contract can be deemed unenforceable when the terms are patently unfair to one of the parties. Contracts may also contain specific conditions under which the contract can or will be dissolved.

Myth 3:

If someone breaks into your house, you have the right to use lethal force against them to protect yourself, your family or your property.

Fact: While most states, counties or cities protect a homeowner’s right to defend their family and their property, not all allow the homeowner to use lethal force. Some jurisdictions that do allow for the use of lethal force require that the homeowner must reasonably believe that the intruder means to inflict death or serious bodily injury on the homeowner and his or her family.

Myth 4:

An error on a traffic ticket voids the ticket.

Fact: For minor errors, there are administrative procedures that courts can use to modify information entered on a traffic ticket.

Myth 5:

If the police don’t read a person their Miranda rights when arresting them, they can’t be convicted of the crime.

Fact: Police are supposed to advise a person who has been arrested of his or her right to remain silent and their right to an attorney. But, the failure to do so won’t result in the case against the arrestee being dismissed. Instead, a judge might not allow any statements the arrestee made while in police custody to come in as evidence against them. This may make it more difficult to convict the person, but they could still be found guilty if there is sufficient alternative evidence.


Myth 6:

If a person is driving a car without a license and is injured in an accident, they can’t recover damages if the accident isn’t their fault.

Fact: Whether or not a person is driving with a license won’t affect their ability to recover damages if the other driver was at fault.


Myth 7:

Couples who live together for six years are considered married.

Fact: Not all states recognize “common law” marriages, and the states that do might have additional requirements. The amount of time that a couple has cohabitated is not the sole determinant of whether or not the couple has entered into a common law marriage.

Myth 8:

Car insurance won’t cover you if someone other than your spouse or a family member is driving your car.

Fact: Most insurance policies cover the car owner in these circumstances. Check with your insurance provider to see if your policy includes this provision, and, if it doesn’t, ask if you can add it.


Myth 9:

An undercover police officer always has to admit that he or she is a cop.

Fact: Police officers are allowed to use deception to fight crime, as long as they don’t intimidate or harass someone into committing a crime that they otherwise would not commit. If an undercover police officer had to reveal their identity, it could put their life in jeopardy, so there is no requirement for them to do so.

Myth 10:

Every nonprofit (and every donation to a non-profit) is tax-exempt.

Fact: In order for a nonprofit to gain tax-exempt status, it must meet the requirements of Section 501(c)(3) of the U.S. tax code. Donors who make a qualifying donation to a 501(c)(3) organization are entitled to list the donation as a deduction, but donations to groups that haven’t been granted tax-exempt status under 501(c)(3) are not tax deductible.

Prescription drug DUI epidemic?

www.duiattorney.com

The growing prescription drug epidemic in the United States has now officially eclipsed the abuse of both heroine and cocaine combined.

HDNet's hit show "Dan Rather Reports" focused on the topic of prescription drug abuse last night. The show centered on the booming business for "pill mills" - locations where prescriptions for muscle relaxers, pain killers and opiates are handed out with a low degree of control. Taking place in Austin, Texas, the show sent reporters into these locations in search of easy prescriptions. The results were shocking: 300 or more highly dangerous pills being prescribed at one time.

Further, the report focused on pharmacies that filled the large, unnecessary orders. Part theory and part fact, the report stressed the way these two groups work together to make money off of selling drugs for recreation while they are actually meant to be used for wellness. Without the care of a doctor, abuse of these drugs will take the lives of thousands of Americans this year. You can read a synopsis of the report in this press release below.

One issue the show did not directly address is what abuse of prescription medication does to DUI enforcement procedures. Even taken according to a doctor's orders, these highly intoxicating medications can alter a person's ability to operate a moving vehicle. Many people must take these pills to recover from surgeries, prevent incapacitating pain and carry on daily life. Others, especially young persons, use these pills to get high. In both cases, driving after using the pills is dangerous.

Current DUI enforcement techniques, such as field and breath tests, are not always sufficient in order to detect prescription pill use. Officers are now receiving training on signs a person may be intoxicated even if he or she has not consumed alcohol. They are taught to look for signs such as inability to multitask, distraction and fatigue.

The problem with these methods is the way they can easily be confused for other issues, such as stress or anxiety that comes with being stopped on suspicion of DUI. Ultimately, it is highly difficult to enforce laws against driving while under the influence of these medications.

The issues behind this enforcement problem run deep; they point to how hard it is to actually say when a person is "too drunk to drive." All 50 states have a universally accepted legal limit for alcohol ingestion. The affect of other factors, though, can render a person entirely capable of driving or entirely incapable, even when under the legal limit.

The new age of DUI enforcement is much more challenging than issuing a simple breath test. Arguing for tougher laws, such as those that allow for random breath testing or mandatory ignition interlock devices, do not address the face of intoxication today. Legislators will have to deal with this rising abuse issue and others if they want to make streets safer through laws alone.

HDNet's 'Dan Rather Reports' Exposes Texas 'Pill Mills'
www.prnewswire.com

Thousands of prescription drugs are handed out daily in Houston-area pain relief centers - often without seeing a medical doctor, Tuesday, October 27 at 8:00 p.m. ET

DALLAS, Oct. 26 /PRNewswire/ -- Tomorrow's "Dan Rather Reports" travels to Houston, Texas to investigate the very legal practice of some so-called "pain relief centers" dispensing potent prescription drugs without a doctor's care or examination. Many of these centers, that accept cash only, are located in strip malls across the Houston area.

These clinics, commonly known as "pill mills," operate mostly on a walk-in, first come - first serve basis, and do not accept credit cards, or insurance. The average visit is around $85.00. While these centers may be convenient for people who might not have health insurance, or the money to see a pain specialist, police say the business taking place here is dubious. That these centers attract illegal drug traffickers from nearby states such as Mississippi and Louisiana who allegedly fill prescriptions of powerful and addicting opiates, painkillers and anti-depressants and take them back home to sell on the black market.

"What we see from the people we arrested from owning these clinics are your former crack or cocaine dealers from the '80s or '90s who are now getting into the pill business as an illicit commodity," said John Kowal, a veteran narcotics officer with the Houston Police Department. Kowal tells Rather that many drug dealers fill these prescriptions for drugs such as hydrocodone (a pain killer), Soma (a muscle relaxant) and Xanax (an anti-depressant). "[The dealers make] more money. And you got less overhead. It does not have to be imported from Columbia or Mexico or come across the border. It's manufactured here right in the United States."

According to the U.S. Drug Enforcement Agency, nearly seven million Americans are abusing prescription drugs; that's more than the number who abuse heroin, cocaine, ecstasy and hallucinogens combined. These legal painkillers are the newest drug of choice among drug users and the leading cause of drug overdoses.

In his report Rather speaks to Ken and Esther Scarborough of Beaumont, Texas who lost their son to a drug overdose - drugs that he purchased from a Houston-area "pill mill." Just five days before he died, Christopher had simply walked into a local "pain relief center" and returned home with nearly four hundred pills.

"In my view [this] would be no different than if he had gone to the doctor and said, 'You know, I'm just a little depressed. I'm depressed, and I don't really know what I want to do.'" Ken Scarborough told Rather about Christopher's visit to the "pill mill." "Instead of giving him pills, the doctor would say, 'Well, I tell you what-- just go ahead and take this pistol and these six bullets, and go out to the shooting range and-- make yourself feel better. Just do a little target practice.'"

There are those people, however, who are working to change the laws surrounding these "pill mills" and how easily people can get their hands on prescription drugs. Texas Senator Tommy Williams has worked to pass legislation to combat the problem - including a requirement that physicians own and operate these clinics and that they review cases 30% of the time instead of the current 10%.

"In two of the six counties I represent, in 2006, we had over one hundred deaths from prescription drug overdoses," Williams tells Rather. "And-- that was a lot, given that one of those counties has about 80,000 people; the other one has about 250,000 or 260,000 people."

While there are many legitimate pain management clinics that Williams wants to protect, he wants to eradicate "pill mills" in Texas.

"The pain management clinics are really legitimate. There are a lot of good ones in the state. We want those guys to be able to keep practicing," Williams tells Rather. "But-- we want to hang out the 'You're not welcome' sign for the 'pill mills.'"

Watch CBS News Videos Online

DUI Charges: Which States Have DUI Vehicle Forfeiture Law

www.iihs.org

All 50 states and the District of Columbia have per se laws defining it as a crime to drive with a blood alcohol concentration (BAC) at or above a proscribed level, 0.08 percent.

License suspension or revocation traditionally follows conviction for alcohol-impaired driving. Under a procedure called administrative license suspension, licenses are taken before conviction when a driver fails or refuses to take a chemical test. Because administrative license suspension laws are independent of criminal procedures and are invoked right after arrest, they've been found to be more effective than traditional post-conviction sanctions. Administrative license suspension laws are in place in 41 states and the District of Columbia.

Some offenders in 47 states and the District of Columbia are permitted to drive only if their vehicles have been equipped with ignition interlocks. These devices analyze a driver's breath and disable the ignition if the driver has been drinking.

In 32 states, drivers with multiple offenses may have to forfeit their vehicles.

Laws prohibiting the driver, passengers, or both from possessing an open container of alcohol in the passenger compartment of a vehicle are in place in 43 states and the District of Columbia.

State BAC defined as illegal per se Administrative license suspension 1st offense?
Restore driving privileges during suspension?
Do penalties include interlock?
Vehicle forfeiture for multiple offenses
Open container laws driver and/or passenger

Alabama 0.08 90 days no no no driver/passenger
Alaska 0.08 90 days after 30 days1 yes yes driver
Arizona 0.08 90 days after 30 days1 yes yes driver/passenger
Arkansas 0.08 120 days yes1 yes yes no
California 0.08 4 months after 30 days1 yes yes driver/passenger
Colorado 0.08 3 months yes1 yes no driver/passenger
Connecticut 0.08 90 days yes1 yes no no
Delaware 0.08 3 months no yes no no
District of Columbia 0.08 2-90 days yes1 yes no driver/passenger
Florida 0.08 6 months after 30 days1 yes yes driver/passenger
Georgia 0.08 1 year yes1 yes yes driver/passenger
Hawaii 0.08 3 months after 30 days1 yes no driver/passenger
Idaho 0.08 90 days after 30 days1 yes no driver/passenger
Illinois 0.08 3 months after 30 days1 yes yes driver/passenger
Indiana 0.08 180 days after 30 days1 yes yes driver/passenger
Iowa 0.08 180 days after 90 days1 yes no driver/passenger
Kansas 0.08 30 days no yes no driver
Kentucky 0.08 no not applicable yes yes driver/passenger
Louisiana 0.08 90 days after 30 days1 yes yes driver/passenger
Maine 0.08 90 days yes1 yes yes driver/passenger
Maryland 0.08 45 days yes1 yes no driver/passenger
Massachusetts 0.08 90 days no yes yes driver/passenger
Michigan 0.082 no not applicable yes yes driver/passenger
Minnesota 0.08 90 days after 15 days1 yes yes driver/passenger
Mississippi 0.08 90 days no yes yes no
Missouri 0.08 30 days no yes yes no
Montana 0.08 no not applicable yes yes driver/passenger
Nebraska 0.08 90 days after 30 days1 yes no driver/passenger
Nevada 0.08 90 days after 45 days1 yes no driver/passenger
New Hampshire 0.08 6 months no yes no driver/passenger
New Jersey 0.08 no not applicable yes no driver/passenger
New Mexico 0.08 90 days after 30 days1 yes no driver/passenger
New York 0.08 variable3 yes1 yes yes driver/passenger
North Carolina 0.08 30 days after 10 days1 yes yes driver/passenger
North Dakota 0.08 91 days after 30 days1 yes yes driver/passenger
Ohio 0.08 90 days after 15 days1 yes yes driver/passenger
Oklahoma 0.08 180 days yes1 yes yes driver
Oregon 0.08 90 days after 30 days1 yes yes driver/passenger
Pennsylvania 0.08 no not applicable yes yes driver/passenger
Rhode Island 0.08 no not applicable yes yes driver
South Carolina 0.08 no not applicable yes yes driver/passenger
South Dakota 0.08 no not applicable no no driver/passenger
Tennessee 0.08 no not applicable yes yes driver4
Texas 0.08 90 days yes1 yes yes driver/passenger
Utah 0.08 90 days no yes no driver/passenger
Vermont 0.08 90 days no no yes driver/passenger
Virginia 0.08 7 days no yes yes no
Washington 0.08 90 days after 30 days1 yes yes driver/passenger
West Virginia 0.08 6 months after 30 days 1 yes no no
Wisconsin 0.08 6 months yes1 yes yes driver/passenger
Wyoming 0.08 90 days yes1 yes no driver/passenger

1Drivers usually must demonstrate special hardship to justify restoring privileges during suspension, and then privileges often are restricted.

2The 0.08 per se BAC law in Michigan contains a sunset clause which states that the legal BAC will revert to 0.10 on October 1, 2013.

3In New York, administrative license suspension lasts until prosecution is complete.

4In Tennessee, municipalities and counties can prohibit passengers from possessing an open container.

DUI BLOG: Nystagmus: “The Eye Test”

DUI BLOG

You may have heard of the “eye test” in DUI investigations. This is the nystagmus field sobriety test or, more accurately (there are 47 different kinds of nystagmus), the horizontal gaze nystagmus test. It is one of the most commonly used field sobriety tests, as it is one of three which make up the federally-approved “standardized battery” of tests, or SFSTs.

The test is essentially a measurement of the movement of the eye. Simply stated, “nystagmus” refers to a distinctive involuntary jerking of the eyes; horizontal gaze nystagmus is a pendular (back and forth) movement. This type of nystagmus is commonly measured by the officer in three three different ways, each time using an object such as a pencil, penlight or finger placed a foot or so in front of the suspect’s nose and moving it slowly to the left and then to the right.

The first part of the test is to determine the angle of onset of nystagmus — that is, the angle at which the moving eye begins the jerking motion. The suspect looks straight ahead and, without moving his head, moves his eyes slowly to the right or left. The officer is supposedly able to detect when the nystagmus begins and is supposedly able to estimate the angle from straight ahead at the point where it begins. If the onset is prior to 45 degrees, in theory, the blood alcohol level will be over .05%.

The second part of the test is to note whether the jerking becomes more ”distinct” when the eye is moved to the lateral extreme — that is, when there is no longer any white of the eye visible at the outside of the eye.

The third part is to determine whether there is a lack of smooth pursuit: rather than following a moving object smoothly from the beginning, the eye jumps or “tugs”.

Under federal standards, the officer is supposed to use an objective scoring criteria for each of the three tests, and the total score determines whether the supect passed or failed.

In reality, few officers understand the test, administer it correctly, or use objective scoring. Many simply report that they “detected the presence of nystagmus”, and subjectively count that as a failure. It is, however, the characteristics of nystagmus, not the simple presence, which is relevant to determining possible impairment. And, unfortunately, many things cause nystagmus and some of us have it under normal conditions.

Indiana DUI Law's Get You Coming and Going

Indiana DUI Law

In the state of Indiana, driving a motor vehicle under the influence is a crime. The penalties you face as a DUI offender can make your life difficult, and a stigma attached to their names because of the new criminal record. The loss of driving privileges accompany a DUI offense in Indiana can be difficult even to fulfill your professional and family obligations. With all the consequences of a DUI offense, the best thing that could be done tonot behind the wheel after drinking alcohol. If you do not able to do this, and you have been charged with an OWI in Indiana DUI, contact a lawyer can help you plan your defense and work your way through the judicial process as quickly and painlessly as possible.

Indiana OWI Laws

Indiana DUI law makes it possible to be prosecuted in two ways for drunk driving. If your driving ability was impaired because you have been drinking alcohol, you can be charged with OWI, a misdemeanor. In this case, you would be arrested and prosecuted, based on your level of impairment. Prosecution may be based on statements by law enforcement officials who saw your performance, and noted redness of the eyes or the odor of alcohol on his breath. Dangerous driving can also help prosecutors prove a case under the impairment theory.

You may be charged with OWI, when chemical tests have proven that exceeds your blood alcohol concentration legal limit of 0.08%. In this Case, you can be prosecuted on the basis of the chemical test results, even if the official is no evidence indicating that you have been affected in any way, saw. Indiana OWI law also allows for improvements penalty if a person exceeds the blood-alcohol concentration of .15%. If you have been arrested and charged with an OWI offense, hiring an Indiana DUI lawyer can help you to present the best possible protection for your case and minimize the impact of the sanctions to be imposed if your convicted.

Indiana Testing of Chemicals

Indiana OWI laws are quite unique in comparison with the DUI laws of other states in terms of chemical tests. In Indiana, the person suspected of driving under the influence has no choice but to take what chemical investigation. The law enforcement officer on the case, a blood, urine or breath test to choose to determine the blood alcohol concentration in the blood of the person. Indiana drivers are asked to submit chemical Tests do not have the right to counsel before they are elected, the chemical analysis of the law enforcement officials.

Due to this strict rule, it is essential that you have a skilled Indiana DUI lawyer on your side when you face prosecution and removal from office of a license by the Bureau of Motor Vehicles implemented. With a skilled Indiana DUI lawyer can help you navigate the legal system and successfully win your case or minimize Penalties you will face if convicted.

Indiana OWI criminal and administrative penalties

The criminal and administrative penalties OWI in Indiana to prevent any combination of imprisonment and fines, license suspension and other penalties to the accumulation of a repeat offender crimes. If you opt for OWI, who made the arrest, arrested, confiscated your driver's license. They can provide a duplicate license by contacting theBureau of Motor Vehicles and submit all the necessary formalities. This dual license will come in handy if you need to prove your identity and not on the original license, because they had been confiscated. Once your license from the bureau of motor vehicles, then the duplicate license was suspended, not valid for travel or identification purposes.

The penalties for driving under the influence with each attack. After prior offenses, the penalties mayimposed on you very difficult to comply with and still be able to meet your family and work obligations. First offenses result in probation, fines, payment of court costs, and license suspension. Some courts will require jail time, especially if the offense involved a chemical testing level of .15% or greater. Second offenses may result in jail time, probation, working with a road crew, higher fines, and payment of court costs.

A second DUI may be charged as a felony and reduced at a later date. Third DUI offense can result in a series of severe consequences. If you are against convictions in a 10-year period were, you are entitled to be branded with an ordinary offender status. If this is the case, you will receive your license for 10 years to lose face from three to nine months in prison, and have a long probationary period. You may also have drug and alcohol use appear to the court.

There are also administrative license penalties for OWI in Indiana. In the absence of a chemicalTest results in a 180-day suspension and refused a chemical test to file results in a one-year license suspension. The refusal of a chemical test, you take permit is ineligible to receive any kind of distress at any point during your license suspension. Pleading guilty is actually the easiest way to deal with the suspension of your license. Confession Allowed in many cases those who choose a 90-day license suspension with high-risk insurance. An offender may also be a 30-dayLicense suspension, followed by a 180-day probationary period, if the only kind of driving is permitted for work, medical appointments or similar situations. You can not get the high risk insurance, if you choose the probationary period of 180 days. If you want to save your license, you must save a lawsuit in district court and the control file on your driving privileges.

Repeat offenses are subject to the time and the number of the crime committed be punished. IfTheir recent sentencing of less than five years after your last sentence, the minimum license suspension period a year ago. If the conviction of more than five years but less than ten years after the last conviction, the penalty of a 180-day suspension. If your recent conviction of more than ten years after your last sentence, the minimum period of 90 days has expired. All of these suspension periods are the minimum, it can be increased if other factors are taken into account. After Indiana DUI, a lawyer on your side in an Indiana OWI case can help you the information you need to beat the charges against you or minimize the penalties imposed if a conviction is obtained against you to collect.
reference: massachusettsduilawyer.blogspot.com

MADD's Mad About Ohio's Sunday Liquor Sales

 Here one for the drinkers!  Nothing like a beer and some football on a Sunday.  Just don't Drink and Drive.

Ohio allows for early liquor sales on Sunday  

A new Ohio law now permits liquor to be sold up to two hours earlier on Sunday, a change greeted openly by restaurants and angrily by anti-DUI groups like MADD.

The change came at the end of this past legislative session when the state passed a new budget and other initiatives. As of this Sunday, over 8,000 restaurants and other locations selling liquor can open their bars at 11AM. Previously, the depots had to wait until 1PM due to an antiquated state law.

Ohio was one of few, though not the only, state regulating the sale of alcohol on Sunday. This is what is commonly called a "blue law." Blue laws encourage observance of Sunday as a religious, sacred day.
Interestingly, Ohio has allowed beer to be sold at the earlier time for years. Only liquor and wine will be changed with this initiative. Some establishments already achieved special permits allowing them to sell liquor starting at 10AM, but this law will permit every distributor to do so across the board.

The Ohio MADD chapter is concerned the effort to change drinking laws is going in the wrong direction. Instead of spending the time and effort reducing drunken driving, the legislature is focusing on allowing restaurants to sell more alcohol.

The Ohio Restaurant Association has been lobbying for this effort for years. They say the change will help restaurants be competitive with locations in hotels, airports and shopping complexes where the rule did not previously apply. The Sunday lunch market was unfairly skewed previously.

DUI Expungement - How to Clear Your Record

businessbc.ca

If you had once been convicted of DUI, you will surely run into situations in the future wherein you will be required to show your record. This may happen when you are applying for a new job which requires you to drive a company vehicle. In such cases, an employer would always want to check the applicants’ driving record and there will be no other way around it.

Sometimes, DUI records stays on you indefinitely. While most people believe that a DUI record will be automatically removed from your records after a certain time, it may not always be true. There are many states that have laws that will keep a Dui record with you for a number of years and there are also others that do not have these laws and would keep a DUI on your record forever.

But if you are lucky enough to be in a State that allows the expunging of DUI from your record after a certain period of time, you still need to do the following; go down to your local Department of Motor Vehicles and find out how you can take off the DUI from your record.

Your local department will provide you with the needed paperwork and documents that you need to fine in case your State allows the expunging of DUI from your records. However, if you experience difficulties and road blocks during this process, hiring a Dui Attorney who has knowledge and experience in the area will be a wise decision to take.

You should never allow a DUI conviction to rule your life forever. You can inquire with your local department of motor vehicles office how you can file the necessary requirements to expunge DUI from your record. You can also check on your driving record to see what’s in it and help yourself in cleaning up your record. There are some people who really don’t have any idea of the content of their driving record or were aware that they have the right to check out their own driving records.

You can go down to your local department and ask for a copy of your driving record. You may have to fill out a request form show identification proof and then you easily get the copy of your driving record then and there. In most states, there is a nominal fee charged for a copy of driving records requested.

When you have the actual copy of your driving record, you will be able to come with better decisions when it comes to DUI expunging process. You may then be surprise at how easy it really is to for you to clear your record.

However, if you find yourself having difficulties and road blocks with the process and you don’t know how to proceed with clearing your DUI record, it is best to seek out a qualified DUI attorney who can expertly assist you expunge DUI from your records.

duiprocess.com

DUI Expungement generally means the clearing, extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement agency or criminal justice agency concerning a persons detection, apprehension, arrest, detention, trial, or disposition of an offense within the criminal justice system by removal, deletion, erasing, sealing, destroying and other processes.

DUI Expungements are not seen as a right by the state. It is a privilege granted to the petitioner only after the proper paperwork has been filed (correctly). The conditions vary from state to state but basically this privilege is reserved for 1st offenses and the reasons that an individual is seeking DUI expungement will also factor into the decision making process of the courts.

Effect of an Expungement

Once your record has been expunged, the law allows one to say it never happened. It allows you to answer "NO" on questions that ask if you have ever been convicted of a crime on job applications, etc...

It is the ultimate form of relief for convicted persons and anyone with a criminal conviction record (DUI convictions are criminal offenses in most every state) should research ways to remove the record as soon as possible (eligible).

DUI Expungement Eligibility

If the petitioner is eligible for an expungement almost any and all records with few exceptions can and will be expunged. These records also include all complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, “rap sheets” and judicial dockets.

DUI Charges: Underage Drinking at Halloween Parties

What are the laws about underage drinking? State by states, there are specific laws regarding possessing, purchasing, furnishing, and consuming alcohol. There are also specific laws about hosting an underage drinking party.

Possessing Alcohol

In all 50 states, minors under the age of 21 are prohibited from possessing alcohol. There are variations and exceptions in some states.

The NIAAA (National Institute on Alcohol Abuse and Alcoholism) explain that possession really describes ‘internal possession’. It is not necessary for a police official to see the minor holding alcohol or being in the presence of alcohol. It is necessary for law enforcement to confirm this ‘internal possession’ through a “blood, breath, or urine test.” Obviously, if a law enforcement official observes alcohol around minors who appear to be ‘under the influence’ of that alcohol, it is very likely that young person will be tested.

Purchasing Alcohol

Most states, but not all states, “prohibits minors from purchasing or attempting to purchase alcoholic beverages.”

Furnishing Alcohol

All fifty states prohibit furnishing minors with alcohol. Commercial servers (i.e., bars, restaurants, and retail sales outlets) and non-commercial servers may not furnish alcohol to minors. Some states do allow a parent or a guardian to furnish their child with alcohol. Usually, this must only happen in the private residence of this parent or guardian. If a minor is married, whether or not his or her spouse is of legal age, some states allow the spouse to furnish this alcohol to the minor.

Hosting an underage drinking party

There are many prohibitions against a person of legal age hosting an underage drinking party. Hosting can be defined to include “property they own, lease, or otherwise control.” Those hosts who allow drinking on their property and who supply the alcohol that is either possessed or consumed by the minor could be in violation of two different laws. The adult who violates this law could be criminally responsible and also be exposed to civil liability. For example, if a minor consumed alcohol on their property, whether or not it was provided by the adult, and a drunk driving accident occurred, the adult could be sued for “monetary damages associated with the motor vehicle crash.” The adult might face a “fine or imprisonment.”

How to find the underage drinking laws for your state

To see specific laws for your states on all these various statutes, please visit NIAAA’s page called “State Profiles of Underage Drinking Laws.” Some of the topics covered include underage possession of alcohol, underage consumption of alcohol, internal possession by minors, underage purchase of alcohol, furnishing of alcohol to minors, minimum ages of on-premises servers and bartenders, minimum ages for off-premises sellers, false identification for obtaining alcohol, blood alcohol concentration limits as applied to drivers, keg registration, loss of driving privileges for alcohol violations by minors, and prohibitions against hosting underage drinking parties.

resource:  theexaminer.com

Dui Charges When Sleeping It Off in a Parked Car

I remember a long time ago when a friend's father was arrested for a DUI when he was asleep behind the wheel of a parked car.  Many people think that as long as they are not physically driving the vehicle and sleeping it off in a parking lot they shouldn't be charged.  But as the law stands, if you are inside your car, you are in control of the vehicle. You do NOT have to be driving to be arrested for a DUI!

Recently there was an arrest involving a public figure who argued that he was simply too tired to drive and decided to catch some zzz's at a gas station parking lot. An officer who saw him sleeping behind the wheel woke him and made him take the sobriety field tests in which he failed.  The man refused to submit a breath test.

Every year many people are arrested under the assumption that it is safer to sleep it off after a night of drinking in a bar or restaurant parking lot rather than trying to attempt to drive home.  What might be risky is the fact that they leave the car running for heat or air conditioning which exposes them to carbon monoxide poisoning.

Each state has its own unique way of interpreting laws regarding a DUI in a parked vehicle.  The best way to prevent being charged is of course to call a cab, have a designated driver, drink less or if you must sleep it off in your car, do not turn on the car, take the keys out of the ignition and use the back seat instead of sleeping behind the wheel.

There may be some exceptions to not being charged for example if you passed out in the restaurant or bar and someone else placed you behind the wheel of your car.  But this will place the burden of proof on you when you appear in court.  In any case, it is best to have an experience DUI lawyer represent you.

Reckless Endangerment can be a DUI Plea Bargain

foxbowmanduate.com

By Jon Scott Fox | October 10, 2009

A DUI conviction carries a mandatory sentence include mandatory jail, fines, alcohol evaluation/treatment and more, that the judge is required by law to impose, with rare exceptions. In addition, the Department of Licensing imposes mandatory license suspension and ignition interlock requirements upon receiving notice that a driver has been convicted of DUI. A person charged with DUI benefits from a reduction of a DUI charge to a “lesser charge” since the reduction usually avoids most of the mandatory penalties that come with a DUI conviction.

Today’s prosecutors are generally reluctant to offer a reduction of a DUI charge unless the defense lawyer can show the prosecutor that there are significant factual or legal issues that imperil the prosecutor’s ability to prove the case. As a result it may agreed that the DUI charge will be amended to a different charge such as Reckless Endangerment. This compromise benefits both the prosecution and the defense.

Although no mandatory jail is required upon a conviction for Reckless Endangerment, the judge always has discretion to impose any sentence that the judge deems appropriate – up to a $5,000 fine and one year in jail. Typically the judge will “suspend” some or all of the jail time upon required conditions that generally track conditions of probation imposed upon a DUI conviction – lawful behavior, alcohol evaluation and follow up, abstinence from alcohol (where recommended by the evaluation), probation, etc.

Violation of any of these conditions of probation can result in the judge imposing the balance of the jail or fine. In addition, a reduction to Reckless Endangerment, will be treated as a “prior offense” that will increase the mandatory minimum sentence to be imposed in the event of subsequent DUI arrest and conviction within seven years of the arrest in the current case.

This is because the legislature has recognized the practice, where appropriate, of amending a DUI charge to a different charge with different sentencing options. See RCW 46.61.5055(13)(v). The accused also benefits from a reduction to Reckless Endangerment. There is no mandatory jail time, license suspension or “high risk” insurance required by virtue of a conviction for Reckless Endangerment and it is not a driving offense (however, remember that this will not affect any “administrative suspension” of the license already imposed by the DOL.)

Although the prevailing public opinion likely disfavors any reduction of charges when a citizen is charged with DUI, a reduction to Reckless Endangerment is recognition by the prosecution and the defense that each side has a risk of losing if the matter proceeds through full litigation and thus, each side is willing to accept a reasonable compromise.

Ten Months Later, Hardly a Glitch for Legal Pot in Massachusetts

by Matt Kelley

criminaljustice.change.org

Published October 10, 2009 @ 10:53AM PT

When are we going to hear about the chronic malaise that has settled over Massachusetts since the state decriminalized pot in January? What about the wave of school dropouts? A spike in demand for "Half Baked" from Massachusetts Netflix hubs? At least a boon for pizza delivery? Nothing?

I've been watching the news, and there's been hardly a peep. In fact the few peeps we've heard have confirmed what I expected to happen: nothing. One story ran recently in the suburban MetroWest Daily News under the headline "Marijuana Law Has Had Little Effect on Schools," but the story opened with some anecdotes about high teenagers and took 10 paragraphs to get around to its point. Finally, the buried lede:

Overall, however, there hasn't been a serious problem with pot in schools.

"I thought I'd see more issues. But we haven't," said Milford High School Principal John Brucato.

Mass. State Rep. Scott Brown is concerned, however, that the decriminalization means more people are driving under the influence of pot. It's hard to say if this is true, but it's a separate issue and one that needs to be addressed like alcohol -- with prevention, education and transportation options, not with jail. Brown introduced a bill that would increase fines for possession of pot in a car from $100 to $1,000. This bill is a mistake and an obvious attempt to undermine a widely supported referndum, and maybe it has something to do with Brown's run for the Republican U.S. Senate nomination.

I'm solidly against driving under the influence of pot -- I give zero credence to the argument that one can drive safely while high. But this rule isn't the right way to address driving on drugs. DUI laws address drivers intoxicated on any substance, and intoxication is far more important to consider under the law than possession.

Unfortunately, open containers are hard to define when it comes to marijuana. Brown's bill only punishes drivers and passengers for marijuana in the passenger area. So at least drivers are safe if they put the pot in the trunk. That's something. No bill should punish possession without mention of use, however, and that's where this proposal goes wrong.

Here's the Marijuana Policy Project's position on driving under the influence of pot. Driving under the influence is a critical issue for the legalization community to discuss, and I'll post more on it next week.

Washington DUI

The Washington DUI law states that when a person is in physical control of a motor vehicle while driving under the influence of alcohol or any drug and has a blood alcohol concentration of .08 or higher which was shown by analysis of the person’s breath or blood. If the person has been entitled to use a drug under the laws of the state as with a prescription medication it does not constitute a defense against the charge.

The administration of an analysis of the person’s breath or blood that shows the concentration to be .08 or more within two hours after being in control of a vehicle. If the analysis was obtained more than two hours, a concentration of .00 may be used as evidence that the person was under the influence of alcohol or drugs. A DUI violation charged will be constituted as a gross misdemeanor.

A class C felony is charged if the person is a juvenile, had four or more prior offenses with ten years or they have been previously convicted of vehicular homicide while intoxicated, vehicular assault or an out of state offense.

Charges for a gross misdemeanor include one to three hundred and sixty five days in jail and the loss of their license, fines, fees, court costs and a drug evaluation as well as up to five years probation. For a felony it is a minimum of six months in jail with a maximum of sixty months, plus stiffer fines, loss of license for a longer duration and an extended probation period. A person convicted of a felony will also lose their voting rights and the right to bear arms.

With the refusal of the breath or blood test your license may be suspended due to Implied Consent Laws. When you obtained your driver’s you signed and agreed to take the authorized tests for a DUI. In Washington, the penalties for refusal are more severe than if you took the breath or blood test and were over .08. For first offenders their license will be revoked for two years, three to seven years for the second time and four to seven years for the fourth. Also, there may be an extended jail sentence.

If you took the test or refused it, you have a time period to request a hearing with the Department of Licensing. If you do not request a hearing your license will be suspended on the 60th day after your arrest. This suspension is separate from what may be ordered by the court if convicted of the DUI. Also, if you refused, remember that the officer must read you the Implied Consent rights before asking you take the test. If he failed to do so your refusal may be inadmissible in court.

Oregon Ruling: Warrent Needed for Police DUI Blood Test

By KATU.com Staff and Jeff Jaeger KATU News

PORTLAND, Ore. – With the potential to become a landmark ruling, the Oregon Court of Appeals ruled 5-4 Wednesday that police need to obtain a warrant to check a person’s blood-alcohol content.

The court said a defendant was coerced by police to give a blood sample.

The case, Oregon v. Machuca, overturned Thomas Gregory Machuca’s conviction of driving under the influence of intoxicants. According to the ruling, Machuca, a resident of West Linn, wrecked his car on Naito Parkway in Portland just before 2 a.m. on June 1, 2005, suffered injuries and was taken to Oregon Health and Science University for treatment.

Portland Police Officer Joshua Ladd arrived at the scene of the accident around 2 a.m. and concluded at 2:10 a.m. that he suspected Machuca to be drunk. Ladd went to OHSU to question Machuca and asked him if he would take a blood test. Machuca agreed.

The court, however, ruled that Machuca was coerced because the “consent was procured through a threat of economic harm and loss of privileges.”

Machuca said that he gave consent after he was warned by Ladd that he could face a $1,000 fine and a one-year suspension of his license if he did not take the test, Willamette Week reported.

The court agreed: "Article I, section 9, provides that "[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure * * *." "The extraction of a blood sample by the police is both a search of the person and a seizure of an 'effect'--the person's blood." State v. Milligan, 304 Or 659, 664, 748 P2d 130 (1988). Warrantless searches and seizures are per se unreasonable unless the state proves an exception to the warrant requirement. State v. Bridewell, 306 Or 231, 235, 759 P2d 1054 (1988)."

John Henry Hingson III, a defense attorney, agreed with the court’s ruling and said, “There is no drunk-driving exception to the Constitution.” Hingson, who wrote “How to Defend a Drunk Driving Case: A Guide to Practical, Procedural and Legal Aspects” said the case “is a reaffirmation of the strength of the Constitution of the State of Oregon and the Constitution of the United States.”

The ruling will have a significant impact on how police officers present evidence on DUII cases. The Portland Police Bureau said in a statement that “We are educating our officers about the new ruling but will continue to enforce DUII laws. This ruling won’t stop us from protecting the public and arresting drunk drivers.”

Hingson said that with current technology there’s no excuse not to get a warrant.

“If you want to, you can take your smartphone or your iPhone [and] e-mail a judge,” he said. He also said the ruling further strengthens individual rights from an unlawful search.

“The Constitution applies to murder cases, robbery cases, rape cases, and drunk-driving cases the same,” he said.

He also said the ruling could have a significant impact in the future on whether a breath test can be conducted without a warrant.

It is still not clear how the ruling will affect how prosecutors try drunken-driving cases. But an appeal to the Oregon Supreme Court is likely.