The Best DWI Defense Blog

Governor Paterson (D) of New York state has submitted a bill that would toughen laws for drinking and driving with a child 16 or under as a passenger. The new proposed law is called the Child Passenger Protection Act. It will be considered in the fall when the New York Senate and House reconvene.

As proposed, the law would make it a Class B felony if a minor where killed in an accident while riding with an intoxicated driver. The punishment would be 5 to 25 years in prison. If the minor were injured instead of killed, then it would be a Class C felony with three and a half to 15 years in prison. If convicted of driving intoxicated with a minor where no injuries or death were caused, it would be a Class E felony with up to 4 years in prison. The proposed law also specifies that anyone charged with having a BAC higher than .08 while driving a passenger who is 16 or under, would lose their license pending prosecution. Conviction in this scenario would result in loss of license for a year. The loss of license penalty is increased to a year and a half if the driver had a prior DWI in the past 10 years.

In addition to these penalties, anyone convicted would also be categorized as a “serious offender” and would be required to have a ignition interlock for one year. This makes the car inoperable unless the driver demonstrates his sobriety by blowing into the device prior to starting the car. This proposed law would make this mandatory instead of at the court’s discretion.

You can read the Governor’s press release here.

Starting August 15, 2009. three new laws will make the penalties tougher on Louisiana residents. One is designed to toughen the laws on refusing to provide a breath sample, another will mandate jail time for driving with a suspended license and the third will limit the ability of defense counsel to obtain sworn testimony during a pre-hearing deposition. Up to this point, the state has been the only one in the nation to allow such a defense strategy.

Under the new refusal law, the state will double the penalty for a  first offense from 180 days to a year and for a second offense from 18 months to two years. The new driving while suspended law creates two categories of offense. The first of these is for DWIs and requires a minimum 15 day jail sentence with a maximum of six months. The second class is for anyone suspended for any accidents resulting in death. These will require a 60 day jail sentence with a maximum of six months.

The third law just limits how much discovery a defense attorney can demand prior to a hearing. It is designed to make the process quicker for the legal system. This is the change that I think is most heinous. It is just another way of taking away your right to an adequate defense and a move to convict people without proper constitutional protection.

On September 1, a new law will take effect in Texas that allows the police to order that blood be drawn from DWI suspects without a court warrant. Officers will only have this right if the suspect is a repeat offender, a minor under 15 is present in the car or someone gets hurt.

This law gives too much power to police with no judicial oversight. It will also put a huge burden on testing labs in the states. It is possible that they may be overwhelmed by requests since there will be no checks and balances to the police officer’s authority on the matter.

This is another example of laws being enacted across the country that are designed to reduce drinking and driving, but try to accomplish this in an almost  totalitarian way. This law skirts the foundations of the legal system in this country. It is time to stop the abuse of power that Mothers Against Drunk Driving is pushing. Write your local officials and tell them where you stand.

Governor Jack A. Markell (D) of Delaware just signed two new laws that increase penalties for driving under the influence. The two bills were House Bill 152 and Senate Bill 177. House Bill 152 increases fines for all DUI offenses and makes the penalties particularly tough on fourth and subsequent offenders. With it, six months of jail time is required and the charge would be a felony. The full text of House Bill 152 can be read here.

Senate Bill 177 applies to first time offenders with a BAC reading of .15 or higher. The new penalties increase the period of license revocation to six months from three. It also increases the imposition of ignition interlock devices and limits drivers with ignition interlock devices to driving for work, school, alcohol treatment or service appointments for the device. The complete text of the bill can be read here. 

Since the penalties imposed by House Bill 152 are onerous, it will surely increase the need for and cost of good defense attorneys.

Missouri Governor Tim Pawlenty (R) signed a new law that went into effect on July 1st that requires repeat DWI offenders to install breathalyzer devices on their vehicles. To start the car, you have to blow into the device and register less than a .02 BAC or the car will not start. It also requires that you blow into the ignition interlock device periodically as you drive.

This practice should be ruled unconstitutional since it only applies to certain drivers and enforces a BAC level that is 75% lower than the legal limit. In effect, it creates a set of laws for one class of people that is different and more onerous than for another class of people. In my opinion it violates the equal protection clause of the constitution.

Their is a cost involved with installing the device, removing the device, servicing it and a monthly service fee that runs $75 to $125 a month. These fees, not surprisingly, are paid by the driver and not the state. Register your displeasure with the law by calling your representatives in Missouri and asking them to show you how this law will save lives or reform repeat offenders without providing them with any rehabilitation.

Republican Senator Tim Grendell from the 18th District in Ohio wants to change the state law so that emergency medical technicians can draw blood samples from DUI suspects at the traffic stop and have the results hold up in court. He believes that this is necessary to increase convictions. Opponents say that the proposed law is not needed and would only tie up EMTs in court as witnesses. This would reduce the time that they would have out serving the people of the state with emergency medical care.

It is this web site’s position that the proposed law is not needed and could cause harm to the people of Ohio. Fortunately, the Ohio Emergency Medical Services Board “has determined that an EMT does not appear to be a ‘qualified technician’ for the purpose of withdrawing blood pursuant to a law enforcement matter.” You can read their determination here: Withdrawing Blood for OVI Evidence Collection.

What made “Under the Influence” more interesting to me was its scientific analysis of how alcohol is manufactured, and how it is digested and used by the consumer afterwards. For example, prior to reading this book, I had no idea that natural fermentation can only create alcoholic beverages that are 13 to 14 percent alcohol. At this percentage, the yeast dies and the process of fermentation ends. Beer is stopped between 3 to 6 percent. I also learned from the book that distillation is a man made process that can create hard liquors with 40 to 75 percent alcohol content. The book also goes into detail about the origins of designating alcohol by “proof” ratings.

More important to know for someone accused of DWI or DUI is that the average person can eliminate about one half ounce of 100 proof whiskey per hour, or three ounces of wine. The book also states that females will have higher blood alcohol content readings because they have more adipose (fat) tissue which is not penetrated by alcohol. Premenstrual hormones also have an adverse effect.

Other important facts relevant to DWI and DUI are that blood alcohol content rises faster on an empty stomach. High protein foods like meat, cheese and eggs slow down absorption. Water and fruit juices, mixed with your drink of choice, slow down absorption, while carbonation speeds it up. Without giving you all the valuable facts in this book, you should also know that strong alcohol is absorbed faster as is warm alcohol.

“Under the Influence” is replete with facts, but it is not a guide for beating breaths tests or defending yourself against driving infractions. It is a comprehensive book at the science surrounding alcohol abuse. The metabolism of alcohol in the human body is discussed at length, as are its effects on nutrition, the brain and the liver.

The book also covers predisposing factors that create alcoholics. These are both psychological and social. “Under the Influence,” however, points out that physiology, not psychology, determines whether one drinker will become addicted to alcohol and another will not. Interestingly enough, the book also contends that national origin has something to do with alcoholism as well. The book claims that Jews and Italians have less than one percent alcoholism rates, while Native Americans have 80 to 90 percent. The reason for this may have something to do with the length of time a group has been exposed to alcohol consumption. Jews and Italians have had alcohol available for 7,000 years, while Native Americans only for 300 years.

The stages of alcoholism and associated denial are covered in a chapter, as are the build up of tolerance and cellular changes that make the body crave and need alcohol. Other chapters cover the ideal treatment regimen which includes medically supervised detox, treatment with goal of zero subsequent usage (sobriety) and follow up with Alcoholics Anonymous’ 12 step program. The dangers of drug interactions with alcohol have their own chapter, as well as the common prejudices and misconceptions about alcohol abuse.

I recommend this book to anyone who thinks they may have a problem or who knows someone that they believe is an alcoholic. If you have a driving under the influence arrest, then this book is also highly recommended for you.

It is important to consider a football cliche when thinking about driving under the influence (DUI) charges: “The best defense is a good offense.” This phrase applies to DUI/DWI in that it is far better to avoid getting charged with an alcohol related infraction than it is to defend oneself from one. Many states have made it virtually impossible to win a driving while intoxicated (DWI) charge.

You can avoid these charges in one of three ways: don’t drink alcoholic beverages at all, get a buddy to drive, or use a cab, limo or driver. All three methods are effective and will cost infinitely less than the legal and social costs of being found guilty of operating under the influence (OUI).

Chances are that you have found this blog and the parent site, The Best DWI Defense, because you need legal help. You can find an excellent attorney to represent you and hope that competence and good fortune help you in your current situation. Regardless of outcome, plan to avoid it happening again. Keep in mind financial costs and the stigma that is associated with these types of charges.

Readers of this blog have reported incidents where the ignition interlock device has led to almost deadly consequences. One incident involved a car that stalled out in the middle of an intersection on a rainy day. The driver was almost hit twice by cars coming from the cross street. He was blowing in the device, trying to get the car started, while his life and that of the passengers in the other vehicles were at risk. He had not been drinking.

Another reader reported almost crashing into a school bus while blowing into the ignition interlock device. These devices require that the driver blow into them to start the car and also blow periodically as the operator is driving the car. It is hard to believe that this is required of repeat DWI offenders when public policy has been going in the direction of not allowing drivers to do anything that is distracting. Recent laws disallow using cell phones for verbal communication, or for sending text messages while driving.

I hope that the various states that require these devices reconsider their positions and consider public safety. The only device that I believe safe and sensible is the technology being developed by Toyota that senses blood alcohol level from sweat passed from the hands to the steering wheel. Let’s hope common sense prevails.

Several states have enacted additional laws designed to make it tougher to drink and drive. Starting January 1, 2009, Alaska, Colorado, Illinois, Nebraska and Washington have made it mandatory for first time DWI offenders to install an ignition interlock device that prevents you from operating a vehicle without first blowing into a device that determines if you are past the legal limit of alcohol consumption for driving. I don’t know how clever the designers of the device were, but I would venture to guess that a paper bag full of inflated balloons could be used to circumvent this techno-nanny.

The aforementioned states join New Mexico, Arizona, and Louisiana, which already have similar laws. South Carolina has passed the same law, but only for repeat offenders. Other states have the option of imposing the device in lieu of loss of registration privileges.

The costs involved with these devices are quite high. There is an installation charge, a monthly lease payment, and a monthly surcharge to the state. I see it as another revenue generator for a few companies and extremely greedy governments.

It is time to outlaw drinking altogether or to reform DWI laws and punishments so that they make sense and are effective in preventing accidents and deaths. Toyota is engineering a steering wheel that can detect blood alcohol content from the perspiration of your hands. Maybe this should be standard on all vehicles. What do you think?