But at least BAC is based on an objective standard. Field sobriety tests, by contrast, can be applied in overly subjective ways that violate the rights of innocent people. Indeed, sometimes it seems as if police are so eager to arrest someone that they ignore objective evidence and subjectively see only what they want to see.
]]> A recent case from Arizona illustrates this point. The case involved a retired firefighter who had adjusted his waking and sleeping hours to be in synch with the demands of his wife's job. His wife was an emergency room nurse who often worked nights.The man, who was black, was driving home after taking an evening swim at a fitness club when police pulled him over for allegedly crossing his lane's white line. But the officers quickly turned their suspicions to DWI - even though there was really no probable cause to support that suspicion.
The officers noted that the man's eyes were read. He explained, however, that he had just been swimming. That should have been a sufficient explanation because it is well known that chlorine in swimming pools makes people's eyes red.
Yet the officers insisted on field sobriety tests, making the man move around outside his vehicle, looking for signs of imbalance. The man explained that he had hip and knee problems, with surgery scheduled in only two days.
Medical records confirmed this explanation. But the officers arrested the man anyway on drunk driving charges - even though his BAC in a breath test at the police station was 0.00.
Source: ABC15, "Surprise man charged with DUI; documents show drug recognition experts said no impairment present," June 4, 2013
]]>To be sure, many people in Virginia and across the nation choose to simply pay the fine. But the effect on insurance rates from a traffic violation can be substantial. The cost may not be immediately apparent, but it may well be more than the bare cost of paying the ticket.
]]> The website Insurance.com has launched an online tool intended to give drivers a heads-up about what types of insurance increases they could face. Covering 14 common traffic violations, the tool carries a cute name that borders on the too-cute; it's the Uh-Oh Calculator.In percentage terms, reckless driving leads the list of traffic offenses that are likely to lead to insurance increases. At 22 percent, the possible insurance increase for that offense exceeds even the increase for a drunk driving offense.
A first offense for DWI or DUI comes in second, however, at a likely 19 percent increase in insurance rates. Driving without a license is right behind at 18 percent.
To be sure, the tool is only a guideline, not a hard-and-fast rate predictor. Much depends on individual situations and the insurance rates in specific states. But clearly those economists have a point when they caution us about hidden costs.
Source: The Buffalo News, "Calculating true cost of traffic ticket," June 20, 2013
]]>Indeed, Virginia legislators are already considering the state's likely response to the federal proposal. As we discussed in our May 30 post, a .05 limit would put many more social drinkers at risk of DUI charges. But it isn't only social drinkers who could be affected by lower limits.
]]> One Virginia legislator, Delegate Israel O'Quinn of Bristol, suggests that .05 is such a significantly lower threshold that it could even include someone who has gargled extensively with mouthwash.After all, mouthwash contains alcohol. In some cases, if someone has used it very recently, it could conceivably leave enough alcohol in someone's system to produce a .05 BAC. Call it the Listerine effect.
To be sure, gargling might not have this effect on all people. Different people vary widely in their tolerance for alcohol. But the argument that an overly low BAC limit would expand the reach of DUI laws beyond their intended scope is one to be seriously considered. In other words, the mouthwash argument is by no means hogwash.
And it is the kind of argument that legislatures are likely to have as they weigh their responses to the federal proposal for lower BAC limits.
There are of course other possibilities in play in play as well. For example, rather than lowering the DUI limit, states could keep the limit where it is but expand the use of ignition-interlock devices to apply to all drunk driving convictions.
Source: Bristol Herald Courier, "Blowing the Limit," Kevin Castle, May 20, 2013
]]>But with no prohibition on red-light cameras in place in Virginia, local governments are free to decide whether to install them. One city currently considering them is Winchester.
]]> Some city leaders in Winchester view the cameras as a way to increase enforcement of traffic violations. The cameras would be computer-operated and programmed to take photographs of the license plates of cars that run red lights.But passing a local ordinance to allow for the cameras is by no means a done deal. Some city council members oppose the proposal.
Under current law, only police officers can issue tickets to offenders. It would take a local ordinance to change that.
In other areas of the country, critics have contended red-light cameras are mainly a cash-cow for local governments. Revenue from fines, not public safety, may be the motivation for certain cities to install the cameras.
Supporters of the cameras insist they're about safety, not racking up fines. They point to the fact that, under Virginia law, the maximum fine to be imposed for a traffic violation caught by red-light camera is only $50.
Winchester is not a large city, and if it does install red-light cameras it would have only two of them. In larger cities such as Newport News, however, the stakes are obviously higher.
Source: "Winchester Consideirng Red Light Cameras," Your4State, Hayley Mason, May 23, 2013
]]>Virginia and other states are about to encounter these federal carrots and sticks on the subject of lowering blood-alcohol content thresholds for drunk driving. Earlier this month, a key federal safety agency recommended that states lower their BAC limits from .08 to .05.
]]> The National Transportation Safety Board (NTSB) made the recommendation in an effort to cut down on fatal alcohol-related car crashes. The NTSB is urging Congress to offer grants to lower their limits.
The federal government cannot directly order states to do this. Drunk driving charges are a matter of state, not federal, law. But many of us have seen this movie before. In the last twenty years, Uncle Sam used financial incentives to get states to lower their BAC limits for DUI or DWI from .10 to .08.
Faced with the threatened loss of millions of dollars of federal highway money, state after state gave in to the federal pressure. Now, Uncle Sam wants the limit lowered even more - to .05.
Arguably a limit that low would include many people who are merely social drinkers. It doesn't take too many glasses of wine at a party or too many beers at a happy hour after work to bring someone to that level.
It remains to be seen what kinds of financial carrots and sticks Uncle Sam will offer states this time. But clearly the debate over lowering BAC levels again has only just begun.
Source: "Leave blood-alcohol rules up to states, GOP says," Politico, Scott Wong and Adam Snider, May 16, 2013
]]>Virginia is no different in this regard than the rest of the nation. Young people like to get together. And the reality is that sometimes alcohol is involved.
In a recent Virginia underage drinking case, Arlington County police brought charges against 43 teenagers. All 43 youth were charged with underage possession and consumption of alcoholic beverages.
]]> The charges came after police responded to a call about a loud house party in Arlington. The call came about 9:30 pm on a Saturday night.When the first police car arrived, the teens started to disperse quickly. The first officer to respond said that many bottles and cans of beer were thrown in his general direction by people fleeing the scene.
But the officer was able to find the daughter of the homeowners. The 17-year-old girl was in the backyard. Her parents were reportedly out of town.
Many of the teenagers who were present at the party did not respond well to the arrival of the police. Some of the teens allegedly used profanity as police tried to question them.
The teenagers were issued summons to appear in court. The general unhappiness increased when parents arrived to pick up the teens who were charged. Understandably, those parents were not happy.
But not all of the teens at the party were charged. Sixteen teenagers were not charged after undergoing voluntary breath tests that indicated an absence of alcohol.
Source: "Dozens of Teens Face Underage Alcohol Charges After Party in Arlington," NBC Washington, Julie Carey, 4-30-13
]]>These situations illustrate that it really doesn't take a lot of alcohol to reach the blood alcohol threshold, so what would happen if the national threshold was lowered?
]]> That's exactly what federal safety regulators are recommending. It has been more than a decade since legislation requiring a nationwide 0.08 percent blood alcohol level went into effect. That legislation basically told states they had to comply with the new threshold or risk losing millions of dollars in federal funding. Now the National Transportation Safety Board proposed a new legal blood alcohol level of at least 0.05 percent. The board says while drivers feel safe to drive under the current limit, they say by the time drivers reach 0.08 percent, the chance of causing a fatal crash has at least doubled.Virginia has tough DUI laws. First-time offenders with a BAC of 0.15 to 0.19 percent will spend five days in jail. For those above 0.2 percent, that sentence goes up to a mandatory 10 days in jail. It will be important to keep track of whether these recommendations lead to new proposed legislation. This type of change can have a profound effect on even the most moderate drinkers in Virginia.
Source: LA Times, "Talk back: Should states lower DUI threshold to 0.05%?" Samantha Schaefer, May 14, 2013
]]>Criminal cases can include fines as well. But how well do courts do at collecting fines?
A recent state audit sheds light on this question. The audit looked at fines and levies issued by courts for Virginia traffic violations, as well as criminal cases.
]]> The audit was conducted by the state Auditor of Public Accounts. It covered a five-year period from 2008 to 2012.Overall, the audit found that close to half of these fines go unpaid. But there are considerable differences in collections among courts.
District courts issue the bulk of the fines. These courts account for more than 80 of the total amount of fines statewide. This is because district courts have a high volume of cases, particularly traffic offense cases.
The state audit found that district courts collect about 60 percent of the fines they issue. This percentage may not seem high, but it is much higher than for circuit courts.
Circuit courts collect only 27 percent of the fines they issue. Overstretched courts often lack the staff to follow up on collection efforts. And a significant percentage of unpaid fines — about 10 percent — involve people who have been jailed and lack the financial means to make good on fines.
Of course, the consequences of unpaid fines cut both ways. Uncollected fines cost state and local government money. But unpaid fines can also result in driver’s license suspension or wage garnishment for people who have been convicted of offenses.
Source: “Va. audit says half of court fines, fees go unpaid,” Richmond Times-Dispatch, 4-27-13
]]>An example of how Virginia authorities respond to fatal DUI cases came this week. A 52-year-old woman who struck and killed a pedestrian while driving under the influence of alcohol in 2012 was convicted on a manslaughter charge. She was also convicted of drunk driving.
]]> The woman will not be not be sentenced until July. But her sentence could be up to 11 years in prison.Historically, most American states allowed a great deal of discretion to judges in sentencing people convicted of crimes. Legislatures typically specified a maximum sentence range for each offense and a maximum fine amount. But judges had considerable authority to decide on an appropriate sentence. Their role involved weighing the severity of the crime and the individual offender’s individual characteristics, such as whether he or she had committed prior offenses.
In Virginia, as in a number of other states, this system gave way in the 1990s to a system of sentencing guidelines. Voluntary guidelines to guide judges sentencing decisions took effect in 1991. They were revised in 1995 to eliminate parole and establish clearer guidelines on time served.
So when the 52-year-old woman in this case is sentenced in July, she will be sentenced under this system.
Please visit our page on DUI defense.
Source: “Woman convicted in fatal DUI crash,” WAVY.com, 4-30-13
]]>Red-light cameras at today's intersections are in a sense based on an opposite premise fro "Candid Camera." Cameras that capture traffic violations such as speeding or running a red light at intersections are not hidden. They are there around-the-clock, churning out tickets automatically when the computer thinks a violation has occurred.
Earlier this year, Virginia legislators considered a bill that would have prohibited the use of red-light cameras. Such cameras have been controversial in many parts of the country. Critics contend that they are used mainly to generate fine revenue for local governments, not for any legitimate public safety purpose.
]]> There have also been concerns about the lack of due process with red-light cameras. In some jurisdictions, drivers have little or no chance to contest tickets or fines before they are imposed.The proposal offered in Virginia would not have completely eliminated red-light cameras. But it would have prohibited them from being used to impose citations for failing to make a complete stop at a red light before making a right turn. Such turns are sometimes called "rolling stops."
The bill was defeated in a committee of the Virginia House last January. Officials from Virginia Beach were strongly opposed to the proposal. This is scarcely surprising, considering Virginia Beach led the way in Virginia in introducing such cameras in 2009.
Please visit our page on traffic offenses.
Source: "Panel rejects bill that would limit red-light cameras," The Virginian-Pilot, Bill Sizemore, 1-17-13
]]>Two weeks ago, the U.S. Supreme Court said that this question must be decided on the totality of the circumstances. But the Court found, in a case called Missouri v. McNeely, that police committed an unreasonable search by forcing a DUI suspect to give a blood sample when the police failed to get a warrant. The case has implications for Virginia and other states in cases of breath or blood test refusal.
]]>It's true that exigent circumstances are an exception to the normal requirement of obtaining a warrant before conducting a search. But with modern technology, those warrants can often be requested, and acted upon by a judge, within a matter of minutes.
In Phoenix, for example, the court system and the police have worked out a system for seeking search warrants electronically around the clock. Officers who submit requests for search warrants from computers in their squad cars can expect to get a response back from a judge within as little as done minutes.
Arizona is not alone, either. Electronic applications for search warrants are now widely available in many states.
Please visit our page on DUI defense.
Source: "Opinion recap: Limit on DUI blood testing," Scotusblog, Lyle Denniston, 4-17-13
]]>But when someone refuses a breath test, are law enforcement officers allowed to require someone to take a blood test without getting a warrant first?
Last week, the U.S. Supreme Court said that in such cases police cannot always rely on the "exigent circumstances" exception to the normal search warrant requirement. It is still unclear, however, how the Court's ruling will affect Virginia DUI cases.
]]> Like many other states, Virginia has an implied consent law. This means that when someone gets a driver's license in Virginia, the process includes signing a consent form. The consent is to submit to breathalyzer test or other chemical test to determine blood-alcohol content in cases of suspected drunk driving.Again, most of the time that test will be a breath test. Indeed, it will likely be a breath test more than nine times out of ten. The device that is used for the test is commonly called a breathalyzer.
Law enforcement officers in Virginia usually do not even offer the option of a blood test. But what about cases of suspected DUI when there are specific reasons for using that type of test?
For example, someone may have asthma and not be able to take a breath test. Another possible scenario is when a police officer believes someone has been consuming both alcohol and drugs.
So there will be cases in Virginia when police seek a blood draw from someone suspected of DUI. And that is where the U.S. Supreme Court's ruling last week in Missouri v. McNeely comes in. We will discuss this ruling further in next week's post.
Source: "SCOTUS Ruling About DUI Blood Tests Brings Up VA State Law," Charlottesville Newsplex, Jessica Cunnington, 4-18-13
Please visit our page on blood-alcohol tests.
]]>To be sure, there are people who have problems with alcohol and rack up repeat drunk driving charges. But in the Newport News area and across the country, there are also many first-time offenders who may face DWI charges just because they had one too many beers or glass of wine on a social occasion.
]]> Indeed, the recognition that humans like to socialize with "spirits" (as alcoholic beverages are often called) is known around the world. In one Irish town, for example, the town passed an ordinance based on this fact.The ordinance calls on the justice minister to grant police the discretion to issue permits to people who live in outlying areas, but would like to have a few drinks at a pub before getting in their vehicles and heading home. The Irish town that passed this motion is called Kilgarvan.
Understandably, traffic safety groups immediately expressed concerns about such an ordinance. But it should be noted that the ordinance does not legalize impaired driving outright. It merely allows local police the discretion to grant permits to social drinkers in remote areas, far from the local pub.
Historically, pub culture has been an important part of Irish life. But this is not only an Irish story. It is a reminder that the desire to socialize with other humans is a deeply human need. Laws on drinking and driving should find ways to reflect that reality.
Source: "Irish Town Passes Motion to Allow Drinking and Driving," NBC Bay Area, Patrick Hickey, 3-26-13
Please visit our page on drunk driving defense.
]]>Try your best, however, to keep these few simple words in mind: a charge isn't a conviction. For example, just because police say someone was "drifting" in a lane doesn't mean necessarily mean they have enough evidence to prove a drunk driving charge.
A recent Virginia case is an example of this. A 61-year-old wan was pulled over on the interstate by a state trooper. The trooper said the man was driving too slowly, as well as weaving.
]]> The man was charged with drunk driving. But he was not convicted of that charge. He did plead guilty to a lesser charge, namely reckless driving. His sentence on that conviction was suspended, though - with a couple of conditions.The conditions are these. The man must take a course on alcohol safety. And for the next six months, he will only be able to drive to work and back.
Still, the statement with which we began this post holds true. There is a big difference between a charge and a conviction. Reckless driving is not the same as DWI. It carries far fewer consequences.
The takeaway point is that, if you are charged with a drunk driving or any other offense, it is important to let the process work. Law enforcement officers and prosecutors do not always have the evidence needed to make the original charges stick. And when defense attorneys get involved, plea bargaining is usually a normal part of the process for resolving the charges, at least in most cases.
Source: "Augusta Treasurer Receives Suspended Sentence for Reckless Driving," NBC29, 3-21-13
Please visit our page on traffic offenses.
]]>Drunk driving charges in Virginia and across the country therefore depend, to a considerable agree, on the decisions make by prosecutors. Sometimes, even if the technical letter of the law seems to indicate a DWI or DUI charge would be possible, there are good reasons not to bring charges.
]]> An example of this comes from a recent California case. A man was suspected of drunk driving. Officers say they saw him run at least two red lights. They also say he was speeding - driving twice the speed limit. The man was pulled over and given a breath test that indicated a blood-alcohol content of slightly over the legal limit of .10.But there was an extenuating circumstance. The man they pulled over had been rushing a sick friend to a hospital from a remote location that did not have cellphone service. The only reason the man was driving was the urgent need to get his friend to the hospital. The friend had a problem with his kidney that could have been fatal if not addressed promptly.
The district attorney chose not to bring criminal drunk driving charges. The DA said a conviction would have been unlikely because a jury would likely have found the driver's actions to be justified by medical necessity.
The driver had his driver's license revoked by the state motor vehicles department. But the man's attorney has petitioned the court to have driving privileges restored. A judge will hold a hearing on that motion next week.
Source: ABC News 10, "Modesto man says sick friend led him to drive drunk," April 5, 2013
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