DUI Attorneys Blog

It has been reported that actress Lori Petty has involved in a vehicle pedestrian accident while allegedly under the influence of alcohol or drugs.

Under California DUI law, a drunk driving charge is a felony when it involves bodily injury to another person not the driver. California felony DUI carries harsher penalties than a regular DUI, as the injury is considered to be a sentence enhancer.

'League of Their Own' actress arrested on suspicion of DUI | L.A. Now | Los Angeles Times: "Actress Lori Petty was booked into the Van Nuys jail early this morning on suspicion of a felony drunk driving, officials said.

Petty, 45, was driving in Venice about 9:30 p.m. Saturday when she struck a young man on a skateboard, Los Angeles Police Officer Bruce Borihanh said.

‘The skateboarder was treated on the scene and released,’ he said.

The actress was arrested on suspicion of driving under the influence and booked four hours later.

Petty, who is known for her roles in ‘Point Break,’ ‘Tank Girl’ and ‘A League of Their Own,’ was released on $100,000 bail."

According to noted Los Angeles DUI Attorney Randall Longwith, it is much more difficult to defend high profile cases like this one because of the extra care needed to handle both the media and the publics prejudgment of the case.

I loved her in Point Break and wish her the best in getting through this tough time in her life. I also hope the person she allegedly hit is okay.

There are as many complaints about the food at Sheriff Joe Apraio's Tent City Jail in Phoenix, Arizona as there are inmates. Below is a quote from a human interest story where three noted chefs were tasked with the job of making the "food" they serve there taste better.

The conclusion was that the food was terrible, and the best way to avoid it is not to drink and drive in Arizona.

Chefs cook up ways to improve jail stew: "Some inmates in Maricopa County's jails started a hunger strike, complaining that the evening meal was unpalatable. At times, more than 1,000 refused to eat the hot slop in protest."

According to Arizona DUI Lawyer Stewart Bergman, who regularly handles cases where clients are exposed to months in the Maricopa County Jail, food is the number one complaint that he hears from clients after they serve their sentences.

Here's an idea for Sheriff Joe: Start an organic farm and make your inmates grow the food. That may save you even more money, and give you something else to brag about. With a good diet, exercise and the pure Arizona heat, your inmates will fare better than any of Arizona's posher fat farms.

Here is a health response to a tragic situation.

Unlikely shared journey after DUI accident - NewsFlash - mlive.com: "(AP) — FORT COLLINS, Colo. - Four and a half years ago, a drunk-driving accident dramatically changed the lives of two Fort Collins men. One was nearly killed, the other went to jail. These circumstances are not unique, but what has happened since the accident is truly special. Eventually their paths would cross again. On a chilly spring day, Nate Jorgenson and Shawn Turner greet each other with a strong hug and words of encouragement. The casual observer would have no idea what the two men have been through."

This is a great story.

In a recent post I lamented the foolish antics of some members of MADD, and wondered if they know that they are really assaulting justice and the whole american criminal court system when they interfere with prosecutions. The post was "MADD is out of control." Every day the news is filled with good counterpoints to my argument, or at least stories of death and destruction at the hands of impaired drivers that would, to most people, justify MADD's attempted obliteration of the bill or rights (in the MADD is out of control article there is a MADD member who has upset that a law enforcement officer testified on behalf of an accused impaired driver... can you say the right to present witnesses in one's own defense... that lady couldn't). Here's another sad story that happened last night in North Carolina. I present these types of stories so that my readers don't lose sight of the bottom line, which is that despite the fact that some MADD zealots, police, prosecutors and even judges go about "protecting" drivers by applying a misguided, the problem that they seek to combat is very real, and that impaired driving is one of the great evils of our society.

One Dead, Woman Charged With Felony DUI | WSPA: "A Taylors man is dead and a woman has been charged with felony driving under the influence after a early morning accident in Greenville County. The accident happened around 1:40 am Saturday morning on Waddell Road at West Lee Road near Taylors. Lance Cpl. Jeff Gaskin of the South Carolina Highway Patrol says that the driver of a 2002 Chevroley SUV, 31-year old Karen Greene, of Greer, was traveling east on Waddell Road when she allegedly disregarded a stop sign at the intersection, went off the road and struck some trees and a fence. Greenville County Deputy Coroner Kent Dill says that a backseat passenger in the vehicle, 30-year old Christopher Baker, was not wearing a seatbelt and partially ejected. Dill says Baker was pronounced dead at the scene. Greene was wearing a seatbelt and not injured in the accident. She is currently being held at the Greenville County Detention Center pending a bond hearing. "

(Via WSPA.com.)

MADD's cause is noble, but their tactics are abhorrent. If, instead of interfering with court processes and they instead sent their volunteers to bars to hassle people who are leaving about not driving, they would probably save more lives. Give away prizes for people who blow under the legal limit into PBTs that they bring to the bars. I'm open for ideas, with with the right ones I would even participate. One has only to look at the headlines every day to know that the terrorist tactics that MADD is using are not working.

Minnesota Intoxilyzer program is going the way of the dinosaurs. In what appears on the surface to be a major victory for the defense in DUI cases, courts in Minnesota DUI cases are starting to exclude the results taken from the machines because the manufacturer (who very well might be hiding something) will not allow a free and open examination of its software. Here's a summary from an article:

WDIO.com - Breathalyzers: May Be Inadmissible in Court: "Blood and urine tests are also usable, but they take far more time and cost much more.The state crime lab will have to do the tests, at $50 per analysis.

The State Patrol said they are working with county attorneys across the state, to determine which tests prosecutors want law enforcement to use.

Already in Itasca County, Jack Muhar said he's asked local law enforcement to stop using the Intoxilyzer. That's because two judges in his county will not admit Intoxilyzer results into the DWI cases."

While this may seem to be a victory for the defense, in reality it will ultimately make defending DUI cases in Minnesota more difficult because the state is likely to go to an all-blood standard. Minnesota DWI evidence allows for the use of blood tests, which are more precise and harder to challenge in court when done properly.

As always in DUI law, one step forward, and at least one step back.

Here's a good example of what it takes to get a felony DUI in Washington State.

The Wenatchee World Online - Driver charged with felony DUI after accident: "A Bellingham man has been charged with felony driving under the influence after his fifth drunk-driving arrest in the last decade came last month near Leavenworth.

Thomas M. Solomon, 46, was charged Tuesday in Chelan County Superior Court. He is also facing charges of first-degree driving while license suspended.

According to court documents, State Patrol troopers responded to an accident on May 20 on Highway 2 near Tumwater Campground, west of Leavenworth. They found a pickup down an embankment in some trees and brush. The driver and passenger were unconscious. Beer cans were scattered throughout the interior of the vehicle, according to documents.

Solomon and his passenger were both treated at Central Washington Hospital and later released.

According to court records, Solomon has 11 prior drunk-driving convictions and his driver’s license was revoked. Under state law, a person can be charged with a felony for a fifth DUI arrest within 10 years.

"

What do you do with a 46 year old who has 11 historical drunk driving convictions. The MADD people who I recently blogged about (some) going to far in "MADD is out of control," would probably argue that life in prison is appropriate. With a case like this, I can't say I'd disagree. This guy obviously doesn't get it, and is obviously willing to kill or maim somebody to learn his lesson. Better the justice system teach it to him now. Unfortunately, under Washington DUI Penalties, that is not an option.

For anybody who chooses to make the argument that MADD is a useful instrument of the justice system, take a look at the article quoted below.

Sheriff’s testimony in friend’s DUI trial questioned - Local & State - Macon: "A Mothers Against Drunk Driving volunteer has resigned from the organization, saying she was frustrated that Bibb County Sheriff Jerry Modena testified for a defendant during a DUI trial.

Jackie Wilder, a victim advocate for the group’s Middle Georgia chapter, said she resigned Thursday. She said she became disheartened that the state group’s executive director didn’t take a stronger stand after Modena testified during Kay Gilbert’s DUI trial March 17."

Increasingly, MADD, or at least some of its more zealous members, view their roles as more prosecutorial than educational. I hate to say it, but increasingly, the group is behaving more and more like a terrorist organization.

Check out this new (unpublished) opinion by the Minnesota Court of Appeals, which reverses a Minnesota DUI license suspension based on the factors for deciding need for the Intoxilyzer Source Code in Underdahl.

I previously blogged about the original opinion at: Minnesota DUI Breath Testing On The Ropes, and have described the Minnesota DWI breath testing program elsewhere, so I won't go into details here. Here's an excerpt from the new opinion that was published on May 26, 2009.

Appellant challenges the revocation of his driving privileges under the implied-consent law on the ground that the district court abused its discretion by denying his motion for discovery of the source code for the Intoxilyzer 5000EN. Because we conclude that appellant made the minimal showing of relevance outlined in State v. Underdahl, ___ N.W.2d ___, ___, 2009 WL 1150093, at *6-*8 (Minn. Apr. 30, 2009) (Underdahl II), we reverse and remand.

FACTS

On January 12, 2008, appellant William Robert Thompson was stopped by Sergeant Allen Ringate of the Minnetonka Police Department. After appellant signed an implied-consent advisory, Sgt. Ringate gave him a breath test using the Intoxilyzer 5000EN that revealed that appellant had a .10 alcohol concentration.

Following receipt of a notice of license revocation under Minn. Stat. § 169.52 (2006), appellant petitioned for judicial review under Minn. Stat. § 169A.53, subd. 2 (2006). Appellant also moved the district court to suppress the Intoxilyzer breath-test result and to order respondent to produce the source code for the Intoxilyzer 5000EN.

In support of the discovery motion, appellant submitted a variety of documents, including the affidavit of Harley R. Myler, Ph.D., P.E., that described the source code for the Minnesota version of the Intoxilyzer 5000EN and stated that, without the source code, ―we cannot have absolute certainty that the software is operating properly when analyzing a subject sample, as well as two affidavits from Thomas R. Burr. Burr’s first affidavit described previous problems with the source code for the Minnesota version of the Intoxilyzer 5000EN and articulated that the source code is needed to analyze the function of the machine, and without access to the source code ―it is not possible to determine if the Intoxilyzer functions as designed . . . . The second Burr affidavit evaluated a set of Intoxilyzer 5000EN results from a test administered to an individual in St. Cloud on August 19, 2007 that displayed two different readings from the time of the original test to a later time when the results were uploaded to the Minnesota Bureau of Criminal Apprehension (BCA). According to Burr, these differing results show that ―the data integrity of the computer program is clearly compromised and all the data that is generated by this version of the software is unreliable.‖ Based on this evidence, Burr opined that ―this obviously serious problem in data integrity makes it essential that that [sic] source codes of the software be thoroughly examined to identify the source of these serious kinds of errors and their potential effect on all data.

Appellant also submitted a Minnesota district court order from an unrelated case granting production of a source code, an opinion from the Kentucky Court of Appeals allowing discovery of an Intoxilyzer 5000EN source code, and a report from a DUI attorney in California discussing the results of an expert’s review of the source code for the Draeger AlcoTest 7110. Finally, appellant submitted a transcript of David Edin, an employee of the BCA, discussing the Intoxilyzer 5000’s software updates and deficiencies in the context of an unrelated case.

Under Washington State DUI law, it is possible for a person accused of a misdemeanor drunk driving offense to exchange treatment for alcohol or drug abuse for prosecution. The program is officially called "deferred prosecution," and is available once in a lifetime.

Here is a quote from an article that describes the program in the context of a local politician's recent arrest.

DUI arrest won't halt mayoral campaign - South Sound - The Olympian - Olympia, Washington: "Driving under the influence is a gross misdemeanor, with a maximum punishment of a year in jail and a $5,000 fine. At a minimum, McClanahan could face 48 hours in custody or 30 days of home confinement with electronic monitoring, at least $1,121 in fines and assessments, a one-year revocation of his driver’s license and the installation of an interlock device on his vehicle once he is cleared to drive again, said Kalo Wilcox, a city prosecutor.

This is McClanahan’s first DUI offense. As a result, he is a candidate for deferred prosecution, which would allow for the dismissal of the charge if he is evaluated by a state-certified chemical dependency counselor and complies with a recommended treatment program for a minimum of five years, Wilcox said"

According to Washington DUI lawyer Aaron Wolff, who is an authority on Washington State DUI law, deferred prosecution is not always the best choice for a first offense. There are times when it makes sense to reserve a once in a lifetime deferred prosecution for a future DUI charge because the penalties are so much worse for subsequent WA DUI arrests.

According to Wolff, a Washington State deferred prosecution involves a lengthy and rigorous treatment regimen that many people fail to complete, resulting in a DUI on their record anyways.

It's always best to consult with an experienced DUI lawyer prior to making any decisions about how to handle a Washington State DUI arrest.

Here are some quotes from a new Florida DUI case that came out on May 27, 2009. The name of the case is Rodriguez v. Florida, and it was decided by the District Court of Appeals of Florida.

Mr. Rodriguez was convicted of five counts of DUI manslaughter arising out of a three-car accident that occurred in February 2003. He is serving five consecutive terms of life imprisonment. In his motion, he claims that his lawyer was ineffective because she did not retain an automobile accident reconstruction expert to testify at trial. He further contends that his lawyer should have opposed the State's motion to consolidate Mr. Rodriguez's trial with that of the codefendant, who was the driver of the third car. Mr. Rodriguez explains that both the State and the jointly-tried codefendant retained experts to testify at trial. The codefendant was allegedly convicted only of DUI when his expert shifted the blame for the accident to Mr. Rodriguez. Mr. Rodriguez claims that the jury would have reached a different outcome if he had had an expert or been tried separately from the codefendant.

In any event, it does not appear that the trial transcript would refute Mr. Rodriguez's two claims where he presented no expert witness at trial and was tried alongside an allegedly adverse codefendant. Accordingly, we reverse and remand for further proceeding.

For any DUI attorney who thinks that it is not legal malpractice to try a case without the use of an expert witness when an adverse party is armed with one, think again. Learn more about Florida DUI process and where an expert fits in.

As Memorial day approaches, police departments across the nation are gearing up for more DUI enforcement, more DUI arrests, and unfortunately the drunk driving related injuries and fatalities that are always part of the long holiday weekend.

Parker Pioneer - ParkerPioneer.net: "In recent years, the Memorial Day weekend has seen fewer arrests, accidents or major incidents than there had been in years past. There were no major accidents in La Paz County last year except for an ATV accident near Alamo Lake Road. Traffic in the Parker area was affected by a major accident near Sara Park in Lake Havasu City on the Friday evening of the weekend. Two people were killed when a car collided with a semi-truck. State Route 95 was closed for approximately seven hours."

Arizona is an especially dangerous place to be on the roads after dark this coming weekend. "There is always stepped up enforcement over the Memorial Day holiday," said Arizona DUI lawyer Stewart Bergman. Mr. Bergman, who prosecuted DUIs and other serious vehicular felonies before becoming a DUI defense attorney, is optimistic that the message is getting out. "I've seen more people more aware of the strict laws here in Arizona recently." He is not alone. Washington State DUI Lawyer Aaron Wolff added, "everybody knows that the Washington State patrol will be out in force over the weekend, as well as the Seattle Police Department and others."

As the Intoxilyzer source code debate rages on, noted New Jersey DUI lawyer Evan Levow is at the forefront of the battle to reveal the truth (whatever that is) about the source code of the various machines, and to create transparency in the enforcement of DUI laws by breath test machine.

Minnesota Court Orders Release of DUI ‘Breathalyzer’ Source Code | Threat Level | Wired.com: "‘Despite the clear errors in the machine,’ Evan Levow, a New Jersey drunken-driving defense attorney said in a telephone interview, ‘the Supreme Court in New Jersey found the Alcotest to be reliable.’"

If you read between the lines, in New Jersey DUI cases, the Alcotest gizmo is deemed reliable by judges who have absolutely no idea what is in the source code that powers the machine.

They say justice is blind. In this case, willfully and, in the opinion of many including this author, ignorantly so.

Here's what's going on in Wyoming, which has lagged behind much of the country when it comes to passing stricter DUI laws.

Casper Star-Tribune Online - Editorial: "Earlier this year, the Senate Judiciary Committee rejected a comprehensive bill that would have made penalties for driving under the influence stricter in Wyoming. Fortunately, the Governor's Council on Impaired Driving -- which has been working on the effort for six years -- hasn't given up the fight. Neither should the public.

The council, which last week held a conference in Casper, has developed an excellent package of legislative proposals for lawmakers to consider in 2010. Because it's a budget session and non-budget bills require a two-thirds vote just to be introduced, the hurdle for these measures has already been placed pretty high. And the same senators who opposed this year's bill will still be in office.

Yet given the widespread problem of drinking and driving in Wyoming, lawmakers would be wise to give careful consideration to these DUI proposals. They would move the state in the right direction in its effort to get offenders off our roads. Let's hope the public's negative reaction to the Senate panel killing the 2009 bill will help change the minds of some legislators. At the very least, it should convince Judiciary Committee members who voted no to let the issue go to the full Senate.

Here are five of the council's main recommendations (the first three were included in this year's legislation):

* Make it illegal to drive with a blood-alcohol content of .08 percent or above, if tested within two hours after being stopped.

* Create an 'aggravated DUI' offense for those driving with a BAC of .15 percent or greater.

* Increase jail time for each DUI offense. The fourth offense in a lifetime would result in a felony conviction and up to five years in prison.

* Give the first DUI offense with a minor in the vehicle a maximum fine of $750 and mandatory drug or alcohol assessment. The second offense in five years would carry a fine of up to $5,000.

* Include in the DUI law any drug or psychoactive substance that causes someone to be impaired, regardless of how it is taken."

Learn more about Wyoming DUI Laws, and about DUI Laws in general to compare Wyoming's old and proposed drunk driving laws with other states. You will see that, for example, under Arizona DUI law, a third offense is a felony. Under Wisconsin DUI law, a fourth offense DUI will land a person in jail for a minimum of 60 days, whereas in Arizona, it will result in a presumptive term of 4.5 years in prison.

Clearly, the drunk driving laws across the nation are all over the map. Why are the penalties so different from place to place?

In a word, politics!

How true this editorial is. While it is hard to argue that drunk drivers should not be prosecuted, the fact that other, equally dangerous and deadly driving behaviors are not prosecuted is a farce.

OUR VIEW: The politics of modern prohibition | drive, drivers, driving - Opinion - Colorado Springs Gazette, CO: "'This severe legal persecution of drunk drivers alone, instead of all dangerous drivers, makes a complete mockery of our legal system,' wrote Mark Crovelli, of Denver, for LewRockwell.com. 'It is a situation in which one group of demonized and socially-despised drivers is mercilessly persecuted, while other non-demonized drivers are virtually ignored - even though both groups of drivers put other people's lives at risk.'"

If somebody with a known medical condition drives even though he or she knows that the condition could cause an accident, they are no less guilty than somebody who drives after drinking. If we prosecute DUIs, we should prosecute other people who knowingly place others in unnecessary danger.

This is sort of DUI related, so bear with me. It is telling of what is going on in many police departments across the country. Snohomish County Washington is dumping its drug dog over $16k a year.

Washington city may lay off drug-sniffing dog: "SNOHOMISH, Wash. – The Snohomish City Council may decide Tuesday night to trim the budget by laying off a member of the police force — Dixie the drug-sniffing dog. Dixie finds drugs and money for the reward of playing with a chew toy, but the 7-year-old shepherd-collie mix costs about $16,000 a year in vet care, food, grooming, kennel and training costs.

The Everett Herald reported Snohomish plans to keep its other police dog, Kizar. The German shepherd is needed to track criminals and is a younger dog."

What does this mean to DUI cases? It means that police agencies are trying to cut corners.

Think about it. DUI trials require overtime for most police officers, and it takes them off the streets.

Washington State DUI Lawyer Aaron Wolff confirmed this as a fact in WA.

But Washington is not alone. According to Los Angeles DUI Attorney Randall Longwith, some attorneys are noticing the impact of the budget crunch in California as well.

If you have an aggressive DUI defense lawyer who is willing to take your case to trial if necessary, then you stand a better chance of the state folding or offering a better deal at the last minute since they will not want to pay for an unnecessary trial.