Issues

We see two major areas of concern with harsh DUI laws: 1. The current approach fails to protect the innocent; and 2. The focus on first-time offenders should be on education, evaluation, and treatment (if necessary), rather than punishment.

1. Protecting the innocent

We call for specific changes to protect innocent drivers from the DUI dragnet.

a. Require a second breath test

A single breath test is not sufficiently reliable. There is too much risk of error in the machine and police procedures. A second breath test would ensure that the results are more reliable.

b. Offer a blood test

Similar to (a), giving the accused the opportunity to have a blood test would further protect the innocent and provide greater assurance of reliability.

c. Cameras on all police cars and in all police stations

Juries should be able to see whether the accused really had slurred speech or impaired motor coordination. Cameras also protect police from false accusations.

 

2. First-time offenders

The current focus is on punishing offenders. Such punishment is unnecessary and less helpful at the goal (reducing future drunk driving).

a. The continued prevalence of drunk driving shows that current education efforts are not working. For example, one in seven Minnesota drivers has a DWI on their record, according to the MN DPS.

b. The focus should be on educating first-time offenders, making sure they understand both the societal consequences of drunk driving, as well as the legal consequences.

c. At the same time, first-time offenders should be evaluated for alcohol and substance abuse, and for other mental health problems. Getting treatment to those who need it will do far more to protect society than fines, probation or jail.

d. Current punishment schemes impose horrific costs on offenders. This is particularly unfair to poor and middle-class offenders, who have more trouble paying the substantial fines or hiring lawyers to help mitigate the damage.

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23 thoughts on “Issues

  1. Gray Love

    I agree drinking and driving is wrong. But today it is strick 1 and your out for truck drivers. Regardless if your in a private vehical. I do think there should be at least a second chance for them. Also I think rehabilitation with a second chance is a better answer than all out punishment. Right now first offenders need to do 13 weeks of goverment classes and a few AA meetings. From my experiance. The AA meetings were a much better approach than the goverment classes. Its been 3 years now and I still go to the AA meetings and I have not touched a drink ever since. But I will have to pay for loosing my profession for the rest of my life due to 1 mishap. I have seen so many other people lose their jobs to dui’s. So I would suggest to everyone. Dont do it. If you do go out and have even 1 drink. Call a taxi. You and many others might think your still ok to drive. The goverment doesnt think so and you will pay dearly. But I will have to admit im a little angry that I drove a truck for 26 years without an accident is all erased because of 1 mishap. I am pegged now as a high risk eventho I never drove a truck drunk nor will I even ever have a drink again as long as I live. There should be some sort of system to get dui’s erased for people who regulary attend AA meetings and are very serious about sobriety. The 12 steps do work and I think thats the answer. Not taking away thier jobs and privlages.

    Reply
  2. Joe

    Hi Warren,

    Thanks for the DUI checkpoint video on youtube. It was great advice.

    You had mentioned that one does not have to open a window at a checkpoint. Here in NJ, our obstruction statute has a clause for “physical interference or obstacle”. I know you are a Florida attorney, but do you suspect that not rolling down a window at a DUI checkpoint can be interpreted by the courts as obstruction pursuant to NJ state statute?

    The actual language is…..

    A person commits an offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act.

    Thanks
    Joe

    p.s. I’m not an attorney but I play one on youtube=)

    Reply
    1. wredlich Post author

      A NJ attorney friend of ours raised the same issue. But the answer is – No. Because requiring you to roll down your window without probable cause for a search is not “lawfully performing an official function.”

      And personally I’d rather face an obstruction charge over a DUI charge. Once you’re charged with the DUI, the obstruction charge is trivial.

      Reply
      1. Joe

        Thanks for the quick response Warren. That’s helpful.

        I’ve faced obstruction charges in both NJ and NY for remaining silent, one at a checkpoint. I don’t think they will be my last. It’s like an extreme sport for middle aged people… All the adrenaline but none of the effort. =)

        I have one more legal question …

        Since a DUI checkpoint is not a traffic stop per se, and no reasonable suspicion established, is it safe to say that the a “Failure to Exhibit” statute does not apply? NJ has a number of requirements including signing your name for an officer, etc. If we just show only our IDs at a checkpoint, are we still compliant with the “Failure to Exhibit” statute in the event that the officer at the checkpoint makes additional demands?

        NJ Failure to Exhibit….
        39:3-29. The driver’s license, the registration certificate of a motor vehicle and an insurance identification card shall be in the possession of the driver or operator at all times when he is in charge of a motor vehicle on the highways of this State.

        The driver or operator shall exhibit his driver’s license and an insurance identification card, and the holder of a registration certificate or the operator or driver of a motor vehicle for which a registration certificate has been issued, whether or not the holder, driver or operator is a resident of this State, shall also exhibit the registration certificate, when requested so to do by a police officer or judge, while in the performance of the duties of his office, and shall write his name in the presence of the officer, so that the officer may thereby determine the identity of the licensee and at the same time determine the correctness of the registration certificate, as it relates to the registration number and number plates of the motor vehicle for which it was issued; and the correctness of the evidence of a policy of insurance, as it relates to the coverage of the motor vehicle for which it was issued.

        Thanks again
        -Joe

        Reply
        1. wredlich Post author

          I think you’d do everything in that statute if asked.

          However checkpoints require them to follow guidelines to be constitutional. If they arrest you the guidelines are the focus of the defense.

          Because they rarely follow their guidelines.

  3. Mark

    I don’t live in Nevada, I live in Hawaii, but Nevada is using the idea of implied consent when they require people to roll down their window. As I understand it, the police give enough notice of the checkpoint such that the driver has the option to not enter. And if they do enter then they are giving implied consent.

    I recall one check point in Hawaii where they did give notice but since it was the only road home the only choices I had were to wait until the checkpoint shutdown or to enter.

    What are your thoughts on the idea of implied consent?

    Thanks

    Mark

    Reply
    1. wredlich Post author

      Implied consent is not about rolling down your window. It’s about consenting to a breath test or blood draw when the police have probable cause.

      Reply
  4. steve

    “Such punishment is unnecessary and less helpful at the goal (reducing future drunk driving).” jesus fucking christ you’re stupid. SURE let’s just let people shoot at other people too, as long as they don’t hit anything who cares right? they’re not hurting anybody… fuck you.

    Reply
  5. Jessica

    For everyone who is against this. Let me tell you why I fully support this. On may 28, 2011. I was driving to stay with a friend late after work around 3am. I work in the restaurant business so we get out really late. I was driving on a road that they were completely redoing and the lane would change everyday. The Orange barriers and my headlights were making it hard enough to see as it was. Cop pulls me over says I was swerving. I explained I didn’t realize it was that bad but it was a little hard to see. Then ask have I been drinking I tell him no. Comes back ask me to get out of my car. I then tell him I have a severe back disease that makes it hard to stand and walk sometimes. He then tells me to walk on this line he’s made and it’s pitch black outside. I tell him I can’t walk straight at any point of the day because of my back. Then tells me to stand with one leg up again impossible for me. I have a slipped disk and fracture in my back. Then looks in my eyes tells me I am apparently under the influence of something. Searches my car doesn’t find anything then arrests me. Down at station I blow a .000 and nothing else is found. I am not released I am charged with a dui. Claimed under influence of some illegal drug by the way my eyes look. Then the next two years were literally hell. I had to complete 200 hours of community service, 3 hours of madd course, dui school which costs 380.00, probation, license suspended for Year. In middle of all this probation officer violated me because one month I didn’t do any hours but she had all my paperwork from my neurosurgeon stating I couldn’t do any that month because of my back. So after she violated me cops arrested me at my job and I had to hire a new lawyer. Then also go to court once a month to meet with my judge to see how much I had done. This whole process costed me 25,000.00. I had never done anything wrong nor deserved that. No one deserves that. Oh and I couldn’t get my license until January of 2013. Because everything else cost so much money I couldn’t afford it until then. I was on probation from November 2011_ June 2013. We finally needed something like this. Thank you.

    Reply
    1. Heather Thompson

      @Jessica: I’m so sorry you went through that nightmare ordeal! If it’s any comfort, you’re not alone – your post perfectly illustrates the fact pattern of what I call the “000 DUI”. If you read this, PLEASE post here or message me as to where it happened, and was it a trooper or an officer. What was his name? Significantly, the date you mentioned was during a Memorial Day grant-funded quota period, when wrongful arrests are common. Usually it’s “top DUI cops” who wrongfully arrest safe sober motorists like yourself. Eventually, they get caught and fired. It’s a shame you went through that, he had no right to do that to you.

      I’m in Colorado, and what you describe is happening here every day. Defense attorneys aren’t doing anything, so I’ve taken it upon myself as a legal investigator to document the pattern or these wrongful DUI arrests, which typically are EXACTLY as you describe.

      When I read your post, I got goosebumps. From the late-night traffic stop, to the officer asking about your medical conditions and then using the information about your medical condition(s) to falsely allege “she was under the influence of “something”” after making the determination that you might possibly be prescribed some prescription medication which leaves traces of inactive metabolites in your urine for weeks or months. This pattern of targeting innocent safe sober drivers with medical conditions is a blatant violation of ADA law, and it’s a huge moneymaking scam!

      I’m pretty ticked off about it. Here in Colorado, troopers and officers routinely put drivers down as “refusing a test” when they know they’re sober, and do forcible involuntary blood draws on obviously impaired individuals. When a safe sober driver mentions any medical conditions, the trooper/officer pretends to be empathetic, asking, “I’m sorry to hear that. Did your doctor prescribe anything for that?” Once the driver says, “Yes, my doctor prescribed ___” the trooper/officer then writes his report alleging “indicia of impairment” consistent with the prescribed medication. Trooper/officer cars deliberately don’t have dashcam video, and since DUIs generate huge revenue, prosecutors and judges in many jurisdictions proceed forward with prosecution, knowing full well the poor motorist was completely sober. To date my files have over eighty cases where the trooper/officer blatantly lied, and a safe sober motorist was convicted (usually of the “lesser-included” DWAI.)

      Jessica, if you happen to read this, please post or feel free to email me at coloradocrosscountry@gmail.
      I’m not an attorney, but I am a legal investigator, and I’m working hard to stop these bad troopers and officers from doing what they did to you. The fact pattern you described is consistent with many other “Triple Zero DUIs” and it’s just not fair.

      Thanks,

      H.

      Reply
      1. Zeke

        In PA 2 years ago my car shwerved off side of a backroad on some ice and i needed a tow. I worked the noon to 9pm shift was tired and cranky. Once the cop arrives I thought he was there to help me get a tow or help get my car out of the big puddle I was in bc I lived less than 500 feet from where my car was. He than proceeds to ask me questions and saying I look like I have been drinking or am impaired on drugs. I kept telling him I jsut got off work and that the only thing I have is prescribed Zanex for anxiety disorder and I see a shrink. I did not take it that day but he proceeds to make me do a sobriety tst and it was one test where i had to watch his hand and mimick the exact same movement he did. I was soo confused but I still thought I did ok. Next thing I know he slaps the cuffs on me and says hes taking me downtown for dui. When I first get in his car I agree to brethalyzer and blew a 0.0 bc duh I wasnt drinking nor impaired. Than he said hes taking me for blood work, and I thought I would be fine, but a week later I get the results of the test and it came up positvie for Marijuana that I took a hit of 2 days prior. Now I have horrible anxiety issues, and I went into the deepest depression and to this day have PTSD from this night and now I literally drive like a grandma because I am so scared of interacting with the police in any capacity after this conviction. Lots of money spent, community service etc. but I went into such a lull of anxiety ridden depresssion that I left my good paying job because I couldnt handle it thinking I am now a criminal and maybe could go to jail. I have never been arrested before and only been pulled over a couple times before that, but I definately felt I was taken advantage of and just finally I am starting to move on in my life 2 years later. The mental effect that night had on me will haunt me forever and made me not proud to be an American.

        Reply
        1. wredlich Post author

          Did you hire a lawyer? The marijuana result was probably a metabolite that does not impair.

  6. c show

    I’ve had the unpleasant opportunity to share in a “top dog” officer’s shameful zeal to show his ticket prowess. In Cherokee County Ga. it’s as much about revenue as it is about getting drunk drivers off the road. Frequently they have “task forces” where they bring in out of county law enforcement personnel to blitz the roadways chasing DUI’s. My wife and I were stopped late at night coming home for “speeding”. The speed limit was 40 MPH and the officer claimed I was doing 66. Our gps record showed us at 45 MPH and we told the officer that he was wrong and both my wife and I pleaded our innocence.

    The officer did not respond to our request for him to show us his equipment reading on his radar…he said he didn’t have to. Then he tells us that he smells the strong oder of alcohol. We tell him that’s nuts and we’ve had no alcohol in the car and it had been over a hour since we’d had a drink (the only one of the day) which consisted of sharing in a toast to a dear friend’s 50th birthday.

    I stepped out of the car as requested and did his field tests which he said I almost passed. I agreed to blow in his field test unit and he refused to share the results with me. He arrested me, placed me cuffs and drove me to the sheriff’s office.

    In the car on the way there he told me I was his 13th DUI arrest of the day. That he was in from the far end of the state to help in a DUI sweep in the county. Further he said that now that he’d hit the goal he’d been given he could go back to the barracks and go to bed. I was charged with DUI, speeding, reckless driving and obstruction for our “arguing” with the customer about the speeding charge.

    Long story short…in court it came out that I blew well under the legal limit. There was no reading on the radar to be had…he then claimed that he’d paced us but it was on a road that we had not even been on. Further, a review of the silent video of his field sobriety tests from his patrol car showed that he incorrectly administered the field tests in such a way as to make it very difficult for the most sober of people to pass… and that it was clear that even then I subjectively passed the tests as they were re-read by the senior instructor of the state highway patrol.

    The results…the judge dropped the DUI charge, dropped the speeding charge BUT charged me with reckless driving because the officer claimed I’d driven in a “reckless” fashion prior to the stop AND made me attend a MADD seminar because after all…I had had a drink and I had a very “glassy” look in my eyes and the oder of alcohol in the car (arresting officer claim but another lie) . BS! They were determined to charge me with something! I ended up spending almost $8,000.00 in legal fees.

    My story is totally common in our county where our police friends tell us it’s all about money from fee’s/penalties, government funding grants that HAVE to show results or aren’t renewed, and the Sheriff and District Attn. who both ran on heavy handed “law and order” platforms and were vocally sponsored by MADD and bible belt church groups. Turns out…most of the DUI’s tickets/arrests are by a very small handful of “specialist” officers who are “top dogs” in this area. They know just what to say, how to testify, and conduct themselves to insure success and convictions. This is not about fair or right or civil rights…it’s about them having a job to do, objectives to meet and funding.

    Reply
  7. kevin

    is this technique legal in Kentucky and what statues could be used ,related to the flyer, to work in Kentucky? as described above most cops are over zealous lying ,cheating, thieving idiot a**holes. My technique for all situations dealing with cops is to remain silent, always they never want to help anybody but themselves? Thanks for any help?

    Reply
  8. Charles

    I have a few questions, I’m a truck driver (have commercial drivers license). They have to do with information given by companies I was driving for. First is that the “legal limit” for CDL holders is half the limit for everyone else.The second is that that that standard applies even if I’m not driving a semi at the time. The third is that a refusal to perform a breathalyzer is listed as automatic failure and proof of DUI. Are any of the above actually true? Both companies were for Over the Road, lower 48 and Canada.

    Reply
  9. Archangel

    I notice you have a California window hanger, that’s nice. Will an AZ follow soon?
    HOWEVER, more to the point (of jurisdiction); what say you to California DMV code section 21052 which recites exactly WHO is liable to the DMV codes (keeping in mind that a “Code” or “statute” doesn’t ultimately carry the substance of “LAW”). Anyway, not being in voluntary [adhesion] “contract” with the DMV (no license whatsoever); NOT exercising any privilege of commerce upon the public rights of way (See def. for: “Traffic”, Blacks Law, etc.); and back to this language in 21052, ‘that only state employees are liable to the code’; if there is no positive enactment language making ME personally liable to these code(s), i.e., “show me the law”, what then?

    Reply
  10. Larry Mowers

    It’s sad enough that we must consent to be search while boarding a plane, now expanding to trains and buses, but DHS has something called VIPER teams setting up checkpoints on interstate highways. Do you plan on making flyers for such checkpoints and are they even legal? It seems dangerous to stop traffic moving that fast given the volume of vehicles on the road.

    Reply
    1. wredlich Post author

      The flyers should be good for most encounters with police or government agents. Borders might be different, and airplanes as well.

      Reply
  11. Michael Lindsey

    Iowa has over stepped their issue by passing an implied consent law.
    The are allowed to hold traffic stops and is now against the law to not provide license, insurance and proof of registration.

    321K.1 Roadblocks conducted by law enforcement agencies.
    1. The law enforcement agencies of this state may conduct emergency vehicle roadblocks in response to immediate threats to the health, safety, and welfare of the public; and otherwise may conduct routine vehicle roadblocks only as provided in this section. Routine vehicle roadblocks may be conducted to enforce compliance with the law regarding any of the following:
    a. The licensing of operators of motor vehicles.
    b. The registration of motor vehicles.
    c. The safety equipment required on motor vehicles.
    d. The provisions of chapters 481A and 483A.
    2. Any routine vehicle roadblock conducted under this section shall meet the following requirements:
    a. The location of the roadblock, the time during which the roadblock will be conducted, and the procedure to be used while conducting the roadblock, shall be determined by policymaking administrative officers of the law enforcement agency.
    b. The roadblock location shall be selected for its safety and visibility to oncoming motorists, and adequate advance warning signs, illuminated at night or under conditions of poor visibility, shall be erected to provide timely information to approaching motorists of the roadblock and its nature.
    c. There shall be uniformed officers and marked official vehicles of the law enforcement agency or agencies involved, in sufficient quantity and visibility to demonstrate the official nature of the roadblock.
    d. The selection of motor vehicles to be stopped shall not be arbitrary.
    e. The roadblock shall be conducted to assure the safety of and to minimize the inconvenience of the motorists involved.
    3. A law enforcement agency conducting a roadblock in accordance with this section may require the driver to provide proof of financial liability coverage required under section 321.20B.
    86 Acts, ch 1220, §23; 2003 Acts, ch 6, §4

    Reply
  12. wiley

    I rolled my semi truck and a rookie needed to make a name for himself wrote me up for a dui in cedar city utah I am 52 my life is over my test comes back negative but for some reason they say that I have a metabolite in my system of 0.7956 I still have a hard time figuring out how you get a positive result for a negative if the blood and urine test are negative how can something positive come from that

    Any way I am fighting this but I have no money my legal aide said that he can not help me my court date is April 5th 9 am 2016

    Anyway life sucks right now

    Reply

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