Monthly Archives: November 2012

DWI Task Force Arrests Bartender for Over-serving, Texas

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A DWI taskforce in Montgomery County, Texas called the “Bars and Cars” task force has arrested a bartender for over-serving a patron. The DWI task force does not simply focus on drivers who are already drunk and on the road, but on all aspects that lead to drunk driving, including the places where many DWI stories begin–at bars.

In The Woodlands, Texas, undercover officers from the Conroe Police Department visited Baker Street Pub and began observing bartender Chelsea Wilburn and an intoxicated customer. Warren Diepraam, from the Montgomery County DA’s Office, said, “This person was obviously intoxicated, shouting racial epithets. He had slurred speech, very droopy eyes, fumbling around.”

Willburn is being charged with the sale of alcohol to an intoxicated person which is a Class A misdemeanor. If convicted, Willburn may face up to a year in jail and a fine up to $4,000.

The Baker Street Pub has also been cited for serving alcohol to an intoxicated person, according to an agent with the Texas Alcoholic Beverage Commission. The report is in review to determine potential administrative penalties.

The “Bars and Cars” DWI task force is working with bars and educating bartenders and servers about the laws regarding serving already intoxicated patrons. This effort came after a string of fatal drunk driving accidents in the Montgomery County area over the summer.

California’s 14%

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One in seven weekend nighttime drivers in California tested positive for drugs that can affect driving ability, according to a voluntary survey of drivers across nine cities in California. The survey was the first of its kind conducted in the state, which was an anonymous study that paid participants to submit to drug and alcohol tests and answer a series of questions. Some drivers were found to be over the legal limit, and were asked to stay at the site until a sober driver could retrieve them, and no one was placed under arrest.

The survey results were announced by the California Office of Traffic Safety. There were more drivers who tested positive for drugs known to impair driving (14 percent) than drivers who tested positive for alcohol (7.3 percent). Marijuana was the most prevalent drug found, and 7.4% of the drivers tested positive for it.

Of the 7.3% of drivers who tested positive for alcohol, 23% of those drivers also tested positive for at least one other drug. 4.6% of the drivers tested positive for illegal drugs, and 4.6% of the drivers also tested positive for legal, over-the-counter medications that could potentially affect driving ability. Of the 7.4% of drivers who tested positive for marijuana, 26.5% of those drivers also tested positive for at least one other drug.

Over 1,300 drivers voluntarily provided breath and saliva samples at the roadside locations set up across nine cities where the survey was conducted. The survey spanned from 10:00 p.m. to 3:00 a.m. on Friday and Saturday nights. The samples were collected during these times as a reflection of the peak times of impaired driving according to arrests reports. The breath samples were tested for alcohol, and the saliva samples tested for the active ingredient in marijuana (THC), major illegal drugs, prescription drugs, and over-the-counter medications known to potentially impair driving abilities.

The $650,000 study, as reported by the Orange County Register, was conducted by the Maryland-based Pacific Institute for Research and Evaluation. The study was paid for by federal funds and was conducted to supply data needs identified in the California Strategic Highway Safety Plan, which is, according to the California Office of Traffic Safety, a “dynamic action plan developed by federal, state and local government agencies, as well as organizations and advocacy groups dedicated to all aspects of traffic safety.”

DUI Look-back Periods

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Alabama has a 5 year “look back” period when convicting DUI cases. Previous drunk driving charges can only be considered if they have occurred in the past five years. For instance, a driver may have been convicted of drunk driving seven times in one year, say, 2007. They had a very bad year. Assuming they have somehow been released from prison or jail, that person can be caught drunk driving in 2013 and it will be treated as their first DUI.

Alabama is one of the most lenient states when concerning DUI look-back periods. Other states with a five-year back period include Colorado and Missouri. Look-back periods (also referred to as washout periods) vary by state, and often states will change their DUI laws. For instance, until 2008, Georgia had a five year look-back period. The law was amended in 2008 so now Georgia will review any DUI conviction on your record in the past ten years.

States with lifetime look-back periods include Kansas and Massachusetts. In Michigan, a third DUI will be charged as a felony, after the ten year look-back period was dropped in 2007 under a new law called Heidi’s Law. This is an example of how social pressure can change a state’s DUI laws.

Heidi Steiner was a northern Michigan high school senior who was killed by a drunk driver named Danny Buffman in 1991. Buffman served a prison term and was eventually released. He was arrested again for DUI in 2005, but was charged as if were his first DUI because more than 10 years had passed since his 1991 conviction. Even though his DUI (referred to as OWI in Michigan) record included manslaughter, his record could only be looked at from 1995-2005.

Can a Judge Order Church Attendance as a Term of Probation in a DUI Case?

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If you are in Oklahoma, the answer is yes. Muskogee County District Judge Mike Norman has imposed an unusual penalty on a teenager who was charged with DUI manslaughter in Oklahoma. Tyler Alred, 17, has been ordered to attend church on Sunday for the next ten years as part of his deferred DUI manslaughter case.

This is not the first time a judge has unconstitutionally ordered church attendance in lieu of jail time. In the town of Bay Minette, Alabama, the city judge offers the option of church attendance for a year or jail time to people charged with misdemeanor offenses.

On Dec. 3, Tyler Alred was driving a Chevrolet pickup at 4a.m. when he crashed into a tree on a county road; the crash killed his friend John Luke Dum, 16, who was the passenger in the truck. Oklahoma Highway Patrol troopers arrived and Alred admitted that he had been drinking. His blood alcohol content was between 0.06 and 0.07. The legal limit is 0.08, but drivers under 21 are not allowed to consume any alcohol and will be charged with DUI regardless of their BAC under a zero tolerance policy.

No one has challenged Judge Norman’s bizarre probation, and unless it is challenged, the ruling will stand. Professor of law Randall Coyne said the condition would not stand a legal challenge, but a challenge would have to be filed.

In the 1992 case of Lee v. Weisman, conservative Justice Antonin Scalia wrote that the state may not use a “threat of penalty” to “coerce anyone to support or participate in religion or its exercise.”

Some have successfully challenged court-mandated attendance of A.A. and N.A. meetings. In the case of Kerr v. Farrey, Kerr objected to being forced to attend N.A. meetings as an atheist, because the meetings began with a Christian prayer and because Kerr perceived N.A. as having a deterministic view of God in the way that belief in a God was necessary for full recovery. The Court ruled that the N.A. program was decidedly religious and based on monotheistic principles and a policy of coercing prisoners to attend the meetings was unconstitutional.

In Tyler Alred’s case, not much will change. His defense attorney, Donn Baker, said, “My client goes to church every Sunday. That isn’t going to be a problem for him. We certainly want the probation for him.”

Woman Sues Bar Under Dramshop Law After DUI Arrest

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A Masury woman is suing the Middlesex Tavern because after being served she was arrested for DUI. The woman suing, Ruth D. Morocco, says that bar employees should not have served her.

Morocco claims that there was negligence and refers to the Dram Shop Law that prohibits serving a patron who is visibly intoxicated. According to Morocco, she began drinking at Middlesex Tavern on April 23, 2009 and into the early morning hours of April 24th. She claims that within the sight of employees, that she fell off her chair and was loud and obnoxious during her time there. At 2a.m., Morocco left the Middlesex Tavern, and on her way home she crashed her vehicle into a ditch and several trees. The Southwest Mercer County Regional Police were called at 2:15a.m.

She is seeking unspecified money for loss of earnings and the ‘ordinary pleasures of life, anguish, pain, and other suspected injuries, including damage to her right knee and ankle which were broken in the crash.

The defendants rebutted that Morocco ordered one drink at 10p.m. then disappeared into the ladies restroom for 20 minutes, and when she emerged she appeared intoxicated. They say Morocco tried to order another drink but the bartender denied the request.

It is possible to sue a bar under dramshop laws but extreme negligence on the part of the bartender must be proven. Businesses in Pennsylvania need to recognize signs of impairment from their patrons, which include slurred speech, drowsiness, stumbling, and glassy, bloodshot eyes. Pennsylvania Liquor Code, of Section 4.493(1), states that it is unlawful to “permit any liquor or malt brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any minor.”

Will Utah Ease Liquor License Restrictions?

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Utah law distributed liquor licenses based on population quotas, and this causes restaurants and bar to wait months before they are able to obtain full-service licenses allowing them to serve all alcoholic beverages, from wine and beer to liquor. For national chain restaurants, this wait is a deterrent from opening a business at all in the state.

Utah has a tough regulatory system for liquor which gets them a good rating with MADD. Pamela Erickson, former Oregon Liquor Control Commission director, made a comment to Utah lawmakers, “MADD (Mothers Against Drunk Driving) rates you number one of all the states. You have the best record, according to MADD. Your underage drinking rates are some of the lowest in the nation. My advice is don’t mess with success!”

Like Erickson, opponents of looser liquor laws say that public safety will be put at risk. Sen. John Valentine, R-Orem, said that the balance between profit from liquor sales and the cost to public safety does not pay out. He said, “If you look at what you have to pay out for the social costs versus what you receive in for the taxes, those balances don’t occur. It is costing you more to have that accessibility.”

Washington DUI and Marijuana Laws

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On Nov. 6, when the legalization of marijuana was voted on in Washington, there were many assumptions and hanging questions about what the new law actually meant. One man was arrested shortly after the law was passed for smoking marijuana in a public park. He thought he was safely doing so because marijuana had just been legalized, but technically that would not go into effect for two months, and new laws did not allow public consumption, either. The new law does not officially take effect until Dec. 6, but already 220 possession cases have been retroactively dismissed.

A guide for the public on what legal use now means in Washington has been published. Jonah Spangenthal-Lee is a former journalist who was hired by the police department earlier this year, and along with police spokesman Sgt. Sean Whitcomb, the two have produced good advice for the public on how they can better understand I-502.

Here are a few snippets from the pamphlet:

Q:What happens if I get pulled over and an officer thinks I’ve been smoking pot? A: If an officer believes you’re driving under the influence of anything, they will conduct a field sobriety test and may consult with a drug recognition expert. If officers establish probable cause, they will bring you to a precinct and ask your permission to draw your blood for testing. If officers have reason to believe you’re under the influence of something, they can get a warrant for a blood draw from a judge. If you’re in a serious accident, then a blood draw will be mandatory.

Q:What happens if I get pulled over and I’m sober, but an officer or his K9 buddy smells the ounce of Super Skunk I’ve got in my trunk? A: Under state law, officers have to develop probable cause to search a closed trunk or locked container. Each case stands on its own, but the smell of pot alone will not be reason to search a vehicle.

The article Marijwhatnow? A Guide to Legal Marijuana Use In Seattle is just one attempt to inform the public of what they can expect from the passage of 1-502. Washingtonians are now faced with learning the new marijuana DUI law that came with I502, which sets 5 nanograms as the standard for what is too much THC in the system for driving.

Strange Alcohol Laws in the U.S.

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Kansas
There are over 70 different types of licenses for selling alcohol in Kansas, and seven classifications dictating alcohol sales in a county, ranging from dry, wet, moist, limited, golf course, winery, and qualified historic site (QHS). In Kansas, voters are not allowed to buy alcoholic beverages during primary or general elections but can during special elections. Grocery stores must have a separate entrance and shop in order to sell wine or liquor, and consumers can run a tab on beer at a bar but cannot do the same for distilled spirits or wine.

Oklahoma
Beverages with more than 3.2% alcohol by weight or 4% by volume (most liquors, wines, and even beers now) must be sold at room temperature in licensed liquor stores. Oklahoman beer distributors sell low-point beer to avoid this limitation, allowing beer to not just be sold in convenience stores and supermarkets, but also refrigerated!

Indiana
Indiana is the only state in the U.S. that bans all alcohol sales on Sundays outside of bars and restaurants.

Texas
You can legally drink under the age of 21 in Texas if you are accompanied by a parent, guardian, or spouse. The parent, guardian, or spouse must be visibly present while the minor is possessing or consuming the alcohol.

Louisiana
You may not be able to receive a permit for serving beverages of low alcohol content if you are specifically a donut shop:

A. The commissioner shall not:
(7) Issue a permit of any class to any donut shop for the sale of alcoholic beverages. For purposes of this Paragraph, “donut shop” shall be defined as an establishment that meets all of the following:
(a) Sells donuts, pastries, or other confections.
(b) Does not operate a fully equipped kitchen used for the preparation of uncooked foods, other than donuts, pastries, or other confections, for service and consumption of such foods on the premises.
(c) Does not prepare and serve uncooked foods, other than donuts, pastries, or other confections, at least five days a week.

DUI Court Lowers Recividism

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Most people learn a hard lesson after being charged with drunk driving their first time. A DUI or DWI stays on your permanent criminal record and can drastically limit future opportunities. However, some people do not learn their lesson and continue to drive drunk, these are referred to as hardcore offenders in the court system. In Twin Falls, Idaho, a DUI Court coordinator is seeing success with a DUI Court program that is helping repeat DUI offenders stay sober and prevent re-offending.

Twin Fall County received a three-year grant in 2006 which helped fund the creation of the DUI Court program. Every participant in DUI Court must pay a monthly fee of $100 which covers drug and alcohol tests. Participants are required to show up to court once a week to check-in on their progress. The program requires ignition interlock devices for anyone who continues to operate a vehicle, which they may do if they can obtain a restricted license through the program which only allows them to travel to and from work or school.

DUI court requires participants to attend court every Wednesday morning at 7:30am to speak with a judge and answer a weekly question. As they progress they are allowed to attend course less frequently. While speaking with the judge, participants can request support from the court and even discuss individual problems.

If a participant is absent from DUI court, assigned therapy, or other treatment, then the judge may issue a warning or sentence mandatory community service or jail time.

DUI Court is open to the public, allowing anyone who is curious or interested to show up as an observer. Judge Kershaw sees a positive impact from the program. He says that those who successfully graduate from DUI Court are much less likely to re-offend.

In DUI Court, the emphasis is placed on treating the problem of alcoholism rather than shaming and penalizing the offender. These types of programs have been in use in the United States since 1997, and many courts across the country are lauding their success.

Nevada’s DUI Problem and Undercover Investigation

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Gerard Ramalho of KSVN investigated DUI offenders in Henderson, Nevada showing up to required DUI School while under the influence of drugs and alcohol. According to KSVN, one of the biggest problems in the Valley are people getting behind the wheel intoxicated. How do Nevada’s DUI penalties stack up to other states, and why is DUI so prominent there?

Judge Bill Kephart, of Las Vegas District Court, says that the Las Vegas Metropolitan Police Department has 625 DUI arrests a month. He estimated that half of the DUI offenders that end up in his court room are from out of state, which may point to a problem of Vegas’ reputation as a place where one can break the law without punishment.

So what are Nevada’s DUI laws? For a first or second DUI, you will need to complete a DUI class which you are required to pay for. Other requirements may include a fine and attendance to a MADD panel (victim impact panel). Not completing these requirements within the time you are given could be in violation of your probation, which can result in being sentenced to jail for at least two days.

A first-time DUI can result in a driver’s license suspension for 90 days. A second-time DUI within seven years of your first DUI carries a license suspension of an entire year, and a third DUI in a seven year period can result in a three year license suspension. The Nevada DMV operates separately from the criminal court, so even if you are ultimately found not guilty for DUI, the DMV does not have to retract their imposed license suspension.

According to Judge Bill Kephart, it would be less expensive to travel by cab from Nevada to New York than to pay for a DUI in Nevada. According to Ramalho, the recidivism rate in Nevada is less than 3%.