ACLU Fights Oklahoma Judge Over Court-Ordered Church Attendance in DUI Manslaughter Case

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District Judge Mike Norman is in trouble with the ACLU for requiring ten years of church attendance as part of teenager Tyler Alred’s deferred sentence for DUI manslaughter. (See original posting on this story here.) The American Civil Liberties Union of Oklahoma has filed a complaint with the Oklahoma Council on Judicial Complaints, accusing Norman of violating the Oklahoma Code of Judicial Conduct by infringing on religious liberty. The executive director of the ACLU of Oklahoma, Ryan Kiesel, criticized Judge Norman on his actions.

“We believe in a strong and independent judiciary. For us to come to this conclusion really speaks to the level of disregard that Judge Norman has showed towards the U.S. Constitution and the constitution of the state of Oklahoma,” Kiesel said.

Tyler Alred was allowed to decide between church and prison. Alred’s 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.”

In November, Norman admitted that his ruling may have been unconstitutional, but he was going to wait and see if he would get away with it. “I received a couple of bad calls – one from Oregon and one from Missouri – telling me it was in violation of the U.S. Constitution. They may well be right, but that’s what I did and we made a record,” Norman said. Then he added, “If someone wants to appeal my decision, they’re entitled to do that.”

On Tuesday, the ACLU took him up on his offer.

“Driving High” Marijuana DUI Law in Washington

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Marijuana will be legal in the state of Washington starting on December 6, but drivers need to be aware that the ballot initiative that legalized it also included a new DUI Standard which may make driving riskier for regular users than the previous law did.

Under Washington law, adults (persons 21 years and old) may possess up to an ounce of processed marijuana, 16 ounces of marijuana-infused product (solid form), or 72 ounces of marijuana infused liquid product.

The DUI standard and physical control laws have set the THC level for intoxication at 5 nanograms per milliliter of blood. This has been deemed the level at which motor skills are impaired to the point that it is too dangerous for a person to operate a motor vehicle, and is similar to the standard for alcohol which is 0.08.

A driver’s THC must be tested through a blood test. The law that allows for a blood draw on a driver has changed, they are referred to as Implied Consent laws, and now the law allows for blood tests if the driver is suspected of being under the influence of marijuana.

The DUI standard for persons under age 21 is zero tolerance. Any driver under the age of 21 who is suspected of being under the influence of marijuana, and who subsequently tests for any amount of marijuana in their system, will be charged with DUI.

Washington State Patrol Spokeman Bob Calkins said, “Regardless of whether this person has been a regular user of marijuana, may have a routine THC level in his blood of this point or that point, if he’s driving OK, he’s probably not going to come to our attention. And if he’s driving badly, he probably is going to come to our attention.”

Part V of the initiative, the section that establishes the per se DUI limit of THC at 5ng/mL, has raised concern amongst medical marijuana advocates who say the new DUI law will lead to convictions for those who use marijuana to treat their ailments. The metabolite 11-COOH-THC, which is the secondary metabolite in marijuana that forms after consumption of cannabis and is also known as the metabolite that can remain in a person’s system for days to weeks, is explicitly excluded for from consideration for a DUI charge.

11-OH-THC is the active metabolite of THC. If both 11-OH-THC and 11-COOH-THC are present then motor impairment may still be present.

Will New Texas DWI Laws Pass to Allow for Sobriety Checkpoints?

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The Texas House Criminal Jurisprudence Committee met Monday in Austin to discuss creative ways to curb DWI in the state. San Antonio police Deputy Chief Anthony Trevino urged legislators to allow for permanent DWI checkpoints that would allow law enforcement to stop drivers and do routine sobriety tests near “drunk driving hot spots.” The deputy police chief’s idea was opposed by Jim Harrington of the Texas Civil Rights Project who said that this would allow for police abuse of power.

Harrington said, “Once you start setting these roadblocks, you are basically saying the government has control over your movement.”

State Representative Pete Gallego, D-Alpine, the committee chairman, wanted “creative ways” to reduce the number of DWI’s in Texas, and said that the committee was looking for a change in DWI laws to “get on the front end of the problem.” In 2010, drunk drivers with a blood alcohol level higher than 0.08 killed 1,259 people on the Texas roadways. California, which has the second highest number of DWI deaths in the country, had 791 deaths in 2010 caused by drunk drivers.

Gallego said, “It’s always bothersome when California does something better than Texas. California – with more cars, more drivers and more people – still has less DWI-related deaths than Texas does.” This hearing was Pete Gallego’s last in the state Capitol, as he was elected on November 6th to represent U.S. House District 23.

Bexar County (San Antonio) District Attorney Susan Reed expanded “no refusal” weekends to every day of the year starting in April 2012. This means that anyone suspected of DWI in Bexar County will be required to have their blood tested if they refuse the breathalyzer. Reed said of their policy, “We are now the largest metro area in Texas to have an absolute no-refusal policy.”

Bill Lewis, MADD’s public policy liaison, asked legislators to support sobriety checkpoints by passing laws to allow police officers to conduct them. He said checkpoints could save 200 lives in Texas every year. Lewis said of lawmakers, “We have asked them to provide those guidelines for, what is it 18 years? They haven’t done it, so may it’s time to try something else.” He said he would be surprised if the checkpoints do get passed into law because he recognizes that some see checkpoints as government playing “big brother.”

Lewis did suggest to the Legislature that all first-time DWI offenders be required to use an ignition interlock device on their vehicle, which would prevent a car from starting if the driver has any detectable amount of alcohol in their system. Under Texas law, it is the discretion of the judges whether the ignition interlock device is used for DWI offenders.

Texas prohibits checkpoints based on the interpretation of the U.S. Constitution, however the Corpus Christi Police Department claims to have found a loophole. Public Information Officer for the Department, Julie Garcia, claims that the department does conduct what they call “driver’s license checkpoints” routinely. If during this driver’s license checkpoint a driver is suspected to be impaired, the officer can conduct field sobriety tests, which if failed, the driver “can and will be arrested.”

Driver’s license checkpoints are also used in Lubbock County, according to Assistant District Attorney Tom Brummett, who said that these checkpoints are an effective way to legally target DWI drivers. He said, “Even though we can’t use DWI or sobriety checkpoints, the law does allow us to use driver’s license checkpoints, vehicle safety checkpoints.”

$73k Anti-DUI Grant Just in Time for the Holidays

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What better way to kick-off a safe start to the New Year than to receive a $73,000 grant to fund an anti-DUI program? The Palm Desert Police Department received the large grant from the state Office of Traffic Safety (OTS). According to the director, Christopher J. Murphy, the DUI checkpoints funded by such grants have been “an essential part of the phenomenal reduction in DUI deaths” from 2006 to 2010 in California. He added, “But since the tragedy of DUI accounts for nearly one third of traffic fatalities, Palm Desert needs the high visibility enforcement and public awareness that this grant will provide.”

The special grant is going to use the funds to target impaired drivers and also educate the public on the dangers of DUI by creating checkpoints. According to Palm Desert Police, the DUI checkpoints have been the most effective tool to any DUI enforcement strategy, and are said to save $6 for every $1 spent.

On November 19 of this year, the Palm Desert Police Department received a $100,072.00 grant from the California Office of Traffic Safety to fund a year-long program aimed to prevent deaths on the roadways through special enforcement and raising public awareness. The grant was said to fund Specialized DUI training in Standardized Field Sobriety Testing, Advanced Roadside Impaired Driving Enforcement, and Drug Recognition Evaluation. The grant was also expected to fund DUI Saturation Patrols, compilation of DUI Hot Sheets, Court sting operations that would catch drivers using their vehicle after a court appearance after their license had been pulled for DUI, and stakeout operations to observe repeat DUI offender probationers with revoked or suspended licenses.

The grant comes at a time when DUI enforcement is at its highest. Programs like DUI checkpoints are used to reduce the number of deaths and injuries related to drunk driving, which is especially high during major holidays like Christmas and New Year’s.

Montana DUI Laws Allow for Lenient Sentence for Man’s 13th DUI

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Judge Susan Watters was required by Montana’s DUI sentencing laws to give a seemingly lenient sentence to a man who has been arrested for drunk driving a dozen times. The case of William Dean Grussing brought light to what the prosecutor referred to as a “gaping hole” in a statute that is supposed to punish drunk drivers. According to the Montana DUI laws, a maximum sentence of 5 years can be imposed for a felony DUI conviction if the defendant previously attended a treatment program while in jail for a DUI offense. However, as in Grussing’s case, if a defendant did not participate in a treatment program they can only be sentenced to a standard term of 13 months followed by a maximum probation of 5 years.

Judge Susan Watters said, “It seems counter-intuitive to me that someone who completes treatment could get five years, but someone who doesn’t gets a more lenient sentence. That doesn’t make sense to me, and I would encourage the Legislature to take a look at that provision.”

Grussing was charged with his 12th DUI in June 2011. While that case was pending, Grussing was arrested for DUI again in June 2012 and was charged with his 13th DUI.

Grussing could have been required to pay a $5,000 fine for felony DUI, which is Montana’s maximum fine. Grussing was ordered to pay $3,000 in fines. Grussing spoke at his sentencing hearing, and said he had been sober for 9 1/2 years before last year’s arrest.

Montana has been getting tougher on DUI laws in other ways. House Bill 14, which changes the look-back period for DUI offenses from five-years to ten-years, was passed in 2011. This means that any DUI on a person’s record can be considered if they re-offend within a ten-year period. Previously, the courts could only consider drunk driving offenses that occurred within the last five years.

Not all lawmakers were fond of this new law, especially Republican Alan Hale, who gave a speech opposing HB14 and the toughening of all DUI laws. He said, “These DUI laws are not doing our small businesses in our state any good at all. They are destroying them. They are destroying a way of life that has been in Montana for years and years. These taverns and bars in these smaller communities connect people together. They are the center of the communities. I’ll guarantee you there’s only two ways to get there: either you hitchhike, or you drive, and I promise you they’re not going to hitchhike.”

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.”