Mideast Assembly Thread

[Junkie]

The DUI bill has some problems.  First:

You must be logged in to read this quote.

Turning the vehicle on is something that is necessary to put the car in motion, but somebody who simply turns a car to on should not be penalized.

Second, you never defined what under the influence means.

Actually, both of those were intended.  The reason "operating" is defined that way is provide for meaningful use of the statute.  If the statute were to read as to only driving, a drunk driver found simply in a running vehicle would never be able to prosecuted.  I can tell you from personal experience that is a far more common situation than catching drivers actually driving.

Second, under the influence then becomes a question for the finder of fact, i.e. the jury or the judge to be proven by the BAC, field sobriety tests, testimony of witnesses, accidents, and such.

[Queen Mum Inks.LWC]

So then does every person caught drinking and driving (say with a BAC of 0.02) go to trial?  Or what does a cop do when somebody blows an 0.07... does he let him go and drive or what?

I see so many problems with this law.

[Queen Mum Inks.LWC]

And what is a "prohibited alcohol concentration"?

I also object to using 0.0 as the low limit for minors.  At least a 0.01 or 0.02, as to allow for consumption under religious ceremonies as well as to allow for the use of mouthwash.

[Badger]

So then does every person caught drinking and driving (say with a BAC of 0.02) go to trial?  Or what does a cop do when somebody blows an 0.07... does he let him go and drive or what?

I see so many problems with this law.

I think Junkie has the right idea here, Inks. Let me try to explain why:

There are two different types of DUI offenses. The first is having a prohibited Blood Alcohol Content (BAC). It's currently a breath test of .08 or above. If one has a BAC level at or above this limit one is automatically deemed legally under the influence, even if one appears sober enough to drive. At first glance that might seem unfair, but that's why I emphasize "appears".

I've heard extensive expert testimony from toxicologists and can summarize the science as follows (though my previous threat to discuss this in mind-numbing detail if anyone doubts this still stands ):

Resistance or lackthereof to the impairing effects of alcohol vary from individual to individual, and can be generally measured along a bell curve with a few exceptional individuals at either extreme and most people somewhere in the middle. BUT:

> Impairment to operate a motor vehicle for most people starts at about a .04 BAC.

> By the time one hits a .06 BAC the overwhelming majority of people are appreciably impaired in their driving abilities.

>  Once .08 BAC is reached even the most exceptional individual at the far end of the bell curve--one who has a naturally strong constitution in their metabolism to "handle their drink", and has increased their already relatively high resistance to alcohol through chronic (ab)use of alcohol--is still "to a reasonable degree of scientific certainty" appreciably impaired in their ability to safely operate a vehicle.

> Such a person might visibly appear reasonably "sober", or at least not "drunk", but first being what most laypersons consider "drunk" is not the level of impairment needed to become an unsafely impaired driver. Likewise, individuals with a high tolerance my sometimes appear "OK" above a .08 BAC as they are functioning alcoholics (able to talk, walk, etc. without gross signs of intoxication); but such trained coping mechanisms do not make such an individual in that condition any safer a driver due to the impairment of divided attention skills and judgment needed to safely operate a vehicle.

I'll explain more later as I gotta get to court.

[Queen Mum Inks.LWC]

But we never define "under the influence."  My question for this law is, when does a cop arrest somebody and when does he let him go?

[California8429]

So then does every person caught drinking and driving (say with a BAC of 0.02) go to trial?  Or what does a cop do when somebody blows an 0.07... does he let him go and drive or what?

I see so many problems with this law.

let's get BBF in here since he is after all, our Superior Court Justice

[Badger]

But we never define "under the influence."  My question for this law is, when does a cop arrest somebody and when does he let him go?

Part two coming now, my friend.

The other type of OVI offense is simple driving under the influence. This is unrelated to having any particular BAC level, but instead is simply based on whether based on under all the circumstances the defendant had consumed sufficient alcohol that their ability to operate a vehicle was appreciably impaired

Here is Ohio's legal definition of "under the influence".  
http://blog.charlesrowland.com/blog/_archives/2006/7/10/2091644.html
Note this definition is not part of Ohio's DUI statute which has language similar to this proposal simply prohibiting operation under the influence. Court cases like the one cited by this blog have defined the details of what constitutes "under the influence". While I guess you could include such a definition in this statute if it makes you feel more certain about the bill, Inks, I think you'd be safe to assume prior Mideast court decisions at some point in history issued a decision similarly defining under the influence for judges and juries.

As far as how it works with breath tests, this charge usually comes into play after a cop stops someone for a traffic violation and after observation and investigation (e.g. weaving while driving, odor of alcohol, slurred speech, field sobriety tests, etc.) arrests the driver for DUI, after which the driver refuses breath (and/or blood and/or urine) tests. This is the basic scenario for 99% of DUI cases that go to trial.

For the reasons previously mentioned about how impairment starts for most people at .04 BAC, someone can be convicted of DUI even after they test below a .08 BAC. After an officer arrests someone for suspicion of OVI and takes them into for a breath test, testing under a .08 doesn't mean they don't get cited for OVI or allowed to drive themselves home. Simply put, someone might not be able to handle their alcohol so that, even if they test a .06 BAC, they might still be staggering drunk and accordingly a danger to themselves and everyone on the road when they get behind the wheel. If someone is pulled over and found to be falling down drunk, they aren't "automatically innocent" of DUI just because their BAC is below a .08.

Does that help, Inks?

[Badger]

BTW: Just a reminder that pursuant to federal mandate, if the minimum fines aren't set to at least $500 on a first offense and $1000 on subsequent offenses, the Mideast will lose 10% of its federal highway funding. This will be monitored by the GM for determing revenue for the regional budget.

[Queen Mum Inks.LWC]

I understand that just because you're under 0.08, it doesn't mean you're off the hook.  Here in Michigan, a DUI is defined as above 0.08, but you can get an OWI for less than that.

My question, still is, are we going to have any guidelines for law enforcement personel?

And I still object to using 0.0 as the bottom limit for minors.

[California8429]

I understand that just because you're under 0.08, it doesn't mean you're off the hook.  Here in Michigan, a DUI is defined as above 0.08, but you can get an OWI for less than that.

My question, still is, are we going to have any guidelines for law enforcement personel?

And I still object to using 0.0 as the bottom limit for minors.

I'm with Inks on that for minors. I think 0.1 should be okay

[Queen Mum Inks.LWC]

I understand that just because you're under 0.08, it doesn't mean you're off the hook.  Here in Michigan, a DUI is defined as above 0.08, but you can get an OWI for less than that.

My question, still is, are we going to have any guidelines for law enforcement personel?

And I still object to using 0.0 as the bottom limit for minors.

I'm with Inks on that for minors. I think 0.1 should be okay

0.01.  0.1 would be drunk.

[Junkie]

A few things, the drinking age in the Mideast is 18.  Thus it is illegal for anyone under 18 to drink, why would we make it okay for them to drink only so long as they drive.  As far as the mouth wash thing, that would not come up in a blood test so would not be a factor.

As far as when the officers can arrest.  They arrest, as they do in all situations, when they believe they have probable cause to arrest, in this case, if they believe they have probable cause that the individual is operating while intoxicated. 

While I understand why people would want more specific articulations, in my opinion it is better to allow discretion.  Mandatory arrest guidelines are just as bad as minimum sentences.  It prevents people from exercising the discretion we pay to have.  Of course that is my opinion.

[Junkie]

Also, any thought on the gun bill?

[Junkie]

I have been thinking about my answer about mouth wash.  Maybe we should include in the statute an absolute right for the defendant to demand a test other than the one picked by the police.  So if the cops pick breath, he can demand blood and vice versa.  It would preserve evidence and protect people's rights.

[California8429]

I understand that just because you're under 0.08, it doesn't mean you're off the hook.  Here in Michigan, a DUI is defined as above 0.08, but you can get an OWI for less than that.

My question, still is, are we going to have any guidelines for law enforcement personel?

And I still object to using 0.0 as the bottom limit for minors.

I'm with Inks on that for minors. I think 0.1 should be okay

0.01.  0.1 would be drunk.

whops. yes, .01

and driving age is still 16 here correct? 16 and 17 would be minors. And my concern is simply for religious ceremonies and that specific, limited drinking, is already allowed

[Queen Mum Inks.LWC]

A few things, the drinking age in the Mideast is 18.  Thus it is illegal for anyone under 18 to drink, why would we make it okay for them to drink only so long as they drive.  As far as the mouth wash thing, that would not come up in a blood test so would not be a factor.

I'm now with you on the rest; however, I insist on allowing for at least a 0.01 for minors.

If a minor is truly drinking, his/her BAC will be over 0.01.  Allowing for minimal amounts allows some wiggle room for circumstances such as religious ceremonies as well as mouthwash use.

[Badger]

My two cents (yet again):

I actually disagree with Inks's suggestion to over legislate guidelines for the police on how to handle tests under .08, and Junkie's suggestion to make it a right to demand a state administered second test. I oppose both for the same reason: Allowing police appropriate and necessary discretion to handle things on the field based on the circumstances of each case.

Inks, if an officer arrests someone for DUI who then tests (e.g.) .065 BAC, we both agree that the arrested person may still be guilty of DUI. Very simply, if the person was DUI when the cop pulled them over, they're almost surely (or at least within probable cause) to be DUI when the want to drive home from the police station and hour or two later.

So while not failing the breath test might result in the arrestee keeping their license while charges are pending in court (in Ohio a failed breath test results in an immediate 90 day administrative license suspension, longer for repeat offenders, though one has the right to a court hearing to appeal the suspension within 5 days of arrest), that doesn't mean the officer has to let the person drive home while still likely impaired. I say let individual police agencies implement standard operating procedures like requiring the arrestee find a ride (our cops will frequently drive them home after paperwork is done) or wait (e.g.) at least X hours after testing to drive home.

Junkie, requiring the police to conduct additional testing at an arrestee's demand would create far more burden on police than would work to protect defendant's rights.

I assume you mean the police can pick breath, blood or urine; and after the defendant provides (e.g.) a breath test as requested he can the police let him submit to a urine test or be taken to the hospital for a blood test. Letting the defendant choose a single form of test would allow those impaired on drugs rather than alcohol demand a breath test which doesn't detect drugs in ones system like a blood or urine test.

Even if that's the case, there are two reasons such a requirement is far more burdensome than protective of rights:

First, the defense has right to access records of calibration and upkeep of breathalyzers, and lab records for blood or urine tests. If proper guidelines and procedures aren't followed to ensure the testing process was accurate, the chemical test gets thrown out.

Secondly, a defendant still has every right to obtain a blood or urine test from a hospital or doctor immediately after released that same night. Ohio law actually includes that in the legal advisement given arrestees before they are asked to test). Very few defendants take advantage of this (or at least very few defense attorneys share those hospital test results with me ), but I've had cases where a defendant refused all testing by police (including blood), but obtained a private blood test within a few hours of arrest that showed they were likely under the limit when driving. That doesn't automatically kill the charges of course, but obviously has a big impact in plea negotiations.

Instead of having police drag people who fail breath tests to the hospital and wait for a nurse to find time to draw blood, I'd say Inks's suggestion of simply including a .01 limit for minors is much more workable on several levels. Besides, a minor who tests under a .01 BAC can still be charged with underage possession/consumption of alcohol. ("It was just a sip" is not a defense ).

[Badger]

The DUI bill has some problems.  First:

You must be logged in to read this quote.

Turning the vehicle on is something that is necessary to put the car in motion, but somebody who simply turns a car to on should not be penalized.

The reason "operating" is defined that way is provide for meaningful use of the statute.  If the statute were to read as to only driving, a drunk driver found simply in a running vehicle would never be able to prosecuted.  I can tell you from personal experience that is a far more common situation than catching drivers actually driving.

(Help me! I can't stop butting in!! )

FWIW: There is a difference in some states between "operating" and  "physical control" of a vehicle under the influence. For decades Ohio courts had held the state's definition of "operate", similar to Junkie's proposed language, included being in the driver's seat of the vehicle while possessing the ignition keys. That was held to constitute "operation" of a vehicle. Several years ago the legislature changed the definition of "operation" to mean essentially getting the vehicle to move (even inches), and created a new, less serious, offense of "physical control under the influence" governing the above scenario.

The theory is being under the influence sitting behind the wheel with the keys, potentially in the ignition, is a short jump (bumped gear shift, etc.) to potential disaster, or at least too much potential temptation to committing DUI. My experience is much different than yours, Junkie; individuals found to be DUI after being pulled over for speeding or the like are far, far more common in my career than when drunk drivers are found passed out behind the wheel along the side of the road. The latter occurs, but as long as the officer remembers to ask 1) about how long have you been pulled over; and 2) have you had anything to drink since stopping, that usually results in a successful DUI prosecution (their car didn't get to the side of the road by magic, and if the driver is drunk when the cop finds them they were otherwise surely at least as drunk when they pulled over).

I'm sharing this info simply out of full disclosure for the Assembly's consideration. I really don't have a strong opinion between Junkie's version vs. creating an additional lesser offense of "physical control". That's not a legal distinction, but rather a policy decision for you folks to decide.

[Queen Mum Inks.LWC]

Inks, if an officer arrests someone for DUI who then tests (e.g.) .065 BAC, we both agree that the arrested person may still be guilty of DUI. Very simply, if the person was DUI when the cop pulled them over, they're almost surely (or at least within probable cause) to be DUI when the want to drive home from the police station and hour or two later.

Yeah, I abandoned that point when I better understood what Junkie was talking about.

[California8429]

So just to sums things up, the only change being asked for after this discussion is 0.0 to become 0.01.

Then we'll have it ready for a vote.

Unless there are further objections

[Queen Mum Inks.LWC]

So just to sums things up, the only change being asked for after this discussion is 0.0 to become 0.01.

Then we'll have it ready for a vote.

Unless there are further objections

That's my only objection / suggested amendment.

[Junkie]

While I understand your arguments in regards to the 0.01 for minors, I still feel that it should remain 0.00.  The drinking age is 18, to have a DUI statute that allows for drinking under that age is ripe for problems.  This law still allows for prosecutor and law enforcement discretion.  If a minor did register after having alcohol for religious purposes (which still would be hard to get to 0.01), proof that it was for a religious ceremony would clearly be taken into account by judges, prosecutors, and even cops.

Now as far as mouth wash, I have seen it successfully proven that it results in positive tests.  The minor would have to stopped right after gurgling for it to register.  At least in my understanding.  However, if people are still questioning that -- a right for a defendant to demand a second test would remedy that. 

With a due respect to Badger, we have the right to demand the second test in Wisconsin and it is not a problem.  If the cop decides on breath, the defendant can then request blood and vice versa.  It is not a burden on law enforcement.  Most of the time, it just reaffirms the prohibited BAC, sometimes even higher.  The few times it cam in lower, it actually showed that the defendant was in a lower category or not even in the prohibited level.  It helps law enforcement and protects a defendants rights.

Those are my feelings.

[California8429]

While I understand your arguments in regards to the 0.01 for minors, I still feel that it should remain 0.00.  The drinking age is 18, to have a DUI statute that allows for drinking under that age is ripe for problems.  This law still allows for prosecutor and law enforcement discretion.  If a minor did register after having alcohol for religious purposes (which still would be hard to get to 0.01), proof that it was for a religious ceremony would clearly be taken into account by judges, prosecutors, and even cops.

Now as far as mouth wash, I have seen it successfully proven that it results in positive tests.  The minor would have to stopped right after gurgling for it to register.  At least in my understanding.  However, if people are still questioning that -- a right for a defendant to demand a second test would remedy that. 

With a due respect to Badger, we have the right to demand the second test in Wisconsin and it is not a problem.  If the cop decides on breath, the defendant can then request blood and vice versa.  It is not a burden on law enforcement.  Most of the time, it just reaffirms the prohibited BAC, sometimes even higher.  The few times it cam in lower, it actually showed that the defendant was in a lower category or not even in the prohibited level.  It helps law enforcement and protects a defendants rights.

Those are my feelings.

But then we'll be wasting money on the courts to prove they were at a religious ceremony or wedding or something. It's not like they're  actually impared at .01, so they wouldn't even be pulled over for drunk driving, it would just be crappy driving. If a kid actually drinks, they don't take a couple of sips. This protects that and stops us from wasting money and time in the courts for a kid that clearly wasn't drinking in the first place.

[Junkie]

How we will be wasting money on courts?  If a minor has a alcohol at a religious ceremony (and all the ones that I have gone to have not involved enough alcohol to really matter in this debate) he would practically have to be pulled over right after leaving the ceremony.  Time does effect things here.  Then you have the police and the prosecutor who can exercise their discretion.  A prosecutor can decide not to bring charges in such a situation based upon a reason of equity.  Only if they are brought does the court come into play.

Here is where I see the issue, our current drinking age is 18.  If we adopt a 0.01 for minors, then we are in essence saying that minors can't drink unless they plan on driving.  Additionally, the amount of times where someone have limited alcohol content from a religious ceremony would pale in comparison to minors who are simply drinking.  Thus I still feel it should be absolute sobriety for anyone under the age of 18.

[California8429]

How we will be wasting money on courts?  If a minor has a alcohol at a religious ceremony (and all the ones that I have gone to have not involved enough alcohol to really matter in this debate) he would practically have to be pulled over right after leaving the ceremony.  Time does effect things here.  Then you have the police and the prosecutor who can exercise their discretion.  A prosecutor can decide not to bring charges in such a situation based upon a reason of equity.  Only if they are brought does the court come into play.

Here is where I see the issue, our current drinking age is 18.  If we adopt a 0.01 for minors, then we are in essence saying that minors can't drink unless they plan on driving.  Additionally, the amount of times where someone have limited alcohol content from a religious ceremony would pale in comparison to minors who are simply drinking.  Thus I still feel it should be absolute sobriety for anyone under the age of 18.

No, because you you have  stated, it is allowed for minors to drink at religious ceremonies, therefore I can't see it all how this law says you only can drink if you drive. And without .01, there would still have to be proof that they were at a religious ceremony. .01 is simply nothing, I don't see what the matter is here. If you would like, specifiying that minors can drink for religious purposes would cancel out your concern that the bill would say you only may drink if you drive. I think .01 just saves us from wasting time at any rate for any purpose.