Drunk Driving DUI Law

The Department of Motor Vehicles (or whatever they call it in your state) is required by law to immediately suspend the driver’s license of anyone arrested for (not convicted of) drunk driving who (1) has a .08% breath reading, or (2) takes a blood or urine test (which will be analyzed later), or (3) refuses to take any test. This means immediately — on the spot: the license is grabbed and the DUI suspension is legally effective the moment the officer signs the notice and hands it to you. Viewed another way, the officer in a drunk driving case is constable, prosecutor, judge, jury and executioner. You have absolutely no rights. In fact, if you took a blood or urine test, they don’t even wait for the results (which will come back from the lab days later): they not only presume you are guilty, they also presume that the evidence will eventually show it! So, again: How can they do that in America?

Well, at first MADD and various state legislatures decided to find a way to get drunk drivers off the highways RIGHT NOW — and not be diverted by any technicalities like, well, the Constitution. So they enacted so-called “APS” laws (“administrative per se”, referring to the “per se” crime of .08%, as opposed to the crime of driving under the influence of alcohol, which is for the courts). They justified this by saying that a license was a “privilege”, not a “right” — and since the license holder had no rights, the state could do what it wanted.

Well, the U.S. Supreme Court blew that justification out of the water. In Bell v Burson (402 U.S. 535) the Court acknowledged that the right to drive is a privilege. However, once the state gives someone a license, that person then has a property right in it — and that right cannot be taken away without giving him due process. And due process means a fair procedure by which he can contest the confiscation of his property.

The reaction to this has generally been to continue to suspend licenses on the spot, but to then give the driver a short-term temporary operating permit during which he can request an administrative hearing. (In a few states, the process is handed over to the courts and the suspension merged with the criminal proceedings.) MADD has been successful in getting the Feds involved; a highway appropriations bill was passed which pretty much coerced all 50 states into adopting APS suspensions — or else no highway funds

Do these APS hearings in DUI cases provide due process? In other words, how fair are they?

Let’s take California’s APS hearings. They are conducted by a “hearing officer”. Is this an impartial judge? Well, he’s hardly impartial: He’s an employee of the DMV — the very agency that is trying to suspend the license (kind of like a judge being paid by the prosecutor). And he isn’t a judge. Actually, he isn’t even a lawyer; he’s only required to be a high school graduate. So who is the prosecutor? He’s, well, the same guy.

That’s right: this DMV employee with no legal education is both judge and prosecutor. Put another way, this government beaurocrat, without ever having read the Evidence Code, can object to the driver’s evidence — and then sustain his own objection!

Not too surprisingly, the DMV wins about 96% of these DUI hearings.

That’s called “due process” in a drunk driving case.
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Arrested for DUI in Palm Springs – Coachella Valley?

Palm Spring DUI defense lawyer Manuel J. Barba is dedicated to defending people accused of Drunk Driving, DUI, DWI, Driving Under the Influence as well as other crimes.

If you or a loved one has been arrested for DUI (driving under the influence), it is essential to have an experienced and skilled DUI defense attorney to protect your rights. DUI cases are not “open and shut” cases and are very defensible.  DUI defense attorney Manuel J. Barba will fight hard for you to get the best possible result.  If you have been arrested for DUI in the Palm Springs – Coachella Valley area, you need to consult with attorney Manuel J. Barba immediately.  Call today (760) 770-3377 to discuss your DUI case.

Attorney Manuel J. Barba prefers to meet with each client in person and his team will personally represent each client in court and at the DMV.  Attorney Manuel J. Barba has offices Cathedral City  to conveniently serve Coachella Valley clients.

The recently released video game Grand Theft Auto IV is coming under fire from anti-DWI organizations for a controversial drunk driving scene. One game mission has a character getting drunk in a bar and then having the option of getting in a cab or driving drunk. A spokesperson for StopDWI in Midland Texas said “Driving while intoxicated is not a game, it is a crime.” Mother Against Drunk Driving is requesting a change in the game’s rating, from mature to adult only.

Defenders of the game claim the scene identifies the character as drunk and it shows the dangers of drinking and driving. The video has a vehicle crash and an arrest for DWI as possible outcomes. Officials for Rockstar Game, the company that manufactures Grand Theft Auto IV, said the game should not be taken seriously, and indicated that drug and alcohol use are clearly stated in the game description.

MADD is asking Rockstar Game and a game rating board to show social responsibility as well as respect for the millions of victims of drunk drivers.
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Phoenix, AZ. May 29 – Heather Squires was the designated driver. Never exactly a fun thing, but a college buddy of her husband’s was driving up from Tucson to celebrate his acceptance into law school. So when her husband, Jason, asked, Heather said yes.

At Chuy’s in Tempe, Heather’s brother and her husband and the soon-to-be-law-school student knocked off four pitchers of beer. Everybody was having a great time.

Around 9:30 p.m., they decided to head home. So they piled into Jason Squires’ new pickup truck. As planned, Heather drove.

They didn’t get very far.

A motorcycle cop spotted the truck as Heather drove through the intersection of Baseline Road and Mesa Drive. Not familiar with the truck, she’d failed to flip on her lights. Soon the cop was flipping on his — and they were flashing.

Heather was ordered out of the vehicle and almost immediately handcuffed. She was taken to the Mesa Police Department and charged with both driving under the influence and driving with a blood alcohol content over the legal limit. The truck was searched, then impounded.

Heather Squires was no different from any of the thousands of people who’ve been charged with DUI this year in Arizona. They drank, they got busted, and now — thanks to the toughest DUI laws in the nation — they can expect jail time, big fines, and an ignition interlock.

Except for one thing.

Heather Squires’ blood alcohol content that night was 0.00. The records prove, beyond the shadow of a doubt, that she was an exemplary designated driver.

She hadn’t had a drop to drink…

The arrest should never have happened. And though Mesa police quietly dismissed the charges against her a month later, her case still raises serious questions.

Let’s face it. The DUI situation in Arizona is out of control. As I reported earlier this year, drivers are getting popped after just one or two drinks, with blood alcohol contents far below the legal limit.

But Heather’s case is the only one I’ve seen in which the driver drank nothing. It certainly makes me wonder whether her treatment was related to the fact that her husband, Jason, is a DUI attorney based in Mesa.

A few months before Heather’s arrest, in fact, he helped a client beat the rap for extreme DUI at a jury trial, even though records suggest the guy was guilty.

The officer who arrested the guy? Bond Gonzalez — the same cop who would arrest Heather Squires.
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Drunk driving defense california attorney Manuel J. Barba provides high quality and affordable DUI-Drunk Driving defense representation.

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Good post from a DUI law blog from California DUI lawyer Lawrence Taylor.

Breathalyzers: Accurate Beyond a Reasonable Doubt?
Posted by Lawrence Taylor on May 28th, 2008

I’ve written repeatedly in the past about the inaccuracy and unreliability of the various breath machines used to estimate blood alcohol concentrations.  See, for example, How Breathalyzers Work (and Why They Don’t), Why Breathalyzers Don’t Measure Alcohol and Breathalyzer Inaccuracy: Testing During the Absorptive State.

Yet, our MADD-influenced laws increasingly ignore scientific evidence and rely upon these machines to establish proof beyond a reasonable doubt — assisted by more laws that now presume guilt based upon a reading over .08% from one of these machines.  See Whatever happened to the Presumption of Innocence?.  Even more laws presume that the blood-alcohol level at the time of testing was the same as when driving, say, three hours earlier.  See How to Overcome Scientific Facts: Pass a Law.   Quite literally, these devices have become judge, jury and executioner.

However, some judges across the country are beginning to take a closer look at these machines…

Breath Test Won’t Prove Some DUIs

A Snohomish District Court judge says there are too

many questions about reliability. But the tests are

accepted at Everett Municipal Court.

Everett, WA.  May 20 – Police and prosecutors better have more than a breath test to prove someone was driving drunk when they walk into one Everett judge’s courtroom.

Snohomish County District Court Judge Tam Bui last week ruled that she will not accept breath tests measuring a person’s alcohol level because of a litany of problems with the state’s testing process.

The way the state has been conducting the tests is flawed, and until changes are made at the Washington State Patrol Toxicology Lab, the results can’t be used as evidence in her courtroom, Bui ruled…

Jurors should be allowed to hear the results of the breath tests, as well as the problems with the lab and make their own decisions about the weight to give test evidence, said Snohomish County deputy prosecutor Charlie Blackman.

“The decision essentially says that many small errors, which in our opinion have no scientific significance, result in the courts viewing the evidence not reliable enough for a jury to consider,” Blackman said. “We think that’s wrong. We think you can trust a jury to sort this out.”

SOURCE: DUI BLOG

This DUI legal blog will focus on DUI laws and DUI News from around the country. If you need a DUI lawyer in Massachusetts, try the Law Offices of Joe Waldbaum. If you need a DUI lawyer anywhere else, visit the Law Firm Directory.