3 Things I Wish People Knew Before Drinking & Driving

It’s 5:00 p.m. on Friday afternoon in Phoenix, and Joe just walked through the door of his favorite restaurant to meet some friends for happy hour.  He drove himself to the restaurant.  When he is done, he is going to drive to his house in Scottsdale.

At the table, Joe sees everyone has one of the restaurant’s signature margaritas in front of them.  The waiter comes to the table and asks Joe: "can I get you something to drink?"  Before Joe answers this question, I wish he would consider the following facts:

1. There is no crime of Drunk Driving in Arizona.  Arizona law makes it illegal to drive while Joe is impaired to at least the slightest degree by alcohol.  This means that if Joe’s ability to drive is impaired to any degree, Joe is technically in violation of the law;
2. If Joe is stopped by the police, they will stick a needle in Joe’s arm.  Regardless of the law on this subject, it has been my experience that if Joe is stopped by a police officer for a traffic violation, and the officer smells any alcohol, Joe is going to end up taking a chemical test.  Many police agencies are now using blood testing instead of breath testing.  If the officer smells alcohol on Joe’s breath (or just imagines it), Joe is going to have a needle stuck in his arm and a blood sample will be taken.  The results of the blood test will probably take at least 30 days to come back.  While Joe is waiting to find out the results of the blood test, he will not sleep very much or very well;
3. If Joe refuses the blood test, the officer will get a warrant and forcibly take his blood.  Once the officer meets the requirements of Arizona’s implied consent law, he may require Joe to submit to a chemical test.  If Joe says "no," he will then lose his driver’s license for 12 months.  Moreover, the officer will then make a phone call to the judge.  Within minutes, the judge can then issue a telephonic warrant.  If Joe still refuses, he will be held down by several police officers, and a needle will be shoved into his vein. 

Now if Joe knew these three things when the waiter asked him: "can I get you something to drink" - how might Joe answer?  I think the average Joe would say: "Yes…Diet Coke."

Going out on the road in California and avoid a DUI

As a San Francisco DUI attorney, many clients inquire about how to avoid a DUI charge in the first place.  I have discussed the “rules of the road” which give the San Francisco police officer or California Highway Patrol officer probable cause to stop your vehicle.

THere are other things you can do before you even go out for a few drinks, whether it’s a road trip to San Jose, or a short trip to the Richmond District.  Know your vehicle.  If you are uncomfortable or unfamiliar with your car, you are more likely to make mistakes.  If you fit in this category, sit in the car before you leave.  Take a moment to know where everything is before you start to drive.  Simple things such as turn signal levers, emergency brake lights, headlights, high beams, windshield wipers and so on.  Adjust the seat and steering wheel BEFORE you drive away. 

If you normally drive a car with a clutch, acclimate yourself to an automatic transmission.  Drive the vehicle for a while before you make your trip. 

Another thing you should do is make sure everything works in the vehicle.  All the lights are in good working order, the registration tags are current, and so on.  Avoid being stopped simply because your tail light is out, or broken.

Taking the time to go over the car itself can make your evening more enjoyable, and avoids an arrest for a vehicle infraction while you’re driving home in San Francisco.  Don’t make the officer’s job easy.

Avoiding a DUI in California

Before you get out on the roads in California, there are simple ways to avoid a DUI stop.  The most common reasons for a California police officer to stop a vehicle are :

1. Driving on or over the lane divider;
2. Drifting into the other lane;
3. Making a wide turn;
4. Making an illegal turn;
5. Weaving or swerving;
6. Frequent braking, or inappropriate braking;
7. Nearly missing an object, pedestrian, or another car;
8. Driving over or under the speed limit;
9. Driving at night with the headlights off;
10. Failing to initiate a turn signal, or leaving the turn signal on;
11. Stopping in the middle of the road;
12. Following a car too closely;
13. Accelerating or deaccelerating too quickly.

Being careful when you drive will significantly lower your chances of a DUI in California.

No one saw me driving, how can I get a DUI anyway in California?

You have been charged with a DUI in California.  You have a court date coming up.  You were not driving at the time the office came up to you.  How can you be charged with “driving” under th influence?

There are actually several ways this can happen.  The most common way is that the officer was following you and observing your driving.  You perhaps made some errors, swerving, driving too slow, no turn signals, or some other traffice violation.  Perhaps there is a mechanical defect with your vehicle.

Another way to prove you were driving under the influence is if you were “called in” by another driver or pedestrian via cell phone.  The officer will receive the tip, and then locate you.  If you are still driving, he will follow you and make his own observations.  If you have stopped, and the person who called you in is reliable or known, he will come up to your car and begin the process.  At a trial, the person who called will have to be a witness in order to show probable cause  for the officer to detain you and administer sobriety tests.

Finally, it comes down to location, location, location.  Unless you can prove someone else was driving, your presence in the driver’s seat with the car engine off on the side of the highway could be sufficient to prove you were driving.

There may be other ways to prove driving as well.  It is the job of the District Attorney to prove beyond a reasonable doubt that you were driving.  If it is an issue, don’t handle it yourself.  Contact a qualified California DUI attorney to tackle your case.  If it can’t be shown that you were driving, you can’t be convicted of a DUI in California.

I Want To See A Replay

I was reading DUI Attorney Mark Steven’s blog and he touched upon a subject that concerns many DUI attorneys.  Why don’t more police officers videotape DUI arrests?  Clearly, this would be the best evidence of a person’s degree of impairment.  So, why not use videotape in a DUI investigation?

Mark addresses this issue in his post Why Aren’t Most New Hampshire DWI Arrests Video Recorded?  He writes:

Just about everywhere you go today in public you are being videotaped. You are videotaped at your bank, supermarket, shopping mall, drive through lines for fast food, donut shops, even little convenience stores. Just about every place is equipped with a video camera these days. If someone holds up a little store or commits just about any crime in public there is a video of the event on the evening news, copied from a surveillance camera. It has become very inexpensive to capture a high quality audio and video recording for safety and security purposes of just about every aspect of our everyday lives.

When you watch cop shows at night all sorts of DWI and other arrests are captured on cruiser videos all over the country. You can see clearly and hear easily whether the driver is drunk or not on these video recordings made from cruiser cameras. Police departments all around the country also video and audio record bookings. With a good quality video recording little is left to the imagination as to whether the driver was really drunk or not. So why aren’t most DWI arrests in New Hampshire video and audio recorded?

Is it a "safety issue"? It would seem unlikely that there is a safety issue here that doesn’t exist in any other part of the United States. Is it cost? That seems unlikely with the massive amount of money being thrown into inefficient DWI roadblocks and inaccurate hand-held breath testing gadgets. Last year stories were published about a $400,000.00 "batmobile" for the local police to use during DWI roadblocks. It cannot seriously be argued that the police cannot afford to videotape DWI arrests.

So if it’s not safety and it’s not cost, what could it be? We all know that DWI is a serious law enforcement concern; we hear that all the time, year after road-blocking year. Wouldn’t the best way to prosecute a drunk driving case be to show the judge or jury a videotape of the driver if he or she was really drunk? So why don’t the police want to show a videotape of a drunk driver at a drunk driving trial?

Could it be that some of the people arrested for drunk driving are not drunk? Or that they really don’t act and speak as drunkardly as the police reports describe? It is easy enough to form your own conclusions as to why most DWI arrests are not videotaped.

Think about the power a videotape could have in a DUI case.  When a person has a blood test result of .200, there is an expectation that person will be acting in a certain manner (generally, this manner is face down, on the floor, drunk.)  A video showing them walking around, following a police officer’s instructions and responding appropriately to instructions may make a person (like a juror) question the accuracy and reliability of that test result. 

Did you ever wonder what the police did with all those impounded cars? Well stop wondering, now we know.

What do they do with the cars?  Well first they drive them and then they buy them for ridiculiously low prices.

In St. Louis, Missouri,like in many municipalities, the powers that be have legislatively enabled law enforcement to seize cars of persons suspected of DUI.  If the vehicle is not recovered within a certain time by its true owner then law enforcement and their family members can purchase the seized vehicle at a cheap price, sometimes at 25% of the real value.

The city and the tow service split the loot from the towing.  The “abandoned” cars become no cost rental cars to be driven for months without cost.  In St. Louis, Aimie Mokwa, 33 years old, the daughter of Joe Mokwa, police chief, has helped herself to several cars on the cheap.  Actually, it is a good thing the cars are so cheap as she has wrecked a Dodge Neon and a Ford Escort.  She had a .17 blood alcohol content when she wrecked the Escort but somehow was not charged with DUI.  Sounds fair to all concerned.

Harrisonburg Virginia DUI Attorney Keefer talks about the New Breath Tester

In 2005 Virginia Department of Forensic Science (DFS) revealed in a grant request that its evidentiary breath test devices, Intoxilyzer 5000 (68), were “dated, unstable and unreliable.”  DFS went on to say that, “Funding of this request will allow the agency to replace instruments that are 9-10 years old and for which replacement parts are not available.”  West Virginia had begun replacing its dated, unstable, unreliable Intoxilyzers with emergency funding in 2004.

 FOIA requests of internal DFS documents revealed serious problems with Virginia’s Intoxilyzers,

 

The IR source that is currently being sold is having problems with sensitivity and transitioning between motors…The motors are another issue, the current motor will be discontinued as of January 1, 2006.  The “replacement motors” are in short supply…CMI doesn’t want to continue to support the 5000 line since they have 2 generations of instruments produced since that time.

 

 Through FOIA, Harrisonburg Virginia DUI Attorney Bob Keefer found that DFS was using 90 cent cassette player motors instead of the $80.00 to $100.00 motors designated by the manufacturer.  These motors are critical to the accuracy of the testing as erratic motor speeds will cause instability in the electronic signals, which can affect the timing of the device.   

 

Keefer’s research revealed, as might be expected with substandard parts, that the devices were suffering electronic problems.  Electronic problems cause many different issues to occur, depending upon where in the operational sequence the problem occurs.  For example, the calibration can fall out of tolerance.  When this happens test results cannot be considered to be accurate within a reasonable degree of scientific certainty.

 

Despite these problems DFS has always claimed that the Intoxilyzer could not be wrong because it would not let itself make a mistake.  According to DFS these machines have never made a mistake.

 

Despite the problems and the FOIA documents, DFS still claims publically that the now 12 year old machines are not showing any signs of ageing.  DFS, of course, maintains that Virginia does not have to replace the Intoxilyzers.

 

On April 23, 2008, DFS signed a contract to replace the Intoxilyzers with Intoximeters EC/IR II.  The EC/IR II was the cheapest machine considered.   It is about half the price of Intoxilyzer’s 8000.

 

According to DFS, out of 50 states the EC/IR II is used in only four states besides Virginia: West Virginia, Wisconsin, North Carolina and Tennessee.   

 

The EC/IR II was intended to use two analytical methods: EC (electrochemical or fuel cell) and IR (infrared technology).  The plan was that the EC/IR II would insure reliability by checking the fuel cell results against the infrared results.  Agreement between such different analytical methods would insure reliability.  Unfortunately, Intoximeter was unable to coordinate the different analytical methods. For that reason, the device only uses the fuel cell to measure alcohol and determine blood alcohol content.

 

Time will tell whether DFS made a good decision to replace its never wrong Intoxilyzers with the EC/IR II.

 

Bob Keefer practices DUI defense in Harrisonburg, Virginia; Rockingham County, Virginia; Staunton, Virgina; Augusta County, Virginia; Woodstock, Virginia; Shenandoah County, Virginia; Waynesboro, Virginia and other parts of the Shenandoah Valley.  www.BobKeeferLaw.com  

Harrisonburg DUI Lawyer Reveals that VA DUI Road Block is a Waste of Money

Harrisonburg Virginia DUI Lawyer Bob Keefer recently wrote a blog post about a DUI Road Block in Harrisonburg, Virginia conducted by the Harrisonburg Police Department that produced absolutely zero drunk drivers. So, not a single driver was “wasted;” the only thing that was wasted was the taxpayer’s money and the time of the sober drivers who were delayed for no reason!

Richmond Virginia DUI Lawyer Bob Battle has previously posted on a history of “sobriety checkpoints.”

If you have been arrested for DUI at a sobriety checkpoint, there are many possible defenses based on  the set-up and implementation of the checkpoint. All of the Virginia DUI Lawyers on DUIanswer.com are experienced in investigating and raising these issues and other issues relating to Virginia DUI Laws for you at trial.

 

 

Harrisonburg Virginia DUI Attorney comments on flagrant cheating by police on breath test certification

I asked Bob Keefer, a Harrisonburg, Virginia DUI lawyer to comment on the cheating by some Ohio State Troopers on their breath operator’s license recertification. Was this a big deal or was the press making too much of a Trooper stealing the test answers, distributing the answers to others, in the presence of patrol sergeants who did nothing and getting caught in part because he missed simple questions. Here is what Keefer said:

Over a million Americans are charged with drunk driving every year. For most of them, this is the most serious criminal charge they will ever face in their lives. Most people charged with DUI have no previous criminal record whatsoever.

DUI charges now carry significant direct and indirect consequences. For example, many states require mandatory jail, mandatory loss of license, mandatory ignition interlock and mandatory alcohol education.

Automobile insurance rates are very high to insure convicted drunk drivers if the company will insure the convicted drunk driver at all. Some countries, like Canada, may even deny the convicted drunk driver admission into the country. Some health insurance providers will not insure the convicted driver. Some life insurance companies will not write policies for convicted drivers. Many businesses will terminate or not hire the convicted drunk driver. A DUI or DWI conviction may sink your security clearance if you need one for employment.

Being a convicted drunk driver is seen as a character flaw at the bare minimum.

In that light, we would expect that law enforcement officers would take their jobs seriously and learn how to properly test a subject’s blood alcohol level. In Ohio, in order to administer the breath test equipment the operator must have a permit. This permit must be renewed every year by passing an examination.

You would figure this exam to be pretty easy for Ohio State Police Officers who give these tests all year round. But that must not be the case since six troopers had to resort to cheating to pass. Moreover, five patrol sergeants knew about the cheating but did not stop it. Apparently they were not concerned about how well the cheaters could test the citizens.

Apparently, one trooper stole the test answer sheet and gave it to other troopers. Three sergeants were present in the room when Trooper Maroon distributed copies of the answer sheet to other test takers. Two other sergeants got the answers from Maroon before they took their test.

Maroon only missed two answers on his test; answers any senior operator ought to get right. All of the cheaters missed the same two answers; the same two answers that were wrong on the cheat sheet. And this was a pass/ fail test. When the investigation began, at least one Trooper was “less than truthful”.

Who is watching the watchers? How many other troopers have cheated over the years? How many innocent citizens have been denied justice because the test operator was a cheater and did not know how to do his job properly? If a trooper would cheat on a test would he lie to convict a citizen? Will the person testing you be a cheater?

Read full report below:

http://content.clearchannel.com/cc-common/mlib/1279/07/1279_1216238914.pdf

 

About Bob Keefer: Bob Keefer is an attorney in Harrisonburg, Virginia. He represents persons charged with DUI, reckless driving, speeding tickets and traffic tickets. He represents people charged with those offenses in Harrisonburg, Virginia; Rockingham County, Virginia; Staunton, Virginia; Augusta County, Virginia; Waynesboro, Virginia; Woodstock, Virginia; Shenandoah County, Virginia; Page County, Virginia; Luray, Virginia; Shenandoah Valley, Virginia; Bridgewater, Virginia; Dayton, Virginia; Verona, Virginia; Broadway, Virginia; Timberville, Virginia; Interstate 81.

California DUIs and Naturalization

A DUI conviction in California carries with it penalties and consequences.  For aliens, a conviction, or even just an arrest, has additional consequences.

One of the eligibility requirements for naturalization is that a person must be of “good moral character” for five years prior to submitting an application.  Generally this means that an alien must show that he or she has not violated any laws or pursued conduct that was inappropriate.

This, of course, includes a DUI conviction.  It may also include a DUI arrest which resulted a plea to a lesser included offense.  An alien can not be on probation at the time a naturalization aplication is filed. 

If an alien has the DUI conviction expunged, or erased, from his or her record, the conviction is still relevant for purposes of immigration.  In other words, it must be revealed to the immigration agency.

A qualified DUI attorney competent in immigration can advise an alien as to the effect of a DUI conviction on a naturalization application, and the options that are available to the alien.

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