Supreme Court: DUI not a ?violent felony?

On April 16th, in the case of Begay v. United States, the Supreme Court ruled that a DUI does not qualify as a ?violent felony? under the Armed Career Criminal Act.

Understanding Supreme Court decisions is never easy. What often sound like sweeping rulings are inevitably based on legal technicalities?usually boiling down to a question about the intended definition of a certain word or phrase.

Although the case of Begay v. United States is no exception, the question before the Court could not be more fundamental: is drunk driving a violent crime? In the words of the court, does it ?involve purposeful, violent, and aggressive conduct toward another person??

Many anti-drunk driving groups, most notably MADD, would have us think so. In fact, MADD?s mission statement calls DUI a ?violent crime.?

Does the Supreme Court agree?

They do not.

Here?s some background on the decision:

The Armed Career Criminal Act (ACCA) is a federal law that imposes a mandatory 15-year prison sentence for firearm possession when the individual has three or more prior convictions for certain drug-related offenses or ?violent felonies.?

In September 2004, Larry Begay, a New Mexico resident, plead guilty to unlawful possession of a firearm. Begay had been convicted of DUI six times, and New Mexico law makes a fourth DUI a felony, giving him three prior felony convictions. The judge concluded that Begay?s prior DUI convictions constituted ?violent felonies? and sentenced him to the mandatory minimum prison sentence of 15 years.

Begay and his lawyers appealed the decision, arguing that DUI does not qualify as a ?violent felony? under the federal Act. Several years later, Begay?s case reached the Supreme Court.

The ACCA defines a violent felony as ?burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.?

The Court interpreted the law as defining a violent felony as more than simply something that ?presents a serious potential risk of physical injury to another.? In light of the law?s specific list of criminal acts?burglary, arson, extortion, the use of explosives?the Court concluded that the definition of ?violent felonies? was meant to include only crimes that involve ?purposeful, violent, and aggressive conduct toward another person.? According to the Court, DUI doesn?t qualify.

Predictably, MADD was unhappy with the decision.  

Every since MADD changed its name from ?Mothers Against Drunk Drivers? to ?Mothers Against Drunk Driving,? the organization has been careful to maintain the appearance that they hate the sin but not the sinner.

However, MADD?s criticism of the Supreme Court betrays this faade. In the organization?s collective mind, those convicted of drunk driving are in the same category as burglars and arsonists.

Like the majority of the Supreme Court?including some of its most liberal and conservative members?I must disagree.

Why You’re Being Charged with Two Offenses in California

In California, as in every state, there are actually two separate drunk driving offenses. The first simply makes it illegal to drive ?under the influence.? The second specifically makes it illegal to drive with a blood alcohol level above the legal limit of 0.08%.

Here?s the text of the California Vehicle Code, which lays out these two separate offenses.

Section 23152. (a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

What?s more, if you?re arrested for DUI, you?ll most likely be charged with both crimes.

You?re probably thinking to yourself, ?Hold on. I thought driving with 0.08% BAC was driving under the influence. Why am I being charged for the same thing twice??

If you?re confused, you?re not alone. In fact, a client of mine who was recently arrested for DUI in San Francisco asked me this very question. I represent people from around the Bay area?San Francisco, Daly City, Oakland, San Jose?and this is just one of those confusing aspects of DUI law that I try to help all of my clients understand.

So, what is difference between the two offenses?

Well, for simplicity?s sake, think about it this way: The second offenses?the so-called ?per se? offense?is based on blood alcohol (BAC). The first offense, on the other hand, is based on impairment: the degree to which alcohol has diminished your coordination and cognition, that is, your ability to drive safely. Field sobriety tests, for example, are meant to be test of impairment.

One could argue that there should be two different laws because BAC and impairment are two different things. Two people with the same blood alcohol content may not be impaired to the same degree. We all know that some people?s tolerance to alcohol is far greater than other?s.

Here?s where, I?m sorry to say, things get even more confusing.

Even though BAC and impairment are, in principle, two different things that require two different kinds of proof, the results of a chemical test at the police station are potentially enough to convict you of both crimes. Even though the first offense is based on impairment, the state doesn?t need any evidence of actual impairment?such as slurred speech, the results of a field sobriety test, etc.?to convict you of driving ?under the influence.?

However, the good news is that, if you?re convicted of both offenses, you will still only be sentenced for one.

For an extended discussion of the two drunk driving offenses in every state, read the article ?Why You?re Being Charged With Two Offenses.?  

States Contemplate Lowering the Drinking Age

Update: Mandatory Ignition Interlock Devices in California?

As I mentioned in a previous blog (Mandatory Ignition Interlock Devices in California?), the California State Assembly is currently considing a bill (AB 2784) that would require ignition interlock devices for all DUI convictions.

For those who have never heard of this technology, Ignition Interlock devices (IDDs) are machines that can be installed in a car, which will prevent the car from starting unless the driver passes the machines? built-in breathalyzer test. IDDs are typically reserved for repeat offenders in California. If the bill passes, California would join the four other states that currently make these devices mandatory for every conviction. There are also twelve other states that are considering similar bills during this legislative term.

A news conference was recently held in which California Highway Patrol Commissioner Joe Farrow and MADD National CEO Chuck Hurley endorsed the bill, alongside Assembly member Mike Feuer, the bill?s sponsor.

Supporters of the bill argue that IDDs are a highly effective means of preventing drunk driving, citing the prevalence of repeat offenses.

On April 9th, the Assembly Public Safety Committee approved the bill with a vote of 6 to 1. Next week, it will go before the Assembly Appropriations Committee.

For more information on ignition interlock devices, see the following Frequently Asked Questions:

What is an ignition interlock device?
Will I be required to install an ignition interlock device?
How much does an ignition interlock device cost?
Can I fool an ignition interlcok device?

New Way to Get Home Safely in California

Have you ever been out at the bar, drank a little too much to drive home safely, but didn?t want to call a cab because that would mean leaving your car there overnight?

If you live in one of the major cities in California?Los Angeles, San Diego, the San Francisco Bay area (soon: San Jose and Orange County)?there?s now a way for you to safely drive home in your own car, drunk, and without any risk of getting a DUI

This innovative service is called SRS: Safe Ride Solutions. The way it works is simple: once you become a member, you can call their number at anytime of day, any day of the week, and an off-duty or retired police officer shows up and drives you home in your own car.  

SRS drivers can also pick you up at your house and drive you around in your own car for an entire evening.

According to their website, ?Safe Ride Solutions is a collaborative DUI prevention program developed by police officers, professional athletes, and business professionals to address the real world problem of DUI.?

And here?s what they have to say about their drivers. They are:

?Hand picked, customer service oriented, off duty law enforcement professionals with at  least 3 years experience who work in the city.
?Professional drivers with advance driving skills.
?CPR and first aid certified.
?Experienced in dealing with emergency situations.
?Extremely knowledgeable of the city and are able to provide members with recommendations of safe and reputable establishments.
?Knowledgeable of dangerous areas in their cities and can make appropriate recommendations on what to avoid.
?Experienced and patient in dealing with people under the influence of alcohol.
?Legally bound to a confidentiality agreement to ensure members? privacy.

Sound good?

In fact, California DUI attorneys?including those in San Francisco?are recommending that their clients who have recently been charged with drunk driving sign up for the service because it could help their defense.

For more information about this innovative new way to cut down on DUIs in California, see the SRS website: http://www.saferidesolutions.net/

A Disturbing But Revealing Story

It would be a mistake to dismiss the story of Shannon Wilcutt's DUI ordeal as simply an extreme, bizzare case?one that in now way relates to larger issues in DUI law and DUI law enforcement.

To find out what happened, read the eye-opening article ?It took less than one drink to get Shannon Wilcutt busted for DUI.?

The truth is that Ms. Wilcutt?s story illustrates certain important truths about how DUI law enforcement works?or, quite often, doesn?t work.

For one, her story demonstrates that the idea that we are ?innocent until proven guilty? doesn?t really apply to DUI. It is often up to us to prove ourselves innocent. 

It illustrates the highly subjective nature of the police report, in which an officer may write whatever is necessary to ensure a conviction.   

It illustrates the overly-harsh punishments that are leveled against those who are convicted of drunk driving.

And, as crazy as it sounds, her story exemplifies a common occurrence: a person who is still charged with DUI, even after blood or breath tests fail to provide any evidence of intoxication!

California’s Talking While Driving Law

DUI Suspect Shot in California

In Sacramento California, a seemingly routine DUI stop ended fatally.

The California police officer approached the car and gave the driver several commands, which the driver ignored. The police officer then reached inside the suspect?s car in an attempt to gain control of both the driver and the vehicle. The suspect began struggling, and attempted to drive away. The officer, whose arm was still inside the vehicle, fearing that the car?s movement put his life at risk, drew his gun and fired several shots at the driver. The suspect?s car continued moving and came to a stop after striking four other vehicles, and injuring one of the cars? occupants. The suspect was pronounced dead at a local hospital soon after the incident.

The feeling we are left with after hearing this story is that was unnecessary?that it could have, and should have, been prevented.

We can?t help but wonder, was it partly the fault of the arresting officer? It?s impossible to judge.

Certainly, the driver could have saved his own life by cooperating with the officer, as one should always do. But being pulled over is always a stressful experience, and if one fears the consequences of a conviction, the result may be a ?fight or flight? response that is against one's better judgment, especially if one's judgment is already impaired.

If you have ever wondered what to do if you get pulled over?what your rights are, what you should say to the officer?read the article ?What To Do If You?re Pulled Over And Arrested For DUI.?

Police Bust A Root Beer Kegger

Local police in Wasau, Wisconsin may have gotten a bit carried away. 

But in their defense, it?s no fun to be played for a fool, especially by a bunch of teenagers.

When police received a call complaining of cars blocking the road, a few offers were dispatched to the scene. What they found when they got there was unmistakable, or so they thought. A car lined street, loud music, a house full of high school students drinking from red cups, loud music, drinking games, a keg?who wouldn?t jump to the conclusion that the house was full of drunk minors?

Much to their surprise, the police found that the keg was full, not of beer, but of root beer?1919 Classic American Draft Root Beer, to be precise.

It?s hard to blame the police officers for feeling like they had been set up. Clearly, the party was a prank, and they were the intended victims. 

But the way they proceeded to handle the situation suggested an inability to take a joke.

The poor sports lined up some 90 teenagers and breathalyzed every single one. 

Their rational seems to have been that, if they could find at least one partygoer who was drunk?and it seems likely that at least one would have brought some liquor to the otherwise sober party?then they would save face. That or they were simply pissed off and wanted to arrest someone.

The result: teenagers 1, police 0. 

To their supreme disappointment, no doubt, the cops kept coming up with 0.00%. 

Teenagers, in general, are not the most organized creatures on the planet. So who was the mastermind behind the root beer kegger? 

His name is Dustin Zebro, an eighteen-year-old student at the local high school. He got the idea for the party after a few of his friends were suspended from sports when the school found pictures of them drinking from red cups. 

His point? Don?t judge a beverage by its container.  

Point made.

Mandatory Ignition Interlock Devices in California?

California may soon become yet another State that requires ignition interlock devices for all drunk driving offenders.

An Ignition interlock device (IDD) is a machine that can be installed in your car, which will prevent your car from starting unless you pass the machine?s built-in breathalyzer test.

In most States, IDDs are reserved for repeat offenders, or for those whose blood alcohol level was substantially higher than the legal limit. 

The California state assembly is currently considering a bill that would make these devices mandatory for all DUI convictions.

Lawmakers who support the bill argue that IDDs are the most effective way to prevent convicted drunk drivers from continuing to break the law, and that the bill would save a great deal of money and great many lives.

Assemblyman Todd Spitzer provided this forceful, albeit somewhat frightening analogy: "We have the ability to put a police officer in the front seat of every single car in California.?

Opponents of the bill, chief among with is the American Beverage Institute, argue that the bill is unfair, mandating the same punishment for offenses of different severity. 

"You wouldn't punish someone driving five miles over the speed limit the same way would someone driving 25 miles over the speed limit and that's what we think this bill does," said Sarah Longwell from the American Beverage Institute.   

There are currently four other States that require ignition interlock devices for all drunk driving offenders: Arizona, New Mexico, Illinois, Louisiana. 

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