The South Dakota Highway Patrol has announced that the number of overall arrests for driving under the influence was up at this year’s Sturgis Motorcycle Rally. Through Saturday there were 316 SD DUI arrests, compared to 253 in 2008. The rally, held in the Black Hills, ended Friday though the official window for DUI statistics runs longer because many bikers arrive early and stay through the weekend.

There were 72 accidents involving injury, compared to 60 last year. While drunk driving in South Dakota arrests were up this year, the number of drug arrests dropped from 232 to 199.

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Effective today, those stopped for suspicion of driving under the influence in Delaware will be facing twice the fines, and repeat offenders could be sentenced to jail for up to 15 years.

Gov. Jack Markell signed into law legislation calling for an increase in fines for first offense DE DUI from $230 to $500, with repeat offenders subject to $15,000 fines. The potential jail sentence for repeat offenders was tripled, to a maximum of 15 years. With a blood alcohol content of .15% or higher both first time and repeat offenders will have their driver’s licenses suspended for six months and be required to install an ignition interlock device in their vehicles.

On average, 7000 arrests for DUI in Delaware are made each year. 30 percent are repeat offenders.

The sponsor of the law hopes that the new penalties help stop drunk driving in Delaware by making it easier to incarcerate repeat offenders and keep them off the road. It was also hoped that future legislation will make ignition interlock devices mandatory for everyone convicted of Delaware DUI.

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The funds used to treat repeat offenders for driving under the influence in Kansas have been cut by 70% by state legislators. Last the past fiscal year the state spent approximately $1.2 million to treat drivers convicted of their fourth KS DUI. The funds have been slashed to $416,000, according to the director of addiction and prevention services for the Kansas Department of Social and Rehabilitation Services.

Because the number of people requiring treatment will likely not change, there will probably be a reduction in the treatment period from twelve months to three. Professionals working with addiction say that the length of engagement is critical for effectiveness, and that a shortening of the programs could cause a rise in recidivism.

The decision to cut the funds comes after the passage of a new law requiring those with a third DUI conviction, rather than the fourth, to enter an alcohol treatment program. That is expected to add as many as 200 people to the rolls of those under treatment. Participants in the program may be required to pay some of the expenses. State lawmakers and officials hope local resources can fill in the gaps.

Treatment professionals, corrections officials and a few lawmakers hope that public safety concerns will help resurrect the funds and thus the DUI treatment programs. The issue could become one of the focuses of a new Kansas DUI commission established to review the state’s drunk driving laws.

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A study conducted by ‘Car and Driver’ shows that texting while driving is significantly more dangerous than driving under the influence of alcohol drugs. Drivers texting messages are 3-4 times slower than drunk drivers to apply brakes to avoid a collision.

Previous studies conducted in vehicle simulators have shown that texting impairs a driver’s skills. Car and Driver decided to conduct a study in actual vehicles and directly compare reaction times of those texting with those under the influence of alcohol. Using an airfield taxiway, drivers were required to react to a light mounted at eye-level on the windshield, simulating brake lights of an advance vehicle. Vehicle speed, brake pedal position and steering angle were all monitored, and baselines for the test were established. Data was collected as drivers responded to the dash light five times, with the slowest reaction time being dropped. First the drivers performed the test while texting. They then consumed alcohol until their blood alcohol content registered .08%, the legal limit for intoxication in most states, and repeated the test without cell phones.

In one set of results, a driver’s response time while texting nearly tripled his baseline response. The extra reaction time while impaired was only .04 second more than his baseline. At 70 miles per hour, the subject’s vehicle traveled an additional 319 feet while texting, and 17 extra feet while impaired by alcohol.

One national insurance provider estimates that 20% of drivers regularly send text messages or emails while driving.

Have you recently been arrested for drunk driving?

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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There has been an increase in the numbers of sober drivers being falsely charged with driving under the influence across the United States. Despite laws that establish a blood alcohol content for intoxication at .08%, law enforcement agencies in several states, Ohio in particular, have adopted a zero tolerance position on alcohol. Both Maryland and the District of Columbia have criminal drunk driving penalties for motorists with a BAC under the legal limit. Drunk driving is a serious issue though the effort to make the streets safer has lead to many innocent drivers being caught up in a legal nightmare.

A man from Corvallis, Oregon is one such case. Brian Noakes was charged with suspicion of Oregon DUII after a traffic stop for having bloodshot eyes. He explained that he had a cold though the police officer was convinced that he was driving under the influence. While being arrested, Noakes wife asked what was happening and police threatened to Taser her. A breath test showed that Noakes had no alcohol in his system and a urine test came back negative for drugs. The district attorney declined to prosecute the case though Noakes will continue to have a permanent arrest record for drunk driving.

Washington, like several other states, does not allow arrests for traffic offenses, including driving under the influence, to be removed or expunged from a person’s record. That means that even if a defendant is found innocent or never formally charged, he or she could suffer the consequences of a false arrest for the rest of their life. Noakes’ arrest, in fact, cost him his job.

Noakes is suing the city of Corvallis and David Cox, the arresting police officer, for violation of his civil rights and false arrest. He also wants an unspecified amount of money for reimbursement of legal fees and damages. An internal police investigation found that the arrest was unlawful and the threats were improper. It was also determined that Cox had a known pattern of unjustified DUI arrests of motorists who were not legally intoxicated. Those arrests helped earn Cox praise for being one of the top DUI enforcers. He has since resigned from the force and left the state.

The pattern of false arrests for suspicion of driving while intoxicated is not limited to one state or one jurisdiction. More than 150 arrests for drunk driving in Cook County - Chicago were dismissed after a single officer was indicted for felony perjury for falsifying arrest reports. A motorist was accused of Arizona DWI because of what the officer described as slurred speech, when the defendant had actually just had denture work performed. A blood test showed a BAC of .22. Even without evidence of intoxication, the prosecutor filed three felony charges and the defendant eventually spent $12,000 in legal fees to defend herself.

Last year the National Highway Traffic Safety Administration, with input from the American Beverage Institute, updated its anti-drunk driving slogan to ‘Over the limit. Under arrest’ in effort to acknowledge that one can engage in responsible social drinking and legally drive after. Texas however clings to the old slogan ‘Drink. Drive. Go to Jail.’, leading an Austin DWI attorney to note that a percentage of his clients were not legally drunk at the time of their arrest.

Japanese automaker, Nissan Motor Company, has unveiled a concept car designed to reduce drunk driving. The vehicle utilizes several sensors to determine the sobriety or alertness of the driver and then initiates measures in response. The sensors can detect the presence of alcohol, monitor facial features for drowsiness and analyze driving behaviors.

The sensitive alcohol odor sensors have been installed in the gear shift knob as well as the seats. They are able to detect alcohol in the driver’s perspiration and immobilize the vehicle and lock the transmission if the level of alcohol is above a set limit.

The facial monitoring system is comprised of a camera focused on the driver’s eyes. After the system is calibrated, it can detect changes that may indicate drowsiness. When such conditions are detected, voice alerts are issued through the vehicle navigation system. Seat belts are automatically tightened to further alert or awaken the driver.

The vehicle can also determine operational changes, such as drifting out of a lane. When the system suspects drowsiness or distraction, the navigation system again alerts the driver with voice and message alerts and the seat belt is tightened.

The concept car reflects emerging technologies that may be incorporated in future production cars. In fact the drunk driving message alert is already on Nissan navigation systems. The automaker is currently testing an on-board breathalyzer system that could disable the ignition system when alcohol is detected. There are also plans to develop an Intelligent Transport System Project that would analyze data from moving vehicles and road sensors to help reduce accidents.

This is all part of Nissan’s Vision 2015 goal to half the number of traffic deaths or serious injuries involving its cars by 2015.

BOSTON, June 2, 2006 -- Federal officials promised to quickly end a policy of not reporting drunk driving cases on U.S. government property to the state, which allows suspects to avoid any state penalties.

The cases are handled in a federal traffic court. For drivers who are convicted, nothing shows up on their state record, and they generally resolve their cases by paying a fine, The Boston Globe reported.

Even those who refuse to take breathalyzer tests on federal property avoid any state consequences. In a state court, refusal to take a breathalyzer test means a 180-day license suspension.

In the past year, 32 people have been charged with drunken driving on federal property in Massachusetts, with most arrests occurring at the Charlestown Navy Yard, the Cape Cod National Seashore and Hanscom Air Force Base, federal officials said.

The state Registry of Motor Vehicles was not notified of any of those cases, which means they were not listed on the drivers' records, according to federal authorities.

Robert Krekorian, chief of staff for U.S. Attorney Michael Sullivan, said Thursday that neither he nor Sullivan was aware of the drunk driving issue until the Globe brought it to their attention this week.

"It's totally unacceptable from our perspective, and immediately it's going to change," Krekorian said. "There's no reason why this critical information shouldn't have been given over to the Registry so they could take appropriate action."

Krekorian said federal authorities would immediately start notifying the Registry and provide reports about federal drunken driving cases in Massachusetts.

Anne Collins, the state's registrar of motor vehicles, said Massachusetts would suspend the licenses of drivers who refused a breathalyzer test after being stopped on federal property and would consider action against those convicted of drunken driving in federal court. All federal convictions will be noted on drivers' records, she said.

Drunken driving on federal property is considered a misdemeanor, and first-time offenders face a maximum of six months in prison and a $5,000 fine. Federal authorities said most do not receive any jail time or even probation.

The cases are heard by federal magistrate judges, who hold monthly traffic sessions at the state's federal courthouses and sometimes at the Cape Cod National Seashore. Fines are paid to the Central Violations Bureau, an arm of the federal court based in San Antonio. No records of the cases are kept at the courthouses.

Source: http://www.boston.com/

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A TANGLED WEB - DRUNK DRIVING ON FEDERAL PROPERTY IN MARYLAND
by Leonard R. Stamm

The State of Maryland is chock full of federal enclaves such as Fort Meade, the Baltimore-Washington Parkway, the Beltsville Agricultural Research Center, and Andrews Air Force Base, to name a few. Last October, United States Magistrate Paul Rosenberg published his opinion in United States v. Sauls, 981 F.Supp. 909 (D.Md. 1997), a case argued by MCDAA member Christine Saverda Nielsen, concerning a drunk driving prosecution at the Aberdeen Proving Grounds. Although the opinion was not a victory for Sauls,1 in the tradition of cases such as Casper v. State, 70 Md.App. 576, 521 A.2d 1281 (1987) State v. Werkheiser, 299 Md. 529, 474 A.2d 898(1984) it may turn out to be a case that is helpful to other defendants.

First we digress. Federal property is either subject to exclusive or concurrent federal criminal jurisdiction. Property acquired by the federal government between 1906 and 1940, such as the Beltsville Agricultural Research Center or Fort Meade is subject to exclusive federal jurisdiction. See Dreos v. United States, 156 F.Supp. 200, 205 n.3 (1957); 56 Op. Atty. Gen. 347 (1971). Other properties, such as the Baltimore-Washington Parkway, are under concurrent state and federal jurisdiction. Id.

18 U.S.C. § 13, the Assimilative Crimes Act, incorporates the substance and punishment, but not procedural aspects, of state law crimes on federal enclaves, and makes such crimes federal offenses, where the Congress or federal agencies have not legislated on the subject matter of the state law. The Assimilative Crimes Act transforms a violation of state law into an offense against the federal government. United States v. Press Publishing Co., 219 U.S. 1 (1911); United States v. Holley, 444 F.Supp. 1361, 1362 (D.Md. 1977). It is "a shorthand method of providing a set of criminal laws on federal reservations, by using local law to fill the gaps in federal criminal law." United States v. Prejean, 494 F.2d 495, 496 (5th Cir. 1974).

Since the offenses created by the Assimilative Crimes Act are federal crimes, it is for the federal courts to define the offenses, and state court opinions are merely persuasive authority which are not binding on the federal court. Federal cases have thus stated:

Title 18 § 13 was enacted to incorporate State criminal statutes into the Federal law. Interpretations of this Federal law is for the Federal Courts, and they are not bound by the constructions of the State Courts (Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 64 S.Ct. 622, 88 L.Ed. 814; and Kay v. United States, 4 Cir., 255 F.2d 476). Of course State decisions naturally have great potential persuasive power with this court, but this Court is not bound to follow such decisions if in its judgment they are wrong. United States v. Barnes, 195 F.Supp 103, 105 (N.D.Cal. 1961). Additionally, the Assimilative Crimes Act only incorporates the punishments contained in the state law, not civil or administrative sanctions which are not deemed to be punishment. United States v. Best, 573 F.2d 1095 (9th Cir. 1978) (license suspension which could have been ordered by California court under California law was not "punishment" and federal court could not order DMV to suspend driver's license); see, State v. Jones, 340 Md. 235, 666 A.2d 128 (1995), cert. den., ---U.S.---, 116 S.Ct. 1265, 134 L.Ed.2d 213 (1996)(Maryland administrative license suspension is not "punishment").

Federal properties that are under the jurisdiction of the National Park Service, such as Cabin John Parkway, the Suitland Parkway, and the Baltimore-Washington Parkway, are covered by federal traffic regulations contained in 36 Code of Federal Regulations (CFR). In those locations, since there are regulations on the subject matter of drunk driving, the Assimilative Crimes Act does not apply. Instead, driving under the influence of alcohol as well as refusal to take a test is prohibited by 36 CFR § 4.23.

By way of contrast, in those areas, such as Fort Meade or Andrews Air Force Base, where neither Congress, nor any of the federal agencies have made driving while intoxicated a criminal offense, the Assimilative Crimes Act applies and adopts as federal law, the terms and punishment provided by Transportation Article, § 21-902. See United States v. Walker, 552 F.2d 566, 568 (4th Cir. 1977); United States v. Channel, 423 F.Supp. 1017 (D.Md. 1976). The implied consent provisions of § 16-205.1 and procedural requirements of Cts. & Jud. Proc. Art., § 10-301-10-309 are inapplicable. Instead, the federal implied consent provision, 18 U.S.C. § 3118, which provides for suspension of driving privileges for one year on federal territories, and the Federal Rules of Evidence apply on these enclaves. Unlike Maryland, there is no right of refusal under federal law, the toxicologist need not approve equipment used in testing, and breath test technicians need not follow the Toxicologist's Regulations. Additionally, Transp. Art., § 16-402 et. seq., addressing the assessment of points, does not provide for assessment of points for federal drunk driving convictions.

Despite these differences, in practice, the Military Police at Andrews and Fort Meade, for example, use the Motor Vehicle Administration (MVA) Form DR-15 to advise arrestees of the state penalties that shall be imposed for failing or refusing the test. The MVA acts as if the failure or refusal is sanctionable, and the MVA assesses points for convictions under the Assimilative Crimes Act that carry the state description and imposes suspensions for convictions as if the conviction was for the state law violation.

It is the attack on these objectionable practices that will be aided by the Sauls opinion. Sauls was arrested at the Aberdeen Proving Grounds and was advised, pursuant to the DR-15 Form, that his license would be suspended as provided in Transp. Art., § 16-205.1 if he failed or refused the test. He took the test and failed it, and argued that it should be excluded as having been coerced by misleading advice since Maryland implied consent law does not apply on the federal reservation. The Court agreed that the Maryland implied consent law did not apply, but held that the giving of the advice was harmless because on federal property, unlike within Maryland, there is no right of refusal.

In a footnote, the Court stated:

[T]he Court is aware that the State routinely suspends an individual's license or privilege to drive under Trans. II, § 16-205.1 for events occurring at Aberdeen Proving Ground, Maryland. The Court is of the opinion that there is substantial merit to the defendant's argument that Maryland does not have the authority to apply its suspension procedures for events occurring on property in which jurisdiction is exclusively federal, at least without legislative authority. The Court assumes that the validity of the State's action is an issue that ultimately will be decided administratively by the Maryland Motor Vehicle Administration and/or by the Courts of the State of Maryland. The Court also notes that points are routinely assessed for traffic offenses occurring at Aberdeen Proving Ground, Maryland, charged under the Assimilative Crimes Act, by the Maryland Motor Vehicle Administration under Maryland's point assessment statute, Trans. II, § 16-402. The validity of this action may also be questionable. On the other hand, the state legislature has authorized the Motor Vehicle Administration for the State to suspend an individual's driving privilege for either failing to appear or failing to pay a fine in connection with a traffic offense which is the subject of a proceeding before the United States District Court for the District of Maryland. See, Trans. II, § 26-206 and § 27-103.

Sauls, 981 F.Supp. at 914, n.2. These comments by the Court should prove helpful in future federal prosecutions or MVA hearings concerning a refusal obtained after advice of Maryland penalties for refusal, or in MVA hearings resulting from a conviction under the Assimilative Crimes Act.

In its other holdings, the Sauls opinion rejected the defendant's argument that the military breath test technician was required to follow the Toxicologist's Regulations as a prerequisite to test admissibility and rejected the government's argument that the statutory inferences of Cts. & Jud. Proc., § 10-307 should apply to any test result. Instead, the Court crafted its own inferences, which, after a lengthy review of reported decisions and scientific authority, it indicated could be judicial noticed by the trial court.

1. .10 or more--from this level alone it may be inferred that the defendant was both intoxicated and under the influence of alcohol. . . .

2. .08 and above but less than .10--from this level alone it may be inferred that the defendant was under the influence of alcohol, and the beyond a reasonable doubt standard is satisfied. . . .

3. .05 and above but less than .08--from this level alone it may not be inferred that the defendant was either intoxicated or under the influence of alcohol. . . .

4. More than .02 and above but less than .05--at this level it may be inferred that the defendant was unlikely intoxicated or under the influence of alcohol . . . .

5. Any measurable amount of alcohol concentration .02 or below--at this level it may be inferred that the defendant was not intoxicated or under the influence of alcohol . . . ordinarily, it would be appropriate to grant a judgment of acquittal on the intoxication charge at this level.

Sauls, 981 F.Supp. at 925.

In its final holding, the Court held that a test administered within three hours of apprehension should be admissible. Maryland's statutory limit of two hours, contained in Cts. & Jud. Proc. Art., § 10-303, being procedural, is not assimilated by 18 U.S.C. § 13.

Sauls' five holdings are by no means the last word on these issues: (1) that Maryland implied consent provisions are not assimilated under the Assimilative Crimes Act; (2) that the Maryland Post Mortem Examiner's Toxicologist's Regulations need not be followed by federal authorities; (3) that Maryland's statutory inferences are not assimilated under the Assimilative Crimes Act; (4) that federal courts can judicially create and notice their own inferences resulting from breath alcohol tests; and (5) that test results obtained within three hours of apprehension are admissible. However, Sauls fills some hitherto rather large gaps in federal drunk driving case law. Familiarity with Sauls is critical to representation of defendants charged with driving while intoxicated or under the influence of alcohol in federal court.

Notes

1. Ultimately, Sauls did receive a dismissal for unrelated reasons.

Copyright © 1999 - Leonard R. Stamm

Source: http://www.boston.com/