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Will the US Follow Canada’s BAC .05 Warn Range DWI Penalties?

Monday, May 14th, 2012

In the United States, the legal Blood Alcohol Content (BAC) driving limit is 0.08%, however, our neighbors to the north have stricter rules on drinking and driving with penalties starting for BAC levels as low as 0.05% in most provinces. As we mentioned a few months ago, Canadian border patrol agents even have the authority to deny any person with a DWI conviction from obtaining entry to Canada (although there is legislation planned to ease up these laws). In this post let’s explore Canada’s 0.05% BAC limit and thoughts of whether the U.S. will ever go down the same path.

Canada’s Stringent Drunk Driving Laws

Earlier this year, Alberta adopted new 0.05% drunk driving legislation following British Columbia which currently imposes a three-day suspension and vehicle seizures for drunk drivers who have a BAC level of 0.05% – 0.08% – coined the “warn range”. While this range of BAC is still considered legal under B.C. Criminal Code, it can result in first-time offenders having to pay a fine of $200, a license reinstatement fee of $250, an immediate license suspension of three days, and possible fees for storage and towing if the vehicle is seized. Getting caught in this “warn range” the second or third time in a five-year period can lead to even lengthier suspensions, heftier penalties, and a longer vehicle seizure.

Alberta imposed a similar three-day suspension, fines, and seizure of vehicle of first-time offenders with 0.05% to 0.08% BAC levels, while second-time offenders could face a loss of their driver’s license, seizure of their vehicle for 15 days and fines. According to this online blood alcohol calculator, it only takes two 5-ounce glasses of wine, consumed 1 hour apart for a 125-pound woman to register a BAC level of 0.073%.

History of the BAC Level Driving Limit in the U.S.

DUI history shows that the goal of drunk driving laws were simply to prevent people from driving while impaired. The first BAC driving limit was set at 0.13% when authorities acquired crude devices that measured alcohol content in breath samples. This was based on a 1938 study that showed drivers with 0.15% BAC level or higher were presumed Under the Influence, and it became the legal driving limit for 22 years.

Powerful Political Pressure

Most people are familiar with Mothers Against Drunk Driving (MADD), a well-organized anti-drinking and driving lobby group, who’s agenda is to impose more severe DWI laws with the stated goal being to “stop drunk driving”.

MADD was formed in 1980, and tougher DWI legislation started to appear soon after lowering the legal drunk driving BAC level to 0.10%. This new legislation caused DWI arrests and convictions to significantly increase.

The group continued to apply political pressure which led to the dropping of the legal driving limit to 0.08% in four states by 1990. Ten years later, all states adopted the 0.08% standard. Since then, MADD has been applying pressure to state legislatures to drop the legal driving limit to 0.05%.

What the Future Holds for the DWI Limit in Minnesota and the Rest of the U.S.

With pressures from MADD as well as pressures from other countries, we would not be surprised if one day, in the not so distant future, American states start putting in place even more stringent DWI laws with regard to the legal blood alcohol concentration.

For now, in Minnesota and the rest of America, if your BAC level registers 0.08 or higher you will be charged with DWI. If this happens, it’s imperative that you immediately contact an experienced DWI lawyer such as Minneapolis based Douglas T. Kans of Kans Law Firm, LLC.

Tags: 0.05 limit, canada dui limit, drunk driving legislation, dwi penaties, MADD, warn range
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Minnesota prom season prompts enforcement of underage drinking laws

Tuesday, May 8th, 2012

A recent article in the Austin Daily Herald wants to make sure readers, whether teens or other drivers, are safe and sober during prom season. Law enforcement officials across Minnesota are working with the state Department of Transportation to crack down on underage drinking and driving during this especially busy time of year.

It’s illegal for anyone under 21 to consume or be found in possession of alcohol, yet teens are a shockingly large proportion of the drunk drivers arrested in the state for having caused traffic accidents. Minnesota Statute Section 169A.33 clearly forbids any individual under 21 years of age from driving, operating or being in physical control of any motor vehicle while either consuming alcoholic beverages, or after having consumed an alcoholic beverage and there is any physical evidence of consumption present in the individual’s body.

It is also important to note that a DWI offender 16 or 17 years of age may be under the jurisdiction of the adult court instead of the juvenile court system thereby subjecting them to some of the same consequences an adult offender may be subject to, if convicted. A driver of a motor vehicle, under the age of 21, convicted of DWI without having a prior conviction for DWI or any other aggravating factor, is subject to misdemeanor penalties and subsequent license revocation.

In Minnesota, teenagers amount to only 8% of drivers yet contribute to14% of the crashes. Throw in a car full of friends, cell phones, texting and alcohol use and you’ve got a recipe for disaster. All such factors contribute to car crashes being the leading cause of deaths for teens in the state.

In 2010, there were 3,743 car crashes related to alcohol consumption. Such crashes resulted in the deaths of 131 and injuries to an additional 2,485. Proving that teens make up a disproportionate share of drunk drivers, the state saw some 29,918 DWI arrests in 2010. Of these, 53% were for people between the ages of 21-34; an additional 7% of the arrests were for those 21 or younger.

Law enforcement officials across the state began stricter enforcement of Minnesota’s Zero Tolerance Law during prom season. The law, also known as the “Not A Drop” law, says that anyone under 21 who is found driving with even a drop of alcohol in their system will automatically have their driver’s license suspended. The effects of such behavior can be far-reaching and include potential jail time, the loss of a driver’s license and possibly even being mandated use of ignition interlocking devices. Perpetrators’ insurance rates will also surely go up as a result of a DWI and money will need to then be spent on attorney’s fees and court costs.

Unlike a conviction for driving under the influence of alcohol or driving with a blood alcohol concentration of .08 or more, if a driver is convicted solely of Minnesota’s Zero Tolerance Law, but didn’t have their driver’s license revoked for having a blood alcohol concentration of .08 or more nor were they convicted of DWI, the offense then is not “enhanceable”. In other words, if the Zero Tolerance driver is later charged within 10 years of a DWI offense, the conviction for the Zero Tolerance violation cannot be used to enhance the later DUI or DWI conviction to a more serious offense. However, it can still be considered by the court at sentencing.

Though young drivers are subject to tough laws and face sometimes punitive zero tolerance provisions, it’s important to remember that they still deserve access to a proper legal defense. Young drivers, like any other drivers, are entitled to the presumption of innocence and to a zealous legal defense. Therefore, if you or someone you know has been charged with DWI, then immediately contact an experienced Minnesota criminal and DWI attorney. Having more than 17 years of DWI case experience, Douglas T. Kans can provide you the diligent DWI defense you deserve.

Source: “Don’t let intoxicated driving spoil prom,” by The Associated Press, published at AustinDailyHerald.com.

Tags: DWI, Minnesota, Not A Drop, underage drinking, zero tolerance
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Female DWI Arrests Up By 36% Over The Last Decade

Monday, May 7th, 2012

According to a study conducted at the end of last year by Traffic Injury Research Foundation (TRIF), DWI arrests for females have increased by 36% over the last decade.

You may remember in 2009, the mother who drove a minivan down the wrong side of a highway in New York and collided with another vehicle which caused her death and killed her daughter, three nieces, and three men in the other car. Later, the driving mother was determined to be intoxicated and high on drugs. This extreme accident made headlines across the country and triggered the Century Council to fund a study on women’s drunk driving.

The research revealed that the average female who drinks and drives is both older and more highly educated than men in the same situation. The study also showed that the average drunk-driving female has a lower-paying job and is the main care provider for her children.

Although the study findings got national attention, it may have also fallen on deaf ears as many females/mothers may have thought that the incident in 2009 didn’t share any resemblance to their own drinking, and that having a glass of wine or two to relieve some stress and then driving during the day won’t harm anyone. The problem of course is drawing the line… as obviously the study findings show some mothers are drinking one (or a few glasses) too many.

2012 Follow Up Study

The goal of this new study is to further expand the current data on female intoxicated drivers. The study aims to address important data gaps that were present in previous research as to the characteristics of women intoxicated drivers. This new TRIF study will focus on analyzing a wider variety of state data sources including collision, court, arrest, treatment data, probation as well as conduct focus groups with the first and repeat offenders to assess their attitudes, their behaviors and their characteristics.

It will also include interviews with professionals representing criminal justice and other agencies with hopes of identifying how women drunk drivers are managed in the DWI system. The follow-up study is not expected to be completed until Dec 2012.

Have You Been Recently Charged with DWI?

If you are a mother or any other female and have just been charged with DWI it’s vital you immediately contact a top DWI attorney in your area for the best possible resolution of your case. If you live in the Minneapolis St. Paul Metro area then you should contact Douglas T. Kans of Kans Law Firm. Mr. Kans has 17 years experience defending both men and women accused of DWI and other crimes.

Tags: century council, dwi stats, female drunk driving, female dwi, TRIF, women dwi
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License Plate Impoundment in Minnesota DUI or DWI Cases – The “Scarlet Letter”

Saturday, April 28th, 2012

As a DWI attorney in Minnesota for 17 years, when I first meet individuals charge with a DUI or DWI offense, it is a rather emotional situation for the prospective client. They are now under the stressful realization that they’ve been charged with a crime and are about to enter a legal maze full of potential pitfalls. This is where we help alleviate these stresses by making our clients knowledgeable about the process and how we can navigate and plan our strategy to ultimately receive an excellent outcome in their respective case.

One of the biggest concerns expressed by clients at these initial meetings is with regard to potential license plate impoundment or what I like sometimes refer to as the state’s “scarlet letter” on the driver charged with a certain level of DUI offense. It can be extremely frustrating for the family of a driver subject to such an order, because the plate impoundment order applies not only to the vehicle in which they were driving, but also any other vehicle registered in his or her name whether owned jointly or individually. Usually, the driver has an added sense of grief because now an innocent family member may be subject to driving their vehicle with license plates clearly branded as a “whiskey” or DWI plate. As this becomes more frequent, they also become more identifiable to other motorists on the roadway adding to the embarrassment one may feel.

In addition, since July 1st, 2011, the state has now broadened those that are subject to a plate impoundment by making it mandatory for the driver to surrender their license plates if their blood alcohol concentration is a .16 or more as opposed to the earlier .20 or more. This is required regardless of whether the driver has any prior DWI convictions on their record. The driver does have the opportunity to challenge the plate impoundment order and a few counties allow a temporary reinstatement of regular non-DWI plates while the driver is awaiting the outcome of their hearing.

Plate impoundment occurs in the following situations: one is charged with a DWI within 10 years of a prior DWI conviction or prior license revocation that was the result of a DWI conviction; the driver had a BAC of 0.16% or more; a child under the age of 16 was in the vehicle when the offense occurred; or the offense took place while the driver’s license was canceled for being inimical to public safety.

A plate impoundment order applies both to the motor vehicle involved in the DWI offense, and any motor vehicle registered, owned, or leased in the name of the DWI offender, whether solely or jointly owned. An arresting officer may issue a plate impoundment order, which is effective immediately, at the time of the arrest. The plates are then seized by the officer and a seven-day temporary vehicle permit is issued (or 45 days if the offender is not the vehicle’s owner).

A plate impoundment has a minimum term of 1 year, during which, the offender is prohibited to drive a motor vehicle unless the person driving has been re-licensed to drive, and coded plates are displayed on the vehicle. When acquiring or selling a vehicle during the plate impoundment period, the offender is subject to certain restrictions. A person may appeal to license plate impoundment administratively or judicially.

If you or someone you know has been charged with a DWI or DUI offense, it is imperative that they seek the immediate advice of an experienced Minnesota DUI Lawyer. The attorney will first need to review their respective case to see if the driver is subject to such a plate impoundment order and then be able to advise the client how to proceed in challenging the order.

Tags: DUI, license plate impoundment, Minnesota DWI, whiskey plates
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Man Arrested for DWI on Private Driveway in Parked Car

Thursday, April 26th, 2012

Minnesota DWI laws (and the DWI laws in most states) define a “drunk driver” as a person operating, driving, or being in physical control of a motor vehicle while he/she is under the influence of alcohol, and/or a hazardous or controlled substance, having a BAC level of 0.08% or higher within two hours, and/or having traces of a Schedule I or II controlled substance in his/her system. Being in physical control of a vehicle generally means the person has relatively easy access to the vehicle’s ignition key and is positioned in such a way that he/she can easily reach the key and turn the vehicle’s engine on – even if the vehicle isn’t moving.

While the above DWI definition seems easy enough to understand, the reality is that DWI law can be very complex in certain cases. Today we’ll tackle an interesting case, and while it’s not a very recent DWI case and it’s not even a case from Minnesota (it occurred in Oct 2011 in Nebraska) it’s still a case that made headlines all over the country and was a huge subject of controversy for motorists, law enforcers, DWI attorneys and lawmakers. Unfortunately, the courts in Minnesota have not followed the logic of the Nebraska Supreme in it’s decision below that private driveways are not public for the purpose of a DUI charge. Nevertheless, the case is still very interesting.

The case in question is of a young man who got arrested for DWI while listening to music while he was drunk sitting inside a parked car in his father’s driveway.

The Case Facts

According to reports, the defendant’s father who saw him intoxicated inside a car in his personal driveway told the son to go away and called the police when the defendant didn’t follow his father’s request. The police officers arrived at the scene and conducted a DWI investigation. The defendant who insisted he wasn’t driving refused to take a breath test and said he would leave the premises. Soon after, the man was arrested. He was eventually charged with Driving While Under the Influence (DWI), refusal to submit to a breath test, possession of open container of alcohol beverage, trespassing, as well as resisting arrest. The officers failed to ask the stepmother of the defendant if she invited her stepson to their house.

The Prosecutors’ Argument

The prosecutors argued that the charge of DUI was applicable to this case since the the incident occurred in a residential driveway and the defendant was in physical control of the car, and that he might have been about to start the vehicle and leave the driveway. Also since the defendant’s vehicle partially overhung the sidewalk, the prosecutors also argued that the vehicle was positioned at least in part on a public property.

Supreme Court’s Explanation

The court explained that the DWI charge doesn’t apply to an individual inside a vehicle on private property not open to public access. Although it is held that the parking lot of an apartment complex can be accessed by the public, the court explained that the defendant’s case was different. The residential driveway is private property not open to public access. The public neither have the right nor implied permission to use or enter a private residential driveway.

With regard to the prosecutors’ argument that defendant’s car was parked at least in part on public property, the court believed that the defendant’s car overhanging the sidewalk didn’t change the fact the driveway was private property not accessible to the general public. To cite an example, the court explained that an individual can’t be guilty of DWI if he drinks an alcoholic beverage while he cleans a car parked in his private driveway but overhanging the sidewalk.

On the police officer’s claim that the defendant said he was leaving, the court said that the man could have committed a violation if he drove his car and left in the presence of the officer. However, the defendant’s statement that he was leaving may have meant that he was considering leaving but eventually changed his mind, even if he was holding the key in the ignition. Also, no one witnessed that the defendant was actually driving his car at that time.

The Court further stated that Fourth Amendment required officers to conduct a thorough investigation on the basic evidence for the offense they suspect, and to question witnesses who are readily available at the scene before invoking the power of warrantless arrest.

The Verdict

The Nebraska Supreme Court reversed all of the defendant’s convictions since it was not unlawful for any citizen to be intoxicated in a vehicle parked on property not open to access by the general public. However, the court allowed a retrial on the defendant’s trespassing charge.

DWI Charges Are Not Always Lawful

As this case demonstrates not all DWI arrests and charges are lawful. Sometimes police officers don’t follow the law properly and unlawfully arrest people for DWI and other crimes. If you have been charged with DWI in the greater Minneapolis Metro area then you need to immediately contact experienced Minnesota criminal and DWI attorney Douglas T. Kans. With 17 years of DWI and criminal law experience Douglas T. Kans can ensure you get the best possible outcome of your DWI case… including getting the case thrown out if your DWI arrest was unlawful.

Tags: DWI definition, fourth amendment, MN DWI, physical control of motor vehicle
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