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Wisconsin Legislature Proposes Harsh New Drunk Driving Laws

May 3rd, 2013

The legislature in neighboring Wisconsin is currently considering a fairly dramatic change to their drunk driving laws, something that has surprised many in the state given the little public opposition the measure has sparked.

The new legislation, sponsored by two Republican lawmakers, would change the state’s law to require lengthy prison sentences for those individuals with repeated drunk driving arrests. Specifically the measure would mean that people who have been convicted of between seven and nine drunk driving incidents would be required to serve a three-year prison sentence. The measure would also require that judges impose a four-year prison term for anyone who faces a 10th conviction for drunk driving.

The most unusual and seemingly controversial aspect of the new law is the provision that requires the imposition of a 30-day jail sentence for any driver who causes an injury while behind the wheel and has a BAC between 0.04 and 0.08 percent at the time of the accident. Creating a criminal offense out of driving with less than the legal limit of alcohol in your system was expected to result in public outcry, but surprisingly little fuss has been raised at recent public hearings.

Similar measures were proposed in Wisconsin in 2009, but state courts have said they were not written in a way that requires judges to follow the recommendations. The recent iteration was advanced to correct that mistake and force judges to issue sentences according to the legislative mandate.

Though opposition so far has been scant, a few lawmakers have raised concerns about the legislation. For one thing, some are worried that it will lead to unnecessarily large increases in prison populations, something that most counties in the state are not equipped to handle. Another worry is that the new law does nothing to actually solve the underlying problem that leads to such repeat DWIs: chronic alcoholism. One legislator said that if the state really wants to reduce the incidents of repeat drunk driving, then more money should be directed towards providing treatment and rehabilitation to those with drinking problems. Punishment for punishment’s sake does little to solve the recurring problems posed by repeat drunk drivers.

A recent example of this occurred in Chicago when, earlier this week, a man from Lake County was sentenced to 13 years in prison for his eight drunk driving conviction. The man, now 43, received his first DUI at the age of 17 and has struggled with alcohol every day in between. Prosecutors say the man was arrested a total of 10 times for DWI and cited another two times for boating while intoxicated.

The man was arrested last year after an officer spotted him swerving in and out of his lane. He was convicted of driving drunk and prosecutors asked for a 15-year sentence, arguing that the man was a public safety risk. His defense attorney spoke out, saying the drunk driver had been severely abused as a child and has struggled with alcoholism ever since. Moreover, the man has a 12-year-old son that he desperately wanted to see grow up. The judge was unmoved and sentenced him to 13 years behind bars. Whether the lengthy jail term will actually do any good or lead to any rehabilitation remains to be seen.

Source: “Drunken driving bill draws little opposition at public hearing,” by Todd Richmond, published at PostCrescent.com.

Tags: Change DWI Laws, Wisconsin
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Missouri v. McNeely Overturns Minnesota DWI Case Law

April 29th, 2013

Historically, Minnesota courts rely on a concept called “single-factor exigency” in striking down challenges to Minnesota’s DWI laws. Single-factor exigency refers to the rapid, natural dissipation of alcohol in a person’s bloodstream that creates a sole exigent circumstance sufficient enough for law enforcement to bypass securing a warrant when obtaining a chemical test from an individual. Recently in Missouri v. McNeely, the United States Supreme Court concluded that single-factor exigency, on its own, is not a sufficient reason for the police to draw blood from someone arrested on suspicion of a DWI. In upholding the Fourth Amendment’s protection against unreasonable searches and seizures, the Court stated that exigency must be determined “case by case based on the totality of the circumstances”. That decision directly abrogates Minnesota law, most notably its decisions in Shriner and Netland.

Factually, Shriner and McNeely are similar in that they both involve nonconsensual warrantless blood draws. In Shriner, the Minnesota Supreme Court said it was perfectly fine for law enforcement to take someone’s blood without a warrant and without the person’s consent. The court in Shriner relied heavily on an incorrect interpretation of Schmerber stating that Schmerber allows for single-factor exigency. But, McNeely instructs that Schmerber calls for a totality-of-the-circumstances test, not single-factor exigency.

In Shriner, the Minnesota Supreme Court also stated that requiring law enforcement to get a warrant would be an unreasonable burden in DWI cases, despite the availability of telephonic warrants and the accessibility of warrants in the digital age. McNeely, again, disagreed with Minnesota’s overgeneralization and stated that a per se rule against obtaining a warrant is an incorrect analysis of Schmerber, which calls for a fact specific inquiry in each case. The Court in McNeely went on to state that Schmerber was decided 47 years ago, and that the advances in technology allow for a more streamlined warrant process, which the majority of states allow.

In State v. Netland, the Minnesota Supreme Court held that a warrant was not required to obtain a chemical test for blood alcohol and the refusal statute is not unconstitutional. Netland was arrested on suspicion of a DWI and she requested a blood test. The officer, however, would only offer Netland a breath test. After repeated efforts to take the breath test, the officer charged Netland with refusal based on deficient samples given by Netland. In its decision, Minnesota again relied heavily on single-factor exigency and stated that a warrant is not required to secure a blood-alcohol test when there is probable cause to believe someone was under the influence of a chemical while driving.

In light of McNeely, Shriner and Netland are no longer good law. If you decide to Shepardize, Keycite, or ask your local reference librarian for guidance, they all will tell you to not rely on Shriner and Netland anymore. As a result, Minnesota’s entire Implied Consent laws may fail. Minnesota can no longer solely rely on single-factor exigency. If Minnesota continues to hold that a warrant is not necessary to obtain a chemical test from someone arrested on suspicion of a DWI, then it will have develop another reason to do so. Until the United States Supreme Court overturns Minnesota, again.

By Robert H. Ambrose, Associate Attorney at Kans Law Firm, LLC

Tags: McNeely, Minnesoa dwi case law, warrantless blood draw
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Woman Driving Toy Truck Charged with DWI

April 28th, 2013

Kait8 reports a 29-year-old woman from Jonesboro Arkansas was arrested for DWI after attempting to leave an accident scene in a child’s Power Wheels truck.

A witness reported that at approximately 5:30 p.m. on a Sunday, a woman was driving a 2001 Pontiac Grand Am at a fast speed, rounded a corner, and then hit his mobile home’s under panel.

Another witness reported that the woman began yelling at the trailer’s owner, grabbed the man’s daughter, and then got into his son’s battery-operated truck. The woman was dressed in a white sweatshirt, and was not wearing any pants or shoes.

Apart from DWI, the woman was also charged with disorderly conduct, refusal to submit, public intoxication, leaving the accident scene with property damage, and driving with a suspended, cancelled, or revoked license.

The man then gathered his children and took them to their grandparent’s house. According to the man, the woman was still in trying to drive the toy truck by the time he came back out.

After the man and his father made the woman get out of the Power Wheels truck, the women reportedly began yelling and stormed off to her mother’s house. It was here the police found her, seemingly infuriated and intoxicated.

The arresting officer administered a portable breath test to the driver. He stated that he had to hold the woman’s shoulders because she could barely stand. Her breath test results showed a BAC reading of .217, almost thrice the legal limit.

The officer also recounted that the woman began to scream and shout during the investigation. She began to kick the door of the police car and continued to act disorderly and uncooperatively, even after being placed in custody and arriving at the Craighead County Detention Center.

The woman was left in jail in lieu of a surety bond amounting to $2,067.

Tags: breath test, revoked licence, weird dwi
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Idaho Court of Appeals Overturns Controversial DWI Charge

April 24th, 2013

The Court of Appeals in Idaho recently reversed a conviction in a case from Boise, Idaho, in which a man was charged with driving a vehicle while under the influence of marijuana.

Reports state that the man was definitely impaired, although was not necessarily under the influence of drugs. The man’s argument was that he suffered from bipolar disorder and paranoid schizophrenia. He also stated that he was dehydrated and hungry at the time an officer pulled him over for making an illegal right turn.

According to the chief judge of the Court of Appeals, the evidence was enough to prove that the man was impaired, although was not enough to prove that he was under the influence of intoxicating substances or drugs.

The Office of the Attorney General, however, is not giving up. The Associated Press reports that prosecutors filed a petition requesting that the appeals court opinion be reviewed.

The Idaho Deputy Attorney General stated that the Supreme Court should consider the situation, particularly since there aren’t many set laws on how to prove an individual is driving under the influence of drugs.

DUID in Minnesota

In the state of Minnesota, driving under the influence of drugs or DUID is considered a crime. The law prohibits operating a vehicle while being impaired by a controlled substance. Drivers who are suspected of DUID are subject to a urine and/or blood test to check for the presence of controlled substances. The refusal to take these tests is considered a crime.

Criminally speaking, DUID carries the same penalties as individuals who drive under the influence of alcohol. A fourth degree or first time DUID is considered a misdemeanor, and may result in a maximum of 90 days behind bars and/or a $1,000 fine.

A second degree DUID and a third degree DUID are both considered gross misdemeanors, and will carry maximum sentences of a year in jail and/or a fine in the amount of $3,000. A first-degree DUID in MN is considered a felony, and carries a maximum sentence of up to 7 years in prison and/or a $14,000 fine.

Charged with a DUID in the State of Minnesota? Call the Kans Law Firm, LLC at (952) 835-6314.

Tags: Driving Under the influence of drugs, drug dwi, DUID
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Supreme Court Says DWI Blood Tests Generally Require Warrants

April 19th, 2013

The Supreme Court issued an important ruling earlier this week in the Missouri v. McNeely case. The justices rejected the argument advanced by the government of Missouri that officers should never be required to secure a warrant prior to obtaining a blood test against suspected drunk drivers. Instead, the Court held that officers are generally required to obtain judicial authorization prior to forcing a blood test.

The case involved a man, James McNeely, who was pulled over back in 2010 by a Missouri state trooper on suspicion of drunk driving. McNeely failed the field sobriety tests the officer administered and refused to voluntarily submit to a breath test. As a result, the arresting officer took McNeely to a local hospital where he was strapped down and had his blood forcibly removed, all without ever obtaining a warrant.

McNeely tried to block the use of the results of the blood draw, which showed he was indeed intoxicated at the time of the test, saying the results, were illegally obtained. Prosecutors argued that given the time of night and location of the arrest, a warrant could take up to two hours to procure which would have allowed a substantial amount of alcohol to leave the man’s system, thus prejudicing their case and making it harder to prosecute McNeely and other drunk drivers.

Justice Sonya Sotomayor, who wrote for the majority, disagreed with Missouri and the Obama administration and held that police generally have enough time to secure a warrant before conducting a blood test. Though Justice Sotomayor admitted that there could be some emergencies that might require such extreme action, the Court decided that such cases would be handled on an individual basis and judged on the merits of the particular situation.

Though the decision was good in that it upheld McNeely’s constitutional rights, many have criticized the Court for its fractured opinions. For one thing, four separate opinions were issued in the case, creating some confusion about what exactly the majority of justices agreed on. There was the majority opinion written by Justice Sotomayor, two concurring opinions and one dissent, by Justice Thomas.

In one of the concurring opinions, Chief Justice Roberts roundly criticized the majority for failing to come up with a bright line rule. Roberts said that in the future it will be difficult for police officers to interpret the McNeely opinion and leave them confused about what exactly they are required by law to do in drunk driving cases. Sadly, rather than lay out a clear plan, Roberts concocted an equally muddled approach. Roberts wrote that in cases where an officer believes there is enough time to secure a warrant, then a warrant should be secured. However, in cases where a “reasonable officer” would believe there was not enough time to secure a warrant and preserve evidence, then a warrantless blood test can proceed.

The opinion was seen as a rebuke of warrantless searches by officers, though it did not go as far as some had hoped. After all, while Justice Sotomayor sided with McNeely and held that the results of the blood draw should be excluded from evidence, the majority was not willing to go so far as to say that a warrant was required in every such blood test case in the future. The wiggle room created by the opinion may lead to confusion in the future.

Source: “Forced Blood Tests Often Need Warrant, U.S. Court Says,” by Greg Stohr, published at Bloomberg.com.

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