Ever Wonder What Would Happen If DUI .08 Was Lowered?
There is no need to wonder, as this exact scenario is taking place just a little north of the city of Bellingham, Whatcom County in the Canadian Province of British Columbia (BC). From all accounts, the lowering of the limit is a complete and total disaster. This sentiment is not from the expected opponents of the law, but rather those charged with enforcing the new law- the police.
The story (below and bold) of the new lower DUI law appeared in Oct 21, 2010:
B.C.’s harsh new drunk-driving laws are stretching police resources, says Vancouver Police Union president Tom Stamatakis.
Officers now face the potential for more pursuits and are wasting time waiting for tow trucks and taxis after vehicles are impounded, he says.
“Ultimately, from a front-line police officer’s perspective, we’re ending up not targeting the person that’s responsible for the very serious tragedies that we deal with on an ongoing basis,” said Stamatakis.
“Even if you support the change of regulations, I don’t think any of us support the fact that we’ve now become the judge and the jury. Our job is to enforce the law and another part of our criminal justice system should be dealing with the guilt or innocence thing and imposing what the penalties should be.”
Stamatakis said the heavier penalties on drivers with a breathalyzer reading of between .05 and .08 means that police are targeting people who have a couple of glasses of wine with dinner — rather than problem drinking drivers.
The higher penalties are leading to increased tension between police and drivers, and extra officers may be needed for backup at a time when police are already short-staffed, he said.
“There’s no question that speeding and drunk driving cause a lot of carnage on our roads,” said Stamatakis, who’s also president of the B.C. Police Association. “In this country, at least, it’s not illegal to consume a glass of wine with dinner and it seems we’re creating a situation where we are put in the unenviable position of having to enforce these regulations.”
Stamatakis said his members weren’t consulted before the government brought in the new laws, and that he plans to talk to Solicitor General Mike de Jong about them.
“There’s a significant fine attached for both speeding and lower blood-alcohol limits,” Stamatakis said. “Is that revenue going to be poured back into public safety, or going to end up in general revenue?
“My view would be if we’re going to create these regulations that have a considerable impact on police capacity, then the revenues should come back to policing.”
Simon Fraser University criminologist Neil Boyd said Wednesday he agrees with Stamatakis.
“When you institute these kind of changes, there may well be consequences that were not what was intended, in terms of the use of scarce police resources,” he said.
“This is new territory. Do we have a lot of evidence that people at .05 are the people that are creating more than 1,000 impaired-driving deaths that we get in Canada every year?”
Cpl. Jamie Chung, spokesman for RCMP traffic services, said the Mounties haven’t experienced any extra problems since the law came in Sept. 20.
“Police work comes with risk,” he said. “If we have to impound people’s vehicles, there’s always a potential for them to get irate.” And police have always had to wait for tow trucks when impounding vehicles during roadside suspensions, he added.
Manon Groulx, Vancouver vice-president for Mothers Against Drunk Drivers, was reluctant to comment on Stamatakis’s views.
“If the new laws stop impaired drivers and reduce the amount of victims, we’re happy,” she said. Read more.
In Washington the legal limit continues to be .08, and the consumption of alcohol and driving remains legal as long as the driver remains under .08 and/or remains unaffected by their consumption. That being said, however, does not change the fact that law enforcement, locally and state-wide, still arrest and causes criminal DUI charges to be filed against those under the limit and well within the law. Practically speaking therefore, the legal limit appears to be “zero tolerance.” While this is not a bad thing, the problems is the disconnect between what is legal and what “not guilty citizens” are being arrested and prosecuted for. Many citizens agree with a “zero tolerance” and that is their right, but a person should not be arrested, prosecuted, and punished for living their life well within the law.
Despite a person’s personal opinion, the law is set and it has been continually reduced over time, and may one day be even lower, but until that time, .08 remains the standard and “zero tolerance” should not prevail. As an analogy, consider the case where you are stopped and cited for speeding. You were doing 59 in a 60 zone on the interstate. Yet, you were stopped and given a speeding ticket despite you being close, but not at, or even over the legal speed limit. Think about how this would feel. As a person who defends citizens rights I see this injustice weekly. This exact situation is happening only on a more serious level (criminal vs. traffic infraction).
If the law changes then so be it, we are a land ruled by law and the democratic process can change that law. But if that happens, why not take a look at the problems and pitfalls of such a change? Why not learn from our Canadian neighbors and avoid the problems they have encountered? Better yet, why not actually enforce the law here at it stands, rather than impose “zero tolerance” in a non-democratic manner?
DUI does not necessarily mean a driver is .08, and as a result DUI is not a simple charge. Defense of a citizen charge with DUI is not to be taken lightly nor is it for the inexperienced, nor should a lawyer who has no DUI experience handle such a defense. Rather is requires a highly specialized level of understanding, skill, passion, and compassion. Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. The right to remain silent is an important right that effects each and every DUI case, and a right that exists from the moment a driver is stopped, or seized by law enforcement. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands | http://www.jrandslaw.com Email: jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense and provides legal services for cases in Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI’s Tracy Ellis every other Sunday on the Legal Docket.
Washington Supreme Court Settles Question Of Jurisdiction In Whatcom County DUI Case.
Last week the Washington Supreme court issued their ruling in State v. Eriksen, what appears to many to be a a simple case of DUI. However, given the location of the stop and arrest, the case contained an important issue and created a question as to whether a Tribal Officer had the authority to go beyond the tribal lands in making the stop and arrest? This precise issue has not yet been determined until now. Previously, a similar issue that has been resolved was presented in State v. Schmuck, a 1993 case. In that case it was determined by the Supreme Court that a tribal officer has the authority to stop and detain non-Indian offenders on-reservation land until state authorities could arrive and assume custody. That Court case however, failed to address the current issue of Tribal Officers traveling “off-reservation” in continued pursuit. Instead, that Court only alluded to the issues of a prolonged detention while “on-reservation” and also refused to embrace the more implicit question of pursuit “off-reservation.” In the Whatcom County DUI case of Eriksen, the Washington Supreme Court finally answered the issue and extended the prior rule. In doing this, the Court ruled that “tribal officers have authority to continue fresh pursuit of motorists who break traffic laws on the reservation and then drive beyond the reservation boundaries.” There is abundant Federal caselaw, however, that may serve to prove them wrong if this ruling is appealed. This is due to the historical separation between the government and the Indian Nations.
In rendering the decision the Court appears mindful of the practicality of rules, regulations, and treaties as well as the intent of the Lummi tribe as evidenced by the following language: ” the Lummi Nation does not assert authority to arrest and prosecute Eriksen for DUI but merely claims the power to stop and detain her until she could be turned over to Whatcom County officials.”
However, the Courts ruling also serves as an example of an end-result opinion and the continued maintenance of what we called the DUI exception to the constitution when the Courts closing comments are evaluated: “Our decision today harmonizes with common sense and sound policy. To allow drunk drivers to escape the law by crossing a reservation boundary would unnecessarily endanger lives by incentivizing high-speed dashes for the border. We decline to embrace such a ludicrous result.”
The Courts agenda is obvious when you look to the same Courts decisions one year earlier in the matter of State v. King. King’s case of reckless driving was dismissed when seized by a city offcier acting outside of his jurisdiction. In King, the Court held that “the defendant’s actions while driving a motorcycle did not reach the level of erratic driving that constituted an emergency involving an immediate threat to human life or property, and thus, police officer, who was outside of his territorial jurisdiction, was not authorized to arrest defendant.”
In King, the only difference between his case and Eriksen’s case, was the fact that the crime of reckless driving was at issue, rather than the crime of DUI. In fact, Eriksen’s driving was far less dangerous than those said to have been committed by King. In the King case, this very same court concluded that a peace officer who had gone through Washington State Law Enforcement Academy but outside of his jurisdiction lacked the authority to make a stop King for the crime of Reckless Driving. However, in Eriksen’s case the Court justified the stop despite Tribal Officer’s lack of graduation from the State’s “official” law enforcement program and justified the stop also absent compliance with a valid agreement between the State and the Lummi Nation. As evidenced by the Court’s closing comments, the driving force of the ruling appears to me the fact that the crime is DUI.
While no one is in favor of DUI, the crime is one that deserves equal treatment in our justice system, rather than finding ways to achieve a particular result, and make excuses for intellectual dishonesty. This “ends justifies the meas approach” may be tolerated simply because DUI is a misdemeanor, but the practice is a slippery slope and should not be engaged in by any tribunal, but especially our State’s high Court.
As evidenced by this, and other end result decisions, DUI is not a simple charge. Defense of a citizen charge with DUI is not to be taken lightly nor is it for the inexperienced, nor should a lawyer who has no DUI experience handle such a defense. Rather is requires a highly specialized level of understanding, skill, passion, and compassion. Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. The right to remain silent is an important right that effects each and every DUI case, and a right that exists from the moment a driver is stopped, or seized by law enforcement. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands | http://www.jrandslaw.com | Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI’s Tracy Ellis every other Sunday on the Legal Docket.
3 Judge Panel Requires Breath Test Evidence To Comply With Scientific Standards.
Yesterday, September 22, 2010, a King County District Court 3 Judge panel found that breath tests, previously held to be inadmissible for any purposes, opened the door to permitting the test once again. However, before they can be admitted the Judges required that uncertainty must be provided in discovery and to the jury or, upon motion, the breath test results will be suppressed. In the Court’s Decision the Judge’s wrote:
For the reasons stated below, we hold that historic standards of justice – contained in the federal constitution, case authority and court rules – require that the State present breath test readings, both in pretrial discovery and at trial, showing their true value, rather than wrapped in such a way that a false picture is presented, either to the defendant or to the trier of fact.
Without this evidence a breath test is NOT admissible for the reasons stated in the 31 page decision for a very simple reason: “absent a confidence interval, a “final” breath-alcohol measurement is only a “best estimate” of a person’s breath-alcohol level.”
The press, the opposing prosecutor, and other commentators have pointed out that the ruling is not founded upon tradition rules regarding the breath test evidence and they are absolutely right.
This decision was predicated upon something much more significant and important: “standards of justice.” This is not a novel concept and to those of us involved in the litigation for the past 5 years neither is this ruling. In fact this ruling is very similar to other jurisdictions where this issue has been challenged and argued.
Most recently Island County District Court, and Skagit County District Court have both arrived as similar conclusions and in simple terms require the State to produce the “uncertainty” calculations because failure to do so shrouds the breath test result in the aura of science and juries can easily be misled.
Those who have opposed the notion of providing the uncertainty calculations do so because they say it doesn’t matter except in those cases where the breath test result is in the .08 range. However, despite this concession, opponents of uncertainty were still unwilling to provide the information because in so doing, the limitations, the internal bias, and the sample bias are all exposed for what they are: a guess.
The Constitutions of this State, and of this Country, both entrench one of the most important rights we have that makes us a free society: Proof beyond a reasonable doubt. Failure to provide information that shows the machine’s fallibility, bias against subjects, and blood alcohol estimate that is scientifically unsound and only samples breath that is the size of a golf ball violates the principal.
Interestingly enough, it is the advanced nature of the State Toxicology Laboratory that has led to this ruling: Since the lab has the technology and personnel with the necessary education to compute the uncertainty calculation the scientific community demands the production of this information so that the scientific evidence can be scrutinized. The rule of law requires adherence to scientific principals established by the community when the Prosecution seeks to use the evidence to take a person’s liberty. In fact, the 3 Judges recognized this principal and quite frankly set the record straight on page 2 of their ruling where they wrote:
[b]ecause the subject matter of this opinion is so heavily steeped in scientific principals and procedures which are largely unknown to the Judiciary and the Bar, the Court is including in the Findings explanations and definitions of many of the principals involved.
With this ruling now in the books it is expected that many jurisdictions around the state will follow this rule for purposes of determining whether a breath test in a DUI prosecution in any given county in Washington will in fact be presented to a jury.
Currently, in Whatcom County, this motion has been presented to the District Court in a DUI prosecution and both myself and the State Prosecutor as well as all criminal defense attorneys, more specifically DUI defense lawyers in the county await a ruling that is rumored to be close to being complete. Also, in DUI cases prosecuted by the City of Bellingham, it has been agreed that the transcripts from this King County hearing will be relied upon for purposes of answering the same question of breath test admissibility. As a result of this now public King County decision there is a possibility that the Bellingham City Prosecutors and DUI lawyers for all DUI breath test prosecutions will also agree to abide by this well reasoned ruling.
This ruling, and the rulings in Skagit, Island, and hopefully Whatcom Countys, is the product of years of litigation in various courts around the State. Regardless of what your personal feelings are towards the crime of DUI, as a person who resides in this State and Country, these decisions are something to be proud of, these decisions are hallmarks of our system of justice that require the best possible evidence in seeking a conviction. All too often the rhetoric, the skewed statistics, and even the pain as a result of a crime having been committed gets in the way of system of rules that are required to be followed. While I believe no one in their right mind advocates for drinking and driving per se and the best evidence I can ever give to avoid a DUI is not some gimmick, but rather it is simple: “Don’t drink and drive.” But this does not change the fact that mixing the two is NOT necessarily a crime and is in fact legal in this State.
However, if you disagree with the law; Vote to change it; Move to a state or a Country where you agree with the law; but as long as this State permits drinking and then driving unless or until a person reaches, or exceeds the .08 limit, or is affected by their alcohol consumption, the State MUST and IS now is being held to the most important law that our system historically recognizes: “standards of justice.” It is these standards together with scientific rules, regulations, and other principals of law combined with the intellectual honesty of Judges like these 3 in King County, the 2 in Skagit, and the 1 in Island County that makes this the best system of justice available. Bravo Judges.
Jonathan Rands is an experienced, dedicated, and a tenacious DUI lawyer with proven DUI defense success. He has been apart of every major breath test challenge in the various courts where he practices in the last 8 years. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands | http://www.jrandslaw.com | Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI’s Tracy Ellis every other Sunday on the Legal Docket at http://www.kgmi.com/pages/7015350.php
