Legalization of Marijuana Leaves Police Struggling Over Motorists Driving Under the Influence

Driving while under the influence (DUI) is a widely understood problem and concern across the world. Drug intoxication leads to impaired judgment, slowed reaction time, memory loss, and other dangerous symptoms that make driving a dangerous hazard. That’s why every single state in the United States bans motorists from driving with a blood alcohol concentration (BAC) above 0.08%.

Though alcohol-based offenses are the most common type of DUI, they are not the only kind. As states continue to legalize and decriminalize it, marijuana is rising as a concern and source for recent DUI offenses. Police and law enforcers are increasingly having to figure out to handle these cases in lieu of a BAC test.

About Marijuana and Expanding Legalization

Marijuana, also known as cannabis and weed, acts as both a depressant and stimulant. It’s commonly used for both medical and recreational purposes. Many medical users find that it reduces pain, improves appetite, and reduces chronic pain. Recreational users experience psychoactive and physiological effects that some deem a “mild euphoria.”

In recent years, many states have passed laws decriminalizing or legalizing (for medical reasons or not) the use of marijuana. It’s completely legal in four states, solely legal for medical uses in eight, legal medically and decriminalized in another eleven, and just decriminalized in five.

As a result, police departments, like the one in New Canaan, Connecticut, have seen a rise in the amount of “marijuana-related incidents” in the past year.

Driving Under the Influence of Marijuana

Though studies have found that driving under the influence of alcohol has significantly more severe effects on a motorist’s capacity to drive, marijuana is still a drug that impairs drivers. One study found that marijuana reduced drivers’ peripheral vision and gave them “tunnel vision.” Those with a certain level of THC, the principal psychoactive constituent of marijuana, in their system were found to weave more often within their driving line.

Additionally, the study found that combining marijuana with alcohol increased the effects of both drugs. Drivers affected by both started weaving in lanes at far lower levels of intoxication than those who had been intoxicated at higher levels of both. The presence of alcohol in the system also increased the THC’s absorption level, resulting in a more powerful “high” from the marijuana.

Legal and Police Action

Currently, seventeen states have “per se” laws that prohibit motorists from driving with certain levels of THC in their system. The rest feature other standards which are less defined in their handling of marijuana influence.

When it comes to alcohol intoxication, it’s much easier for police officers to administer a BAC test. With marijuana, it’s much trickier. Some police departments are experimenting with hiring “drug recognition experts” who can examine individual motorists on-scene to judge whether or not they are too under the influence to drive a vehicle.

As marijuana use rises as a result of legalization and decriminalization, law enforcement agencies hope to get a better handle on making the roads safe from those under the influence of any drug, not just alcohol.

New Texas Drunk Driving Statistics Revealed by MADD

Mothers Against Drunk Driving recently published a report that rates all 50 states’ efforts to end drunk driving fatalities and keep the public safe on the roads. MADD’s report uses a “five-star system to rate the states and encourage the adoption of proven countermeasures.”

The report is part of MADD’s Campaign To Eliminate Drunk Driving that it launched in 2006. The campaign is focused “on effective countermeasures already in place today, laws we can pass tomorrow, and future technologies to make cars safer.” MADD’s report is one part of its campaign that draws national attention to drunk driving and ways to eliminate drunk driving in America.

Five-Star Ranking System

To rate each state, MADD used five measures, include ignition interlocks, sobriety checkpoints, administrative license revocation, child endangerment, and no-refusal events. Each category was weighted evenly, and a state received a star for each measure fulfilled.

MADD describes alcohol ignition interlock devices as “the best proven countermeasure available to stop drunk driving.” According to figures, around 50% to 75% of convicted drunk drivers will drive even if their driver’s license has been suspended. A technology is also being developed, the Driver Alcohol Detection System for Safety, which will be able to accurately detect when a driver is intoxicated with a BAC above the legal limit and will be able to prevent the car from moving.

Through sobriety checkpoints, MADD estimates that drunk driving fatalities are reduced by 20% and are effective at reducing drinking and driving. Finally, MADD believes that it is important to hold drivers accountable for their actions. One method is by imposing increased penalties for a drunk driving conviction with a child passenger in the vehicle. Another method is for states to develop a program whereby prosecutors and judges make themselves available to facilitate the warrant process in the event a driver refuses to submit to a blood or breath test.

Texas Receives Three-Star Rating from MADD

In MADD’s s report, Texas received only three stars for the state’s efforts to reduce fatalities and injuries caused by drunk driving. Texas received stars for the categories of administrative license revocation, child endangerment, and no-refusal events. Texas did not receive stars for its efforts to reduce drunk driving by instituting ignition interlocks or employing sobriety checkpoints. MADD commented that for Texas’s 2015 legislative session, the organization will be advocating for ignition interlocks on all convicted drunk drivers.

The states that received the fewest stars (one) were Rhode Island and Montana. Many states received stars in all categories, including Alabama, Arizona, Colorado, Delaware, Illinois, Kansas, Maine, Mississippi, Missouri, Nebraska, Utah, Virginia, and West Virginia.

If Texas wants to improve its record for drunk driving accidents and deaths, it appears the state still has to institute significant reform. According to MADD, Texas led the nation in 2013 with 1,337 deaths caused by drunk drivers. And, MADD has criticized the Texas legislature for failing to take any steps to reduce the number of deaths caused by drunk drivers.

New Jersey To Retroactively Apply U.S. Supreme Court Decision Regarding DWI Warrants

In 2013, the United States Supreme Court’s ruling in Missouri v. McNeely issued an important decision protecting the rights of drivers and limiting the ability of police officers to draw blood from drivers without a warrant. In Missouri v. McNeely,an Missouri police officer stopped a driver for speeding and crossing the centerline. The driver declined a breath test to measure blood alcohol concentration and the officer took the driver to the hospital for blood testing. Notably, the officer never obtained a search warrant and had the hospital draw the driver’s blood, even after he refused.

The driver’s results tested above the legal limit and he was charged with a DWI. At trial, the driver moved to suppress the blood test results based on the argument that the taking violated his Fourth Amendment rights. The trial court agreed and suppressed the results. Eventually, the case made its way all the way up to the United States Supreme Court.

The Supreme Court ruled that the warrantless taking of the driver’s blood violated his Fourth Amendment rights. The Court held that there were no exigent circumstances that justified the taking of blood without first obtaining a warrant. In this regard, the Court held that “natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” As such, the taking of the driver’s blood without a warrant was improper.

New Jersey To Retroactively Apply to DWI Ruling

Following the Supreme Court’s decision in Missouri v. McNeely, many state courts have been issuing decisions suppressing blood test results that have been obtained without warrants. Recently, New Jersey’s Supreme Court ruled that the holding in Missouri v. McNeely applies not only to future DWI cases in the state, but also retroactively to any cases that had not been decided when the Supreme Court issued its opinion two years ago.

The New Jersey court’s decision in State v. Adkins involved the arrest of a driver suspected of DWI. The officer obtained a blood sample without the driver’s consent and without obtaining a warrant. The driver’s blood alcohol content was nearly double the legal limit. The driver moved to suppress the blood tests results. The trial court agreed and the appellate court reversed the decision.

The state’s supreme court, however, agreed with the trial court. Addressing the Supreme Court’s decision in McNeely, the court wrote: “The United States Supreme Court has pronounced the standard to be applied under the Fourth Amendment to warrantless searches involving blood draws of suspected DWI drivers and, under Supremacy Clause principles, we are bound to follow it as the minimal amount of constitutional protection to be provided.” The supreme court sent the decision back to the trial court to determine if the officer had probable cause to draw blood for emergency circumstances.

If you have questions regarding DWI laws, it is important to reach out to an experienced DWI attorney who can help you understand your legal rights.

Montgomery County To Increase Its Use of No Refusal Operations

Memorial Day weekend is notoriously one of the most active weekends for drivers operating vehicles under the influence of alcohol or drugs. For this reason, police officers are often out in full force on the roads to ensure that drivers are not operating vehicles while under the influence of drugs or alcohol. With the upcoming holiday and summer months, one county in Texas is significantly increasing its efforts to prevent drivers from driving under the influence.

Montgomery County to Use No Refusal Operations for 100 Days

Of the largest counties in Texas, Montgomery County had the highest fatality rate of drunk driving crashes in the state.To make the roads safer for drivers, Montgomery County is increasing no refusal operations and driving while intoxicated enforcement. The goal of the program is to prevent traffic crashes and deaths caused by intoxicated drivers. The program will occur for approximately 100 days between Memorial Day and Labor Day.

Under the no refusal operations, the process will occur as follows:

  • an officer makes a DWI/BWI arrest and asks the suspect for a breath or blood sample;
  • if the suspect refuses, the officer then meets with a prosecutor who will draft a search warrant for the suspect’s blood;
  • the warrant is sent to an on-call judge who will review the warrant for probable cause; and
  • if probable cause is found, a nurse will then take a sample of the DWI/BWI suspect’s blood.

In connection with the operations, there will be more law enforcement officials on the road to catch drivers. According to the Texas Department of Transportation, there were 24 DWI-related fatalities in the Montgomery County last year.

Texas’ Implied Consent Law

Texas has what is known as an “implied consent law.” Under Texas’ implied consent law, if a person is arrested for driving while under the influence of alcohol or drugs, the person is deemed to have consented “to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.”

Before requesting a specimen, however, the officer must inform the person that refusal may be given, but that there are certain consequences. Notably, the officer must inform the person orally and in writing that:

  • Refusal may be admissible in prosecution;
  • Refusal will automatically result in the suspension of a person’s license for 180 days, regardless if the person is prosecuted as a result of the arrest;
  • The officer may apply for a warrant to take a specimen; and
  • The person has a right to a hearing on the suspension or denial within 15 days of receiving the notice of suspension denial.

If you have questions regarding the legalities of sobriety checkpoints in your state, you should reach out to an experienced DWI lawyer for help.

 

Refusing a Breathalyzer Test & Implied Consent Laws in Texas

If you’re pulled over and suspected of drinking while driving, also know as driving while intoxicated (DWI) in Texas, it’s important to know your rights. The laws regarding DWI in Texas are complex and continue to evolve.  If a police officer asks you to take a breathalyzer test, you may not know whether or not you’re legally obligated to do so. Here’s what you should know about your right to refuse a breathalyzer test in Houston and elsewhere in Texas:

Texas’ Implied Consent Laws

Prior to November 28, 2014, the state of Texas had in place what were referred to as implied consent laws. Under these laws, a person who was pulled over for a DWI was obligated to consent to a breathalyzer or blood test if requested to do so. And if that person refused, then a blood or breath sample could be taken regardless. However, the Supreme Court ruled that taking the breath or the blood of a person without a warrant—unless the individual volunteers to give breath or blood—is unconstitutional.

Penalties for Refusal to Submit to Breathalyzer or Blood Test

However, just because the Supreme Court ruled that a warrant may be required to take a person’s blood or breath does not mean that there aren’t potential consequences for refusing a blood or a breath test. While you do have the right to refuse to submit to either, there may be legal repercussions for doing so. These repercussions include:

  • 180-day license suspension for a first-time DWI offense
  • Two-year license suspension for a second DWI offense
  • Two-year license suspension for a third DWI offense

While there is a penalty for refusing to take a breathalyzer or a blood test, it’s important to note that if you do refuse, it may be harder for the prosecutor to actually convict you of a DWI based on a lack of blood alcohol content evidence.

Is there any way to avoid a license suspension?

If you refuse to submit to a breathalyzer test, then it’s likely that your license will be suspended. However, you have a 15-day window to request a hearing to prevent your license from being revoked. If you do not request a hearing within the 15-day period, your right to the hearing to prevent revocation will be lost. The same thing is true if you take a breathalyzer and fail; you are still entitled to the 15-day window for a hearing.

Contact a Houston DWI Attorney Immediately

Because you only have 15 days to request a hearing—and present your case if your hearing is approved—it’s essential that you seek legal counsel immediately following an arrest. To meet with an attorney today, call the team at Johnson, Johnson & Baer, P.C. now at (713) 222-0400 for a free case review.

 

Sam Shepard Arrested and Charged with DWI, Not First Drunk Driving Charge

Actor, playwright, and Pulitzer Prize winner Sam Shepard was arrested and charged with aggravated driving and DWI on Wednesday, May 27, 2015 in Santa Fe. The following reviews the details of the arrest:

Sam Shepard Arrested

The 71-year-old man, who’s famous for his role in Black Hawk Down, as well as his numerous short stories and plays, was arrested by Santa Fe police after a restaurant security officer filed a complaint about a potential drunk driver. The security officer called police after Shepard was seen trying to leave the restaurant in his pickup truck; the truck’s emergency brake was on, preventing the vehicle from moving. Shepard had been drinking prior to entering the vehicle.

Shepard Released on Bail

According to officers, Shepard appeared intoxicated at the time of arrest—his eyes were bloodshot, and the smell of alcohol on his breath was clear. Shepard told officers that he had only had two drinks—both tequila-based—and was planning on driving home. Shepard failed a field sobriety test, but declined to take a breathalyzer test. Officers arrested Shepard on charges of aggravated driving, and he was then taken to a Santa Fe jail.

After posting bail, Shepard was released.

Not Shepard’s First Offense

This wasn’t Shepard’s first driving offense, nor his first involving alcohol.

In January of 2009, Shepard was arrested in an Illinois town for drunk driving and speeding. After that arrest, he was convicted of the crime, fined $600, sentenced to 100 hours of community service, order to attend an alcohol treatment program, and was placed under 24 months’ worth of supervision.

Charges for a Secondary DWI

Being charged with one DWI is serious enough, but being charged with two can significantly alter the course of your life. In Texas, the charges for a second DWI include an automatic license suspension of 60 days and up to two years, a fine of up to $4,000, jail time ranging anywhere from one month to one year, an annual license surcharge of $2,000 for three years, the possibility of an interlock ignition device, and community service.

What should I do if facing secondary DWI penalties in Texas?

If you’re facing secondary DWI penalties in Texas, you need to read our page about adult DUI/DWI penalties found here. Then, you need to call our offices as soon as possible to schedule your free case consultation. At Johnson, Johnson & Baer, P.C., we’re committed to representing you! Reach out to us today to learn how we can help you build a defense starting now.

Reporter Attempts Drunk Driving in Controlled Environment

Everyone knows that drunk driving is dangerous; however, few have experienced the dangers first-hand. But a reporter for ABC 13 News decided to be a guinea pig, so to speak, by attempting drunk driving in a controlled environment. Without police supervision in an uncontrolled environment, this experiment should never be attempted.

Reporter First Navigates the Course Sober

Miya Shay of ABC first navigated a course—set up by the Houston police department—while sober. The course is challenging to complete even without having had a drink; drivers are supposed to navigate turns, parallel park, and more, all within a minute and 25 seconds. Despite its difficulties, Shay completed the course successfully.

And then she had a couple of drinks.

Attempting a Test Driving Course While Intoxicated

After completing the course, Miya Shay then sat down with police officers for a round of drinks. Before heading out back on the course, her BAC—blood alcohol content level—was measured. Shay blew a 0.073 percent, an amount that’s still below the legal limit of 0.08 percent.

Shay then attempted to navigate the course one more time. This time, to simulate a child running out in front of the car, officers threw a ball in front of Shay’s vehicle. Shay didn’t see the ball.

Another Round of Drinks In

Officers then gave everyone more alcohol with the intention of bringing BAC levels above the legal limit to the equivalent of eight to nine drinks per person. Officers then took to the course once more, running over cones, and not being able to parallel park whatsoever. Most of the intoxicated officers assumed that they had performed well, despite the fact that the driving was clearly dangerous.

Why simulate drunk driving?

The point of the exercise was to demonstrate just how dangerous drinking while driving really is. However, the dangers of driving while impaired shouldn’t be downplayed; Texas leads the nation in the number of drunk driving deaths every year.

Stay Sober on the Road

If you’ve had a drink, forego driving. Even if you’re below the legal limit, you may still pose a danger to yourself and others. Rather than getting in the driver’s seat, call a friend, a family member, or a cab to come pick you up.

If you have been charged with drinking and driving in Houston, make sure you hire a DWI attorney as soon as possible. The penalties for a DWI conviction are harsh. An attorney can help you navigate the complex legal system and build your defense. At Johnson, Johnson & Baer, P.C. we want to represent you. Get in touch with us today to learn more!

 

 

24-Year-Old Woman Acquitted in a DWI Case; Civil Suit Pending

In February of 2013, Caroline Callaway, a 24-year-old woman, was arrested on DWI charges in Austin, Texas and brought to the Travis County police station. In April of 2015, the case finally came to a conclusion, and Callaway was acquitted of all charges. But Callaway’s plight isn’t over; the young woman is pressing civil charges against both Austin and Travis County.

Pulled Over for Running Red Light, Arrested for DWI

On an early Monday morning in February of 2013, Callaway was pulled over by officer Patrick Oborski with the Austin police. Oborski told Callaway she was being pulled over for running two red lights. He then asked her to perform a field sobriety test. Callaway cooperated—the entire sobriety test was caught on video by a nearby dash cam. Callaway did well on the sobriety test, as can be seen in the film. Regardless, though, Oborski requested that she submit to a breathalyzer test.

Callaway Refuses Breathalyzer Test

Callaway refused to submit to the breathalyzer test. And, because the weekend she was arrested was a no-refusal weekend—a weekend in Texas where warrants are automatically granted to Texas police officers to perform breath and blood alcohol content level tests—Callaway was arrested and taken to the Travis County police station. There, she was told that she would have to submit to a blood test.

Blood Forcibly Drawn by Officers

Ms. Callaway refused to submit to a blood test. And so, officers forcibly drew her blood. According to officers, the only way that charged persons are ever made to submit to a blood draw are by applying force to pressure points at the mandible to yield compliance.

However, Callaway showed no signs of any pressure being applied to her mandible; rather, pictures after her arrest show bruises on her throat and neck. Callaway told the court that during the blood draw, she was having an anxiety attack. She also told the court that officers yanked her around, stepped on her arm to keep her still, strapped her in a restraint chair, and placed a bag over her head.

Court Cases Ends in Acquittal

The court case against Callaway ended in an acquittal, and all charges against the young woman were dropped on the basis that Callaway’s civil rights were violated. (As a note, the blood test revealed that her blood alcohol content level was .137 percent. Her attorney said this could have been contaminated because the officers did not seal the blood tubes properly). Callaway’s attorney, Daphne Silverman, said that she was relieved by how the case ended, and that the case was demonstrative of, “the dangers of permitting law enforcement to handle the process of evidence collection from our bodies.”

Civil Case Pending

Callaway’s arrest led her to file a civil lawsuit against Austin, Travis County, Austin police officers, county sheriff’s officers, and Pro-touch nurses based on a violation of her civil rights. The case is still pending.

Contact a DWI Attorney if You’ve Been Arrested in Houston

If you’ve been arrested and charged with a DWI in Houston and believe that your rights were violated, don’t hesitate to take legal action. At Johnson, Johnson & Baer, P.C., we are committed to making sure that your civil rights during a DWI case are defended. Call us today to learn more at (713) 222-0044.

Man Charged with DWI Murder Gets New Trial

In 2013, Donald Huff was sentenced to a 45-year prison term by a state District Court Judge, Sid Harle, in Bexar County, Texas. Huff was convicted of killing Arlene Kay Harding-Watts, age 46 at the time of death, when he hit her while driving while intoxicated. Because the intoxication offense was Huff’s third, the prosecution argued that he should be charged with murder rather than intoxication manslaughter. In Texas, a third offense driving while intoxicated (DWI) charge is considered a felony.

Blood Drawn from Huff at Time of Arrest Sans Warrant

 At the time that Huff was arrested for the intoxication while driving charge, and for killing Harding-Watts, his blood was drawn to check his blood alcohol concentration (BAC) level.  However, a warrant was not obtained prior to having his blood collected (under the state’s implied consent laws, law enforcement officers can request chemical testing, such as a breathalyzer, of a driver if they suspect intoxication).

Missouri vs. McNeely Changes Implied Consent Rule

 In 2013, the Supreme Court heard the case of Missouri vs. McNeely. Essentially, the outcome of the case was thus: regardless of state laws that state otherwise, police officers must obtain a warrant prior to subjecting a person suspected of drinking while driving to a blood test.

Court Declares Blood Draw Unconstitutional; Sentence Overturned

 Because of the Missouri vs. McNeely case, the court responsible for hearing Huff’s case declared that, “because the warrantless blood draw violated Huff’s Fourth Amendment rights and we cannot say beyond a reasonable doubt that the erroneous admission of the results of the blood draw did not contribute to his conviction, we reverse the trial court’s judgment and remand this matter for a new trial.” In other words, the conviction and sentence—a 45-year prison term for DWI murder—were dropped against Huff. Huff’s attorney, Dayna Jones, said that she was pleased with the court’s decision.

The Importance of a Defense Attorney for DWI Charges

Without a criminal defense attorney, it’s likely that Huff’s sentence wouldn’t have been appealed, and the sentence would not have been overturned, providing him the opportunity to have his constitutional rights protected in the form of a new trial.

If you’ve been charged with a DWI crime, a Texas DWI attorney can provide you with the representation and defense that you need to reduce your sentence, or even have the charges against you dropped. To learn more, call the offices of Johnson, Johnson, & Baer, P.C. now at (713) 222-0400.

 

Minnesota Supreme Court Rules Ok To Charge People Who Refuse Breathalyzer Test

Under Minnesota law, it is a crime for a driver to refuse a request to take a chemical test to detect the presence of alcohol if certain conditions are met, including if the driver has been validly arrested for driving while impaired. Earlier this month, the Minnesota State Supreme Court ruled that Minnesota’s law does not violate one’s due process constitutional rights and upheld the validity of Minnesota’s refusal law.

The dispute over Minnesota’s law arose from 2012 incident involving three intoxicated men who were attempting to get a boat out of the water at a boat launch. Their truck apparently became stuck in the river while they were trying to pull out their boat. Police arrived at the scene and noticed that one man was in his underwear. The officers also could smell a strong odor of alcohol from the group. One man, William Robert Bernard, admitted that he had been drinking, but he and the other men denied driving the truck. Witnesses identified Bernard as the driver of the truck. The officers noted that Bernard smelled of alcohol, had bloodshot and watery eyes, and held the keys to the truck. Bernard refused to perform field sobriety tests.

The officers arrested Bernard on suspicion of driving while impaired. Officers advised Bernard that Minnesota law required him to take a chemical test and that it was a crime if he refused to take the test. Bernard refused to take the test and officers charged Bernard with two counts of first-degree test refusal.

Bernard Claimed Minnesota Law Violated Due Process Rights

Bernard challenged his arrest and claimed that Minnesota’s “test refusal statute violated due process because the statute makes it a crime to refuse an unreasonable, warrantless search of a driver’s breath.” The case eventually made it all the way up to Minnesota’s highest court.

The state’s supreme court rule that that it is ok to a charge people who refuse to take blood-alcohol tests. The court stated that the breath test the police asked Bernard to take “would have been constitutional as a search incident to a valid arrest, and as a result, charging Bernard with criminal test refusal does not implicate a fundamental right.”

Texas Refusal to Consent Law

Under Texas law, if a person is arrested and refuses to submit to the taking of a breath or blood specimen, then the state can:

(1) suspend the person’s license to operate a motor vehicle on a public highway for 180 days; or;
(2) if the person is a resident without a license, issue an order denying the issuance of a license to the person for 180 days.

If the person has one or more alcohol-related or drug-related enforcement contacts during the preceding 10 years of the arrest, then the period of suspension or denial is 2 years.

If you have any questions regarding Texas DWI laws, you should contact an experienced Texas DWI attorney.

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