CNN reported that Washington’s National Transportation Safety Board (NTSB) is recommending that all 50 states should lower the blood alcohol content rate from .08 to .05.  The NTSB is trying to force the states to expand their laws allowing officers to confiscate a driver’s license when arrested for DWI….Something Texas already does.  NTSB is also trying to get ALL states to require ignition locks (IID) on all first-time offenders. 

As I have previously stated, requiring IID on ALL drivers takes the subjectivity away from the Judges, and instead places the IID decision making on the legislature.  The Judge, who has full knowledge of the facts, should be the one that make the decision as to whether it is in everyone's best interest that IID be required.  While nearly all states grapple with shrinking budgets, NTSB is expected to recommend to the National Highway Traffic Safety Administration that it provide financial incentives to states to implement the changes. 

Really, this is just another “feel good” approach to fighting DWIs.  The number of folks that test between .05 and .08 is so small, that it will likely have little effect. 

However, with the margin of error, measuring smaller and smaller amounts will become more and more unreliable.

They've finally done it.  The National Transportation Safety Board today recommended lowering the blood-alcohol level for drunk driving to .05%.  

Washington, D.C.  May 14 — A common benchmark in the United States for determining when a driver is legally drunk is not doing enough to prevent alcohol-related crashes that kill about 10,000 people each year and should be made more restrictive, transportation safety investigators say.

The National Transportation Safety Board recommended on Tuesday that all 50 states adopt a blood-alcohol content (BAC) cutoff of 0.05 compared to the 0.08 standard on the books today and used by law enforcement and the courts to prosecute drunk driving…

The NTSB investigates transportation accidents and advocates on safety issues. It cannot impose its will through regulation and can only recommend changes to federal and state agencies or legislatures, including Congress.

But the independent agency is influential on matters of public safety and its decisions can spur action from like-minded legislators and transportation agencies nationwide. States set their own BAC standards….

In the early 1980s, when grass-roots safety groups brought attention to drunk driving, many states required a 0.15 BAC rate to demonstrated intoxication.

But over the next 24 years, Mothers Against Drunk Driving and other groups pushed states to adopt the 0.08 BAC standard, the last state falling in line in 2004…

Based upon this recommendation — and, as in the past, some pressure on the states to withhold federal highway funds if the new DUI standard is not adopted — it is likely that we will all see the.05% level enacted as law over the next few years.

The article mentioned an earlier blood-alcohol level of .15% in some states.  Let me offer a more accurate history to give context to today's federal action…. 

The original drunk driving laws were simple and fair: Don’t drive under the influence of alcohol (DUI). Then, many years ago, law enforcement came up with crude devices to measure alcohol on the breath of drunk driving suspects. But what did, say, a .13% blood-alcohol concentration (BAC) mean?  They turned to the American Medical Association which, in 1938, created a "Committee to Study Problems of Motor Vehicle Accidents"; at the same time, the National Safety Council set up a "Committee on Tests for Intoxication".

After some study, these two groups came up with their findings: a driver with .15% BAC or higher could be presumed to be "under the influence"; those under .15% could not. That’s right: .15%. And that recommendation lasted for 22 years. But prosecutors and certain groups of "concerned mothers" were not happy with the low DUI arrest and conviction rates.

Under increasing political pressure, the committees "revisited" the question in 1960 and agreed to lower the presumed level of intoxication to .10%. Had the human body changed in 22 years? Had the AMA been negligent in their earlier studies? Or were politics and law trumping scientific truth?

Well, the arrest and conviction rates shot up, but there were still too many people escaping the DUI net. Then MADD was formed by Candy Lightner (later to quit the organization in disgust and become a spokesperson for the liquor industry). Soon after, legislation began appearing in many states that created a second crime: driving with a BAC of .10% or higher.

This new crime did not require the driver to be affected by alcohol: even if sober, he would be guilty if his blood-alcohol was .10%. In effect, it completely ignored the questions of intoxication, driving impairment and individual tolerance to alcohol. And, despite questions of double jeopardy, the individual could be charged and even convicted of both the traditional DUI and the new .10% crimes! This gave police and prosecutors a powerful new weapon, and drunk driving arrests/convictions jumped once again.

This was not good enough. Under increasing pressure from an ever more powerful MADD, in 1990 four states lowered the blood-alcohol level in DUI cases to .08%; others soon followed and, ten years later, federal politicians (with one eye on MADD) passed an appropriations bill in effect coercing all states into adopting the new .08% BAC standard.

Since then, there has been continued pressure on federal agencies and state legislatures to drop the blood-alcohol level to .05% — resulting in today's announcement by the NTSB.

What is the next step in MADD's march toward a new era of Prohibition?  Well, that should be obvious: .01% — exactly as is currently used across the country on drivers under the age of 21.  

Not coincidentally, these .01% so-called "zero tolerance" laws were also championed by MADD and imposed on all of the states by the feds with the threat of withholding highway funds.

(Thanks to Matthew S. Kensky and "Joe" for the article.)
 

Criminal lawyers defending a charge of drug possession can seek to establish that the defendant was unaware of the illegal or controlled nature of the drug (this requires a special motion), was in legitimate possession of the drug, for instance, with a medical prescription, that the drug was found in an entrapment operation by the authorities, or that the rights of the defendant as stated in the Fourth Amendment were violated in a search and seizure operation. A criminal defense lawyer can also try to defend on the grounds that the defendant was unaware of the fact that the drugs were in the premises controlled by them. However, this is more difficult to prove if the drugs were found on the body of the defendant or in a container held by the defendant for obvious reasons. Many persons charged inquire as to the likelihood of having a degree of felony reduced if they are able to establish that the drugs were for personal use and not for sale.

In some circumstances if a law enforcement officers have a reason to suspect the presence of drugs in a vehicle (probable cause), they have a right to conduct a vehicle search without obtaining a search warrant. Investigation of a DUI suspect for being under the influence of marijuana often stems or leads to the search of a vehicle whether based on probable cause or an inventory search. The search may be conducted inside the trunk, inside the glove box, and even in the closed containers found in the vehicle.

Booking follows an arrest for a DUI. During this stage the police officer is likely to ask for relevant information from the suspect, including facts such as the suspect’s name, age, and residence’s address.

At the booking stage, the police officer will also formally record the details of the alleged DUI offense and describe the circumstances surrounding the incident. This will be followed by a routine search of the police records for a possible criminal history of the suspect. Police records will be updated with the fingerprints and photographs of the suspect, and the suspect’s physical search will also be performed. The suspect will finally be detained at a police station cell or at the main Broward County Jail Located in downtown Fort Lauderdale.

Question: How do you increase the number of New Jersey drunken driving arrests almost overnight?
Answer: Just lower the legal limit for blood-alcohol concentration.

The simple Q&A above may seem like a heavy handed attempt at levity, but it actually does have its roots in reality. And, while the scenario of having an even tighter legal limit for drunk driving might seem a bit far-fetched at this very moment, it may be closer than anyone might expect if state legislatures like ours here in the Garden State take the latest recommendation from the federal government to heart.

According to news reports, safety analysts at the National Transportation Safety Board have just recommended a lowering of the legal blood-alcohol content (BAC) level from the current 0.08 percent to a suggested 0.05 percent. The recommended level of 0.05 percent represents a drastic reduction of more than one-third from the current legal limit. As New Jersey DWI defense attorneys, we can only surmise that a lower legal limit would result in a potential increase in drunk driving arrests, at least initially.

Human nature being what it is, it may be that that many of the individuals who currently drink and drive might likely continue doing so. But one must ask whether a lower legal would shock our society to the point of most everyone being more vigilant about how much they drink before operating a motor vehicle. For reference, approximately 10,000 people die each year in drunk-driving accidents nationwide, while about four million drivers reportedly admit to getting behind the wheel while intoxicated by beer, wine or hard liquor.

After an extensive investigation by the Westchester County District Attorney’s Office and the Town of Yorktown Police Department, Brett Nelson, an 18 year old man from Yorktown Heights, has been indicted by a Westchester County grand jury for criminally negligent homicide in the death of Randy Zapakin, a 57 year old married father of three. The motor vehicle crash occurred on November 8, 2012 while Mr. Zapakin was walking his dog near his home on Farm Walk Road in Yorktown. Mr. Nelson was driving a 2002 Chevrolet Cavalier with two friends in the vehicle. The vehicle operated by Nelson allegedly struck Mr. Zapakin, veered off the roadway, and continued for approximately 100 feet before striking a tree.

When the police arrived at the scene, they allegedly smelled marijuana in the vehicle, and found the drug in the car and a marijuana pipe near the point of impact. The accident was reported by a neighbor of Mr. Zapakin when the vehicle came to rest on her lawn. Purportedly, blood tests tested positive for THC, the active ingredient in marijuana. Mr. Nelson has been charged with criminally negligent homicide, a felony under the Penal Law, the misdemeanor of reckless driving, the violation of unlawful possession of marijuana, and traffic infractions including driving left of the center line and failure to exercise due care.

In order to be found guilty of criminally negligent homicide, a person must be found to have driven recklessly, disregarding the known risks of his or her recklessness, resulting in the death of another person. Many people believe erroneously that this charge only arises when a driver is intoxicated or under the influence of drugs. However, it can also be charged if the driver is texting or otherwise disregarding the serious risks of driving without paying attention to the road in front of him or her. One of the issues in this case will be whether Mr. Nelson is offered a plea by the District Attorney’s Office to a reduced charge. Generally, if the defendant does not have a criminal record, a plea would be offered. Due to Mr. Nelson’s young age, and assuming that he has no previous criminal background, I would anticipate that the D.A.’s office will make an offer in an effort to obtain a guilty plea in exchange for a limitation on the jail time which Mr. Nelson will serve. Of course, the D.A. will take into account the wishes of Mr. Zapakin’s family, but the reality is that it is unlikely that this case will reach a trial, as Mr. Nelson would face the grim reality of autopsy photos and grieving family members.

Mr. Nelson was released on $25,000 bail. He is due back in Court on May 28, 2013. If convicted on the criminally negligent homicide charge, Mr. Nelson faces up to four years in prison.

The "per se" legal limit to drive in California is below .08 blood alcohol level. CNN reports that the National Safety Transportation Board is suggesting that states lower the legal limit to .05. Well, that means more business for California DUI lawyers. But does it really mean more safety for the public. Read below and make your own decisions.

Click HERE for the link, or just keep reading for the CNN story.

States should reduce the blood-alcohol level that qualifies as drunken driving to 0.05% to reduce fatal crashes, the National Transportation Safety Board recommended Tuesday.

The risk of a crash at 0.05% is about half as much as at 0.08%, the limit in all states, according to a safety board report released Tuesday.

"This is critical because impaired driving remains one of the biggest killers in the United States," said Deborah Hersman, the NTSB chairman. "To make a bold difference will require bold action. But it can be done."

But the board makes only recommendations to states and the federal government, and can't make laws or regulations.

The Governors Highway Safety Association supports the current alcohol threshold, while commending the board for a comprehensive strategy to address drunken driving. The group favors ignition locks for first-time offenders.

"When the limit was .10, it was very difficult to get it lowered to .08," said Jonathan Adkins, a spokesman for the governors group. "We don't expect any state to go to .05."

The advocacy group Mothers Against Drunk Driving welcomed the board's recommendation, but rather than push for a lower blood-alcohol content level, the group is fighting to eliminate drunken-driving entirely. MADD is pushing for better technology to prevent convicted drunken drivers from operating a vehicle after drinking and to make law enforcement more visible.

"As a mother whose child was killed by a drunk driver, the most important thing to me is preventing as many families as possible from suffering similar tragedies," said MADD National President Jan Withers. "MADD is focused on eliminating this completely preventable tragedy from our roadways."

The American Beverage Institute, a trade group representing 8,000 restaurants, blasted the report for focusing on moderate drinkers rather than more dangerous drunken drivers.

The average woman reaches 0.05% blood-alcohol content after one drink, according to the institute. But more than 70% of drunken-driving fatalities are caused by drivers with at least 0.15%, representing six or seven drinks, it said.

"This recommendation is ludicrous," said Sarah Longwell, the institute's managing director. "Further restricting the moderate consumption of alcohol by responsible adults prior to driving does nothing to stop hard-core drunk drivers from getting behind the wheel."

• Administratively suspending a driver's license immediately when a driver is arrested for being drunk.

• Suggesting states require steering locks on vehicles driven by convicted drunken drivers that would test the driver's breath before returning to the road. The group also recommended incentives through the National Highway Traffic Safety Administration to encourage states to adopt the locks.

• Creating special courts to handle drunken-driving cases.

• Documenting the last place drunken drivers had a drink before their crashes.

More than 100 countries set drunken-driving levels at 0.05%, leaving the U.S. as one of few developed countries with a higher level, according to board staffers.

The board's recommendation follows an effort in the European Union, which set a goal of cutting alcohol-related fatalities in half by 2010 and succeeded. Europe is now trying to cut the crashes in half again over the next decade.

The NTSB meeting came on the 25th anniversary of a fiery crash in Carrollton, Ky., that killed 25 people and injured 34 others when a pickup driven by a drunken driver hit a school bus returning from a church trip to an amusement park.

In 1982, the safety board previously recommended that states reduce drunken-driving limit from 0.10% to 0.08%. Utah became the first state to lower its limit in 1983, but all states hadn't followed suit until 2004.

In 1982, about half of all highway deaths involved alcohol-impaired driving and killed 21,113 people. The number of deaths has been cut in half since then, but about 10,000 deaths a year still represent about one-third of traffic fatalities. The numbers have held steady since 1995.

"We have made progress since that deadly night in Kentucky, but not nearly enough," Hersman said.

The General Assembly is currently debating whether they should sign in House Bill 1077. House Bill 1077 would be instrumental in changing current laws regarding DUI, DUI per se, and DWAI arrests. The bill would allow drivers to challenge the validity of the law enforcement officer’s initial contact with the driver at Department of Revenue (DOR) driver’s license revocation hearings. The hearing officer will consider these issues when a driver raises them as defenses.

The bill was proposed after the Colorado Court of Appeals decision in Francen v. Colorado Department of Revenue, Division of Motor Vehicles, __P.3d __ , (Colo. App. no. 12CA110). The court of appeals ruled that the lawfulness of the initial stop of a motorist is irrelevant for purposes of Colorado’s express consent law. This ruling overturned many years of case law, which allowed the law enforcement officer’s initial contact to be challenged.

As someone who’s recently been arrested for driving under the influence in Burbank (or somewhere else in the Southland), you may be facing your second or third (or worse!) DUI charge within 10 years.

The California justice system is not exactly “soft” on recidivists.

As you probably already know, a Burbank DUI conviction– even a misdemeanor one, in which no one got hurt and no other crimes were committed – can lead to jail time, alcohol school, a year of license suspension, mandatory IID installation in your car or truck, humiliation, insurance problems, fines and fees, disruption to your life, and a criminal record.

As you rack up more and more Burbank DUIs (within a 10-year period), prosecutors can choose from a more diverse and brutal catalogue of punishments, including enhanced fines and fees, more jail time, longer probation, longer alcohol school, longer license suspension, and even special punishments.

To illustrate, let’s say you just got your third DUI charge. Under normal circumstances, you probably would only face a misdemeanor – perhaps a few days in jail, fines and a suspension. But because this is your third time, prosecutors could turn that misdemeanor into a felony charge. Now, if you're convicted, you could face a year behind bars as well as the prospect of being forever stripped of key rights, such as your voting rights.

Convicted felons have a much harder lot in life – trouble finding employment, getting leases approved, and securing housing.

Consider all those consequences in light of a jaw-dropping story out of Billings, Montana.

A Yellowstone County District Court just convicted 54-year-old John Harvey Hoots of his 13th DUI. You read that right. That’s not a typo. Hoots was arrested on July 31, 2012, just six weeks after he had gotten out of prison, after serving a decade for his 12th DUI conviction.

Hoot testified that he was trying to escape from an angry neighbor, when police arrested him for DUI. According to multiple witnesses, Daniel Belmarez called police at 7 in the evening to say that Hoots had “dropped his pants to the ground and exposed himself …a second call to 911 was made about 15 minutes later by Belmarez’s mother, who said Hoots had returned and made a gesture indicating he had a gun.”

The police showed up, just as Hoots hopped in a pickup truck to take off. Police stopped him and arrested him, after discovering that he had a BAC of 0.20%. For those of you keeping score, that’s precisely 2.5 times the Burbank DUI legal limit, per California Vehicle Code Section 23152.

Hoots defense rested on "he said, she said" argument. Hoots said that Belmarez threatened him with a gun and that he had no choice but to flee in his truck. Hoots’ attorney asked him: “did you believe that if you didn’t leave their [presence] that Mr. Belmarez would cause you serious bodily injury and kill you?” Hoots replied that he did and that he was “very scared.”

Prosecutors rejoined that Hoot’s claim had no credibility. Even though evidence of his prior DUI convictions – the checkered criminal history – was not allowed, the jury still didn’t buy his story.

Obviously, we can’t really comment about the strategies involved, without delving into the details of the case. But the case illustrates something very important: To build an effective Burbank DUI defense, you need to be credible. Avoid "making stuff up," not just out of fear of perjury but also out of respect for the law and a need for good ethics.

If you strategically approach your case the right way, you might be surprised by the amount of leniency the judge (or jury) might give you.

Of course, it takes skill and experience to build a strategic case. Fortunately, the Burbank DUI defense attorneys at the Kraut Law Group have that experience, and they are standing by to take your call and help you feel more prepared about what’s going to happen to you next.

A couple of days ago I commented on the just-released recommendations by the National Transportation Safety Board for a new drunk driving blood-alcohol limit of .05%.  Following are a few of the reactions….

Feds Float Lower DWI Limit; Some Say It Will Reduce Fatalities; Others Say It's a Money-Grab

Newsday, New York.  May 14 — One drink for a 120 pound woman, two drinks for a 160 pound man.

That's all it would take to be considered legally drunk under a new federal recommendation to lower the driving while intoxicated blood-alcohol limit from .08 percent to .05 percent. It's another step in what the National Transportation Safety Board calls "Reaching Zero," a long-term effort to reduce the number of drunken driving-related fatalities.

"It is an aggressive approach," said Jared Altman, a Montrose-based defense attorney. "One would be surprised at how little you can drink and hit the .08 limit now."

Reaction to the NTSB's recommendation on Tuesday ranged from full support from road safety advocacy groups to a cautious wait-and-see approach from others.

White Plains-based attorney Richard Portale said changing the definition of "intoxicated" every few years is disingenuous. He said he'd be more willing to support the law if it merely set a limit for driving and did not try to redefine intoxication, but said he believes it's ultimately a "money-grab" by the government. Several studies have found that towns and cities enjoy a boom in court fees and related fines when blood-alcohol limits are lowered.

"They're dying for money. They don't get enough of our tax money, so now they want to change our DWI laws to generate more revenue," Portale said…

If lawmakers act on the NTSB's recommendation and lower the legal limit for drivers, it would mark the second time in a decade that the limit was lowered. New York lowered the legal limit from .10 to .08 in 2003, two years after president Bill Clinton signed a law that would withhold federal aid to states that did not lower limits to that number…

A 2000 study by Boston University's Social and Behavioral Sciences Department found that states that had dropped BAC limits to .08 percent saw a 6 percent decline in alcohol-related deaths. But a 2002 study by Connecticut's Office of Legislative Research found there was "no statistical difference" between the rate of fatalities between states with a .10 blood alcohol limit and states with a .08 limit.

Mothers Against Drunk Driving on Tuesday thanked the NTSB "for bring the American public's attention to the fact that drinking and driving continues to be a major problem on our highways … and that additional steps have to be taken to save the unnecessary loss of life and injuries that occur as a result of these crashes."…
 

Once considered to be one of the greatest pitchers of his generation, baseball legend Dwight Gooden once again finds himself in trouble with the law. His current legal troubles come as a result of his allegedly threatening his wife and her family. Monique Gooden, reportedly informed the police in Bergen County New Jersey, that her one time Cy Young award-winning husband, was calling her and making terroristic threats towards her, and her family. She quoted Dwight as saying all bets are off and that he was going to hurt her, and her family.

As a result of this incident, Monique Gooden has been given a temporary restraining order by a family court judge. Prior to this incident, Monique and her husband were living in the same home as they were going through their divorce proceedings. However ,after the alleged threats, Dwight has been ordered to take his possessions and leave the home. In addition to this, the one time World Series champion pitcher, has lost his rights to visit his children. However, he is still required to pay child support. This is not an unusual order; once a temporary restraining order (“TRO”) is issued the judge will usually grant custody to the party seeking the TRO pending the outcome of the final restraining order (“FRO”) hearing. Once the FRO is completed the parties normally workout an agreement with regards to custody of the marital children.

These current legal troubles, are just one in a series of legal problems Dwight Gooden has faced. His legal troubles started, while he was still a pitcher for the Yankees, and then for the Mets. He has had a series of problems with drug abuse, and multiple instances of battery and DUI charges over the past few years.

Terroristic threats is a third degree felony in New Jersey and if convicted of this offense in the Bergen County Superior Court, Dwight could be facing up to five years in a New Jersey State Prison. If you or someone you know is facing criminal charges, whether it be for stalking, harassment, simple assault or robbery, the Law Offices of Jonathan F. Marshall can help. If you have any further questions please feel free to contact any one of our Bergen County Offices for a free initial consultation with any one of our eight criminal defense attorneys.

The post Former World Series Champion Once Again in Trouble With the Law appeared first on Bergen County Criminal Lawyers.

Seth Godin wrote a great blog post about river guides. The post hit home since I went down the Colorado River on a raft trip last year. Mr. Godin talks about a river guide piloting a dory down Lava Falls. Lava Falls is one of the best rapids in the Grand Canyon. It takes great skill , experience , and knowledge to get past the rapids. Why ? The water is always changing. The flow might be different. Rapids move. A river guide has but one goal.Get the boat to the end of the river.

Knowledge of the river much like the knowledge and experience of a DUI lawyer is critical. While the cases are much the same , each case is different .Different judges, assistant district attorneys, and different facts chart a different course for each case. An experienced lawyer may be able to guide you out of danger. Mr.Godin writes that the practice of being a great guide is choosing the right tactic, the ability to hold the tiller with confidence but not locking into it. A great criminal defense lawyer does much the same thing. Pick a single defense not a shotgun approach , stay true to the defense , but not lock into the defense if something changes.

A young reckless pilot might get lucky one time or the lawyer that always plea bargains might get lucky. Like the attorney this week that wondered why his case got reduced. The lawyer had no clue that forced blood draws are under attack based on a recent U.S.Supreme Court case. The lawyer got lucky on the kindness of a assistant district attorney. I wonder who he might have plead guilty that had a valid defense.

The key is if your facing a criminal conviction that has life long consequences , you want the best pilot you can get to get you down the river safely.

By the way , the image is of a dory heading down Lava Falls.

Colorado drivers now need to learn new limits for Driving Under the Influence of Drugs (DUID). House Bill 1325, which sets limits on blood levels for driving after smoking marijuana, has been passed by the Colorado Senate and now awaits Governor John Hickenlooper’s signature. If signed by the governor, drivers whose blood exceeds five nanograms per millileter (ng/mL) of THC per milliliter will be presumed to be driving while stoned.

The bill allows drivers who have been charged with DUID to argue whether they were impaired at the five ng/mL level. This is unlike impairment of alcohol charges because the driver cannot argue whether the 0.08 blood alcohol level (B.A.C.) truly impairs the driver.

The legislature drafted the bill to allow the driver to refute the five ng/mL level because THC can linger in users for longer periods of time. Typically the ng/mL level of THC is extremely high upon initial use and drops off after two to six hours. Some studies have indicated that habitual users would not be affected by this law because habitual users can sustain a level of THC below five ng/mL days after use.

On the other hand, other studies have shown that users may still have ng/mL levels more than five days after use. Dr. Lantz, the head toxicologist from Rocky Mountain Labs, claims to have test results from an individual showing a 20 ng/mL level at 24 hours after last use. At this level, the legislature feels someone is too high to drive, but the legislature has recognized that it’s next to impossible to determine actual impairment via a blood test under currently available testing technology. Therefore, the legislature has written the bill in a manner that allows users to argue whether their ng/mL level amounted to actual impairment.