Archive for the Category ◊ DUI ◊

• Tuesday, June 15th, 2010

The Fortuna Police Department conducted an impaired DUI checkpoint on Friday to ensure safe roads on Fortuna High School’s graduation night.

The DUI checkpoint was on the 1300 block of Main Street in Fortuna, screening about 384 drivers, according to an FPD press release. Two drivers were arrested on suspicion of driving under the influence, three drivers were arrested on suspicion of driving unlicensed, two juveniles were arrested on suspicion of possessing alcoholic beverages, and five vehicles were towed.

Additionally, one adult male was observed staggering towards the bright lights of the DUI checkpoint. Officers contacted the subject, and he was arrested on suspicion of public intoxication.

The goal of these DUI checkpoints and saturation patrols is to remove impaired drivers from the roadways and to bring awareness to the public of the dangers of driving under the influence of drugs and alcohol, according to the press release.

The DUI checkpoint and DUI saturation patrols were funded by a grant from the California Office of Traffic Safety through the National Highway Traffic Safety Administration.

Category: DUI
• Tuesday, June 15th, 2010

Petaluma police are warning drivers they’ll be holding two DUI checkpoints Saturday night as they look for DUI drivers

The DUI checkpoints will be held in two locations around town and will run from the evening into early Sunday.

Sgt. Ken Savano said such operations are done to raise awareness of the dangers of DUI and to get impaired drivers off the road.

Officers also check for valid licenses and proof of insurance.

Police agencies don’t reveal in advance where they’ll hold the checkpoint.

The cost of running the checkpoints will be funded by money from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration, Savano said.

Category: DUI
• Tuesday, June 15th, 2010

ESCONDIDO —- Officers will conduct a driver’s license and DUI sobriety checkpoint at an undisclosed location Saturday, according to the Escondido Police Department.

The goal of the DUI checkpoint is to improve traffic safety by removing impaired and unlicensed drivers from city roads, police said. Drivers who are caught DUI face time in jail, the loss of their driver’s license, higher insurance rates and other expenses, police said.

Funding for the DUI program is provided by a grant from the California Office of Traffic Safety.

The DUI checkpoint will last from 6 p.m. Saturday to midnight.

Category: DUI
• Monday, June 14th, 2010

ANDERSON COUNTY — Anderson County Sheriff’s Deputy Joel Frazier is a good listener.

Frazier, a 12-year law enforcement veteran, has worked for the Anderson County Sheriff’s Office as a patrol deputy for six years.

Saturday night, Frazier was one of about two dozen deputies, Anderson City police patrol officers and South Carolina Highway Patrol troopers to participate in a series of DUI-checkpoints in Anderson County.

From 6 p.m. Saturday until just after 4 a.m. Sunday, Frazier, one of two Anderson County Sheriff’s deputies dedicated to drunken-driving enforcement, initiated traffic stops on vehicles, screened drivers at checkpoints and eventually made a drunken-driving arrest during the special operation aimed at curbing drunken driving during the first three-day weekend of the summer Frazier and Deputy Brent Moore are attached to the Anderson County Sheriff’s CATCH Team. Their salaries, training and benefits are paid in part by a DUI grant from the South Carolina Office of Highway Safety, a division of the Department of Public Safety.

Both are experts in drunken driving law and, according to Frazier, “not being surprised at anything anyone does when they’re drunk.”

Saturday night, Frazier worked without Moore, who is on family leave.

Following the deputy as he made traffic stops, conducted field sobriety tests and put someone in jail for drunken driving was a crash-course in the reality that enforcing DUI law is, at times, a game of legal cat and mouse whose only happy ending is simply getting an unsafe driver off the road.

Frazier, a quiet man, is patient while on the job. He is not easily frustrated.

“It doesn’t pay to get frustrated if you’re working DUI enforcement in South Carolina,” he said. “It’s best to be a good listener, because you will get an earful from people sometimes.”

Since January, Frazier and Moore have made about 70 drunken driving arrests in Anderson County, about one every other day.

“You’d think that, with how high South Carolina ranks on the alcohol-related fatalities list, people would wake up to the dangers,” Frazier said Saturday night while patrolling the northbound side of U.S. 76 near Sandy Springs. “You work one fatal accident caused by alcohol, it’s an eye-opening experience.”

Frazier, who was careful with his words, said it was obvious that his role is to protect public safety.

“What isn’t so simple is balancing fairness with my mandate to enforce the law while exercising my best judgment,” he said.

On Kings Road in Anderson around 1 a.m. Sunday, his point was clearly demonstrated.

Having passed a sport utility vehicle in the oncoming lane of Brown Road whose driver failed to dim the high beams, Frazier had made a u-turn and followed the vehicle as it rolled through a stop sign while making a left turn onto Kings Road.

“Sometimes an impaired driver will have a hard time seeing on a darkened road like this so they hit the high beams,” he said while he watched the vehicle weave along the winding road, often crossing the centerline and swinging wide around sharp curves. “They’ll hit the brights and then they’ll forget to flip them off.”

Details, Frazier said. Details, details, details.

“We are trained to see, smell, feel and anticipate what an impaired driver is going to do,” he said. “Forgetting to dim the brights or switch off the cabin light in the car, these are things impaired people tend to do.”

After following the vehicle for about a mile, observing and, more importantly, recording it on the cruiser’s dashboard camera, Frazier hit the blue lights and pulled the car over on Kings Road, about a quarter-mile from the intersection of Concord Road.

The driver, a white female in her early 50s, was not intoxicated.

She was weaving, she said, because she was having trouble seeing the road.

Her husband, who sat in the rear of the car to watch the infant child in the car seat next to him, was found holding an uncorked bottle of wine between his legs, a violation of state open-container laws.

“It’s got to be carried in a compartment,” Frazier said while writing the woman a ticket.

The husband took issue with the citation.

He complained that the deputy was wasting time and that the open container ticket was unfair.

He asked for a supervisor.

Frazier’s supervisor, Sheriff’s Sgt. Mike Binninger, arrived about 10 minutes later.

After another 10 minutes of explanation, the man asked for Binninger’s supervisor.

Eventually, the couple returned to the car, open-container ticket in hand.

“Just another day in the life of a DUI enforcement officer,” Frazier said with a smile and shrug.

“People get upset when we pull them over and that is understandable,” he said a few minutes later. “But, as the officer responsible for making the stop, we own the responsibility for it, either way. If I hadn’t pulled the vehicle over and it had been a drunk driver and they had killed themselves or someone else, then what? We have to consider the totality of the circumstances.”

Frazier’s first and only DUI arrest of the operation came at 1:45 Sunday morning, almost eight hours after he had begun.

While working a DUI checkpoint on U.S. 76 in Anderson between the Six-and-Twenty Bridge and Interstate 85, deputies watched a 1992 Toyota four-door approach the checkpoint and make a quick left turn into the parking lot of the Hilton Garden Inn nearby.

The driver of the car, a 20-year-old woman from Central, was driving with two passengers.

Frazier gave her a field sobriety test, a process that takes about 10 minutes.

She failed.

He took her into custody and drove her to the South Carolina Law Enforcement Division’s Mobile Blood Alcohol Testing unit, or Bat Mobile, that was parked nearby. After informing the woman of the process of having her blood alcohol tested and providing her with a copy of the rules and regulations and her rights, Frazier sat in a small compartment inside the Bat Mobile, waiting for a 20-minute period to elapse.

“We have to give the suspect 20 minutes so that any residual alcohol in their mouth will dissipate,” he said. “It is one of many technicalities we have to be careful about.”

Meanwhile, the suspect sat in the larger compartment, locked in and unable to communicate with anyone other than Frazier, who sat about two feet away on the other side of a shatterproof plastic window.

When the 20 minutes had elapsed, the girl blew into the BAT testing machine.

Her blood-alcohol-content came back several points above the legal limit of .08.

It was almost 3:30 a.m.

An hour later, the woman was on her way into the bowels of the Anderson County Detention Center after being processed on a charge of minor-in-possession of alcohol for the purpose of consumption.

Because the woman was 20, Frazier said, state law applies in one of two ways: Either the woman can be charged with possession of alcohol or with DUI.

The possession charge and positive BAC test combine in an administrative capacity, meaning the woman will lose her license for at least 90 days but will not face the legal liabilities of a DUI charge.

“Charging someone under 21 with DUI can go one way or the other,” he said. “Again, it is confusing. I doubt she realizes what a bullet she’s dodged.”

As he stood in the enclosed area where prisoners are brought into the detention center, organizing his notes and ticket books, Frazier said, “We started this DUI arrest at 1:45 and here it is, almost 4:30. That’s just one DUI and I haven’t even done the paperwork on it. It’s part of the job but I don’t think the average person realizes how complex the laws are and how many resources are sucked into something as simple as them choosing to have a few too many drinks and drive.”

He said, “It could be simpler, but it isn’t. I’d just like people to know that, although they may get home safe after driving drunk, there’s that one time they may not and they’ll end up with us, going to jail.”

And if someone gets picked up but beats the drunken driving charge on a technicality?

“That’s certainly a possibility and it’s one we accept,” he said. “But there’s always that one time when technicalities don’t apply. A drunken driving fatality — that’s one thing a lawyer can’t find a remedy for and it isn’t something we are prepared to live with. They may beat us in court later but at least we’ve got them off the road for the night. That’s its own victory when you think about it.”

Category: DUI
• Monday, June 14th, 2010

Not that we’re in the business of giving free legal advice, but there are a few things every Orange County DUI lawyer should know. Lawyers should know how to handle a traffic stop, for instance. They should know how to handle cops who shout from across the street. And of course, lawyers should never snitch.

Some of these lessons come as a shock to laypeople, and even some lawyers who didn’t pay enough attention during Criminal Procedure. But high on the list of things that trained attorneys should never do is submit to a breathalyzer test. You don’t need to be a DUI defense attorney to know that you don’t blow.

The unwritten rule isn’t there to protect drunk drivers (okay, it kind of is there to protect drunks who operate high-speed killing machines); it’s also there to protect innocent people who don’t want to get caught up in the criminal justice system.

An article in today’s Washington Post underscores the point: the breathalyzer simply cannot be trusted, and juries can’t be trusted to know that…

Look at how many people were wrongly convicted — in part because of breathalyzer results — in Washington, D.C. alone over the past couple of years:

Nearly 400 people were convicted of driving while intoxicated in the District since fall 2008 based on inaccurate results from breath test machines, and half of them went to jail, city officials said Wednesday.

D.C. Attorney General Peter Nickles said the machines were improperly adjusted by city police. The jailed defendants generally served at least five days, he said.

Apparently, the calibrations weren’t even close to being correct:

The District’s badly calibrated equipment would show a driver’s blood-alcohol content to be about 20 percent higher than it actually was, Nickles said.

That is just unacceptable; are we sure that only 400 people got screwed by this?

The flawed testing does not jeopardize cases involving accidents or injuries, including fatal crashes, because blood or urine samples would have been taken as additional evidence, Nickles said.

Nickles said he does not believe the new findings will change the results of the routine DWI cases, either, because officers often relied on field sobriety tests and other observations for their arrests. Still, Assistant Police Chief Patrick Burke said he could see “reduced charges in cases.”

If there is a DUI defense attorney in the metro-D.C. area working on DUIs who buys that argument from Attorney General Nickles, then that defense attorney should be disbarred. You’re telling us that a breathalyzer result that was potentially 20% higher than it should have been wouldn’t influence a person’s plea decision or prejudice a jury? You’re saying that any number of DWI defendants would have been convicted on the strength of field sobriety tests and “other observations” alone? “Reduced charges”? D.C. courts should be flooded with entirely new trials to the extent that breathalyzer results were heavily relied upon evidence for convictions over the past two years.

Which brings us back to the central point: Don’t. Blow. Ever.  It’s self-incriminating — and potentially falsely self-incriminating — for no reason. If we want to protect ourselves from idiots who drive drunk, the way is to increase penalties on those rightly found guilty, not increase the likelihood that we’ll wrongly convict innocent people.

Category: DUI
• Monday, June 14th, 2010

You already may know about the tragic case that is the genesis of this editorial. Our hope is that you’ll urge your Illinois legislators to make such an outcome less likely to recur. The background:

In November 2007, off-duty Chicago police officer John Ardelean downed three beers and four shots in little more than two hours, according to prosecutors.

Later he swerved into an oncoming lane, slamming his Dodge Durango into a Pontiac Grand Am at Damen and Oakdale avenues. The DUI crash killed Miguel Flores, 22, and Erick Lagunas, 21.

The officers who responded to the scene could have asked Ardelean to take a DUI breath test to determine the alcohol level in his blood. But they didn’t. They said they didn’t smell alcohol or notice any other signs that Ardelean might be drunk.

By the time Ardelean was ordered by a supervisor to take the test — almost eight hours later — his blood-alcohol level was within the legal threshold. If he had been intoxicated, he no longer was.

That eight-hour gap torpedoed the case: In April a Cook County circuit court judge ruled that Ardelean had been arrested and detained without probable cause. Last Friday, prosecutors dropped charges of aggravated DUI and reckless homicide against Ardelean.

This case exposes a huge loophole in Illinois’ DUI law — a loophole legislators need to close. Right now, motorists involved in serious accidents are compelled to take a breath test — if the cops ask them to do so. The state needs a law that makes such tests automatic — without exception — in all serious injury crashes. No officer discretion. No wiggle room. Even if you don’t look inebriated or slur your words, even if you’ve sneaked those empties out of the car while officers tend to the injured, you would be tested.

And off-duty cops wouldn’t be exempt.

We’re often skeptical of laws that leave no room for judgment calls by public officials, police officers included. But an automatic testing law is fair to all drivers in serious crashes. Every major accident would be a discretion-free zone: The cops would just order drivers to take a breath or blood test, no questions asked and no objections honored. (Lagunas, the other driver in the Ardelean case, also had been drinking; his autopsy revealed a blood-alcohol level just below the legal limit.)

Category: DUI
• Monday, June 14th, 2010

The Lee County Sheriff’s Office DUI Unit is providing the information listed below in continuing efforts to increase traffic safety awareness and education, plus to emphasize the importance of obeying traffic laws to reduce DUI crashes, injuries and death on Lee County roads.

On Monday, June 14, 2010, the DUI Unit will target at least one of the following three locations for enforcement:

1. Pondella Road, North Fort Myers

2. Metro Parkway, Fort Myers

3. Pennsylvania Avenue, Bonita Springs

Locations are selected based upon high incidents of crashes, traffic surveys and citizen complaints. The Sheriff’s Office is committed to promoting traffic safety and enforcing the law. By focusing on violations such as red light running, speeding, DUI and others, motorists become more alert and are encouraged to obey traffic laws. The Sheriff’s Office Traffic Unit and District Patrol Deputies enforce our traffic laws each day by issuing citations and warnings. Preliminary results from their cumulative activity yesterday are as follows:

Citations Issued: 98

Written Warnings Issued: 160

Citizens can help by letting us know if they observe problem areas, aggressive or DUI drivers and by their compliance with the rules of the road. To get in touch with one of our traffic deputies call (239) 477-1000. If you see a reckless or drunk driver while you are traveling in your motor vehicle in Lee County, dial 9-1-1.

This traffic enforcement advisory is available each day on the Sheriff’s Office website at

Everyone is reminded to “Fasten Your Seat Belts, be courteous to drivers and pedestrians and together we can reduce traffic related fatalities, injuries and property damage.”

Note: Traffic Safety Tip of the Week: One of the most frequent citizen complaints is drivers running red lights. Red light running is also one of the most common causes of traffic crashes. Florida law was established creating higher fines and 4 points against your license in hopes of discouraging this risky habit. We encourage drivers to use good sense and always be prepared to stop at traffic signals.

Source: Lee County Sheriff’s Department

Category: DUI
• Monday, June 14th, 2010

New Mexico’s highest court on Tuesday reversed an interpretation of the driving under the influence of alcohol (DUI) statute that had discouraged motorists from sleeping off a night of drinking in their automobile. In December 2004, a police officer came upon Mark Sims who was asleep in the driver’s seat of his car, which was legally parked in a commercial parking lot. Although the car keys were on the passenger seat and not in the ignition, a trial court and the court of appeals found him guilty of being in “actual physical control” of the vehicle.

“Under settled law, defendant had actual physical control if he could exercise direct influence over the vehicle,” a divided court of appeals ruled. “Based on the facts of this case, there was nothing to prevent defendant from awakening, reaching for the keys, and driving from the parking lot.”

The supreme court explained that this interpretation of “actual physical control” developed as a means of convicting people who had obviously driven their car while drunk but outside the view of a police officer. For example, it is obvious that a man passed out in his car in the middle of an intersection with the engine running got there by driving. The line of thought was extended to make having the potential to drive drunk in the future a crime. Justices decided such interpretations departed from the true purpose of the DUI laws.

“The threat, if any, that was posed by defendant as he lay passed out or asleep in his vehicle was far short of that posed by an intoxicated individual who is driving,” Justice Edward L. Chavez wrote for the court. “While defendant arguably exercised some level of control over the vehicle, given his location in the driver’s seat and the proximity of his keys, there was no indication that he posed any actual, as opposed to hypothetical, threat to the public.”

The supreme court pointed out that prior court DUI decisions taken to an extreme make the roads less safe, not more safe.

“For example, on a cold night, an intoxicated person may use his vehicle as a temporary shelter — as a place to sleep it off — even going so far as to start the engine so that he can turn on the heater,” Justice Chavez wrote. “Such an individual, while clearly in control of his vehicle, does not pose a threat to himself, herself, or the public precisely because he has decided not to drive. The individual’s recognition that he is too intoxicated to drive embodies the aim of our DWI law and its enforcement. To subject this type of behavior to strict liability would be counterproductive.”

As a result, the supreme court ruled that when an individual is arrested for DUI based on “actual physical control” of the vehicle — as opposed to actually driving the vehicle — the state must prove that the defendant actually intended to drive. Without making this distinction, drunks would be encouraged to take their chances on the road by driving home since the penalty would be the same as for sleeping it off in the car.

“The facts of this case exemplify how this language could be misinterpreted to allow a conviction for conduct the legislature did not intent to proscribe,” Chavez wrote. “Otherwise, rather than driving while intoxicated, it would be parked while intoxicated.”

The high court acknowledged that the new procedure set out in this decision will increase the burden on the prosecution and that police will have to gather evidence with greater care.

“A fact finder cannot simply assume or speculate that the individual in question might sometime in the future commence driving his or her vehicle,” Chavez wrote. “Instead, the fact finder must assess the totality of the circumstances and find that (1) the defendant was actually, not just potentially, exercising control over the vehicle, and (2) the defendant had the general intent to drive so as to pose a real danger to himself, herself, or the public. In this case, the state failed to prove that defendant used the vehicle other than as a passive occupant. It was pure speculation whether defendant would rouse himself and drive the vehicle. Defendant could not be convicted for what he might have done. The state had to prove beyond a reasonable doubt that defendant actually exercised physical control over the vehicle with the general intent to drive so as to endanger the public.”

Because the state could not do so, the charges against Sims were dismissed. A copy of the decision is available in a 65k PDF file at the source link below.

Source:  New Mexico v. Sims (Supreme Court, State of New Mexico, 6/8/2010)

Category: DUI
• Monday, June 14th, 2010

Convicted drunken drivers in Sacramento County soon will have to convince their own cars they’re sober before hitting the road.

Beginning July 1 in Sacramento and three other test counties, people convicted of first-time drunken-driving offenses must have ignition interlock devices – commonly known by the brand name Breathalyzer – installed in their vehicles for at least five months.

They’ll have to blow into a tube, and if the device detects alcohol, the car won’t start.

The pilot program is being hailed as a major step in California’s decades-long efforts to cut drunken driving. Sacramento was included partly because of its high drunken-driving rate.

“By installing (the) devices, we are making it harder for DUI offenders to get behind the wheel while intoxicated, and we are working to save innocent lives,” Gov. Arnold Schwarzenegger said after signing the bill.

Fourteen states have similar laws for first-time DUI offenders, said Laura Dean-Mooney, national president of Mothers Against Drunk Driving. “The great thing is, (offenders) can continue to drive to work or take their kids to school.”

The program will be tested through 2015 in Sacramento, Alameda, Los Angeles and Tulare counties. A report to the Legislature in 2015 will evaluate whether it worked.

It takes effect despite opposition from some Orange County criminal defense attorneys and restaurant industry lobbyists, who say it should be reserved for serious repeat offenders.

“With this law, you are going to have the occasional drinker who had a half glass of wine too much” and who is unlikely to reoffend, said Ignacio Hernandez, a lobbyist for California DUI lawyers.

He warned the technology could have glitches that cause false positive readings.

DUI remains one of the state’s top road concerns, safety officials said. In 2008, 30 percent of California roadway deaths – more than 1,000 – occurred in crashes where at least one driver was legally drunk, according to the state Office

“We have a problem of enormous consequences in the state,” said the ignition device law’s author, Assemblyman Mike Feuer, D-Los Angeles.

In 2008, the city of Sacramento had the highest drunken-driving injury and fatality rate among the state’s largest cities.

The law could affect about 4,700 first-time drunken drivers per year in Sacramento County, state data suggest.

Department of Motor Vehicles analysis shows that 4 percent to 5 percent of first-time offenders in Sacramento are involved in a second DUI incident – either a crash or an arrest – within a year.

Under the new law, if the DUI conviction is a person’s first, the driver must have the ignition interlock device installed for five months. A second offense would require 12 months, and a third 24 months. The law doesn’t apply to motorcycles.

If the first-time conviction involved injury, the device must remain for a year.

Most drivers will have to pay for installation and monthly rental fees. Feuer estimated installation costs will be $75 or more, and monthly monitoring costs $50 or more.

Those fees will be reduced by up to 90 percent for lower-income offenders. That could cause some installers to balk rather than lose money by subsidizing the costs, said Taylor Reed of Ignition Interlock Service Centers of California.

“You are saying the guy can’t afford $2.75 a day for (an ignition device), but he can afford to drive a car and spend enough to get drunk?” Reed said.

Feuer, however, said he doesn’t expect problems with installation companies, based on the state’s experience with a limited number of court-ordered ignition interlock devices now put in cars.

The DMV, which in 2004 reviewed studies from other states and countries, says such programs appear to reduce repeat offenses by anywhere from 40 percent to 95 percent while the devices are in place. Recidivism rates rise once they’re removed.

Ignition interlock devices are not new in California. The state allows judges to require drunken drivers to use such systems, but data show that few do so.

In Sacramento, judges ordered the devices installed in only 3 percent of DUI cases they handled in 2007. Just a few of those were for first-time offenders.

Feuer and other advocates, including Mothers Against Drunk Driving, say technology has improved considerably since the devices came on the scene two decades ago.

Some require both blowing and inhaling, or humming, so that people can’t cheat by using compressed air machines.

Of course, a person who has been drinking can still get a friend to illegally blow into the tube, enabling the car to start.

But such cheaters may not get far. Today’s devices require drivers to retake the breath test at random moments while driving. If they fail to do so within the allotted time, the device will record the event as a failed sobriety test.


Answers to common questions about ignition interlock devices installed in vehicles (abbreviated from the Department of Motor Vehicles):

Can someone use a balloon or other air source to mimic human breath?

No. Devices can detect phony breath samples.

Can a driver have someone else take the breath test?

Yes, but it’s illegal. Also, once the car starts, the device will randomly require a “running retest.” The driver must pull over and retake the test within a given time period, or the unit will log a violation. With some devices, the horn will honk until the vehicle is turned off.

Will the ignition interlock unit lose all memory if the battery is disconnected?

No. There is a backup battery in the unit.

What happens if a driver misses a required device service appointment?

The device may enter a lockout condition and the driver will not be able to operate the vehicle.

What if the driver is taking a medicine or mouthwash with an alcohol base?

Alcohol-based products can register on the device.

What happens when a driver fails the device’s test?

The device will enter a lockout period of a few minutes for the first failed test and a longer lockout for any subsequent failed test.

Can other people, such as a spouse, drive the vehicle?

Yes, but they must pass the device’s test.

What happens if the vehicle stalls in traffic?

The device permits the driver to restart the vehicle without another breath sample, but a breath sample will be requested shortly after restarting.

Read more:

Category: DUI
• Sunday, June 13th, 2010

On April 17, a few minutes after midnight, police in Dickson City pulled over what would turn out to be a stolen Ford Explorer along Business Route 6 after a report it had forced another vehicle off the road.

The driver, Donald Allen Kern, a 20-year-old carnival worker from Lehigh Acres, Fla., was arrested on suspicion of DUI after police say he almost fell while exiting the SUV, swayed back and forth as officers questioned him and failed a field sobriety test.

Less than eight hours later, Scranton police responded to crash in the 1500 block of Pittston Avenue in which a Jeep Grand Cherokee – also later determined to be stolen – hit three parked cars.

The driver ran, but officers found him a few blocks away. The man, who police said was extremely lethargic, slurred his words and appeared to be under the influence, was charged with DUI, among other offenses.

His name: Donald Allen Kern.

Such double DUI are infrequent but not rare, here or elsewhere. There have been at least three in Northeast Pennsylvania already this year, including a man who was arrested twice in two hours on March 5 by state police in Monroe County.

The Lackawanna County district attorney’s office contends Mr. Kern’s release after his Dickson City arrest was handled appropriately. However, that such incidents can and do happen raises questions about policies covering the release of suspected DUI offenders, especially at a time when driver impairment is increasingly tied to drugs other than alcohol, as apparently was the case with Mr. Kern.

Around the country, such policies vary by state and even by local jurisdiction.

In Pennsylvania, there is no required “sobering up” period, either by statute or uniform policy, before law enforcement must release a DUI suspect from custody. The state’s Rules of Criminal Procedure mandate the prompt release of DUI drivers in most cases.

Mark Neil, a senior attorney with the National Traffic Law Center, said at least eight states have mechanisms for holding motorists arrested for driving under the influence of alcohol until their blood-alcohol level drops to a certain threshold.

“Most of the time it’s not law, but it is policy,” Mr. Neil said.

Alabama is among the most stringent. Under statewide policy, a DUI driver in Alabama is jailed until his blood-alcohol level reaches zero, said Brandon Hughes, traffic safety resource prosecutor for the Alabama District Attorneys Association. A suspect who refuses to submit to a blood-alcohol test is held for a full 24 hours.

“They want to make sure you are free of alcohol,” Mr. Hughes said. “They certainly aren’t going to guess and let you out.”

In Indiana, law enforcement officials are authorized to hold suspects nabbed for alcohol-related DUI for varying lengths of time based on their intoxication level at the time of arrest.

For example, according to a chart approved by the Indiana legislature for determining the minimum time of detention, a suspect with a blood-alcohol level of 0.10 can be held for two hours, after which the level would typically have fallen below the 0.08 threshold for legal intoxication. Someone with a reading of 0.16 – double the limit – can be detained for nine hours.

“This is for public policy reasons that are obvious,” Deborah Reasoner of the Indiana Prosecuting Attorneys Council said in an e-mail. “We don’t want to release an alleged drunk driver and have them repeat the offense and kill someone, and for civil liability reasons related to the safety of the public.”

Ms. Reasoner said the underlying statute has passed constitutional muster. A 2001 Indiana Court of Appeals ruling held that DUI detentions are not punishment but rather serve the function of protecting the public from drunken drivers. As a result, the court found, they do not violate a suspect’s protections against double jeopardy.

In many other jurisdictions, including Pennsylvania, it is common practice to release a DUI suspect into the custody of a sober, responsible adult, but even those policies can have permutations.

For example, in North Carolina, if no sober adult comes forward to take responsibility for a drunk driver, law enforcement can hold the offender until his blood-alcohol level drops below 0.05. The final judgment on when to release the suspect lies with a magistrate.

New Jersey’s statute covering a suspect’s release to a responsible adult – known as “John’s Law” after a man killed by a drunk driver who got back behind the wheel after his release following an earlier DUI – also requires police to impound a DUI suspect’s vehicle for 12 hours after the arrest.

The first of Mr. Kern’s DUI arrests came five hours after Archbald police took him into custody the evening of April 16 on disorderly conduct and harassment charges arising from a dispute with his boss at the Superman’s Plaza in Eynon, where the traveling carnival was set up.

He was taken to the county’s Central Intake center at the courthouse for processing and booking and released around 9:30 p.m. Authorities allege Mr. Kern sometime later went to Memorial Stadium and stole the Scranton School District-owned Explorer that he was driving when Dickson City police stopped him.

During the stop, Mr. Kern denied consuming alcohol and a breath test showed none in system. He told officers he had taken two prescription medications – Klonopin, an anticonvulsant, and Darvocet, a painkiller – although he kept changing his story on his need for the drugs, according to arrest papers.

Dickson City police brought Mr. Kern back to the intake center for processing on the DUI charge, arriving at 1:05 a.m. on April 17, Lackawanna County First Assistant District Attorney Gene Talerico said. He was not charged in connection with the theft of the Explorer because, at that point, no one knew it was stolen.

Mr. Kern voluntarily submitted to have blood drawn for a drug screening, the results of which later showed he had nothing in his system other than Klonopin or derivatives of Klonopin at a level within the medication’s therapeutic range, Mr. Talerico said.

Rule 519 of Pennsylvania’s Rules of Criminal Procedure requires an arresting officer to “promptly” release a DUI defendant who faces no other, more serious charges when certain conditions are met, including posing “no threat of immediate physical harm” to himself or others.

While the threat-of-harm provision provides a level of discretion – a suspect who is too impaired to stand or walk would not be released immediately, for instance – there was no indication Mr. Kern was under the influence when the center released him to himself at 5:21 a.m., more than four hours after his arrival, Mr. Talerico said.

Ideally, DUI suspects are released to another individual, and one of the first questions the center asks a defendant is, “Do you have someone who can come to pick you up?” Mr. Talerico said.

If the answer is no, or the suspect declines assistance, the center must release him.

“There is nothing to stop a person from saying, ‘I’m fine,’” he said. “There is nothing we can do to mandate how they leave our custody. … Nothing in the law says you can only leave by cab or by somebody driving you home.”

Sometime before 7:30 a.m. on April 17, when the crash on Pittston Avenue was reported, Mr. Kern allegedly stole the Jeep Cherokee from a garage on East Gibson Street where its owner had left it for repairs.

What else Mr. Kern might have done between his release from the center and the crash is unknown, Mr. Talerico said. He refused to consent to a second blood test after the second DUI arrest.

George Geisler Jr., a police officer and law enforcement services director for the Pennsylvania DUI Association, said law enforcement in the commonwealth had more latitude to hold a DUI suspect before 2005, when Rule 519 was amended to mandate prompt release.

Prior to the change, the arresting officer had the option to promptly release a suspect when the officer “deems it appropriate.”

Mothers Against Drunk Driving takes no formal position on mandatory detention for DUI suspects or when it might be appropriate, said J.T. Griffin, vice president for public policy at the organization’s office in Washington, D.C.

As MADD marks its 30th anniversary in 2010, the group’s focus is on expanding the use of alcohol ignition interlocks to make them mandatory for all convicted drunken drivers in all 50 states, including Pennsylvania, he said.

However, he said MADD frequently receives reports from around the country about drunk drivers who are released “and the next thing you know, two hours later they are driving again.”

“So a solution to that is making sure before they are released that their (blood-alcohol content) is below a certain number,” Mr. Griffin said. “You can pick the number, but it should be below 0.08.”

He acknowledged drivers who are under the influence of prescription medications or illegal drugs are a much thornier problem, presenting challenges not only for law enforcement but for MADD. A 2007 survey by the National Highway Traffic Safety Administration found more than 16 percent of weekend, nighttime drivers tested positive for illegal, prescription, or over-the-counter medication.

“There are just a host of issues that come with how we deal with the drug driving issue,” Mr. Griffin said. “We are trying to figure what the solutions are, but it is a tough issue.

Category: DUI
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