Sleeping While Intoxicated-Not a Crime in Pennsylvania

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Last month, we learned that sleeping at the wheel while intoxicated isn't a crime in New Mexico. The issue in cases like this is whether the person asleep behind the wheel exercised sufficient control over the vehicle and elicited an intent to operate the vehicle. This very same issue was recently addressed by a court in Pennsylvania. As explained in this Times Leader article, the accused was found asleep behind the wheel of a vehicle with the engine running. When discovered by the police, he smelled strongly of alcohol and a subsequent blood-alcohol test later revealed he had a level of 0.197, nearly 2 times the legal limit. The Pennsylvania court reached the same decision as the New Mexico court, concluding that there was insufficient evidence to establish that that the accused actually operated the vehicle while intoxicated. The rationale for the judge's decision is explained in the article:

The vehicle was parked at the time Verdekal, 27, of West St. Mary’s Road, was discovered, and police could not prove that he had actually operated the car in an intoxicated state...

The key issue in the Verdekal and other cases revolves around a provision within the drunken driving statute that permits police to charge a driver - even if the vehicle is not moving - as long as the officer can show the operator was in “actual physical control” of the vehicle. The problem for police has been in how appellate courts have interpreted what constitutes “actual physical control,” McMonagle said...

(T)he courts have held that police must look at the “totality of the circumstances” in making that call. There must be some other evidence – such as the car being stopped in the middle of the road, or its tire up on a curb – that would indicate the driver had driven the vehicle while intoxicated prior to the arrival of police at the scene.

Once again, the court's decision focused on evidence of control over the vehicle, rather than simply the fact that he was found behind the wheel of a stationary vehicle while in an intoxicated condition. This makes sense. After all, the intent behind DUI laws is to prevent people from driving while intoxicated, since that's when the risks inherent in driving while intoxicated kick in. If you drive a car while under the influence of alcohol, you put others on the road at risk. However, that danger is not present when a person sleeps in a vehicle while intoxicated. For that reason, many states have adopted the rationale behind the New Mexico and Pennsylvania courts' decisions. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Potent, High-Alcohol Beer Headed to U.S.

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Beware the wicked brew, beer drinkers. According to this National Post article, a highly alcoholic Scottish beer will soon be available in the United States. It's called "Tactical Nuclear Penguin" and has an alcohol concentration of 32%. That 8 times the alcohol concentration of a typical glass of beer, which is just 4% alcohol. The new brew will initially be sold in California and New York and will be available at Whole Foods, among other locations. As explained in the article, surprisingly, Tactical Nuclear Penguin, although initially reigning supreme as the strongest beer, has since been replaced by others:

It had a brief reign as the world's strongest beer, until a German company released Schrosch Bock, with a terrifying 40% concentration. Of course, BrewDog couldn't let this affront to Scottish pride stand, and quickly released Sink the Bismarck!, an even-more-leg-wobbling 41%.

These new classes of high-alcohol beers are just one more reminder to pay attention to what you're drinking and how much. This nifty website is a good start and explains the basics, including how much alcohol can be found in different types of drinks and provides helpful definitions of common terms. The bottom line: drink carefully and responsibly, and when you've had too much, don't drive. That way, the roads will be safer, you'll be safer, and you won't have to hire a DUI attorney. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

7 Myths About the Cops--Brought to You by TV

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Via Cracked.com comes this great list of "7 Bullshit Police Myths Everyone Believes (Thanks to Movies)":

1. Forensic Science is Magic
2. The Insanity Defense Lets You Get Away With Murder
3. Not Talking To Cops Equals Obstruction of Justice
4. Undercover Cops Have To Identify Themselves If Asked
5. Tracing a Call Takes a Long Time
6. Criminals Must Be Read Their Miranda Rights or They Will Go Free
7. Everyone Gets One Free Phone Call

If you only do one thing today, make sure that you head over and read the entire article. You never know when you'll cross paths with a cop--getting stopped for a DUI is more common than you might think. So, it's important to understand your rights and know how the legal process works. Arm yourself with information so that you can make smart decisions and protect your rights. Better safe, than sorry. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Is "erratic driving" alone cause for a DWI investigation?

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A few weeks ago we asked a similar question. In that case, an Illinois driver, the son of the local mayor, ran into stationary cars in a parking lot and then drove off from the scene of the accident. When police tracked him down later that evening, a breathalyzer test was not issued since there were no outward signs of intoxication. In a remarkably similar case, a DuPage County Judge, Kenneth L. Popejoy, was likewise not required to submit to a breathlyzer test. As reported in a Daily Herald article, on the evening of June 29th, a number of witnesses allegedly called 911 after seeing Judge Popejoy run into a parked vehicle, run a stop sign and nearly hit a jogger. When police arrived at his home, he refused to answer any questions. According to Glen Ellyn Deputy Police Chief Bill Holmer, because he showed no signs of intoxication, he was not investigated for DUI:

"We can't compel him to take (a breathalyzer test)," Holmer said, adding: "There weren't any of the typical signs of impairment that we look for, such as smell or slurred speech. None of that was apparent."

In the article, Don Ramsell, of our office, agreed with Holmer's assessment of the situation:

Wheaton DUI and criminal defense attorney Donald Ramsell said that while police have a responsibility to investigate why a driver fled without reporting an accident, there's no cause to give a Breathalyzer or field-sobriety test without an odor, impaired speech or some other indication of alcohol.

"It would be improper to administer a breath test if you have no outward sign of alcohol consumption," Ramsell said. "It's illegal to fish for a crime."

Although Judge Popejoy was not charged with any DUI-related offenses, he was charged with charged with reckless driving, failure to give information after striking an unattended motor vehicle and failure to reduce speed to avoid an accident. The investigating police departments contend that preferential treatment was not a factor in the decision not to pursue a DUI investigation, and it is noted in the article that both towns "have handled recent high-profile DUI arrests of public officials, such as those of a Glendale Heights cop and U.S. Supreme Court Justice Antonin Scalia's daughter." Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Fumes from hand sanitizing gels can lead to false positive BAC tests

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In yet another shining example of why breathalyzer tests are so unreliable, it was recently reported that hand sanitizing gels that contain alcohol, such as Purell, can lead to false positive test results. As explained in this Metro.co.uk article, the gels give off 80% proof fumes that, when inhaled, can result in breathalyzer results indicating a high level of blood alcohol content:

The surprise result arose after staff at a secure unit for psychiatric patients tested a woman who claimed she had not been drinking but failed a breathalyster (sic)...

Despite insisting she had not ‘touched a drop’, the unnamed patient tested positive for alcohol. Staff investigated her denial and asked a clinician to reproduce the test, by first disinfecting hands in the normal way before using the ‘alcometer’ device.

They were stunned when the result recorded was equivalent to drinking two units of alcohol – the same as an average strength pint of beer or a glass of wine.

They determined that alcohol used in the gels was lingering in the atmosphere in such quantities that traces could be inhaled during a breath test and massively skew the readings.

Following this discovery, it is now recommended that, in British hospitals, breathalyzer tests be administered at least 5 minutes after hand sanitizing gels are used, so that the test results won't be affected. Who knows how many other "quirks" exist that affect breathalyzer tests--and how many innocent people have been convicted of DUI because of inaccurate test results? It's a troubling question and one that deserves a definitive answer. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Latest Criminal Defense and DUI Links

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Here's a list of recent links from around the criminal defense legal blogosphere that are worth a second look:

• "Misdemeanor Arrest Rule in New Mexico DWI Cases" Albuquerque Criminal Lawyer blog
• "Plea bargains in DWI cases? Are you serious?" The Defense Rests
• "No Probable Cause Necessary for DUI?" DUI Blog
• "When Innocence Isn't Enough" Gamso-For the Defense
• "No Lawyer, No Crime? A Troubling Case In Oregon" Norm Pattis

Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI satire compliments of The Onion

Here's a priceless piece of vintage satire from the Onion: "DMV Reconsidering 'One For The Road' Driver Relaxation Campaign." Here are a few choice excerpts from the 1997 tongue-in-cheek article:

SPRINGFIELD, IL—With the drunk-driving fatality rate nearly tripling in Illinois in the past year, the state's Department of Motor Vehicles announced Monday it will re-examine its controversial "One For The Road" driver-relaxation promotional campaign...

According to Penn, the One For The Road program had its roots in a DMV study revealing a positive correlation between alcohol consumption and driver confidence.

"We found that people who had consumed at least four beers or two mixed drinks before getting behind the wheel were twice as likely to believe they were in no danger of getting hurt or killed," Penn said. "When operating a serious piece of machinery like a car, that's just the kind of confidence you need."...

In the time since the September 1996 launch of One For The Road, some 2,300 DUI-related fatalities have occurred in Illinois, a 275 percent increase over the previous year.

"Perhaps we need to reconsider certain aspects of the program," said Bill Gerhardt, co-creator of the program. "We need to ask ourselves, 'What parts of this program are not working, and how can we fix them?'"...

While Illinois DUI laws aren't perfect, at least our legislators have a bit more common sense than the fictional characters in this article.

And, if you're so inclined, you can read the entire article here.

Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Intoxilyzer breath test results under fire in Minnesota

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In Minnesota, we learn of yet another case of allegations regarding inaccurate breath test results. The Intoxilyzer machine at issue has been regularly used by law enforcement throughout Minnesota for years, but came under fire in 2006 when a DUI defendant challenged the accuracy of the test. Since that time, the Minnesota Supreme Court has twice considered claims challenging the device. Later, in 2008, the state sued CMI, Inc., the manufacturer the device, seeking access to the machine's source code. CMI resisted at first, but ultimately relented and allowed DUI attorneys access to the information. Now, there are more than 2000 cases pending in state courts that challenge accuracy of the machines, which were recently consolidated. As reported in this TwinCities.com article, a 2006 email from a Minnesota Bureau of Criminal Apprehension toxicologist is key evidence in support of the claims in the consolidated cases that the devices produce inaccurate results:

In an e-mail dated Sept. 27, 2006, a Minnesota Bureau of Criminal Apprehension toxicologist alerted CMI that the Intoxilyzer "on occasion" printed out blood-alcohol readings different from what it displayed on its screen.

He also noted that the amount of air required for a breath sample varies depending on the version of software running the machine.

The minimal amount of air necessary to provide a breath sample is 1.1 liters of air blown at .17 liters per second. But if a driver blows too hard, the minimum sample required increases to 4.1 liters, according to the toxicologist's e-mail.

"The minimum value quadrupled," Sheridan said. "And by doing that, it would exclude about 80 percent of women. ... The shorter and older you are, you're virtually guaranteed you'd be unable to provide a sample."

The misfires are recorded as test refusals, and that can have disastrous legal consequences. Punishments for test refusals are in some cases more severe than the penalties for drunken driving.

Once again, arguably faulty breath test machines continue to be used despite clear evidence that they may produce inaccurate and misleading results. If people's liberty wasn't at stake, perhaps this egregious conduct could be overlooked. However, where people arguably innocent of a crime are being wrongfully convicted and, in some cases, sent to jail, ignoring the glaring problem with the Intoxilyzer's used in Minnesota simply isn't an option. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!