Utah DUI Attorney : Salt Lake City DUI Lawyer & Attorney : Glen Neeley : Serving Davis County, Ogden, Brigham City, Logan

I often get calls from people asking where they can get substance abuse counseling when they are being charged with a DUI.  If a person is convicted of a DUI, a person is required to have an evaluation to determine if a treatment is necessary.  I don't think I have ever had a client convicted of a DUI and the evaluator did not recommend treatment.  It just cuts against the grain and common sense.  Some people have felt these classes are not about rehabilitation so much as money.  I disagree with that opinion and often recommend a client get into treatment before going to Court.  Whether we are contesting the charge or not, the treatment is relatively cheap and it can only help the person.  My theory is that an alcoholic is not necessarily a person who has to drink everyday.  My definition of an alcoholic is when alcohol begins to interfere with a person's life regardless of how much or how often they drink.  Getting a DUI is definitely an interference with a person's life.

There are a lot of great programs out there.  However, for the Courts and the DMV to recognize the class, it must be a State Certified "Prime for Life" class.  This web site is great to find classes all around the country and in a person's own city.  I suggest you call them directly and verify that they are state certified and teach a class that is recognized by the Courts.  Hitting the continue reading button will give you a list of providers in the Ogden area.     



Facility No. Name Address Phone Distance Maps
1 Weber Human Services
237 26th Street
Ogden, UT 84401 (801) 625-3700 2.09 miles
Map It!
Primary Focus: Mix of mental health and substance abuse services
Services Provided: Substance abuse treatment, Detoxification
Type of Care: Residential short-term treatment (30 days or less), Outpatient
Special Programs/Groups: Adolescents, Persons with co-occurring mental and substance abuse disorders, Women, Men, DUI/DWI offenders, Criminal justice clients
Forms of Payment Accepted: Self payment, Medicaid, Medicare, State financed insurance (other than Medicaid), Private health insurance, Military insurance (e.g., VA,TRICARE)
Payment Assistance: Sliding fee scale (fee is based on income and other factors)
Special Language Services: ASL or other assistance for hearing impaired

Hotline: (801) 625-3700
Website: http://www.weberhs.org

2 Salvation Army
2615 Grant Avenue
Ogden, UT 84401 (801) 621-3580x22 2.18 miles
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Primary Focus: Substance abuse treatment services
Services Provided: Substance abuse treatment, Halfway house
Type of Care: Residential long-term treatment (more than 30 days)
Forms of Payment Accepted: Medicare, Private health insurance


3 Clinical Consultants
2351 Grants Avenue, Suite 100
Ogden, UT 84401 (801) 621-8670 2.18 miles
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Primary Focus: Mix of mental health and substance abuse services
Services Provided: Substance abuse treatment
Type of Care: Outpatient
Special Programs/Groups: Persons with co-occurring mental and substance abuse disorders, Women, Men, DUI/DWI offenders
Forms of Payment Accepted: Medicare, Private health insurance, Military insurance (e.g., VA,TRICARE)
Special Language Services: Spanish

Website: http://www.clinicalconsultants.org

4 New Horizons Education and Treatment
3003 Grant Avenue
Ogden, UT 84401 (801) 392-6958 2.30 miles
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Primary Focus: Mix of mental health and substance abuse services
Services Provided: Substance abuse treatment
Type of Care: Outpatient
Special Programs/Groups: DUI/DWI offenders
Forms of Payment Accepted: Medicare, Private health insurance
Special Language Services: Spanish

Intake: (801) 593-0008
Website: http://www.horizons4u.com

5 Metamorphosis Ogden Inc
2144 Washington Boulevard
Ogden, UT 84401 (801) 622-5272 2.38 miles
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Primary Focus: Substance abuse treatment services
Services Provided: Substance abuse treatment, Detoxification, Methadone Maintenance, Methadone Detoxification, Buprenorphine Services
Type of Care: Outpatient
Forms of Payment Accepted: Medicare, State financed insurance (other than Medicaid)
Special Language Services: ASL or other assistance for hearing impaired

Website: http://www.breakaddiction.org

6 Professional Services Corporation
533 26th Street, Suite 102
Ogden, UT 84401 (801) 621-3624 2.52 miles
Map It!
Primary Focus: Mix of mental health and substance abuse services
Services Provided: Substance abuse treatment, Detoxification
Type of Care: Outpatient
Special Programs/Groups: Adolescents, Persons with co-occurring mental and substance abuse disorders, Gays and Lesbians, Seniors/older adults, Pregnant/postpartum women, Women, Men, DUI/DWI offenders, Criminal justice clients
Forms of Payment Accepted: Medicaid, Medicare, Private health insurance, Military insurance (e.g., VA,TRICARE)
Payment Assistance: Sliding fee scale (fee is based on income and other factors)
Special Language Services: Spanish

Intake: (801) 621-3640

7 Utah Alcoholism Foundation
Serenity House
529 25th Street
Ogden, UT 84401 (801) 392-5971 2.53 miles
Map It!
Primary Focus: Substance abuse treatment services
Services Provided: Substance abuse treatment
Type of Care: Residential short-term treatment (30 days or less), Residential long-term treatment (more than 30 days), Outpatient, Partial hospitalization/day treatment
Special Programs/Groups: Pregnant/postpartum women, Women, Men
Forms of Payment Accepted: Self payment, Private health insurance

Website: http://www.uafut.org

8 Blue Skies Recovery Center
727 24th Street
Ogden, UT 84401 (801) 392-8900 2.82 miles
Map It!
Primary Focus: Substance abuse treatment services
Services Provided: Substance abuse treatment
Type of Care: Outpatient, Partial hospitalization/day treatment
Special Programs/Groups: Adolescents, Persons with co-occurring mental and substance abuse disorders, Persons with HIV/AIDS, Gays and Lesbians, Seniors/older adults, Pregnant/postpartum women, Women, Men, DUI/DWI offenders, Criminal justice clients
Forms of Payment Accepted: Self payment, Medicaid, Medicare, Private health insurance
Payment Assistance: Sliding fee scale (fee is based on income and other factors)

Intake: (801) 394-1212 Hotlines: (801) 392-8900 (801) 394-1212

9 Ogden Regional Medical Center ACT
5475 South 500 East Street
Ogden, UT 84405 (801) 479-2250 4.62 miles
Map It!
Primary Focus: Substance abuse treatment services
Services Provided: Substance abuse treatment, Detoxification, Buprenorphine Services
Type of Care: Hospital inpatient, Outpatient, Partial hospitalization/day treatment
Special Programs/Groups: Persons with co-occurring mental and substance abuse disorders, Persons with HIV/AIDS, Women, Residential beds for clients' children, Men
Forms of Payment Accepted: Medicaid, Medicare, State financed insurance (other than Medicaid), Private health insurance, Military insurance (e.g., VA,TRICARE)
Special Language Services: ASL or other assistance for hearing impaired

Intakes: (800) 215-2250 (800) 237-9194
Website: http://www.ogdenregional.com

10 Positive Adjustments Corporation
466 North Main Street, Suite 207
Clearfield, UT 84015 (801) 776-4628 7.00 miles
Map It!
Primary Focus: Substance abuse treatment services
Services Provided: Substance abuse treatment
Type of Care: Outpatient
Special Programs/Groups: DUI/DWI offenders
Forms of Payment Accepted: Medicare

Website: http://www.positiveadjustments.com

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    A couple of years ago I attended the Indiana University Borkenstein Course. This is a course that Utah Breath Test technicians are required to take to qualify for their job as technicians. The taxpayer spends a lot of money on these people to take this course. The course is taught by the top scientists in the country and the world. For example, AW Jones from Sweden is probably considered as the worldwide expert on breath testing. Dr. Kurt Dubowski is probably considered the leading expert on breath testing in the nation.

    All of the scientists and experts that taught at the program taught one common theme for forensic breath testing: Quality Assurance is the most important aspect of forensic breath testing. Each expert emphasized that any breath test program should employ duplicate breath testing to ensure an accurate result. The Utah Department of Public Safety chooses to ignore the quality assurance safeguards of duplicate breath testing. I have heard the excuses that it would cost too much to "we don't have to and we don't care." A fellow National College for DUI Defense member posted his research on states that require duplicate testing and those that don't. http://www.wvdui.com/StateBreathMachines.asp

• The interesting thing is that 27 states reported duplicate breath test requirements. 18 states still employ single breath test requirements.

     If it is important to ensure that tests are accurate, that innocent people are not convicted, and to ensure that justice is served, why doesn't Utah step up to the plate. It is not expensive, it is just a software issue. The state has recently purchased brand new Intoxilyzer 8000 machines. Those machines are designed to do duplicate testing. Yet, duplicate testing is still not employed. It seems to me that if the state employed a system to ensure accurate results, they may have to employ the idea that maybe the officer made a mistake in making the arrest. STATE

BLOWS

COMMENTS

AK

1

Datamaster CDM. 15 minute observation period before test.

AL

2

Drager Alcotest 7110. Both blows must be within .02 of each other and must come within one three minute breath test sequence. 20 minute deprivation period before test.

AR

1*

Datamaster. Law allows 2 blows, 1 is the norm. Second blow is entirely at officer’s discretion and lower result is the one required to be reported.

AZ

2

Intoxilyzer 5000 (64-, 66-, 68-), 8000. Two blows no less than 5 minutes, no greater than 10 minutes apart, within .02 of each other.

CA

2

Multiple machines - Intoxilyzer 5000, 8000; Intoximeters EC/IR; Drager ePAS, 7410; Datamaster. Two blows within .02 of each other or a third test is required - no time limit.

CO

2

Intoxilyzer 5000EN. Breath sample captured for independent retest.

CT

2

Intoxilyzer 5000 (68, EN). Each blow preceded by a 15 minute observation period, with both blows being thirty minutes apart.

DC





DE





FL

2

Intoxilyzer 5000, 8000. Unlimited time and number of tests to get two within .02 of each other. 20 minute observation period before test by administrative regulation.

GA

2*

Intoxilyzer 5000 (68-). Two blows required by statute and must be within .02 of each other; if one adequate sample provided, no refusal penalty for refusing second blow and state will proceed on basis of one blow. No prescribed time limits in which to obtain both samples, but machine’s software takes two minutes between tests. 20 minute observation period set forth in machine manual, but caselaw opines that any variance goes only to weight, not admissibility.

HI

1

Intoxilyzer 5000 (EN); Intoxilyzer 8000 in approval process. 15 minute observation period before test.

IA

1

Datamaster CDM. 15 minute observation period before test.

ID

2

Intoxilyzer 5000 (66-, 68-). Blows must be within .02 of each other or a third blow is required. Blows must occur within two minutes following a 15 minute observation period.

IL

1

Intoxilyzer 5000 (64-, 66-); Intoximeter EC/IR (EC/IR II coming soon), RBT IV. 20 minute observation period before test.

IN

1

BAC Datamaster. 20 minute observation period before test. Arresting officer may elect blood, breath, or urine with as many tests of each as he chooses and failure to submit to any deemed a refusal. No right to independent test.

KS

1

Intoxilyzer 5000 (66- ) currently in use as well as Intoxilyzer 8000. 8000 is in early stages of a two year phase-in to replace the 5000. 20 minute observation prior to test.

KY

1

Intoxilyzer 5000EN. 20 minute observation period before test.

LA



Intoxilyzer 5000EN.

MA

2

Draeger 7110 MK III-C. 15 minute observation/deprivation period before test. No statutory time limit for samples to be provided but machine cycle normally 2 - 3 minutes. Samples must be within .02 of each other.

MD

2

Intoximeter EC/IR. Blows must be within .02 of each other or a 3rd is required. If 3rd blow does not achieve .02 margin, all tests deemed invalid. Machine software requires blows to occur within 3 minutes of start of test sequence. 20 minute observation period before testing.

ME

2

Intoxilyzer 5000 EN. Four attempts permitted to get two results within .02 of one another.

MI

2*

Datamaster. Regulations require two blows, 2nd coming at least two minutes after first, but courts have opined only one is necessary for “validity” so two blows not commonly seen. 15 minute observation period prior to 1st test, and 1st result must come within 2 minutes after initiation of test sequence.

MN

2

Intoxilyzer 5000 (68-). 2 consecutive samples, 4 minutes for each sample to be obtained and samples must be within .02 of each other.

MO

2*

Intoxilyzer 5000, Datamaster. Officer may require 2 breath samples, but common practice is for 1. Implied Consent advisement does not inform that two tests are required, nor does it advise that if two are requested and only one is provided, suspension for refusal will occur. No agreement is required between the two tests if two are administered. 15 minute observation period before test.

MS

2

Intoxilyzer 8000

MT

1

Intoxilyzer 5000 (68-). 15 minute observation period before test.

NC

2

Intoxilyzer 5000 (66-, 68-). Blows must be within .02 of each other. 15 minute observation period before test.

ND





NE

1

Datamaster CDM, Intoximeters 3000 also approved.

NH

2

Intoxilyzer 5000EN. Both blows must be within .02 of each other. If not, additional tests occur until two within .02 are achieved. Breath sample captured for independent retest. 20 minute observation period before test.

NJ

2

Breathalyzer 900, 900A - 2 blows 6 - 15 minutes apart. Alcotest 7110 MK IIIC - 2 tests at least 2 minutes apart. 20 minute observation period by custom, not statute or regulation.

NM





NV

2

Intoxilyzer 5000EN. Samples must be within .02 of each other or a 3rd sample is obtained. If that does not fall within limits, blood draw authorized. If suspect fails to provide additional samples, 1st may be used, but forced blood draw is then permissible. No prescribed time limit to obtain samples, but 3rd and 4th must be within 2 hours for per se charge.

NY

1

Datamaster, Draeger 7110. 15 minute observation period before test by administrative rule, but 20 minute period typically used across entire state.

OH

1

Datamaster, Datamaster CDM, Intoxilyzer 5000 (66-, 68-, EN), 8000. 20 minute observation period before test.

OK

2

Intoxilyzer 5000 (66-, EN). Both blows must be within .03 of each other and lowest value is used. All results go to 2 decimal points only. 15 minute observation period before test.

OR

1*

Intoxilyzer 5000 (68-). 15 minute observation period prior to test. *Intoxilyzer 8000 being implemented and will require two blows, two minutes apart with samples being within 10% of one another.

PA

2

Intoxilyzer 5000 (all models), BAC Datamaster. 20 minute observation period before test. No specified time between breath samples. Breath samples must be within .02 of each other. Emerging movement towards blood testing.

RI

2

Intoxilyzer 5000. Both blows must be 30 minutes apart.

SC

1

Datamaster. Entire breath test process must be videotaped, including implied consent warning and 20 minute observation period prior to test.

SD





TN

1

Intoximeters EC/IR and EC/IR II and, to a limited extent, Intoxilyzer 1400

TX

2

Intoxilyzer 5000 EN. 15 minute observation/deprivation period before test. Breath samples must be given within three minutes of each other and must be within .02 of each other.

UT

1

Intoxilyzer 5000, 8000. 15 minute observation period before test.

VA

2

Intoxilyzer 5000. Both blows within three minutes of each other based on machine software, though no legal requirement for time of obtaining samples. Blows must be within .02 of each other or a third blow is required. 20 minute observation period before test.

VT

1

Datamaster. 15 minute observation period before the test is a byproduct of both common law and regulation.

WA

2

Datamaster and Datamaster CDM

WI

2

Intoximeters EC/IR. Both blows must be within .02 of each other. 20 minute observation period prior to testing.

WV

1

Intoximeters EC/IR II. 20 minute observation period prior to testing.

WY

2

Intoximeters EC/IR. Three tries to get two blows within .02 of each other. 15 minute observation period prior to testing.

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I was discussing a case with a prosecutor today.  He made the offer that my client plead to Driving with a Measurable Amount of a Controlled Substance in his system.  This is basically the same thing as a DUI, except the prosecution does not have to prove any impairment or level whatsoever.  The only thing they have to show is that the person had a small amount of the byproduct of a drug in their system.  The only defense to this charge is that the person has a valid prescription for the controlled substance.  Should the person plead to this charge?  My answer is if there is another way around it, don't plea to.  I suggested a Drug Related Reckless charge.  The prosecutor asked why?  Here are my four reasons?

• A metabolite charge will suspend your license for 90 days, or 1 year if it is a second offense.
• A Drug Related Reckless driving charge will save the license (if you kept it at the DMV hearing), or will reduce the license suspension to 60 days if it is a first offense.
• Usually, the Courts will give a lessor fine for a DRR.
• Usually, the DRR will not involve jail time or as much community service hours.

Be aware that both charges are similar in nature.  They both will stay on your record for 10 years before expungement can take place.  Both usually require a drug class.  Both will have the stigma of DUI along with insurance implications.

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The Police are making arrests for DUIs.  A story broke today about 30 officers being disciplined.  Many of the disciplined officers were involved in sexual misconduct.  However, I was shocked to see a few of them were officers convicted of DUI or Alcohol Related offenses.  One of the officer's was the the poster child for getting tough of DUIs. 

Here's a break down of what discipline occurred:

Officers disciplined

Other current or former peace officers disciplined today were:
-- Centerville police: John F. Spencer, revoked for felony convictions of child abuse and assault
-- Salt Lake County Sheriff s Office: Jaron H. Brown and Ronald Friend, two-year suspensions for sexual misconduct and associating with criminals; James M. Coleman, revoked for theft conviction
-- Orem police: Barry T. Nielsen, revoked for conviction of sexual battery
-- Utah Highway Patrol: John C. Ellis, revoked for criminal trespass
-- South Ogden: Stuart J. Ford, revoked for domestic violence
-- Utah County Sheriff s Office: Troy W. Abplanalp, revoked for conviction of making threats with a weapon
-- Salt Lake Valley Emergency Communications Center: Stephanie K. Poret, revoked for drug use
-- Tooele County Sheriff s Office: Elizabeth M. Miller, revoked for custodial sexual misconduct
-- Salt Lake City police: Roger J. Nielson, revoked for sexual misconduct; Cortney C. Haggerty, four-year suspension for drug use
-- Utah Department of Corrections: Stephen A. Gray, revoked for custodial sexual misconduct; Katie C. Schofield, revoked for custodial sexual misconduct; Robert W. Crozier, revoked for sexual misconduct with a state computer; Alan W. Hurst, three-year suspension for driving under the influence; Bryan R. Sandness, two-year conviction for driving under the influence; David A. Goodrich, 9-month suspension for pattern of misconduct
-- Ogden police: Leon Weese, 18-month suspension for sexual misconduct
-- University of Utah police: Tory K. Park, three-year suspension for driving under the influence
-- Police academy cadets: Benjamin L. Walker, four-year suspension for theft; Valerie Hutchens, four-year suspension for falsifying her application
-- Washington County Sheriff s Office: Joy L. Andrews, three-year suspension for lying
-- Cache County Sheriff s Office: Jared L. Glover, one-year suspension for pattern of misconduct
Chief, jail officers among more than 30 disciplined by police board
By Nate Carlisle
The Salt Lake Tribune

Salt Lake Tribune
Article Last Updated:
Posted: 6:00 PM- ST. GEORGE - In what might be the largest docket in its history, the state's police board Monday booted or disciplined more than 30 peace officers accused of wrongdoing.
That included action against the former Helper police chief and four Utah County jail officers all accused of sexual misconduct.
The four jail officers were found to have had sex with a woman jail employee in the evidence room and other locations in the jail, said the board's investigator, Lt. Steve Winward. All four men, the woman and another male jail employee have already resigned after the affair came to light in the fall.
One Corrections officer, Michael Kingston, had his peace officer certification revoked, meaning he cannot practice law enforcement elsewhere in Utah. A former sergeant at the jail, Mark B. Binks, received a four-year suspension of his certification, while jail officer Michael H. Houck received a three-year suspension and jail officer James B. Collyer was suspended for two years.
The board revoked the peace officer certification of former Helper Chief George Zamantakis for having an affair with a one-time department secretary and then lying about it to state investigators.
Winward said when the affair came to light it caused a disruption in the small town. But investigators also noted Zamantakis still had the support of the mayor and other officers with the police department.
The board, called the Utah Peace Officer Standards and Training Council, adjudicated twice as many cases as normal for its quarterly meeting. Winward said the high number was not the sign of an increased discipline problem in Utah police but rather investigators and the board trying to adjudicate cases that had been ongoing.
"We were cleaning things out," Winward said.
The board meeting is coinciding with the annual conference of the Utah Chiefs of Police Association. One of the conference discussion items for Tuesday is titled: "Ethics on the Job: A Continuing Challenge."
The board also revoked the certification of former Hildale and Colorado City, Ariz., marshals Fred Barlow and Preston Barlow. The two marshals, which worked in the polygamist community on the Utah-Arizona border, already have been decertified in Arizona. They were found to have written to the community's leader, Warren Jeffs, while he was a fugitive and they failed to answer the questions of investigators looking for Jeffs.
The board issued a four-year suspension to former Utah Highway Patrol Lt. Fred Swain. In June 2006, Swain, who lead UHP's DUI squad, wrecked his UHP car in Draper and was charged with driving under the influence. He resigned from the patrol and later pleaded guilty to alcohol-related reckless driving.

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Many of my clients get arrested right after leaving Bogey's.  The police seem to drive around the club between 11:00 p.m. to closing time waiting for people to leave.  The officers will then following the citizen until the person commits a minor traffic citation.  The officers then pull them over, ask how much alcohol was consumed, and the citizen is now looking down the wrong end of a DUI.  I saw this article in the Tribune that talks about how the officers actually went into Bogey's and harassed the patrons to try to get them to commit crimes by offering money for sexual acts and lewd behavior.  The officers then purchased alcohol for an intoxicated person, and then cited the bar owner for serving an intoxicated person.  Is this really what we pay our officers to do?  Here's the highlights.

• Three state undercover cops walked into Bogey's Night Club one September night and then over the course of two hours repeatedly made lewd comments to a waitress, waved a $5 bill at a rowdy customer enticing her to expose her breasts and, when she refused, bought her a drink.
• After ordering themselves dinner and drinks, the officers cited the club for serving alcohol to an intoxicated patron - the same woman they had treated to a shot of Jagermeister liqueur.
• Lt. Ed Michaud, head of the state's alcohol enforcement team, said he was unaware of the officers' actions until questioned by a reporter. He said the agents' conduct was "over the top and an embarrassment to the department" that will be addressed at future training sessions.

Bogey's Night Club: State cops crossed the line in 2006 booze sting
By Dawn House
The Salt Lake Tribune
Article Last Updated: 01/11/2008 06:26:46 AM MST

* Jan 11:
* Owner: Club targeted after citation protest
* Jan 10:
* Bogey's stinging over sting

CLEARFIELD - Three state undercover cops walked into Bogey's Night Club one September night and then over the course of two hours repeatedly made lewd comments to a waitress, waved a $5 bill at a rowdy customer enticing her to expose her breasts and, when she refused, bought her a drink.
After ordering themselves dinner and drinks, the officers cited the club for serving alcohol to an intoxicated patron - the same woman they had treated to a shot of Jagermeister liqueur.
Club owners say the state brought liquor violation counts against them after the 2006 sting that has taken a year to defend while ignoring the officers' misbehavior in making the bust.
"We asked for an investigation into the officers' conduct in July - and we're still waiting for a response," said club attorney Lisa McGarry.
Shelia Page, who prosecuted the case for the Utah Department of Alcoholic Beverage Control, said buying customers drinks is legal and the officers indicated to her that their other behavior was an effort to "blend in" with the crowd. She added that it is up to law enforcement agencies - not her department - to set policies governing officers' behavior.
Lt. Ed Michaud, head of the state's alcohol enforcement team, said he was unaware of the officers' actions until questioned by a reporter. He said the agents' conduct was "over the top and an embarrassment
to the department" that will be addressed at future training sessions.
Virtually all liquor violations come from stings - a prospect owners fear most because citations bring hefty fines and even closures. Club owners are reluctant to speak out against investigators or the Utah Department of Alcoholic Beverage Control, which makes recommendations on sanctions the liquor-control board rarely questions.
Bogey's was fined for allowing the agents into the club without checking for a required membership card. But state could not prove the woman was intoxicated after owners produced tapes from a surveillance system that contradicted officers' assertion the woman was so unsteady that she had trouble walking without holding onto something or someone for assistance.
For his part, club owner Allen Whittle said he still is angry the agents got away with sexually harassing a server.
During an administrative hearing in September, Officer Jerry Walters said that in order to maintain their cover, agents asked the waitress to accompany them to a MILF contest, which Walters identified as "Moms I'd Like to F---" competition.
"I feel very confident in telling you [the waitress] had no idea that she was dealing with three police officers sitting at that table, based on the conversation we had," he testified.
The waitress, who works part-time at the club and is a full-time emergency medical technician, said Walters and officers Rolynn Snow and David Antonsen "kept up with the MILF comments" for some two hours.
She also testified that when a particularly unruly customer started to pull up her blouse the officers began "egging her on to flash, yelling 'show us your t--s.' " The woman declined, but told the agents they could buy her a drink instead.
McGarry, Bogey's attorney, questioned why the officers bought alcohol for someone they suspected was intoxicated. The agents countered that the woman only showed "early signs" of intoxication when they bought her the shot.
Hearing officer Carol Clawson ruled the waitress and bartender - not the agents - "were in a better position" to determine if the woman had too much to drink. She dismissed the "over service" alcohol count, however, saying the state couldn't prove the woman was intoxicated, in part because she showed the same uninhibited behavior drunk or sober.
Clawson discounted the club's assertion the agents had a duty to take the woman home if they believed her drunk.
"While law enforcement may have a general duty to protect the public," she wrote, "in this instance Bogey's has the primary duty to ensure that its patrons do not drink so much that they are unable to drive."

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The first thing an officer will look at when they are "hunting" for a DUI in Utah is the driving pattern.  I have had numerous cases where the officer describes somewhat of a driving pattern in states my client swerves or weaves a couple of times.  Many times, my clients will tell me they were talking on their cell phone.  Talking on your cell phone may be dangerous and it may be against the law in some jurisdictions, but it does not mean that you are impaired by alcohol and/or drugs.

Here is a story that was printed by the U of  U News Center.  The article talks about a study that was done back in June 2006.  Here are some highlights.

• the study indicates that people who talk on their cell phones are just as impaired as people who drink.
• in fact, the study seems to indicate that people talk on their cell phones can be more impaired in a person who has drink alcohol.

My prediction in the future is that soon talking on a cell phone while driving will be handled and prosecuted much the same way as a Utah DUI charge. Press Images

A student talks on a hands-free cell phone while operating a high-tech driving simulator. The simulator was used during a University of Utah study that found motorists who talk on cell phones while driving are as impaired as drunken drivers with blood-alcohol levels at the legal limit of 0.08 percent.

--------------------------------------------------------------------------------
Drivers on Cell Phones Are as Bad as Drunks

Utah Psychologists Warn Against Cell Phone Use While Driving

Media Contacts

June 29, 2006 -- Three years after the preliminary results first were presented at a scientific meeting and drew wide attention, University of Utah psychologists have published a study showing that motorists who talk on handheld or hands-free cellular phones are as impaired as drunken drivers.

"We found that people are as impaired when they drive and talk on a cell phone as they are when they drive intoxicated at the legal blood-alcohol limit” of 0.08 percent, which is the minimum level that defines illegal drunken driving in most U.S. states, says study co-author Frank Drews, an assistant professor of psychology. “If legislators really want to address driver distraction, then they should consider outlawing cell phone use while driving.”

Psychology Professor David Strayer, the study's lead author, adds: “Just like you put yourself and other people at risk when you drive drunk, you put yourself and others at risk when you use a cell phone and drive. The level of impairment is very similar.”

“Clearly the safest course of action is to not use a cell phone while driving,” concludes the study by Strayer, Drews and Dennis Crouch, a research associate professor of pharmacology and toxicology. The study was set for publication June 29 in the summer 2006 issue of Human Factors: The Journal of the Human Factors and Ergonomics Society.

The study reinforced earlier research by Strayer and Drews showing that hands-free cell phones are just as distracting as handheld cell phones because the conversation itself – not just manipulation of a handheld phone – distracts drivers from road conditions.

Human Factors Editor Nancy J. Cooke praised the study: “Although we all have our suspicions about the dangers of cell phone use while driving, human factors research on driver safety helps us move beyond mere suspicions to scientific observations of driver behavior.”

The study first gained public notice after Strayer presented preliminary results in July 2003 in Park City, Utah, during the Second International Driving Symposium on Human Factors in Driver Assessment, Training and Vehicle Design. It took until now for the study to be completed, undergo review by other researchers and finally be published.

Key Findings: Different Driving Styles, Similar Impairment

Each of the study"s 40 participants “drove” a PatrolSim driving simulator four times: once each while undistracted, using a handheld cell phone, using a hands-free cell phone and while intoxicated to the 0.08 percent blood-alcohol level after drinking vodka and orange juice. Participants followed a simulated pace car that braked intermittently.

Both handheld and hands-free cell phones impaired driving, with no significant difference in the degree of impairment. That “calls into question driving regulations that prohibited handheld cell phones and permit hands-free cell phones,” the researchers write.

The study found that compared with undistracted drivers:

Motorists who talked on either handheld or hands-free cell phones drove slightly slower, were 9 percent slower to hit the brakes, displayed 24 percent more variation in following distance as their attention switched between driving and conversing, were 19 percent slower to resume normal speed after braking and were more likely to crash. Three study participants rear-ended the pace car. All were talking on cell phones. None were drunk.
Drivers drunk at the 0.08 percent blood-alcohol level drove a bit more slowly than both undistracted drivers and drivers using cell phones, yet more aggressively. They followed the pace car more closely, were twice as likely to brake only four seconds before a collision would have occurred, and hit their brakes with 23 percent more force. “Neither accident rates, nor reaction times to vehicles braking in front of the participant, nor recovery of lost speed following braking differed significantly” from undistracted drivers, the researchers write.
“Impairments associated with using a cell phone while driving can be as profound as those associated with driving while drunk,” they conclude.

Are Drunken Drivers Really Less Accident-Prone than Cell Phone Users?

Drews says the lack of accidents among the study’s drunken drivers was surprising. He and Strayer speculate that because simulated drives were conducted during mornings, participants who got drunk were well-rested and in the “up” phase of intoxication. In reality, 80 percent of all fatal alcohol-related accidents occur between 6 p.m. and 6 a.m. when drunken drivers tend to be fatigued. Average blood-alcohol levels in those accidents are twice 0.08 percent. Forty percent of the roughly 42,000 annual U.S. traffic fatalities involve alcohol.

While none of the study’s intoxicated drivers crashed, their hard, late braking is “predictive of increased accident rates over the long run,” the researchers wrote.

One statistical analysis of the new and previous Utah studies showed cell phone users were 5.36 times more likely to get in an accident than undistracted drivers. Other studies have shown the risk is about the same as for drivers with a 0.08 blood-alcohol level.

Strayer says he expects criticism “suggesting that we are trivializing drunken-driving impairment, but it is anything but the case. We don't think people should drive while drunk, nor should they talk on their cell phone while driving.”

Drews says he and Strayer compared the impairment of motorists using cell phones to drivers with a 0.08 percent blood-alcohol level because they wanted to determine if the risk of driving while phoning was comparable to the drunken driving risk considered unacceptable.

“This study does not mean people should start driving drunk,” says Drews. “It means that driving while talking on a cell phone is as bad as or maybe worse than driving drunk, which is completely unacceptable and cannot be tolerated by society.”

University of Utah Cell Phone Research

Previous research by Strayer, Drews and colleagues include:

A 2001 study showing that hands-free cell phones are just as distracting as handheld cell phones.
A 2003 study showing that the reason is “inattention blindness,” in which motorists look directly at road conditions but don’t really see them because they are distracted by a cell phone conversation. And such drivers aren’t aware they are impaired.
A 2005 study suggesting that when teenagers and young adults talk on cell phones while driving, their reaction times are as slow as those of elderly drivers.
The University of Utah psychologists conducted the alcohol study because a 1997 study by other researchers evaluated the cell phone records of 699 people involved in motor vehicle accidents and found one-fourth of them had used their phone in the 10 minutes before their accident – a four-fold increase in accidents compared with undistracted motorists.

Those researchers speculated there was a comparable risk from drunken driving and cell phone use while driving. So Strayer and Drews conducted a controlled laboratory study.

The study included 25 men and 15 women ages 22 to 34 who were social drinkers (three to five drinks per week) recruited via newspaper advertisements. Two-thirds used a cell phone while driving. Each participant was paid $100 for 10 hours in the study.

The driving simulator has a steering wheel, dashboard instruments and brake and gas pedals from a Ford Crown Victoria sedan. The driver is surrounded by three screens showing freeway scenes. Each simulated daylight freeway drive lasted 15 minutes. The pace car intermittently braked to mimic stop-and-go traffic. Drivers who fail to hit their brakes eventually rear-end the pace car. Other simulated vehicles occasionally passed in the left lane, giving the impression of steady traffic flow.

Each study participant drove the simulator during three sessions – undistracted, drunk or talking to a research assistant on a cell phone – each on a different day.

The simulator recorded driving speed, following distance, braking time and how long it would take to collide with the pace car if brakes were not used.

The study was funded by a $25,000 grant from the Federal Aviation Administration – which is interested in impaired attention among pilots – and by Strayer’s and Drews’ salaries. The Utah Highway Patrol loaned the researchers a device to measure blood-alcohol levels.

Driving while Distracted: A Growing Problem

The researchers cited figures from the Cellular Telecommunications Industry Association indicating that more than 100 million U.S. motorists use cell phones while driving. The National Highway Transportation Safety Administration estimates that at any given moment during daylight hours, 8 percent of all drivers are talking on a cell phone.

“Fortunately, the percentage of drunk drivers at any time is much lower,” Drews says. “So it means the risk of talking on a cell phone and driving is probably much higher than driving intoxicated because more people are talking on cell phones while driving than are driving drunk.” The main reason there are not more accidents is that “92 percent of drivers are not on a cell phone and are compensating for drivers on cell phones,” he adds.

Cell phone use is far from the only distraction for motorists. The researchers cite talking to passengers, eating, drinking, lighting cigarettes, applying makeup and listening to the radio as the “old standards” of driver distraction.

“However, over the last decade many new electronic devices have been developed, and they are making their way into the vehicle,” the researchers write. “Drivers can now surf the Internet, send and receive e-mail or faxes, communicate via a cellular device and even watch television. There is good reason to believe that some of these new multitasking activities may be substantially more distracting than the old standards because they are more cognitively engaging and because they are performed over longer periods of time.”



News media may obtain a copy of the study by emailing leesiegel@ucomm.utah.edu or, starting June 29, by going to http://hfes.org and clicking on “What’s New”

Other studies by Strayer and colleagues on cell phones and driving may be downloaded from: http://www.psych.utah.edu/AppliedCognitionLab/

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Fox 13 reported on December 31, 2007, about the DUI Blitz and checkpoints that were going to happen around the state for New Years Eve parties.  The UHP was on the "hunt" as they have called it in the past.  Many different agencies provided free shuttle service to and from bars.  I like looking for solutions like this rather than jumping on the witch hunt.  Here is a report on a service provided by some agencies.  It is my hope that everyone had a safe holiday.

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I went to a sentencing hearing today.  My client was found Not Guilty of felony DUI at trial.  He was found guilty of interfering with an arrest.  At sentencing, the state jumps up and down "WE WANT JAIL!"  The  interfering with arrest charge was a minor issue in the case.  Most people get that charge mainly because they were uncooperative.  Most people get a small fine and a slap on the wrist without much noise from the prosecutor.  It felt like when my client was acquitted, the State was incensed.  So on a minor charge, the State jumps up and down crying for jail time on something no one ever goes to jail without some extraneous circumstances.

I have no complaints about the judge in this particular case.  He bent over backwards to ensure that my client was handed a fair trial.  The judge made very sound decisions in ruling on objections and matters of evidence.  That does not mean that the judge ruled in my favor all of the time, but he always made sure I understood why he ruled against me.  The judge was fair on sentencing.  He certainly did not go easy on my client, but he gave my client a chance.  My client's future rests in his own hands.

I have some concerns about the sentencing process.  The judge sends a person that is to be sentenced to get a pre-sentence report.  The person goes to a probation agency.  The agency is supposed to be independent of the prosecution.  However, it seems far too often that the input comes from the prosecution.  In fact, in Weber County, the probation person sits in Court on the right hand side of the prosecutor.  They are one being in purpose.  I often see at sentencing a prosecutor whispering in the probation agent's ear.  Why have the probation person there?  If the judge wants to know what the prosecutor recommends, just ask the prosecutor.  My feeling is that this is an area that needs to be fixed. 

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A DUI specialist from Lubbock Texas, Stephen Hamilton, wrote this interesting article about Field Sobriety Tricks.  He ended up with a case where the officer admits that that these tests are tricks.  The officer tells the citizen accused that these tests "are just part of the part of the field sobriety tricks."  Mr. Hamilton even shows you the small video clip.  It's worth checking out.

There are many posts that that talk about these tests.  They are designed to make the accused fail.  If you do not understand each and every instruction and do each part of the exercises perfectly, you could find yourself defending yourself from a DUI charge.

I see people all the time that fail these tests for reasons other than alcohol.  Maybe they have a physical problem that prevents them from being perfect on the tests.  Maybe they are just tired.  Maybe they lack the coordination.  Whatever the reason, innocent people fail these tests all the time.  Maybe in reality, the officer sees what he wants to see.  I had a UHP trooper admit to me that the UHP gives awards for the trooper who makes the most DUI arrests in one year.  Great motivation.

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So you have been arrested for a DUI in Utah.  You are embarrassed, mad, depressed, and wondering what happens next.  This is an overview of the what the process when you are arrested for a DUI in Utah. 

1. Arraignment:  The Court schedules an initial appearance.  This is a gray area.  Sometimes  you need to call the Court to find out when you need to show up.  Sometimes a court date is set up by the time you get released from jail.   Sometimes, you just show up on certain days.  It is advisable to talk to a lawyer before this hearing so the lawyer can advise you how to proceed.  Many times if you hire a lawyer before this first hearing, the lawyer will cancel this hearing by entering his appearance with a document, enter your plea of not guilty with a document, and request that the case be set for the next hearing.
2. Pretrial Conference:  The next step is a pretrial conference.  This is a meeting with the prosecutor to discuss a possible resolution or plea bargain.  If the prosecutor does not make an offer that the citizen can live with, then the case is set for further proceedings.  Many times, the case is resolved at this point.
3. Suppression Hearings:  Many times a lawyer will file a motion to suppress evidence at this point.  If the lawyer feels there is a legal reason that some evidence (i.e. the breath test result, certain statements, etc.) should not be heard by the jury, he files a motion to suppress that information.  Usually, there is a hearing and testimony of witnesses can be taken.  The Court rules on those motions at the hearing, or he thinks about and takes under advisement issuing a decision at a later date.
4. Trial:  If there has been no resolution, the case will be heard at a trial.  In Utah, for a DUI, a person has the right to a jury trial or to have the trial heard before the bench, which means the judge.  I almost always request a jury.  In Utah, for a Class B Misdemeanor DUI, four jurors are selected to hear the case.
5. Not Guilty:  If you are found Not Guilty, the case is over.
6. Sentencing:  If you are found Guilty of DUI, then you are sentenced.  Sometimes it will be the day of trial, but you have a right not to be sentenced in less than two days, and not more than 45 days.  I believe the idea of this is a cooling off period and sometimes the court requests information to determine the proper sentence.
7. Appeal:  If you are in a justice court, you have a right to a whole new trial in the District Court.   If you are already in the District Court, you have a right to appeal to an appellate court, which is done in writing, not by another trial.

These are common questions that many Utah DUI clients ask me when they are arrested about the procedure.  It is important to hire the right attorney as early as possible in the process so the attorney can prepare the case as soon as possible.  It is very difficult in calendaring and in preparation when the attorney gets hired half way through the process.

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I have had several cases in Farmington, Utah, where the officer will draw blood from the arrested person rather than take him or her to get a breath test.  Is this really a good idea?  I mean, police drawing blood on the side of the road doesn't seem sanitary.   The police are there collecting evidence.  The police are not there to ensure the health and safety of the person arrested.  I'm not sticking my arm out and allowing a trooper stick me with a needle.  The Arizona police have the same type of practice.  Here's a story with some problems they are having with officers drawing the blood.


Tucson Region
Blood draws by officers in DUI stops questioned
Man files claim vs. county saying deputy infected arm
By Erica Meltzer
ARIZONA DAILY STAR
Tucson, Arizona | Published: 10.14.2007
"They have succeeded in getting blood evidence tossed out of court and charges against their clients dismissed based on the fact that it was a law enforcement officer, not medical personnel, who took the sample.
Now the man who believes an officer-administered blood draw caused his persistent infection has filed a claim against Pima County and the Pima County Sheriff's Department. A claim is the first step in a lawsuit.
"I think most of the public does not realize that law enforcement personnel are doing the draws," said Michael Bloom, an attorney in the case.
He said the practice raises several concerns, including that "the officer is not there in a medical capacity, he is there in a law enforcement capacity. He is not there to safeguard the health and safety of the suspect." " Tucson Region
Blood draws by officers in DUI stops questioned
Man files claim vs. county saying deputy infected arm
By Erica Meltzer
ARIZONA DAILY STAR
Tucson, Arizona | Published: 10.14.2007

Attorneys are putting new scrutiny on a practice that has become common among law enforcement — having officers, not medical personnel, draw blood with syringes in suspected drunken driving cases.
That comes after a man developed a persistent infection at the site of a blood draw administered by a Pima County sheriff's deputy. He has filed what is believed to be the first claim in Arizona against the practice, which could put local taxpayers on the hook for any damages.
Arizona law requires that drunken driving suspects submit to a test or lose their license for a year — and it's the officer's choice, not the driver's, whether to use a breath or a blood test.
Law enforcement agencies say having officers do blood draws themselves is quicker and more convenient than going to a hospital and more accurate than a breath test.
The Pima County Sheriff's Department has relied exclusively on deputy-administered blood draws for years.
But defense attorneys have zeroed in on the practice, arguing police officers do not receive adequate training to do the blood draws, don't have the health and safety of suspects as their top priority and put suspects at unnecessary risk.
They have succeeded in getting blood evidence tossed out of court and charges against their clients dismissed based on the fact that it was a law enforcement officer, not medical personnel, who took the sample.
Now the man who believes an officer-administered blood draw caused his persistent infection has filed a claim against Pima County and the Pima County Sheriff's Department. A claim is the first step in a lawsuit.
"I think most of the public does not realize that law enforcement personnel are doing the draws," said Michael Bloom, an attorney in the case.
He said the practice raises several concerns, including that "the officer is not there in a medical capacity, he is there in a law enforcement capacity. He is not there to safeguard the health and safety of the suspect."
According to the claim, James Green, a 31-year-old test pilot who works out of Pinal Air Park, was stopped by a sheriff's deputy March 27 and arrested on suspicion of driving under the influence. After being told his driver's license would be suspended for 12 months if he did not consent to a blood test, he agreed to allow the draw.
Even though they were within walking distance of Northwest Medical Center, the deputy performed the blood draw in the back seat of his squad car. It took two tries to get a sample.
The claim says Green's arm became swollen and very red around the site of the blood draw within a few hours. Five months later, he had undergone several rounds of treatment with antibiotics and still had the infection. The claim says Green can work only intermittently because of the infection and may face long-term health consequences.
James Charnesky, Green's lawyer in his criminal case, is working with Bloom on the civil case. He succeeded in getting charges dropped after arguing that the way the blood was drawn violated Green's due-process rights. Even though Green is seeking $500,000 in damages, Charnesky said the motivation behind the lawsuit is to change the practice.
Charnesky, who specializes in DUI cases, said the practice started in Arizona but now is spreading to some counties in Utah and Texas.
Lt. Karl Woolridge, the Sheriff's Department Special Operations commander, said deputies do blood draws because blood is more accurate than breath, and the closer to the time of the crime the evidence is collected, the more accurate it is.
"Our goal is to have fewer cases go to trial because we have better evidence," he said.
The Sheriff's Department does not track conviction rates, and the deputy county attorney who oversees DUI prosecutions could not be reached for comment.
Other metro-area police departments have officers trained to draw blood but still use breath tests, depending on the situation.
Woolridge said Green's claim doesn't tell the whole story, but he could not comment on the specifics because of the likelihood of a lawsuit.
He said it was the first claim he was aware of related to a blood draw done by a deputy, and he said it wasn't surprising that eventually someone would complain. "Imagine the total number of blood draws we do," he said. "We make 1,800 DUI arrests a year."
DUI defense attorneys have convinced judges to throw out blood evidence by arguing deputies threatened suspects with electric stun guns to get them to submit to a blood draw, police officers used too much force to restrain a suspect for a blood draw, officers drew blood while suspects were standing, or officers with limited experience went ahead with a blood draw even though a hospital was just a few minutes away.
In 2004, charges were dropped against a man facing misdemeanor DUI charges after he said deputies used a stun gun against him three times to force him to submit to a blood draw. He said he was afraid of needles.
The Sheriff's Department has since changed its Taser policy.
While having police officers do their own draws is now common in Pima County, medical experts expressed surprise at the practice.
The medical director of the American Red Cross Arizona Region Blood Services said she had never heard of such a practice, and it raised several concerns.
Phlebotomists who practice in a medical center get more training, and then more practice, before working on their own, she said.
"To be a really good phlebotomist, you need to do a lot of draws," she said. "The more draws you do, the better you'll be at it."
Also, if the arm isn't positioned properly or if the person is standing, there would be a greater risk of injury both to the person submitting to the draw and to the person administering it, Miller said.
Miller, a pathologist, said there always is a risk of infection with a blood draw because the skin can be cleaned but not sterilized. But she believed the risk of infection would be higher if the setting for the blood draw wasn't very clean.
Arizona has no state requirements or licensing process for phlebotomists. The Red Cross training calls for one week of classroom instruction, then two weeks of practice with a trained phlebotomist observing each blood draw. The curriculum endorsed by the National Phlebotomy Association calls for nine weeks of training.
The course for law enforcement officers, developed at Phoenix College and now offered at Pima Community College, lasts a week and includes two days of practice in a clinical setting.
? Reporter Erica Meltzer: 807-7790 or emeltzer@azstarnet.com.

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Here is an interesting article about the prohibition of drinking.  Some points that I find interesting are:

1. The person who started MADD feels that the organization has gotten way out of hand and no longer supports the organization.
2. MADD is pushing for complete prohibition of any alcohol.
3. Lowering the legal limit has not lowered DUIs as predicted.
4. Ignition interlock devices are not working.

"Lightner has moved on from MADD, and since then has protested the shift from attacking drunk driving to attacking drinking in general. "I worry that the movement I helped create has lost direction," she told The Cleveland Plain Dealer in 1992. BAC legislation, she said, "ignores the real core of the problem....If we really want to save lives, let's go after the most dangerous drivers on the road." Lightner said MADD has become an organization far more "neoprohibitionist" than she had envisioned. "I didn't start MADD to deal with alcohol," she said. "I started MADD to deal with the issue of drunk driving." http://www.reason.com
http://www.reason.com/news/show/122456.html
Reason Magazine
Prohibition Returns!

Teetotaling do-gooders attack your right to drink

David Harsanyi | November 2007 Print Edition

On a May night in 2005, Debra Bolton, a lawyer and single mom from the Washington suburb of Alexandria, Virginia, was leaving the Café Milano in Georgetown after socializing with some friends. She had driven her SUV only a few hundred yards before she was pulled over by D.C. police for driving with the headlights off. She told the officer the parking attendant at Café Milano probably had turned off her vehicle's automatic light feature.

Not mollified, the officer asked Bolton to step out of the car, walk in a straight line, recite the alphabet, stand on one foot, and count to 30. He checked her eyes for suspicious jerkiness and insisted on a breath test for alcohol.

The breath test revealed that Bolton's blood alcohol content (BAC) was 0.03 percent, a level a 120-pound woman could expect after drinking one glass of wine. It was well below the 0.08 percent limit that marks a driver as legally intoxicated in D.C. It was not low enough for the arresting officer, however. This middle-aged mother of two, who hadn't drunk to excess, who hadn't run a red light or run a stop, was arrested, handcuffed, and fingerprinted for an innocent mistake. She sat in a jail cell for hours and was finally released at 4:30 a.m. Bolton spent four court appearances and over $2,000 fighting a $400 ticket. She then spent a month fighting to get her license back after refusing to submit to the 12-week alcohol counseling program.

The arresting officer, inaptly named Dennis Fair, insists: "If you get behind the wheel of a car with any measurable amount of alcohol, you will be dealt with in D.C. We have zero tolerance....Anything above 0.01, we can arrest." Fair recognized that nearly everyone in D.C. was unaware of this zero tolerance policy. Still, he told The Washington Post, if "you don't know about it, then you're a victim of your own ignorance."

Bolton's arrest was not the result of a single cop's overzealousness. In 2004 D.C. police arrested 321 people with BACs below the legal limit of 0.08 percent for driving under the influence. The year before, the number was 409.

After the Bolton incident, James Klaunig, a toxicology expert at the Indiana University School of Medicine, told The Washington Post, "There's no way possible she failed a [sobriety] test from impairment with a .03 blood alcohol level." Fair had claimed that Bolton swayed and lost her balance when taking the sobriety test, triggering the breath test.

A BAC test, one of the main tools used by law enforcement to catch drunk drivers, determines how much alcohol is present in the bloodstream. A BAC of 0.08 percent, for instance, means 0.0008 of your blood is alcohol. At that level, though, you're hardly slurring your words or staggering.

In 2000 President Clinton signed a federal law aimed at pressuring states to lower their BAC limits from 0.1 percent to 0.08 percent. States that didn't go along were threatened with the loss of federal highway funds. Karolyn Nunnallee, president of Mothers Against Drunk Driving (MADD), predicted that a nationwide 0.08 percent standard "will save nearly 600 lives every year."

It hasn't worked out that way. In the July 2007 issue of Contemporary Economic Policy, Sam Houston State University economist Donald Freeman examines the most recent data available and concludes "there's no evidence that lowering the BAC limits...reduced fatality rates, either in total or in crashes likely to be alcohol related." This is true, he found, both in states that adopted a 0.08 percent BAC standard on their own and in states that did so under federal pressure.

During the last decade, according to the National Highway Traffic Safety Administration (NHTSA), alcohol contributed to between 16,000 and 17,000 traffic-related fatalities a year, about two-fifths of the total such deaths. It used to be a good deal worse. Back in 1982, three-fifths of all traffic related fatalities were attributed to alcohol. Since then, ad campaigns and education have raised public awareness about the dangers of driving smashed. States have instituted stricter punishment for drunk driving, and law enforcement officials are also better prepared to ferret out drunk drivers. A lot of the credit must be given to the hard work MADD did in educating the public about the menace of drinking and driving.

But the decline in alcohol-related deaths persisted only until 1997. Since then the vehicular death toll attributed to alcohol has remained stable at around 40 percent. This stagnation in drunk driving deaths has caused considerable consternation among activists and law enforcement officials. Lately, the fight against drunk driving has shifted from serious alcohol abusers with no regard for the law toward responsible drinkers.

Neoprohibitionists aim to muddle the distinction between drunk diving and driving after drinking any amount of alcohol. Sen. Barbara Boxer (D-Calif.) endorsed the idea at a Senate Environment and Public Committee hearing way back in 1997, contending that we "may wind up in this country going to zero tolerance, period." Former MADD President Katherine Prescott concurred, in a letter to the Chicago Tribune, where she stated "there is no safe blood alcohol, and for that reason responsible drinking means no drinking and driving."

Technically she's correct. Driving is never completely safe, and many things drivers commonly do-including speaking on a cell phone, talking to passengers, applying lipstick, eating a sandwich, drinking coffee, adjusting the radio, reprimanding the kids in the back seat, and daydreaming about weekend plans-can make it riskier. As states and cities have begun focusing on zero tolerance (or "driving while distracted" laws, which target the diversions laid out above) they are losing focus on the real threat, namely habitually drunk drivers.

Drinking is under attack these days in ways we haven't seen since the failed experiment with national alcohol prohibition in the 1920s. Indeed, for many neoprohibitionists, that experiment wasn't a failure at all, since it did cut alcohol consumption, which is all that matters. We can see that mentality today in policies that go beyond preventing drunk driving or punishing drunk drivers and aim to discourage drinking per se.

Founder's Remorse
Although alcohol nannies generally support zero tolerance, one dissenting voice doesn't. "I thought the emphasis on .08 laws was not where the emphasis should have been placed," Candace Lightner told the Los Angeles Times in 2002. "The majority of crashes occur with high blood-alcohol levels, the .15, .18 and .25 drinkers. Lowering the blood-alcohol concentration was not a solution to the alcohol problem."

Lightner's views can't be easily dismissed by anti-alcohol activists. In 1980 her 12-year-old daughter, Cari, was killed by a hit-and-run driver on a suburban street in Southern California. When the perpetrator was apprehended, he was drunk. It turned out he had been convicted of driving while intoxicated four previous times-once just days before he killed Lightner's daughter. Even after his fifth, fatal offense, he received just a two-year sentence and avoided prison by serving time in a work camp and a halfway house.

The light sentence her daughter's killer received spurred Lightner to "fight to make this needless homicide count for something positive in the years ahead." She did that by founding MADD in 1980. She changed the world for the better by raising public awareness about the serious nature of drunk driving and promoting tough legislation against the crime. Due to Lightner's potent grassroots work, aggressive campaigning, and popularization of the concept of designated drivers, MADD grew rapidly in its first five years. By 1985 it boasted 364 chapters, 600,000 members, and a $12.5 million budget.

Lightner has moved on from MADD, and since then has protested the shift from attacking drunk driving to attacking drinking in general. "I worry that the movement I helped create has lost direction," she told The Cleveland Plain Dealer in 1992. BAC legislation, she said, "ignores the real core of the problem....If we really want to save lives, let's go after the most dangerous drivers on the road." Lightner said MADD has become an organization far more "neoprohibitionist" than she had envisioned. "I didn't start MADD to deal with alcohol," she said. "I started MADD to deal with the issue of drunk driving."

While it seems safe to assume that nearly every parent in the United States opposes drunk driving, the same cannot be said for MADD's efforts to stop drinking. Neither is every politician on board. In October 2005, responding to noisy complaints from local residents and negative national publicity, the D.C. Council decided, by a 9-3 vote, to abandon the zero tolerance policy that snared Debra Bolton. "D.C. is once again open for business," said council member Carol Schwartz. She said visitors "can come in and have a glass of wine and not be harassed or intimidated."
That's good news. Sadly, it's not the case everywhere.

Ignition Failure
More than 40 states require convicted drunk drivers to install ignition interlock devices: The driver breathes into a tube attached to the device, and if his blood alcohol concentration is measurable the vehicle won't start. Considering the high recidivism rate among drunk drivers, the interlock system may be a reasonable preventive measure for those who have proven they pose a danger to others. But what about people who have never been arrested, perhaps never even had a ticket, or who never drink under any circumstances? Can they be trusted to start their cars without taking a breath test?

In 2004 New Mexico state Rep. Ken Martinez (D-Grants) introduced a bill that would have forced every driver in his state to install an ignition interlock device. In addition to the indignity and inconvenience of breathing into a tube every time they start their cars, this requirement would cost drivers about $1,000 each to install the device, according to estimates by the states that require them. Incredibly, the bill breezed through the state's House of Representatives by a 45-to-22 vote. "Honestly, I put forward this bill to start some dialogue," Martinez told Wired.com. "And it became a very thought-provoking process....We want New Mexico to be a leader at using technology to curb some societal ills."

The New Mexico Senate, thankfully, let the bill die. But soon legislators in New York and Oklahoma were making noise about a universal interlock requirement. "If the public wants it and the data support it, it is literally possible that the epidemic of drunk driving could be solved where cars simply could not be operated by drunk drivers," Chuck Hurley, MADD's executive director, told USA Today in 2006. "What a great day that would be."

Pre-emptive War on Drunk Driving
Unfortunately, there is considerable precedent for such pre-emptive measures. In 2005 a Pennsylvania court rejected an appeal from a man whose driver's license was revoked by the state after he told doctors he knocked back more than a six-pack of beer a day. State law requires doctors to report any of a patient's physical or mental impairments if the doctors think it could compromise his ability to drive safely. Keith Emerich hadn't gotten in any legal trouble, related to drinking, driving, or anything else, and his job attendance was as exemplary. Yet a three-judge Commonwealth Court panel said the Pennsylvania Department of Transportation was justified in taking away Emerich's license-not because he had driven while intoxicated but because he might.

Numerous anti-DUI law enforcement tactics now taken for granted are not only unduly invasive but ineffective. Consider roadblocks, a well-intentioned preventive measure that does little more than waste time and create pollution. This form of anticipatory law enforcement intimidates social drinkers and fails to address hardcore drunks, who often simply avoid roadblocks, turning on side streets when they see the flashing sideshow ahead. It targets those who aren't driving recklessly, haven't had a single drink, and have places to go.

According to numerous studies and reports dating back to 1987, the chance of getting picked up at a roadblock for being intoxicated is minuscule. MADD is nonetheless an enthusiastic supporter of sobriety checkpoints. It claims roadblocks reduce fatal alcohol-related crashes by as much as 20 percent. Yet recent fluctuations in such crashes have no correlation with states that do or don't use checkpoints.

During the Christmas season of 2003 in Fairfax County, Virginia, a suburb of Washington not far from the site of Debra Bolton's arrest, local police took pre-emptive law enforcement to an absurd extreme, launching a sting operation that targeted 20 local bars and restaurants. The mission: apprehend "drunk" patrons before they try to drive. These drinkers were far from their cars and in some cases did not even own cars. What type of evidence did the police use to measure intoxication? According to one law enforcement official involved in the sting, the determination could be made based on unflicked cigarette ashes, an excessive number of restroom visits, noisy cursing, or a wobbly walk.

The raids involved 10 cops in SWAT-like outfits. In an interview with The Reston Times, the general manager of one targeted establishment said "they tapped one lady on the shoulder-who was on her first drink and had just eaten dinner-to take her out on the sidewalk and give her a sobriety test. They told her she fit the description of a woman they had complaints about, and that they heard she was dancing topless."

In one raid, of the 18 drinkers tested for sobriety, nine were hauled to jail for public intoxication. When asked to explain the rationale for the raids, then-Fairfax County Police Chief J. Thomas Mange declared that you "can't be drunk in a bar." Where can you be drunk? "At home. Or at someone else's home. And stay there until you're not drunk."

Following the logic of such operations, watching television under the influence in your own home may soon be grounds for paramilitary raids. A Super Bowl party, a wedding shower, or a bachelor party can attract dozens of guests, many of whom will be drinking. Why not target those people as well? They have cars.

It's true that "public intoxication" is illegal. So is jaywalking. Police should use common sense, allocating their resources to protect citizens as efficiently as possible. It's hard to believe the most pressing problem in all of Northern Virginia that night was an inebriated and allegedly topless woman.
The immediate effect of hauling a few boozy bar patrons down to jail is insignificant. But the alcohol nannies are counting on the long-term impact: Once word gets out, people will be less inclined to get sloshed anywhere, anytime.

Such policies sometimes backfire. After the Fairfax County raids, the entire city council of Herndon, Virginia, criticized the practice of targeting law-abiding businesses and drinkers. "It is the unanimous opinion of the council that police overstepped their bounds and overreacted," one member said.

Yet numerous states and municipalities are experimenting with Fairfax-style intimidation. In 2005 the Texas Alcoholic Beverage Commission warned that it would be conducting "Sales to Intoxicated Person Stings" in various parts of the Lone Star State. "We believe responsible adults should drink responsibly," said Heather Hodges, a MADD victims advocate involved in planning the operation, in a MADD press release. "A bar is not intended to be a place to get fall-down drunk." In March 2006, one of the first sting operations was conducted in a Dallas suburb where agents infiltrated 36 bars and arrested 30 people for public intoxication.

"It's killed our business," one Dallas bar owner told a local TV station. "People are scared to come out. I don't even drink, and I'm scared to go out, and it's not right. We don't want to put drunks on the road, but we don't want people to be afraid to do something that's legal. If they don't want people drinking, they should outlaw alcohol."

Bar None
MADD officials say they "strongly support" the right of alcohol-related crash victims to seek "financial recovery from establishments and servers who have irresponsibly provided alcohol to those who are intoxicated or to underage persons, or who serve past the point of intoxication individuals who then cause fatal or injurious crashes."

I'm not sure if any MADD leaders have been to a saloon lately, but the local Cheers-style tavern where everyone knows your name is all but dead. In large cities, working at a bar can mean serving alcohol to hundreds, if not thousands, of patrons each night. Once we train servers to double as psychics, MADD's liability principle will make sense. Until then, we can have mandatory breath tests for patrons. Once again, the neoprohibitionists stand for seemingly sensible policies that in practice make the sale and consumption of alcohol nearly impossible.

Most states have dram shop liability laws, which generally allow lawsuits to be brought by those injured by an inebriated person against the establishment which contributed to that person's intoxication. In Texas minors can sue a drinking establishment for their own injuries should they get their hands on enough alcohol to be intoxicated and hurt themselves. Under Illinois law, plaintiffs don't even have to prove a bartender was aware of the consumer's inebriation. In other states, dram shop liability extends to serving the "habitually intoxicated," who will be a cinch to identify for all those clairvoyant bartenders.

If getting drunk in a bar is to be forbidden, it makes sense to ban happy hour. Back in 1984, the Massachusetts legislature banned the practice of offering cheaper drinks during the traditional "happy hours" of 4 p.m. and 7 p.m.-or any other time. That law kicked off a wave of happy hour restrictions around the country. From Ohio, where bars were compelled to end two-for-the-price-of-one premiums at 9 p.m., to West Virginia, where bars must have food available during happy hours, to Mississippi and Oregon, where happy hours are still allowed but cannot be advertised, happiness is being snatched from law-abiding Americans across the land.

Such laws often have unintended consequences. When a 1990 Illinois law banning "happy hours" took effect, bars came up with a creative solution, changing "happy hours" to the even better "happy days." A "happy day" means reduced prices on drinks for the entire day, since the price of drinks cannot be legally changed during any one business day.

On its website, MADD condemns "Practices Which Encourage Excessive Alcohol Consumption," including happy hours, ladies' nights, and any fluctuations in prices that bring in consumers during what are usually slow hours. The group calls upon the "hospitality industry to voluntarily end all practices associated with excessive alcohol consumption." As a backup, MADD also supports the legal prohibition of such practices in all 50 states.

Sometimes bars want the state to help stop practices consumers love. Bar crawling is common in cities like New York, Chicago, and Los Angeles. Friends, typically in their 20s and 30s, get together and go from bar to bar. To attract such groups, some bars offer unlimited drinks for a fixed price. In 1999 New York Gov. George Pataki signed into law a ban of the practice, asserting that it encourages "irresponsible binge-drinking."

Even if that's true, adult binge drinking is none of Pataki's business, since adults have the right to get smashed as long as they don't hurt anyone else. But bar and nightclub owners didn't mind when Albany prevented them from engaging in this sort of expensive price war. The pubs' chief trade group lobbied strenuously to get the state to stop the practice.

Alcohol nannies also have targeted sporting arenas, blaming alcohol for every brawl or other instance of misconduct by fans. George Hacker, director of alcohol studies at the Center for Science in the Public Interest, suggests several solutions, including a ban on selling beer in the stands, a reduction in the size of a beer serving from 16 to 10 ounces, a 3.2 percent limit on beer alcohol content, the elimination of beer signs, and aggressive police identification of "people who are obviously intoxicated." Although brawls occur at a tiny percentage of sporting events, alcohol nannies latch onto them as an excuse to interfere with the enjoyment of millions of fans.

Drinking may not be a prerequisite for a happy life, but it's a ritual most Americans have enjoyed as long as the nation has existed, and harmlessly so in the overwhelming majority of cases. Although I'm not an exceptionally heavy drinker, I can't, and don't want to, imagine a life without alcohol. As long as I'm not endangering anyone else, I shouldn't have to.

David Harsanyi, a columnist at the Denver Post, is the author of Nanny State: How Food Fascists, Teetotaling Do-Gooders, Priggish Moralists, and Other Boneheaded Bureaucrats Are Turning America Into a Nation of Children, from which this article is adapted. Published by Broadway Books, a division of Random House, Inc. © Copyright 2007 by David Harsanyi.

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If the UHP is getting paid for 75 eight-hour overtime shifts to look for drunken drivers,  don't you think they better find some to justify the cost and expense.  Think about it, they get all this to look for drunken drivers, and what would happen if they have no arrests, no DUIs, and nothing else to justify the cost and expense.  Are there going to be angry people who donated?  As a result, are there going to be innocent people pegged as DUI to justify the cost?

It's like paying the mechanic to fix your car.  You hear a clank, so you take your car to the mechanic.  The mechanic inspects it, test drives it, and gives it a good look-over.  Then he comes back and informs you that there is nothing wrong.  "That will be $500 please."  The reality is that the mechanic must give you something to justify his cost.  He might recommend that you change the johnson rod or the the timing belt, etc.

Here's the story.

By the end of Labor Day weekend, the Utah Highway Patrol will have paid for about 75 eight-hour overtime shifts for troopers looking to stop drunken drivers.

"This is the big last getaway of summer for many people," said highway patrol Sgt. Ted Tingey, explaining the statewide blitz. "We just hope that people keep safety in mind."

Tingey said that the highway patrol has staged these DUI blitzes for several years over the Labor Day weekend, and has found that sending a strong message during the final holiday of the summer tends to keep people safe through the winter.

By the end of Labor Day weekend, the Utah Highway Patrol will have paid for about 75 eight-hour overtime shifts for troopers looking to stop drunken drivers.

"This is the big last getaway of summer for many people," said highway patrol Sgt. Ted Tingey, explaining the statewide blitz. "We just hope that people keep safety in mind."

Tingey said that the highway patrol has staged these DUI blitzes for several years over the Labor Day weekend, and has found that sending a strong message during the final holiday of the summer tends to keep people safe through the winter.

Troopers will be working overtime in several counties, including Salt Lake, Utah, Weber, Davis and Tooele. They will be looking primarily for intoxicated drivers and individuals not wearing seat belts.

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Utah had the biggest increase of alcohol-related deaths in 2006 and the UHP doesn't like that.  The UHP blames it on misleading statistics.  Imagine that, the statistics are misleading. 

"But before there is a public outcry, Utah Highway Patrol trooper Preston Raban said Utahns should know the statistics are a bit misleading."

Consider the following:

• Whether alcohol caused the accident or not, if alcohol is smelled, it is reported as "alcohol related fatality."
• If the person who was at fault in the accident was not impaired by alcohol in any way, but the other person smelled of alcohol, it is considered a "alcohol related fatality."

It's just like the college professors used to say..."there are lies, damn lies, and statistics."
Utah DUI deaths jump, but figure is misleading
By Pat Reavy
Deseret Morning News
Published: Aug. 21, 2007 12:14 a.m. MDT
1 comment

A report released Monday says Utah had the biggest increase in the United States last year in alcohol-related traffic deaths.

But before there is a public outcry, Utah Highway Patrol trooper Preston Raban said Utahns should know the statistics are a bit misleading.

"This is something we've dealt with every year with these reports. Because our numbers are so low, any increase is going to be a significant percentage," he said.

Raban said it is true that the number of people who died in alcohol-related accidents in Utah rose from 2005 to 2006 — by 18.

In 2005, there were 282 fatalities on Utah's roads, with 38 of them being alcohol-related. In 2006, there were 287 accidents, and 56 included alcohol as a factor.

"We are still the lowest in the nation when it comes to alcohol-related deaths, and Iowa is still second," he said.

The report by the U.S. Transportation Department's National Highway Traffic Safety Administration said alcohol-related fatalities rose 64 percent in Utah between 2005 and 2006, and 30 percent in Iowa. But because the actual numbers are so low, Raban said any increase will make the percentage jump look enormous.

The Transportation Department launched an $11 million media campaign Monday to combat the drunken-driving problem.

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       I am often asked, “should I take the intoxilyzer test.” There is no easy yes or no answer to this question. If you take the test, you are providing evidence to the government that is difficult to dispute. If you don’t take the test, you are looking at a possible 18 months suspension (or more if you have prior DUI incidents) of your driving privileges and the imposition of an ignition interlock device to be placed in your car for three years.

     If there was absolutely no alcohol in my body, then yes, I would take the test.  If you have been consuming alcohol, you have to weigh your options. Do not believe that you are below the legal limit just because you have not consumed much alcohol. Too many clients tell me, “honestly, I didn’t think I would be that high.” Do not assume you can beat the test. I own an intoxilyzer 5000en. I can get high results from breath sprays, mouth wash, and even bread. The machine is a conviction box and in my opinion is not an accurate means of measuring alcohol in your body. It is an indirect measurement of what is in your blood. The machine makes assumptions that all people have the same blood to breath ratio. The machine makes the assumption that everyone’s body temperature is the same. As an attorney, it is much easier to defend you when you have refused to blow into the machine. 

    Personally, I would rather have a suspended driver’s license and the other restrictions, than to have a conviction on my record. Even if you do decide you are going to take the test, you could still have many of the exact same restrictions. If your breath test is .16 or above, the Court is most likely going to impose the ignition interlock device. Sometimes judges impose the device regardless of your result. 

    If  you are a drinker, make your decision now whether you want to take the test.  Don’t be the person that says, “I will never get pulled over.” I have had clients educate themselves and realize that these machines are not reliable and accurate. Utah only requires the officer to take one breath sample when testing you. Many other states require two samples that must agree within a certain percent. It’s like my father always said, “measure twice, cut once.” The Utah breath test program is archaic and out of date according to the experts.  The leading experts, nationally and worldwide, all agree that at least two breath tests are required when dealing a DUI. In Utah, the officer’s agenda is to put a citizen through field sobriety tests and then get the answer wanted from the machine without any question. 

    Make your decision before it happens. Question the officer about his machine and his agenda. Ask him, “if I blow below the limit, are you going to let me go?” “Can you give me a more accurate blood test instead?” Tell the officer you do not trust the machine. 

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Here is a story that was in the Standard Examiner regarding issues of violating probation and driving while your license was suspended.  This was published June 13, 2007.

What if Paris were in Utah?
Local attorneys talk about how DUI sentences compare
BY JESSE FRUHWIRTH
Standard-Examiner Davis Bureau jfruhwirth@standard.net

FARMINGTON — While nationwide pundits decide whether Paris Hilton’s “celebrity justice” means she’s being let off easy or treated too harshly, two local attorneys agree her sentence has been comparable to “Utah justice.”
Neither
Deputy Davis County Attorney Richard Larsen nor Ogdenbased defense attorney Glen Neeley claim to be experts on California’s DUI laws. Each state legislature sets its own rules on how driving under the influence of drugs or alcohol is to be penalized.
Both men, however, have extensive courtroom experience with Utah’s DUI laws. They answered questions on how a defendant who had been convicted of a first DUI and twice caught driving on a subsequently suspended license might fare in Top of Utah courts.
First-time DUI offenders, Larsen said, will usually receive a sentence similar to Hilton’s.
“It is fairly standard in Utah. The fine is $1,332, then a requirement of either two days in jail or 48 hours of community service,” he said. “Generally, what happens is, the judge allows the community service.”
More punishment, Neeley added, comes from the driver’s license suspension, which forbids the recent DUI offender from getting behind the wheel for any reason.
“You’ll get 90 days suspension for a first offense,” Neeley said. “Your second offense is one year. … In Utah, it’s black and white. Other states have a ‘needs necessary’ license, but Utah has no permit for driving to work.”
Even then, the punishment is not over, and this is before any probation violations occur.
“If your license is suspended for a DUI, you’re normally going to have an ‘alcohol-restricted license,’ ” Neeley said.
New in 2005, the sometimes-referred-to “not-adrop” law states that, for two years, first-time DUI offenders are not allowed to operate a vehicle if they have even the slightest amount of alcohol in their system.
Nonoffenders can consume alcohol and operate a vehicle lawfully, provided the driver’s blood-alcohol level is lower than 0.08.
Violating the 90-day suspension — even while completely sober — or the twoyear alcohol restriction usually won’t land a person in jail, Neeley said.
“It can be jail time, but if it’s the first time they’ve been caught, it’s usually just a fine, community service, things like that,” he said.
But there is no framework for penalizing probation violators the way there is for the initial DUI, Larsen said, so a judge is legally allowed to sentence up to six months in jail.
“When you get to the point of a probation violation … ultimately, it’s the judge that makes the final decision,” he said.
Depending on the community, Larsen said, courts will consider jail overcrowding when sentencing a first-time probation violator. Also, he said, Top of Utah courts typically allow work release to individuals who have steady employment.
“If somebody has a job, we generally consider it to be in the community’s best interest to allow them to keep working rather than causing them to lose their jobs,” Larsen said.
Of course, people on work release won’t be able to drive themselves to their job. They’ll need to take the bus or catch a ride from someone else.
But what about a second probation violation? Could a person really evade jail time after a second violation of a court order?
“They may not get jail time if the defendant understands the circumstances and is getting the message,” Larsen said, “and if not, a judge asks, ‘What can I do to get through to this defendant?’ ”
It appears as if Hilton, after two probation violations, might serve as many as 40 more days in jail.
Both Neeley and Larsen stopped short of saying whether that is unusual. They agree that it simply depends on the policies, attitudes and judgments of the judge.

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January 15, 2009

Mr. S was pulled over in Park City.  The officer claimed that S failed to use his turn signal twice.  The video confirmed at least one failure to use the turn signal.  The officer claimed S smelled of alcohol, had poor dexterity, slurred speech, failed all field sobriety tests, and refused to take a breath test.  S took the stand and testified on his own behalf that he drank no alcohol that night, that he was the designated driver, that was getting directions from five people in the car, and that he would not take the breath test because he did not trust the officers after they told him he failed all field tests.  A video was presented in trial of his demeanor and driving pattern.  The jury returned a verdict of Not Guilty in less than an hour.  

 

October 31, 2008

Mrs. P was pulled over for failing to maintain her lane of travel and weaving.  The officer testified that she was weaving in and out of her travel lane, that she stopped eight car legnths before the traffic light, and did not pull over for 3 blocks once the officer put on his lights and sirens.  The officer noticed slurred speech, poor balance, red eyes, and fine motor skill problems.  Mrs. P failed all field sobriety tests horribly.  Her blood test was positive for rx drugs, pain killers.  Mrs. P defense was simply this, reasonable doubt.  She didn't hear the sirens because her radio was too loud.  She couldn't do the tests because she just had knee surgery.  She was weaving because she was reaching for CDs in her car.  The jury was out for three hours before rendering a verdict of not guilty. 

 

November 2007

Mr. P was pulled over earlier this year.  The officer to Mr. P that he made a wide right turn.  Later, Mr. P's citation said he ran a red light.  This month, Mr. P had the guts to turn down the city's offers to plead to a lessor charge, and instead, take his case to trial before a jury.  The officer described Mr. P has having a strong odor of alcohol on him, swaying with unsteady balance, slurred speech, 6/6 clues on the HGN, 4/8 clues on the 9 Step Walk and Turn, and 3/4 clues on the one legged stand.  The officer gave Mr. P a breath test which was introduced at trial to be a .095.  Mr. P testified in his own defense and told the jury what happened from his perspective.  He told the jury how he was coughing the whole time the officer was supposed to be watching him prior to the breath test, which could have caused the breath test to give a false high reading.  In essence, it was shown that the officer did not follow the proper procedures.  The jury rendered a verdict of Not Guilty on the DUI in about 20 minutes.  The jury found Mr. P guilty on running a red light, which Mr. P admitted while he was testifying.

November 2007

Mr. S was accused of driving with no headlights, weaving, and taking a long time to pull over.  The Murray City police described a man that had problems with his obtaining his license and registration, problems putting his car in park, slow and very slurred speech, a strong odor of alcohol, and  problems standing up.  The cops described Mr. S as being very combative and trying to escape at least three times.  As the trial went on, Mr. S testified in his own behalf and told the jury how the police attacked him when he tried to record the officers verbally and physically assaulting him.  Despite all the officers efforts to paint Mr. S as a drunken driver, the jury found Mr. S Not Guilty in 1 hour and 30 Minutes.

October 2007

Mr. R was charged with intoxication, assault with serious bodily injury, disorderly conduct, and criminal mischief.  Mr. R was accused of breaking the finger of another person while being intoxicated.  He was accused of destroying the phone of the other person, and he was accused of engaging in fighting behavior.  Mr. R was found Not Guilty of all four charges.

September 2007

Mr. R lost his driving privileges at the driver's license hearing.  The case was appealed to the District Court.  R was accused of too much rx drugs in his system.  He was found asleep in his truck, engine running, and not very responsive.  He was asked to do field sobriety tests and failed.  He was arrested.  At the appeal, the judge gave him his driver's license back based on the fact that the officer failed to show up.

August 2007
Mr. S was accused of DUI and no license plate light.  The officer pulled S over for no license plate light.  He smelled alcohol and called another officer to investigate for DUI.  Second officer did Field Sobriety Tests and ultimately arrested S for DUI.  A breath test was taken and S was .09.  Several motions were filed to suppress the breath test on the grounds the officer never checked S's mouth prior to the test as required by law and motions were filed to dismiss the case for an illegal arrest.  All motions were denied and the case was set for trial.  The jury was seated and we were heading for opening statements.  The State had four witnesses read to testify that S was drunk.  The State offered a non-dui charge (reckless driving) after the State realized they made a serious mistake in prosecuting the case.

June 29, 2007
Ms. D was accused of DUI.  This was a trial for her Driver's License.  The officer testified that she was all over the road in her driving almost hitting someone, she spoke slow, had red and watery eyes, poor balance, positive for alcohol on the PBT, failed miserably on the nine step walk and turn and the one legged stand.  We argued that she was just plain emotional and upset.  She took a breath test and received a result of .10.  The judge ruled that the officer did not have the probable cause to arrest Ms. D.  Therefore, she was able to keep her driver's license.

June 8, 2007

The Trial of Mr. O (actual name omitted) actually began a month before.  When the first witness was called, he had reports that he did not turn over to the defense.  Rather than the judge declare a mistrial or strike the evidence, which is common in these instances, the judge continued the case for a month.  We started right where we left off with the first witness.  The officers accused Mr. O of driving erratically, stumbling around, having slurred speech, an extremely strong odor of alcohol, red eyes, and failing all of the field sobriety tests.  Fortunately, the jury saw through the exaggerations.  Mr. O did not testify according to my advice.  After one hour and five minutes, the jury found Mr. O not guilty of DUI.

 

April 9, 2007

Ms. B was accused of DUI.  The officer accused her of having slurred speech, poor balance, red and glassey eyes, and driving without headlights.  The officer testified that she failed three field sobriety tests and blew over the legal limit on a Preliminary Breath Tester.  The officer administered an intoxilyzer 8000 test to her, which rendered the result of .11.  The prosecution called an expert to testify that the test result was accurate and reliable.  The officer and the technician was cross examined and Ms. B testified on her own behalf.  The jury rendered a verdict of Not Guilty in 45 minutes.

May 22, 2007

Mr. C was accused of possession of drug paraphernalia.  The police searched Mr. C's truck and found a syringe.  The police then searched Mr. C's home and found a box of syringes in the bathroom.  The police testified that Mr. C admitted he was addicted to meth and other drugs.  Mr. C did not testify on his own behalf.  This case was heard before a judge, not a jury.  The judge rendered a verdict of Not Guilty.

March 28, 2007

Mr. B was accused of DUI.  Mr. B was traveling in a truck on a mountain road when it rolled.  He was accused of slow and slurred speech, poor balance, red and glassy eyes, and failing all field sobriety tests.  He took a breath test that rendered a .18 breath test.  After the jury was seated, the prosecutor dismissed the DUI and Mr. B plead guilty to intoxication.

March 8, 2007

Mr. S was accused of DUI.  His car was stuck in a snow bank.  The officer accused him of slow and slurred speech, red and glossy eyes, poor balance, admitting he was highly drunk, and failing all field sobriety tests.  Mr. S refused all chemical tests.  The jury rendered a verdict of Not Guilty in 2 hours.

March 6, 2007

Mr. P was accused of DUI.  The officers accused Mr. P of urinating on himself, slow and slurred speech, red and glassy eyes, poor balance, strong odor of alcohol, unable to stand up straight, and refusing all tests.  On the day of trial, the prosecutor dismissed the DUI and Mr. P plead guilty to reckless driving (non-alcohol related).

January 6, 2006

Mr. K. was accused of DUI and rolling through a stop sign.  The Trooper testified that Mr. K had slow and slurred speech, was very combative and rude, uncooperative, poor balance, red blood shot and glassy eyes, failed all attempts of field tests, refused to do most of the field tests, wreaked of alcohol, and "totally drunk" in the Trooper's opinion.  A second officer supported this testimony with backing up everything the Trooper testified to and emphasizing that Mr. K was talking real loudly.  The prosecutor would not offer any sort of plea deal because it was Mr. K's second offense.  The jury rendered a verdict of Not Guilty in 1 hour 20 minutes.
 

 

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