2007-2295. State v. Hoover, Slip Opinion No. 2009-Ohio-4993. Union App. No. 14-07-11, 173 Ohio App.3d 487, 2007-Ohio-5773. Judgment affirmed in part and reversed in part. Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur. Moyer, C.J., and Pfeifer and O'Donnell, JJ., dissent. Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-4993.pdf
(Sept. 30, 2009) The Supreme Court of Ohio today upheld as constitutional a state law that imposes 10 additional days of mandatory jail time on a driver with a prior DUI conviction if that person refuses to take a chemical test after being arrested for a subsequent DUI violation. The Court’s 4-3 majority decision, authored by Justice Judith Ann Lanzinger, reversed a ruling by the 3rd District Court of Appeals.
The penalty section of Ohio’s DUI statute, R.C. 4511.19(G), sets a mandatory minimum jail term of 10 days for a repeat DUI offender who is convicted under R.C. 4511.19(A)(1). The same statute increases the mandatory minimum jail sentence to 20 days for a repeat DUI offender convicted under R.C. 4511.19(A)(2) – which includes the additional element that when arrested for the current DUI offense, the defendant refused to submit to a chemical test.
Corey Hoover, a Union County motorist with a DUI conviction within the preceding six years, was stopped by a deputy sheriff in September 2006 for a suspected DUI violation. After he displayed signs of intoxication and failed roadside field sobriety tests, Hoover was placed under arrest and asked to take a breathalyzer test to determine his alcohol level. Hoover refused to submit to the test. He was eventually charged with a violation of R.C. 4511.19(A)(2).
During pretrial proceedings Hoover’s attorneys moved for dismissal, arguing that R.C. 4511.19(A)(2) is unconstitutional and therefore unenforceable because it imposes a more severe criminal penalty on a defendant who asserts the right to withhold consent to a warrantless search of his person or property. The trial court overruled the motion to dismiss. Hoover entered a plea of no contest and was convicted of violating R.C. 4511.19(A)(2). The judge sentenced him to the enhanced 20-day jail term prescribed for violators of that code section.
Hoover appealed. On review, the 3rd District Court of Appeals affirmed his conviction for violating R.C. 4511.19(A)(2), but held that the penalty provision in R.C. 4511.19(G) that increased his minimum jail sentence from 10 to 20 days for refusing to be tested violated Hoover’s rights under the Fourth Amendment of the U.S. Constitution and Section 14, Article 1 of the Ohio Constitution, which prohibit unreasonable searches and seizures.
To remedy the constitutional defect, the court of appeals severed (deleted) from R.C. 4511.19(G) the sentence enhancement for repeat DUI offenders who refuse testing. The court then held that, because the statute no longer prescribed a penalty for a violation of R.C. 4511.19(A)(2), Hoover must be resentenced to the 10-day mandatory jail term applicable to a repeat DUI offense under R.C. 4511.19(A)(1). The case was remanded to the trial court for resentencing consistent with the court of appeals’ ruling.
Both parties sought and were granted Supreme Court review of the Third District’s decision. The state urged the Court to overrule the 3rd District’s holding that Hoover’s sentence enhancement for refusing the test was unconstitutional. Hoover’s cross-appeal argued that the court of appeals should have vacated as unconstitutional not only the sentence enhancement provision in R.C. 4511.19(G) but also R.C. 4511.19(A)(2) itself; and therefore the court should have vacated not only Hoover’s enhanced sentence but also his conviction under that statute.
Writing for the Court in today’s decision, Justice Lanzinger noted that Ohio’s “implied consent” law R.C. 4511.191, which has been upheld as constitutional by both state and federal courts, provides that “Any person who operates a vehicle ... within this state ... shall be deemed to have given consent to a chemical test or tests of the person’s whole blood, blood serum or plasma, breath, or urine to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person’s whole blood, blood serum or plasma, breath, or urine if arrested for a violation of (the DUI statute).”
She wrote: “Hoover contends, however, that he has a constitutional right to revoke his implied consent and that being forced by threat of punishment to submit to a chemical test violates his rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution, which provide that persons, houses, and effects are protected against unreasonable search and seizure. However, Hoover has no constitutional right to refuse to take a reasonably reliable chemical test for intoxication. ... Asking a driver to comply with conduct he has no right to refuse and thereafter enhancing a later sentence upon conviction does not violate the constitution.”
“Furthermore, the request to comply with a chemical test does not occur until after probable cause to arrest exists. In this case, the arresting officer pulled Hoover over after she saw him drive across the center line. She smelled a strong odor of intoxicants as she approached his car. Hoover admitted that he had been drinking. He then performed poorly on field sobriety tests. Because R.C. 4511.19(A)(2) requires that an officer have probable cause to arrest for DUI before requesting that a driver undergo chemical testing and because the United States Supreme Court has held that exigent circumstances justify the warrantless seizure of a blood sample in DUI cases, ... it is clear that R.C. 4511.19(A)(2) does not violate the Fourth Amendment to the United States Constitution or Article I, Section 14 of the Ohio Constitution.”
Justice Lanzinger emphasized that R.C. 4511.19(A)(2) does not make refusal to take a chemical test a criminal offense. “The activity prohibited under R.C. 4511.19(A)(2) is operating a motor vehicle while under the influence of drugs or alcohol. A person’s refusal to take a chemical test is simply an additional element that must be proven beyond a reasonable doubt along with the person’s previous DUI conviction to distinguish the offense from a violation of R.C. 4511.19(A)(1)(a). Hoover’s conviction under R.C. 4511.19(A)(2) meant that the mandatory minimum jail term increased from ten days, the mandatory minimum for R.C. 4511.19(A)(1)(a), to 20 days.”
The majority opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.
Justice Paul E. Pfeifer entered a dissenting opinion that was joined by Chief Justice Thomas J. Moyer and Justice Terrence O’Donnell. Justice Pfeifer wrote that today’s majority holding diverges from previous court decisions which have upheld only the imposition of administrative penalties against DUI defendants for refusing to submit to chemical testing.
“R.C. 4511.19(A)(2) veers from the traditional administrative punishment for refusal to consent to a chemical test upon an arrest for DUI and goes down a separate path, beyond the regulation of licensing; for certain DUI arrestees, R.C. 4511.19(A)(2) criminalizes the refusal to take a chemical test. This court’s previous jurisprudence regarding sanctions for a DUI defendant’s failure to consent to chemical tests have all involved license suspensions. ... This court has previously answered the question whether a person can face criminal sanctions for failure to consent to a search. In Wilson v. Cincinnati (1976) ... this court held that that the Fourth Amendment prohibits the imposition of criminal penalties upon a person who refuses to submit to a warrantless search.”
“The issue here is whether the state can criminalize a person’s failure to consent to a warrantless search, or in other words, to force a consent to search through the coercive power of threatened jail time. Although consent is implied by R.C. 4511.191, consent can be withdrawn. ... Imposing criminal sanctions for failure to consent goes far beyond the state’s power ... to regulate the licensure of drivers. As in Wilson, the statute at issue herein imposes a codified dilemma – consent to a warrantless search or face the possibility of a criminal penalty – and thus amounts to coercion. R.C. 4511.19(A)(2) therefore violates defendants’ rights under the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.”
Contacts Benjamin Mizer, 614.466.8980, for the State of Ohio.
Jonathan Tyack, 614.221.1341, for Corey Hoover.
Please note:Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
During America's "Noble Experiment" (a.k.a. Prohibition), bourbon makers were given away by the smoke rising from their stills. G-men (government men), T-men (Treasury agents) and Revenuers would simply gather and wait for the smoke to rise. To combat this treachery, small batch connoisseurs would wait until night to cook their elixir. This came to be known as moonshining and the resultant brew as moonshine. The 'shiners were unable to barrel-age their whiskey, so the product was raw and clear and as strong as a right hook. A fast car was a necessity to transport this "mountain dew." The runners would meet up on weekends to earn bragging rights on their driving. Thus was born NASCAR.
The statutory definition of reckless operation can be found at Ohio Revised Code Section 4511.20 which states:
4511.20 Operation in willful or wanton disregard of the safety of persons or property. (A) No person shall operate a vehicle, trackless trolley, or streetcar on any street or highway in willful or wanton disregard of the safety of persons or property.
(B) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.
SEPTEMBER 27, 2009: If you plan on driving north after today's Steeler/Bengal game, be prepared for a sobriety checkpoint which will take place along Ohio 741 (Kings Mills Road) in Deerfield Township from 7 to 10 p.m. today. The checkpoint will be at the intersection of Courseview Drive, just west of Interstate 71. For a frame of reference, this is just north of the Kings Island Amusement Park. The Warren County sheriff’s office and the Mason Police Department will help state troopers by conducting saturation patrols in surrounding areas to prevent drunken drivers from slipping past.
“The only kinds of fights worth fighting are those you are going to lose, because somebody has to fight them and lose and lose and lose until someday, somebody who believes as you do wins. In order for somebody to win an important, major fight 100 years hence, a lot of other people have got to be willing - for the sheer fun and joy of it - to go right ahead and fight, knowing you're going to lose. You mustn't feel like a martyr. You've got to enjoy it.” I. F. Stone
What started as a routine DUI checkpoint by the Redwood City Police Department July 2 ended with a small crowd in the North Fair Oaks neighborhood yelling, “Gringo, go home,” and “We won, you lost,” according to police on scene after a series of communication between a nonprofit director, a councilwoman and the chief of police. Seems the government likes checkpoints, just not checkpoints that target their citizens. It is just another example of DUI checkpoints being a diversion. Perhaps police could stick to American-style patrols that rely upon constitutional principles to avoid public relation problems. Perhaps politicians can stop being hypocrites and stand up for our Constitution. Checkpoints are unAmerican!
ABC 25, WPBF is reporting that a man is suing after a police officer went over the line in a DUI arrest. According to reports on WLWT the man, Jamie Lockard, 53, was arrested in Lawrenceberg, Indiana (home to Hollywood Casino) on suspicion of drunk driving. He blew under the legal limit, but that was not enough for officer Brian Miller who obtained a search warrant and went to the hospital where Lockard was strapped to a gurney and forcibly catheterized. His blood was also forcibly drawn. "I would hate for this to happen to someone else," Lockard said. "It was the most humiliating thing that has ever happened to me, ever." The tests confirmed the breathalyzer that Lockard was under the legal limit.
With states (like Ohio) adopting "NO REFUSAL" policies you are going to see more officers going over the line; it's inevitable. How can people be anything but terrified of a police force who makes a practice of forced blood draws and forced catheterizations? Stand up and say no! Let MADD and their minions know that police are not their private agenda-driven army. Make it known that these policies are unAmerican.
For years the critics of MADD have been labled all manner of evil by the group for merely suggesting that they are just a money-making enterprise. Well now, MADD is using its member's pain to sell alcohol-free drinks. (See story below) It is now obvious that MADD is trying to profit off the pain and tragedy of a declining social ill by switching it message to an anti-alcohol campaign rather than a common-sense approach to drunk driving. Like their neo-prohibition ancestors they want to steer you away from alcohol to their "alternative." This is as blatant and ugly as the Women's Christian Temperance Union seeking to rewrite the Bible to remove all references to alcohol. We now know that MADD has jumped the shark and is just another commercial enterprise reaching for a buck. Remember this when they come arguing for roadside checkpoints that are not as effective as saturation patrols and/or ignition interlock for all drivers regardless of cause or any of the other radically anti-alcohol, anti-Constitution agendas that MADD has fostered. Raise a MADD soda to your leglislator next time he caves to one of MADDs stupid leglislative agendas or gives MADD your tax dollars to foment propoganda.
DALLAS, Sept. 18, 2009 – The holiday season is just around the corner, are you ready for your guests? Or do you have a BYOB party and are not sure what to bring since it is a family affair? MADD announces an exclusive license agreement with Hill Street Marketing Inc. to produce a line of alcohol-free beverages, MADD Virgin Drinks, which will provide American consumers with a delicious and socially responsible alternative to alcoholic beverages. The line currently includes three virgin cocktails (Mojito, Margarita and Pina Colada), a virgin Lager & Lime, virgin Red and White Wine, and a virgin Sparkling White Wine.
“We know many people want an alternative for their guests to help encourage safe, sober and savvy driving, as well as the great taste needed to make guests feel like they are part of the party –but without the alcohol,” said Laura Dean-Mooney, MADD national president. “
Distribution is not yet confirmed. Hill Street is currently in discussion with traditional retailers in the grocery, drug and specialty categories, looking for outlets that share their enthusiasm for the product and the cause. MADD Virgin Drinks will be available this fall.
MADD encourages everyone to designate a sober driver and to offer MADD Virgin Drinks at parties to help ensure the safety of all involved when the time comes to go home. MADD is not against responsible drinking by those 21 and older. “MADD Virgin Drinks will bring a whole new meaning to eat, drink and be merry this holiday season,” added Dean-Mooney.
Mr. Brian Bolshin, President and CEO of Hill Street, says, “We’re thrilled to partner with MADD to produce and distribute this line of Virgin Drinks, and proud to donate a significant portion of sales to MADD to support their current and ongoing efforts to reduce the incidence of impaired driving.”
We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job- our sworn duty as crimial defense attorneys- to protect our client from these people.
United States Supreme Court Justice Byron White in the landmark case of United States vs. Wade, 388 U.S. 218 (1967):
Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convictingthe innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.
X-fest will take place this Sunday at the Montgomery County Fairgrounds. Look for a special gift provided by the law offices of Charles M. Rowland II. Have a ball!
If you follow my Twitter feed @CharlieRowland, you can stay abrest of checkpoints (like tonight in Lima) and fun activities (like Dayton's founder Johnathan Dayton walking around the Oregon District).
After working a very long day, I ran into this definitely unusual protest in the city of Moreno Valley, CA. Moreno Valley is a suburb of Los Angeles about 60 miles to the east. The city has a large Hispanic population, and they feel they are being targeted in these operations.
On each side of the Holiday DUI Checkpoint at 9:PM Thursday 9/3/09, the protesters held signs - In Espanol - That said "Return (Go Back) - Police Checkpoint". I interviewed some of the younger adults, and the older people on the other side...They were extremely angry, but they did not want to speak on camera.
They feel the checkpoints are just a ruse to conduct searches, and arrest Hispanics...
I could not get the police officer's point of view - I did not have my Pro Camera, so I had to shoot with a small point and shoot...
I have lived in So Cal since 1973, and I have never seen this
A study posted on www.sciencedirect.com, (direct link below) raises concerns that many who go to court-ordered alcohol counseling following a DUI conviction are not have other legitimate mental health issues addressed. As part of a larger study to investigate the impact of sanction conditions on probation outcomes, "233 patients were screened for psychiatric conditions and compared the findings with the psychiatric conditions identified during mandatory treatment by independent treatment providers. Adjusted rates of underdiagnosis were commonly high: 97.2% of bipolar disorder cases, 67.5% of major depression cases, 100% of obsessive–compulsive disorder cases, and 37.3% of drug use disorder cases remained undiagnosed during treatment. Rates of overdiagnosis were low for all disorders, with the exception of drug use disorders." These rates of misdiagnosis represent missed opportunities to treat patients and to cut down on DUI recidivism.
Many thanks to Dr. David J. Hanson at the Sociology Departmet at SUNY for this great information:
Is binge drinking is an epidemic problem on college campuses?
Fact: Binge drinking is clinically and commonly viewed as a period of extended intoxication lasting at least several days during which time the binger drops out of usual life activities. Few university students engage in such bingeing behavior. However, a number sometimes consume at least four drinks in day (or at least five for men). Although many of these young people may never even become intoxicated, they are branded as binge drinkers by some researchers. This practice deceptively inflates the number of apparent binge drinkers. In reality, the proportion of college students who drink continues to decline, as does the percentage of those who drink heavily.
http://www2.potsdam.edu/hansondj/index.html: Wechsler, H., et al. Changes in binge drinking and related problems among American college students between 1993 and 1997: Results of the Harvard University School of Public Health College Alcohol Survey. Journal of American College Health, 1998, 47, 57-68; Institute for Social Research, University of Michigan, 1997 (www.isr.umich.edu/src/mtf).
A bill in Tennessee, if it becomes law, would ban lawyers in the state from advertising their expertise in drunken driving cases. The sponsor, Sen. Rosalind Kurita, believes that the law would make it easier to convict citizens accused of driving under the influence of alcohol.
However, another Senator, Jim Kyle, argues that the prohibition would violate commercial free speech protected by the First Amendment to the U.S. Constitution. He argues that there is nothing wrong with an accused person being able to find a qualified lawyer who can represent them well to protect their rights.
The state bar association says that there are already strict rules about lawyers’ advertisements and that the law is unnecessary.
Reference:
Eric Schelzig, Senate measure would ban lawyers from DUI advertising. Memphis Daily News, April 24, 2008.
For most of us, Labor Day means backyard barbecues, weekend sales, and a last carefree day before school starts. But the laid-back holiday has some seriously sad history, including chaos, riots, and even death.
A tragic tale Back in the days of the Industrial Revolution, workers were expected to put in 12-hour days, seven days a week (yes, including kids). Already sounds awful, right? It gets worse. In Pullman, Illinois, a company town that employed and housed workers to build posh railway cars, times had gotten tough. In response, George Pullman cut jobs and wages. It was 1893. Thousands of workers walked off their jobs in protest, demanding higher salaries and lower rents. Other unions joined, refusing to work the Pullman cars, turning the small-town fracas into a national fury.
With mail cars backing up, and riots worrying train execs, President Grover Cleveland stepped in. He declared the strike illegal and sent 12,000 troops to break the strike. Cue brutal protests and bloodshed. The strike was broken, but so was the spirit of the workers. To reach out to the labor movement, Congress rushed the national holiday into law. The bad will resulted in Cleveland losing re-election. But the day off for hot dogs endures. According to the Department of Labor, Congress passed an act in 1894 making the first Monday in September of each year a legal holiday.
So, working stiffs everywhere, say it now, with feeling: Happy Labor Day.
Drunken driving fatalities in U.S. drop over 1/3 between 1982 and 2006. This large drop occurred in spite of dramatic increases during the same period in the number of vehicle miles traveled, registered motor vehicles on the road, licensed drivers, and population of the country.
Xenia Municipal Court has jurisdiction over OVI/DUI violations of any ordinance of any municipal corporation within its territory. The Xenia Municipal Court has jurisdiction for the cities of Xenia and Bellbrook; the villages of Yellow Springs, Cedarville, Jamestown, Spring Valley, and Bowersville; and the townships of Sugarcreek, Xenia, Cedarville, New Jasper, Silvercreek, Ceasarcreek, Miami, Jefferson, Ross, and Spring Valley. The Court’s jurisdiction also includes four college campuses: Central State University, Wilberforce University, Cedarville College, and Antioch College. Law enforcement agencies located within the jurisdiction of the court include: Bellbrook Police Department; Cedarville Police Department; Central State University Police Department; Greene County Animal Control; Greene County Sheriff’s Office; Greene County Parks District; Jamestown Police Department; Ohio Department of Parks and Natural Resources; Ohio Department of Wildlife; Ohio State Highway Patrol; Spring Valley Police Department; Sugarcreek Township Police Department; Wilberforce University Police Department; Xenia Police Division; and Yellow Springs Police Department.
Location: Xenia Municipal Court is located on the second floor of Xenia City Hall, 101 N. Detroit Street.
Hours of Operation: Hours are 7:30 a.m. until 4:30 p.m. on Mondays, Tuesdays & Wednesdays. Hours are 7:30 a.m. until 4:00 p.m. on Thursdays and Fridays. The court observes the following holidays: New Year's Day; Martin Luther King, Jr. Day; Memorial Day; Independence Day; Labor Day; Veteran's Day; Thanksgiving (and the Friday following); and Christmas Day. As of January 1, 2008, Night Court services are no longer provided.
Alaska Supreme Court overturns law designed to stop presentation of medical evidence regarding alcohol absorption in DUI cases. The Supreme Court of Alaska on Friday upheld the right of defendants to present scientific evidence at trial in cases involving driving under the influence of alcohol (DUI). In 2004, the state legislature sought to muzzle defense attorneys who cited medical evidence on alcohol absorption rates in a way that would have undermined conviction rates.
Douglas Valentine had challenged his own June 18, 2005 DUI arrest. Fairbanks Police Sergeant Dan Welborn initially pulled Valentine over that night for speeding but upon noticing his bloodshot eyes and a "moderate" odor of alcohol, Valentine was given a field sobriety test and brought in to the station for a breathalyzer reading. At 9:20pm, he blew a 0.099 on the machine. Twenty-five minutes later, the reading increased by 0.020 to 0.119.
Valentine argued that he had two beers before getting behind the wheel and that neither the field sobriety test nor his driving that night showed any evidence of impairment. Alaska Statute 28.35.030(s) prohibited Valentine from making the medical argument that at the time he was behind the wheel, the alcohol had not been absorbed into his bloodstream and his blood alcohol content (BAC) was under the legal limit of 0.08. The high court summarized the scientific evidence.
"Typically within an hour after a person has stopped drinking, the person's body has absorbed much of the alcohol consumed and is eliminating alcohol from the bloodstream faster than it is absorbing it -- that is, the point of 'peak' blood alcohol level has passed," Chief Justice Dana Fabe wrote for the court. "But in some people this 'peak' point may not be reached for up to four hours after drinking because the rate at which the body absorbs alcohol depends on a variety of factors, including consumption of food, having an upset stomach, and the type of alcohol consumed. Therefore, it is possible that a person's blood alcohol at the time of driving was lower than at the time the person took a post-arrest chemical test."
The legislature specifically outlawed the delayed absorption defense in response to a 2002 court of appeals opinion, Conrad v. Alaska, where the argument had been successful. The high court on Friday found that this law undermined the constitutional right of a driver accused of DUI to defend himself.
"Under the United States and Alaska Constitutions, a defendant has the right to present relevant exculpatory evidence in a criminal trial," Fabe wrote. "A defendant's due process rights are denied when a legislative enactment substantially limits the right to present a defense."
The Alaska Supreme Court, however, did approve another 2004 legislative change that has the effect of allowing automatic DUI convictions in nearly all cases. A separate provision of law allows anyone accused of having a blood alcohol level of 0.08 up to four hours after driving to be automatically convicted of DUI, regardless of whether he was sober while behind the wheel. This redefinition of the crime creates what California DUI Attorney Lawrence Taylor calls the "DUI exception to the Constitution." In such cases, using science to prove sobriety can be excluded on grounds of irrelevance.
Because the lower court in Valentine's case did not explicitly cite this exception, the supreme court overturned the conviction and ordered Valentine to stand for retrial.
A copy of the supreme court ruling is available in a 160k PDF file a the source link below.Source:Valentine v. Alaska (Supreme Court of Alaska, 8/28/2009)
It’s not every day Mothers Against Drunk Driving is accused of acting like a radical fringe group, but today the American Beverage Institute did just that, calling MADD an “anti-alcohol group that has been hijacked by the modern day temperance movement.”
The offense? Opposing President Barack Obama’s so-called “beer summit” last week with Harvard professor Henry Louis Gates Jr. and Sgt. James Crowley.
The catch? MADD didn’t officially oppose the summit.
There was no official position offered by the national organization in opposition to the president’s beverage of choice for last week’s meeting–but the head of Delaware’s MADD Chapter, Nancy Raynor, did tell local radio that she was concerned it would set a bad example for the under-age if they saw the president drinking a beer.
“The young people tend to mimic the actions that they see be adult,” she said in the interview.
In response, ABI issued a harsh criticism today of the anti-drunk driving group. “That someone in a position of leadership at MADD would criticize President Obama for simply drinking beer, illustrates the neoprohibitionist mentality that now dominates the group,” said ABI Managing Director Sarah Longwell in a statement that further bashed MADD as the leader of the “anti-alcohol movement.”
ABI, which boasts itself as “the only organization dedicated to the protection of responsible on-premise consumption of adult beverages” is a long-time MADD foe which opposes many of the policy initiatives MADD supports—including the use of alcohol sensors in vehicles.
A spokeswoman for MADD did not immediately return requests for comment.
Maybe a “Tea Summit” is in order.
The American Beverage Institute (www.AmericanBeverageInstitute.com) is an association of restaurants and on-premise retailers committed to the responsible serving of adult beverages.
