that with all the criminal acts that are purportedly perpetrated these days – that drunk driving is often considered the most heinous.
Yes, I know, I have addressed this very topic in previous blogs – but occasionally my ire is piqued anew when I read a story about the unjust treatment of a suspected drunk driver – and the notion they will face the ‘full threat of the law’ upon conviction.
Of course, people tend to make blanket statements when it comes to criminal behavior. ‘Throw the book at ‘em and give ‘em the death penalty’ are common responses from average citizens regarding persons who have been suspected of operating outside the parameters of the legal system. And that is not to say that punishment should not be meted out in cases of convicted crimes – however, I caution that there are estimates in the thousands of persons who are serving time in prison for crimes they actually did not do.
Now, a recent headline screams “Throw Every Penalty in Sight at DUI Drivers”. Among the many penalties already in place are such things icense revocation upon arrest, interlock devices, mandated substance-abuse treatment, hefty fees and fines and incarceration. New legislation has been proposed in one state – that could easily catch on across the country – that would step up jail sentences for offenders, forbid them from buying alcohol for 10 years, deny them deferred sentences and require that their driver’s licenses, once restored, be vertical in shape. They’d have to equip their cars with interlock devices before getting them out of impoundment.
“Enact it all. The combination of drinking and driving ought to be fought like the smallpox virus.” The previous statement can be traced to a person in law enforcement – believing they are just and right in such aggressive opinions. If only the same vehemence was applied to the social ills that may preface crime in the first place. What a different world this might be.
I will say that it would be difficult to live with the loss of a family member who was struck down by a convicted drunk driver. But, even convictions have been shown to be staged by law enforcement or otherwise wrong.
What is the answer then?
Personally, it’s as simple as the seat belt. A passive device that will keep a vehicle from starting up if there is a detectable level of alcohol in the driver. A preventive measure – actually no different in many ways than the seat belt and accompanying laws – which was met with distaste by libertarians whose voices have been all but drowned out by the annual statistics of persons whose lives have been saved by their use – and those that have been lost because they failed to buckle up.
We need to make some decisions about impaired driving – long term and reasoned decisions – because very soon I predict the legalization of marijuana that will compound the problem.
Any other ideas out there?
I have covered in my DUI/DWI blogs – and all of the admonishments, warnings and chiding about the prospective problems a person convicted of intoxicated driving charges may face –
I believe I have overlooked the fact that a DUI/DWI conviction can result in your car being seized and later sold at auction – all outside of your ability to do anything about it.
I was reminded of this additional distress dished out to intoxicated drivers in an article that reported a city in a neitghboring state netted well over a hundred thousand dollars to city coffers from auctioning off nearly 130 vehicles that had been seized in arrests.
So, how can this happen? The vehicle is titled in your name – you’ve made the payments and all of a sudden you are minus a vehicle – that may not even be paid off yet! Well, according to the article:
The DWI Forfeiture Program “under the city ordinance states that any vehicle involved in a DWI in which the driver has at least one previous drunken-driving conviction is subject to seizure and possible forfeiture. Owners are entitled to fight forfeiture in state District Court, but most of the vehicles (103 of them) were abandoned by their owners after being seized”.
Moreover, “the money made from the city vehicles will go into the city’s general fund and the money from the DWI forfeiture vehicles will go into the forfeiture program. A city representative said “we can’t stop repeat drunk drivers, but with forfeiture, we can take their weapon of choice out of their hands.” (This – and they can’t pass a gun bill in the Senate?!?!)
Lest you believe this is a ‘fluke’ in the legal system not repeated elsewhere – think again. Stories of similar statutes are popping up across the country – Province, LA, Florida, New York – even across Canada – seizing the vehicle of a drunk driving is the latest ‘legal fad’ by municipalities.
‘Legal’ is the sticking point here. Really, if this catches on there may be a revolt that has never been considered in all of my years of criminal defense. Home and car are the two most important pieces of property dear to American’s hearts. The other point is that – we have hired these officials to work FOR us not to act as a snarky substitute parent almost eager to punish us if we don’t ‘listen to them’.
So, as I have mentioned in various blogs over the years – do not wait until a law passes that directly affects you before you get involved – write your Congressman, go to a City Council meeting – remind ‘them’ they work for ‘us’ and decisions should be collaborative and appropriate.
As if dealing with a DWI charge is not a big enough headache – that requires your time and attention – and is in general distraction – you may be denied the opportunity to travel outside of the country – even to our friendly neighbors to the north, Canada.
That’s right. A DWI conviction is one reason that entry into Canada will be denied.
In fact, there are a number of drinking and drug related offenses that could be problematic. For instance, a conviction for underage drinking, DRIVING WITHOUT INSURANCE (who knew?), possession of marijuana or drug paraphenalia – or drug trafficking can all prevent you from traveling outside of the United States – or into Canada. Too, a DWI, DWAI or OUI are also reasons for your inability to get across the border and into Canada (bad check writing and assault as well – but that is not a topic for this blog – just good information).
The thing most people don’t realize is that a drunk driving conviction can never be expunged from your criminal record – which means there is no way to have it removed – even though there ARE other types of convictions that can come of your criminal record.
SO, the general rule of thumb has been to tell people – carte blanche – DWI conviction – don’t plan on getting across the border.
However, recently these restrictions are being challenged and people are accessing the legal system to search for options that will allow them to circumvent the standing order of DWI=no international travel (at least to many countries). In one case, it has been discovered that you COULD enter the country under extenuating circumstances. By that I mean that – you may need to travel there for extraordinary purposes – and the event would be classified as a ‘trip’.
It also depends on how long ago the conviction occurred. For instance, if the conviction is five years old you could request consideration for admission to the country under the ‘criminal rehabilitation’ guidelines. At ten years – if the offense was non-serious you could ask to be deemed rehabilitated.
None of these things happen overnight – so if you are thinking about traveling and you have a drunk driving conviction or marijuana conviction – your first order of business would have to be to address the requirements for entry in your special circumstances.
An attorney will determine if your conviction is equivalent to a Canadian federal offense – and you will work from that information.
Again, who knew? A pesky older conviction may return to cause you problems over and over throughout your lifetime.
That’s why I always recommend that people – call a cab. Drinking and driving is not a crime – only drunk driving.
I dedicate the contents of this blog to the topic of drunk driving. But an article in yesterday’s news about a young man who received a 20 year conviction for drugged driving reminded me that there is as much chance of losing years of your life to the American justice system for driving while drugged as there is for intoxicated driving.
Now, not surprisingly, the young man struck a woman with his car and killed her – hence the hefty sentence. Moreover, it seems this was his third conviction and he had been given ample warning according to the judge who imposed the sentence.
And the frustration is gaining speed concerning people who drive while under the influence of drugs – or DUID as it may be more familiarly known. What follows are some facts about DUID.
*A number of newly proposed DUID laws – including but not limited to “zero tolerance” per se laws – are a concern for the average citizen because they are able to potentially classify sober drivers as impaired under the law solely because they were presumed to have consumed a controlled substance (read: marijuana) at some unspecified point in time.
So, think about it – does an unspecified period of time include fifteen years ago in college? Grey, gray, area.
Even agreeing on a definition of drugged driving defies logic. There are various types of DUID laws, some more pernicious than others. What is true is that every state currently has DUID legislation on the books.
Some are ‘effect-absed DUID laws’ that forbid drivers to operate a motor vehicle if they are either “under the influence” of a controlled substance, or if they have been rendered “incapable of driving safely” because of their use of an illicit drug. Conviction of this offense requires the prosecutor to prove the driver’s observed impairment and/or incapacity was directly associated with the ingestion of an illicit substance. Typical evidence would be that which was gathered by law enforcement officers at the scene of an accident (i.e., a driver’s performance during a field sobriety test, evidence that the motorist was driving at an excessive speed, etc.), and testimony from a Drug Recognition Expert (DRE), and/or a positive result on a toxicological exam indicating recent consumption of a controlled substance.
This is what is known in legal circles as a ‘multidisciplinary standard’ – the focus of which is the totality of circumstances.
*A second type of DUID law is the ‘per se laws’. These are designed to prohibit drivers from operating a motor vehicle if they have greater than a set level of a drug or drug metabolite present in their system. With a DUI the level of intoxication is 0.8 but strictly defined cut-off levels for the presence of drugs in one’s system (a designated level of an active drug constituent or metabolite above which a sample is considered to be “positive” for a specific drug) are rare in DUID legislation – because it is more difficult to determine a level of comparable intoxication with drugs.
Frankly, this topic deserves further examination – return tomorrow for more on the matter.
David Breston is a respected Fort Bend County drugged driving defense attorney. Contact the Law Firm of David Breston at 713-224-4040 or 888-220-4040 if you need a Fort Bend County drugged driving defense lawyer.