Miss Montana Jennifer Hepner's DUI Case: Implied Consent Law and License Suspension

The current Miss Montana, Jennifer Hepner, has pled not guilty in a DUI case stemming from a traffic stop in January of 2009, according to the AP. Since that time she has been suspended from her pageant duties, but gets to keep her tiara until the next Miss Montana comes around.

The AP gave the following background regarding Hepner's traffic stop and resulting charges:

"The 23-year-old University of Montana graduate student had been pulled over Jan. 3 and refused to submit to alcohol screening, breath or blood tests. Her license was seized and suspended.

The Bozeman Daily Chronicle reported Wednesday that Hepner has pleaded not guilty. She is also fighting the license suspension.

Her lawyer says her requests to speak with an attorney during the traffic stop were denied."

Noteably, however, Montana has implied consent DUI laws. As a result, anyone who drives in the state gives permission to police to conduct a preliminary alcohol screening test of their breath for alcohol concentration, so long as an officer has "a particularized suspicion" that they were driving while under the influence. Even though the driver actually does have a right to refuse this preliminary test, the consequence is a driver's license suspension. Also, a similar implied consent rule applies in Montana for blood and breath tests after a person has been arrested. The arrestee can still refuse to be tested, but this will result in automatic license suspension penalties.

Finally, although the circumstances of Miss Montana's case are unclear, it should be noted that someone's constitutional right to counsel doesn't stretch to the point that someone can demand an attorney and refuse to answer any and all questions during a simple traffic stop. Police are permitted to ask basic questions during a stop regarding a driver's identity and requisite documentation. Indeed, a refusal to answer those questions can be grounds for an arrest, in the first place. On the other hand, individuals are allowed to refuse to answer other questions without an attorney present.

• AP: Miss Montana pleads not guilty to DUI charge (Google News)
• Montana DUI Laws (Montana Code Annotated)
• DUI FAQ (provided by the Law Offices of Basil D. Beck, III)
• Police Questioning: When Miranda Warnings Are Required (FindLaw)
• Your Rights: The Right to Counsel (FindLaw)

Donte Stallworth DUI When Car Struck, Killed Mario Reyes? Blood Test Results Anticipated, But Are They Necessary?

The virtual parade of professional athletes committing DUI-related offenses appears to be going strong, but this time the stakes are high. On the heels of Charles Barkley's serving relatively minor jail time for his DUI offense, NFL wide receiver Donte' Stallworth is now reported to have been driving over the legal limit when his car struck and killed 59-year-old Mario Reyes in Miami Beach last weekend. In addition to the human tragedy of the case, the potential legal charges against Cleveland Browns player Stallworth are vastly more serious than the celebrity DUI offenses typically seen in the news.

However, there has been an inordinate amount of attention focused on the blood test results since the time of the accident. But this might just perpetuate the myth that the .08 BAC limit is the be-all, end-all issue in these types of cases. In Florida, the .08 level is simply the point at which the law presumes an individual is impaired and driving under the influence. On the other hand, simply because someone tests below .08 does not mean that they are, by definition, innocent. Other evidence such as sobriety tests, on-the-scene observations, witness testimony, etc. can be used to establish that a driver's "normal faculties" were impaired.

That said, the Miami Herald reports that "a source with knowledge of the investigation" has indicated that Stallworth's blood alcohol level was .14. This should probably be taken with a grain of salt, as "Miami Beach police would not confirm whether the blood tests were complete, saying the results would not be released until their investigation is complete." Further, Stallworth has not been charged and has reportedly been cooperating with the investigation.

As noted previously, a fatality in a DUI case often carries very serious penalties, and Florida certainly makes no exception. DUI manslaughter in Florida is committed when someone who is under the influence (as described above), "operates a vehicle", and "causes or contributes to causing" a person's death. The offense is classified as, at least, a second degree felony subject to a 15 year maximum sentence, and would be subject to minimum mandatory jail time.

• Miami Herald: Cleveland Browns' Donte'' Stallworth 'grief-stricken' by Miami Beach accident [with VIDEO of scene/sobriety test]
• The Sports Network: Browns' Stallworth releases statement
• Florida DUI Laws, Information (Fla. Dept. of Highway Safety and Motor Vehicles)
• Fla. DUI Manslaughter Law (Florida Legislature)
• Drunk Driving Info. Center (provided by Albert Wysocki, P.C.)
• DUI Stars: Antoine Walker, Sam Shepard and Charles Barkley Illustrate Drunk Driving Risks (FindLaw)
• FindLaw's DUI Center

Utah Bars, Private Clubs and the Zion Curtain: Liquor Law Overhaul?

Utah legislators and its Governor announced a deal which may bring sweeping changes to the state's unique liquor laws. Utah may do away with its "private club" requirement, allowing drinking in bars without membership for those of age, in exchange for ID scanning at bars and tougher DUI penalties.

Currently, to be served alcohol in Utah, one must be a member (or guest of a member) of a private club. The Salt Lake Tribune reports that only West Virginia has a similar law, and West Virginia's is not enforced.

According to the Tribune, under a bill supported by Governor Jon Huntsman Jr., there would be no more requirement of private club membership to drink in a bar, however, bar patrons' IDs will be scanned and DUI offenders would face stiffer penalties.

As the Tribune reports, under the plan, the IDs of all who appear under 35 years old would be scanned when they entered a bar. Data regarding their entrance would be kept on hand for one week. The stated purpose of the ID data tracking is for drunk driving accidents. Law enforcement would be able to use the ID records for prosecution, and also to potentially hold bars responsible if they served intoxicated patrons.

The steepened penalties for drunk driving would include the forfeiture of vehicles by repeat offenders, loss of license for underage drunk drivers, and increased bar-owner liability for drunk patrons who become involved in accidents.

At issue is also what has been dubbed the "Zion Curtain." This is the partition currently required in Utah restaurants that serve alcohol. Servers must walk around the Zion Curtain in order to carry drinks to patrons. The bill supported by Governor Huntsman would allow servers to pass drinks to patrons directly over the bar. New restaurants must have a separate area, away from the eyes of children, for mixing drinks, while existing restaurants would be grandfathered in.

The new laws would take effect July 1 for bars and May 12 for restaurants. The Tribune quotes Governor Huntsman as saying, "[n]obody thought this was doable, but, through it all, I thought we were going to get to an [agreeable] end point." Indeed, though it appears a passable deal has been reached, just weeks ago, the Salt Lake Tribune reported that a bill was moving through Utah's Senate to raise the Zion Curtain. That bill sought to mandate that restaurants serving alcohol prepare all drinks in a back room or behind a ten footwall.

However, lest you worry that drinking become too easy in Utah, Forbes reports that Utah bar owners fear inclusion of another provision in the new laws. They fear a proposed redefinition of what it means to be intoxicated and decreased evidentiary requirements to hold bars and restaurants liable for serving intoxicated patrons.

• Liquor Laws Affecting Residents and Visitors (Utah DABC)
• Quirky liquor laws hurt economic development (Salt Lake Tribune)
• Utah DUI Laws (FindLaw)
• DUI Overview (provided by Leonard B. Ganney, P.C.)
• Drunk Driving Sentencing (FindLaw)

 

Brian Bosworth, aka The Boz, Arrested for DUI ... on his Motorcycle! Driving a Number of Vehicles Can Lead to a DUI

As if riding a motorcycle by itself weren't hazardous enough these days, TMZ and news agencies report that former NFL'er Brian "The Boz" Bosworth was arrested for DUI last night while riding his Harley. If you don't remember Brian Bosworth from the NFL, it's probably because his NFL career was pretty short (1987-89) and perhaps not terribly successful, although to be fair, many would say he had a phenomenal collegiate career. If his name still rings a bell, but not for football reasons, maybe it was his transition to an acting career that caught your attention.

At any rate, it looks like Bosworth wasn't pulled over for driving erratically or something of that sort, but instead it appears to have simply been for a lack of a license plate on his Harley. Police thereafter smelled alcohol on his breath, which led to a failed breathalyzer and the arrest.

For anyone who harbored any doubts, yes, you can still get a DUI for riding a motorcycle, even though, in all likelihood, the greatest risk posed is to yourself. In some states you can get a DUI for driving vehicles such as snowmobiles, ATV's, golf carts, or even electric wheelchairs! Also, police don't have to pull you over for a DUI-related reason in order for them end up arresting you for that offense. Police can pull someone over based on a reasonable suspicion, supported by articulable facts, that they've committed an offense. In Bosworth's case, it would appear that it was for not having a license on his Hog.

Once police have validly pulled someone over, they can then be detained for a reasonable time in order to check their documentation, issue a citation, etc., but during the course of a traffic stop, as apparently happened in Bosworth's case, police can end up detecting alcohol on a person's breath or in some other way, which can lead police to ask for a Breathalyzer test, and subsequently, to an arrest for DUI.

• TMZ: Brian Bosworth Busted for DUI
• International Herald Tribune: Bosworth arrested for suspected drunken driving
• CBS: Ex-NFL Player Brian Bosworth Arrested For DUI (cbs2.com)
• Motorcycles Traffic Safety Fact Sheet (NHTSA)
• Overview of Drunk Driving (provided by Christiansen Law Offices)
• FindLaw's DUI Center (FindLaw)

Serrano Family in Florida Suffers Tragedy as Three Children Killed in Car "Accident": The Laws Behind Drivers License Revocation

Many families have some kind of familiar morning routine. The parents might get up, get the kids ready for school or the day's activities, strap them into their car seats and drive off. The Miami Herald reported that one Florida family's early morning routine turned into tragedy this past Sunday when Hector Serrano took his three children with him to drop off his wife, Mirian, at her hospital job. On the way home, while stopped at a red light, their minivan was rear-ended by a Chevrolet Trailblazer driven by Gabriel Delrisco, crushing the minivan "like an accordion." Hector survived the accident, but the couple's children, 10-year-old Hector, Esmeralda, 7, and Amber, 4, were killed.

The cause of the accident is under investigation, and at this point no charges have been brought against Delrisco, who remains at a hospital. Police and prosecutors are awaiting results of a blood analysis to see whether Delrisco had used drugs or alcohol before the accident.

Nevertheless, a Florida Highway Patrol lieutenant stated, ''There were no skid marks,'' which would indicate Del Risco did not hit the brakes before the accident. However, Delrisco's attorney Abe Koss explained that the SUV's brakes failed. Regardless, many people might be wondering why Delrisco was on the road behind the wheel in the first place.

These questions are popping up because it turns out that Delrisco has been cited 26 times since 2001 for various traffic infractions, ranging everywhere from non-moving infractions to driving under the influence (DUI). On the DUI offense, his license was mandatorily suspended for six months, but "since then, he has been ticketed for reckless driving, speeding, failure to stop at a traffic light and crossing a median. Many of his tickets were dismissed or a judge withheld adjudication."

When a judge "withholds adjudication" in Florida, this means the individual is avoiding a conviction and the resulting consequences. However, withholding of adjudication under Florida law is supposed to be for situations where:

1) a defendant who is not likely again to engage in a criminal course of conduct; and

2) the ends of justice and the welfare of society do not require that the defendant suffer the penalty imposed by law

Still, Delrisco's "last two withholds of adjudication, for speeding in 2004 and passing around a barrier in 2006, were automatically granted because he enrolled in traffic school. Without those withholds, he might have accumulated enough points to have his license suspended."

One of the first things people are told in a drivers' ed course is that driving is a privilege, and not a right. Laws dealing with revocation of drivers licenses, whether dealing with simple traffic violations or DUI offenses, have tough task in setting a "hard line" at which a violator must lose their driving privileges. It is too early to know the exact circumstances surrounding the Serrano family's crash, but this might end up being a case that causes Florida legislators and courts to take a close look at their system.

• Miami Herald: Grieving father: Our family destroyed by fatal crash
• Miami Herald: Three children dead after SUV hits minivan in South Miami-Dade
• Post-Newsweek Stations/AP: Driver In Crash That Killed 3 Kids Had History of Traffic Violations (Justnews.com)
• EDITORIAL: Avoidable tragedy costs three lives (Miami Herald/DailyMe.com) [Registration Required]
• NBC: Donation Fund Set Up For Serrano Family's Funeral Expenses
• Example of License Revocation Law (provided by Daniel, Thom & Katzman, P.C.)
• DUI-DWI Center (FindLaw)
• Comparing State DUI Laws (FindLaw)

DUI Stars: Antoine Walker, Sam Shepard and Charles Barkley Illustrate Drunk Driving Risks

What do a Pulitzer Award winning playwright, an NBA star and an NBA legend have in common? DUI arrests within the last week. Sam Shepard, Antoine Walker, and Charles Barkley show us yet again the legal risks accompanying drunk driving.

And it’s not just for the famous. Over a 21-day holiday DUI crackdown campaign in Alameda Count,y California, more than 1200 people were arrested on DUI charges. The calamity of a holiday reveler’s first DUI charge easily becomes the gift of business for DUI lawyers. For celebrity and plebian alike, here are some helpful FAQ’s about what happens when one gets pulled over for suspicion of driving under the influence.

Q: Can they pull me over even if I’m driving fine?
A: Yes. Most if not all states allow DUI checkpoints where law enforcement can perform an initial inspection and further investigation if suspicion is aroused. Additionally, any reason an officer might pull you over – expired tags, broken tail light, etc. – will allow an officer the opportunity to assess your sobriety.

Q: Do you have to take the breathalyzer test?
A: No, you may refuse to take a breathalyzer or other chemical sobriety test, but there are consequences. Most states have "implied consent" laws which dictate mandatory penalties for refusing to take a sobriety test. These can include automatic suspension of your license. Further, at your trial, the prosecutor can tell the jury that you refused to take the test. Some states allow consultation with an attorney before deciding whether to take a chemical sobriety test.

Q: If you blow under the legal limit, are you home free?
A: No. Even if your blood alcohol level is below the legal limit, you can be convicted of DUI. Evidence including testimony as to your driving, your statements, your appearance, your performance on field sobriety tests and video tape at the scene can be used to convict you of DUI. Driving with a blood alcohol level over the limit is "per se" DUI, meaning no other evidence is needed. In many states, certain drivers (such as teens) are subject to zero tolerance DUI laws, allowing conviction with any trace of alcohol.

Q: Does the officer have to read you your Miranda rights to ask about your intoxication?
A: No. The officer must read you your rights if deciding to arrest you for DUI. Before arrest, questions, field test and chemical tests to assess your sobriety do not require that they read you your rights.

• State DUI Laws (FindLaw)
• DUI FAQ (provided by Daniel, Thom & Katzman, P.C.)
• What to Expect from a DUI Arrest (FindLaw)
• California DMV: DUI Arrest General Information (FindLaw)
• NHTSA Report: Fatalities in Crashes Involving Alcohol-Impaired 21- to-24-Year-Old Drivers During the December Holidays

Nationwide DUI Crackdown Over December Holidays

Federal traffic safety officials announced last week that drivers age 21 to 24 have the highest involvement rates in traffic accidents involving alcohol consumption, as thousands of law enforcement agencies across the country prepare for a crackdown on DUI and DWI offenses over the December holidays.

The report, Fatalities in Crashes Involving Alcohol-Impaired 21- to-24-Year-Old Drivers During the December Holidays, was released last week by the National Highway Traffic Safety Administration (NHTSA), on the eve of a national law enforcement and public awareness effort that will continue through New Year’s Day. According to an NHTSA Press Release, the “Drunk Driving. Over the Limit. Under Arrest” campaign involves thousands of law enforcement agencies nationwide, and is supported by more than $7 million in national television and radio advertising.

The NHTSA report on drunk driving concludes that: "In 2007, more than one-third (35%) of 21- to 24-year-old drivers involved in fatal crashes were alcohol-impaired. . . While drivers 21 to 24 constituted 11 percent of all drivers involved in fatal crashes in 2007, they constituted 18 percent of all alcohol-impaired drivers involved in fatal crashes, making them the most overinvolved age group for alcohol-impaired drivers."

• NHTSA Report: Fatalities in Crashes Involving Alcohol-Impaired 21- to-24-Year-Old Drivers During the December Holidays [PDF file]
• NHTSA Press Release on the Study and Holiday DUI Crackdown
• MSNBC: Group Calls DUI Checkpoints a Waste of Money
• DUI - The Basics (FindLaw)
• State-by-State DUI Laws (FindLaw)
• Drunk Driving FAQ (FindLaw)
• Browse the DUI Center (FindLaw)

Study Looks at State DUI Rates

A new federal government study finds that about 15 percent of U.S. drivers age 18 and older drove under the influence of alcohol at least once in the past year, with levels in some states reaching 25 percent of drivers.

The study, conducted by the Substance Abuse and Mental Health Services Administration (SAMHSA), provides state-by-state estimates on the pervasiveness of driving under the influence of alcohol and drugs. An SAMHSA news release, which also contains a state-by-state breakdown of DUI rates, reports that "driving under the influence ranged from a low of 9.5 percent in Utah, to highs of 26.4 percent in Wisconsin, 24.9 percent in North Dakota and 23.5 percent in Minnesota." The SAMHSA is a public health agency within the U.S. Department of Health and Human Services.

• SAMHSA News Release on the "State DUI" Study
• Read the Full "State DUI" Report (SAMHSA)
• One in Six Drivers Drink Sometimes: Report (Reuters)
• State-by-State DUI Laws and Penalties (FindLaw)
• DUI / DWI Center (FindLaw)

Report on Alcohol-Related Traffic Accident Fatalities

In 2006, 17,602 people were killed in the United States in alcohol-related motor vehicle traffic crashes, and an estimated 13,470 people were killed in traffic crashes that involved at least one driver or motorcycle operator with a blood alcohol concentration (BAC) of .08 or higher, according to a report released Monday by the National Highway Traffic Safety Administration (NHTSA). Also on Monday, U.S. Transportation Secretary Mary E. Peters announced the launch of a national drunk driving enforcement crackdown, and appealed to the judicial branch to use all the tools it has available to keep drunk driving offenders off the roads.

• NHTSA Report: 2006 Alcohol-Related Fatalities [PDF file]
• DOT Press Release on DUI Enforcement Crackdown
• State DUI Laws (FindLaw)

December is National Drunk and Drugged Driving Prevention Month

December is National Drunk and Drugged Driving (3D) Prevention Month, a time to raise awareness of DUI / DWI as a serious crime, and an opportunity to pay special attention to prevention of drunk and drugged driving on roads and highways nationwide. More information:

• Alcohol-Impaired Driving Research and Resources (National Highway Traffic Safety Administration)
• DUI / DWI Basics, Laws, and Penalties (FindLaw for the Public)
• DUI / DWI Prevention Resources (FindLaw for the Public)