New Mexico Appeals Court overturns a man convicted of driving at .08
because evidence that his blood alcohol was less behind the wheel was
ignored.

Individuals in borderline driving under the influence (DUI) cases in
New Mexico now have a chance of proving their innocence after an Appeals
Court decision released on June 1.

The case involved a Lincoln County man named John Day who was pulled
over because his license plate was not illuminated. His driving did not
exhibit any signs of impairment. When the police officer noticed an open
container of beer in the car, however, he performed a field test and
arrested Day for drunk driving. A breath test conducted 66 minutes after
the stop showed Day was right at the .08 blood alcohol limit. Day later
was convicted in a Lincoln County District Court based on this
evidence.

Because the blood alcohol reading rises over time as alcohol is
absorbed into the bloodstream, Day’s reading may not have accurately
reflected his blood alcohol level at the time he was driving, according
to Doctor Edward Reyes, a pharmacologist who testified for the defense.
The appeals court ruled that it was improper for the state to ignore this
evidence.

“We hold that absent scientific evidence of the alcohol absorption and
elimination processes tied to facts that must be considered in
scientifically evaluating the alcohol absorption rate of a particular
driver, the jury could not have rationally inferred that defendant had a
.08 alcohol content at the time of driving,” Judge Jonathan A. Sutin
wrote for the court in a 3-0 decision.

The judges suggested that a “retrograde extrapolation” should have
been done to estimate Day’s intoxication level at the time he was driving
based on the time of alcohol consumption and other relevant factors. The
judges suggested that the law may need to be changed to ensure a constant
stream of convictions. “The problem of proof also raises the question of
whether a new statute is needed to overcome the difficulty of proof,”
Sutin wrote.

Source: New Mexico v. Day (New Mexico Court of Appeals, 6/1/2006)

Timothy Bradley

New Hampshire Bicyclist’s DWI Case Ends in Agreement
By David Lazar

LONDONDERRY — A judge won’t get
to rule whether an intoxicated bicyclist can be charged with drunken
driving — at least not for now.

Amid drumbeats of Supreme Court challenges from both sides, an
attorney for Londonderry bicyclist Timothy Bradley yesterday said his
client didn’t want to become a legal spectacle.
Bradley, arrested last July for hopping aboard his mountain bike after a
few drinks, pleaded guilty in Derry District Court to one count of
misdemeanor reckless conduct, after reaching an agreement with
prosecutors to drop the landmark DWI charge. It was the
state’s first involving a bicycle.

“Mr. Bradley is a person who just wanted to resolve
these issues today,†said Rick Monteith,
Bradley’s Londonderry-based attorney.
“If the prosecution had lost (and the case was
dismissed), they would have appealed. If we’d have
lost, we’d have appealed. And the appeals would have
dragged on and on for a year and a half or so. My client wanted to get
this over with, especially with the new year . . . I think this was a
fair resolution of the case.â€

So did prosecutors, who reached the agreement after deciding
Bradley’s case may not have been the best with which
to test the state’s DWI statute when it comes to
non-motorized vehicles, they said.

In exchange for his plea, Bradley, 44, will pay a $250 fine and agree
not to appeal an automatic two-year suspension of his
driver’s license. The license was suspended after
Bradley, whom police stopped a quarter-mile from his Auburn Road home for
swerving across a yellow line on his bicycle, refused a field sobriety
test. A state Department of Safety ruling last October upheld that
suspension.

“It was the right thing to do,â€
Londonderry police prosecutor Kevin Coyle said yesterday of the plea
agreement. “In looking at all the facts and
circumstances, we believe that what Mr. Bradley did was wrong, and we
believe we could have substantiated the charge.

“At the same time, I think the general public
thought what he did was wrong, but that he shouldn’t
have been charged with DWI,†he continued.
“We wanted to do what was right by everybody. It was
not a simple case, and I think the issue ultimately needs to be resolved
with the legislators drawing up the laws and not in the
courtroom.â€

At issue in Bradley’s case were a pair of
apparently conflicting statutes in the state’s motor
vehicle code — one saying the
“rules of the road†that apply to motor
vehicles also apply to bicycles, another defining the word
“drive†as operating a motor vehicle.

Legal experts have said the case is a perfect example of what state
Supreme Court justices are paid to sort out. At the same time, a local
legislator, angered over the arrest, has already proposed a bill that
would specifically remove bicycles from the state’s
DWI laws.

State Sen. Frank Sapareto, R-Derry, said Bradley, whose license had
already been suspended three years for a DWI conviction in Massachusetts,
actually did the right thing by getting on his bike rather than behind
the wheel of a car in the early hours of last July 5.

On his way home from a fireworks celebration, Bradley was pulled over
by police around 2 a.m. on a deserted road near his home for swerving and
not sporting a headlight. Though adamant he wasn’t
drunk, Bradley said he’d had a few drinks earlier in
the night, and still had a shot of vodka in the sports bottle attached to
his bike.

While Bradley’s attorney would argue the bike
didn’t fall under the DWI umbrella, prosecutors and
police would argue the case was a matter of safety. They argued that if
Bradley had lost control and veered into traffic, or hurt someone, and
police did nothing to stop it, they could have been held responsible.

Asked yesterday, the patrolman who made the arrest said he had no
regrets about filing the charge.

“The way I look at it, he made it home safe that
night,†Officer Randy Dyer said. “There
were no fatalities, and that’s really what my concern
is.â€

Monteith said Bradley, a local machinist who remained quiet throughout
his appearance yesterday, just wants to get on with his life. The case,
he said, had made his client an uncomfortable local celebrity.

“This is not an issue that’s
going away, and it’s going to be taken up by someone
else,†Monteith said. “And I think it
should be taken up by someone else. It’s just not
going to be this case.â€

Source: Union Leader Correspondent

Police Arrest Man with Seven Priors

March 27, 1998

RENO, Nev. (AP) – A Reno man police say has seven drunken driving
arrests has dodged No. 8, but still faces a raft of other charges.

Joseph Donald Clichi, 48, was being watched by officers under funding
provided by the repeat DUI offender grant.

He left his house for work Friday morning, stopping on the way to pick
up a six-pack. By the time police could pull him over, officers say he
was pretty well finished with his first beer of the day.

A preliminary breath test put his blood alcohol at 0.05 percent, half
the 0.1 percent at which a person is presumed to be under the influence
in Nevada.

But he faces charges of driving on a revoked license, possession of an
open container, possession of marijuana and possession of paraphernalia.
He was being held under $2,570 bail.

Police say he was arrested for DUI twice in the 1970s, three times in
the ’80s and twice in the 1990s.

Gold Country Town Bans Boozing in Street

NEVADA CITY (AP) — As he strolled this historic gold-mining town in a
steady downpour, Ike Frazee, a 25-year-old pastry chef with a black beret
and a long goatee, bemoaned the ebbing of a hallowed tradition.

“Drinking on the street? Hell, yes! This is the only place I could do
it,” Frazee said. “It added a lot of character to the town.”

Ending a mining-town convention that endured for generations, Nevada
City officials recently voted to ban public drinking on the city’s
downtown streets and sidewalks.

On New Year’s Eve, revelers had one of their last chances to roam
through the Sierra Nevada foothills town toting open containers of
alcoholic beverages before the new law goes into effect Monday.

In reality, the Nevada City Council action — giving police authority
to issue citations and roust people for drinking — brings the town into
conformance with other cities that ban drinking on downtown streets,
sidewalks, parking lots and alleys.

But in Nevada City, whose council over the years rejected several
attempts to ban drinking in public, this was no casual action.

While some merchants and council members complained that a handful of
people on sidewalks nursing bottles of beer and wine were a nuisance to
the tourist town, others bemoaned the loss of a drinker’s right.

“There is 140 years of tradition in town of drinking on the streets
and that should not be thrown away for people who have socially
unacceptable behavior,” protested Tom Coleman, owner of the town’s
144-year-old National Hotel.

After the council voted 4-1 to enact the drinking ban, Coleman said
the matter should have been put to a citywide vote.

“Basically, the majority is suffering because of a minority,” Coleman
said, “and I don’t want to see the erosion of another right.”

But council member Sharon Tobiassen, who pushed for the vote after
city workers signed petitions complaining about inebriated people hanging
out downtown, said the step was needed to halt a budding “skid row
atmosphere.”

She said nostalgia for Nevada City’s mining days is a poor excuse for
allowing open-air drinking downtown.

“When you see people openly drinking and defying all authority, I say,
`Let’s move into the 21st century,’ ” Tobiassen said. “Some years ago,
we banned lynching and dueling on the streets, another carryover from the
Old West. We no longer need to live in that mode.”

The new law won’t affect Nevada City’s restaurants and bars, which
will continue to serve alcohol. Under state beverage control laws,
patrons have never been allowed to take drinks outside such
establishments.

But the downtown drinking crackdown is bitter ale for residents such
as Dee “Little Zappa” Myers, 28, who said he’s enjoyed his right to
trudge through town swigging from a bottle of beer.

“Perhaps there’s pressure from community leaders to gentrify the town,
“Myers said. “Crusty old folks have been drinking here for years. What do
they want us to do now? Drink `near beer’ in back rooms?”

Under the new law, permits can be granted to allow open-air drinking
during special events, such as the town’s Victorian Christmas street
festivals or its popular Fourth of July Constitution Day. But the law may
be a death knell for the town’s era as a drinkers’ paradise.

As Nevada City was transformed over the years into a charming mecca of
upscale boutiques, eateries and bed-and-breakfast inns, many trendy new
businesses replaced old gin joints and hard-boozin’ taverns.

“This used to be a working man’s town,” Coleman said. “The loggers,
the truck drivers, the guys in Levis and suspenders don’t come downtown
anymore. If a guy with muddy boots walked into one of these yuppie places
today, he’d feel very uncomfortable.”

Nevada City Mayor Harry Stewart said police have received increased
complaints in recent months about individuals drinking and loitering
downtown. He said he feared adults were providing booze to youths.

And as long as drinking in public was legal, Stewart said, police
couldn’t intervene until someone became intoxicated or disruptive.

“Nevada City is very strong on tradition, and one of the hardest
things is change,” Stewart said. “But I think people, down deep in their
hearts, knew that the time had come.”

Published Wednesday, January 1, 1997, in the San Jose Mercury News

Las Vegas, NV-Several recent alcohol-related deaths and DUI arrests in the Las Vegas Valley have brought attention to reforming Nevada DUI laws.

In Sin City, last call is never announced, meaning that some drinkers never get a late-night halt to their vice before they hit the road.

An organization called Stop DUI believes that because of Nevada’s easygoing attitude toward drinking, the state should have the strictest DUI laws in the United States. Instead Nevada has a blood alcohol content (BAC) limit of 0.10, lower than many states’ limit of 0.08.

Clark County District Attorney Stewart Bell hopes that these serious accidents will attract more attention to the DUI problem in Nevada, and result in positive reform.

One driver killed six teens on a roadside work crew after she passed
out at the wheel. The driver, 21-year-old Jessica Williams, survived and
is held on $5 million bail.

Juanita Kim McDonald, 25, crashed into a group of tourists on a
sidewalk in front of the Aladdin Hotel. She injured six of them, and one
died weeks later due to serious injuries.

Another intoxicated driver, Michael Pickett, 24, killed four innocent
bystanders, including a pregnant woman. They were parked at a stoplight
when Pickett slammed his truck into their vehicle. He had a BAC of 0.22, more than double that of the legal limit of 0.10.

Several survivors of other drunk-driving accidents are undergoing
long-term rehabilitation, their lives put on hold due to the carelessness of drunk drivers.

Despite the long list of accidents and fatalities of late, Bell believes that the numbers look positive. According to the Nevada Highway Patrol and county records, the 11,913 DUI arrests of 1999 were down from 12,196 in 1998. The number seems more significant when considering the state’s high population growth.

The Office of Traffic Safety at the Nevada Department of Motor Vehicles (NV DMV) and Public Safety record traffic fatalities. They found that 35.4% of Clark County’s vehicle fatalities were from drunk driving in 1999. The county had 69 drunk driving deaths. In 1993 the amount of deaths were less, however the percentage accountable to drunk driving was roughly the same at 38.7%.

Sandy Heverly, head of Stop DUI, would like the Nevada’s legal BAC limit to be lowered from 0.10 to 0.08, a level that is common in several states. She would also like a DUI-caused death to be considered as second-degree murder, which requires 25 years to life in prison.

June 23, 2000

Also See:

• Nevada’s Drug Impairment Law Hailed, Criticized

Related Links:

• Las Vegas DUI Attorneys and Lawyers
• Nevada DUI Laws

8/30/2003 09:45 pm
By Martha Bellisle
RENO GAZETTE-JOURNAL

Too many drivers high on drugs are causing fatal crashes while
avoiding prosecution, say federal officials who are calling for new laws
nationwide that would send a driver to prison without proving drugs
caused the accident.

The new legislation, to be modeled after statutes recently passed in
Nevada and eight other states, would make it illegal for drivers to have
drugs, including marijuana, in their systems.

Under these laws, prosecutors don’t have to prove
that the drugs impacted the driver’s ability to stay
on the road. They simply must show the drugs were in the
driver’s body.

A positive test could mean a 20-year sentence for each count.

Two Reno drivers and one woman from Las Vegas who face decades in
prison after being involved in fatal accidents and testing positive for
marijuana are challenging the law in court. Their success or failure
could affect legislation across the country.

“The intent (of the law) was to make sure that if
someone was driving under the influence of a controlled substance, they
would be held responsible for loss of life,” said U.S. Rep.
Jon Porter, R-Nev., who sponsored Nevada’s prohibited
substance drug bill in 1999 while a state senator.

But critics of Nevada’s law, including
toxicologists, lawyers, civil libertarians and some lawmakers, say the
statue is unfair and unconstitutional because it does not require proof
that the driver was actually impaired by the drugs.

And, they say, the cut-off levels for the drugs listed in the statute
are so small that impairment would be unlikely in many circumstances.

This means that a person who uses marijuana at a party on Saturday
night could test positive when in an accident on Monday, days after the
drugs were taken, critics say. That’s because unlike
alcohol, some drugs can stay in a person’s system for
a long time.

“People are going to prison for smoking a joint a
day or two or three ago,” said John Watkins, a Las Vegas
lawyer for one of three Nevadans currently charged under the law.

“The whole idea of driving under the influence is
driving under the influence,” he said.
“But we’re putting people in prison
who are not impaired.”

Last year, Watkins challenged the law in the Nevada Supreme Court. But
the justices upheld the statute, saying: “the
governmental interest in maintaining safe highways is sufficient for our
prohibited substance statute to survive a constitutional
attack&acirc”

Despite the high court’s ruling, Assemblywoman
Chris Giunchigliani, D-Las Vegas, is determined to overhaul the law.

She and two other lawmakers, Bernie Anderson, D-Sparks and Marcus
Conklin, D-Las Vegas, introduced a bill during the last session that
would increase the statute’s allowable amounts of
marijuana in an attempt to measure impairment, not just the presence of
drug.

They plan to bring it back in 2005.

New law creates stricter penalties for those caught driving
drunk
By Russ Krebs/Tribune Staff

Nebraska motorists caught driving drunk now face more strict penalties
thanks to a new law that went into effect Friday.

LB925 was passed last congressional session and since Friday, anyone
arrested for drunken driving faces the new penalties. The
state’s legal limit for drunken driving remains at .08
percent blood alcohol content. Those caught with blood alcohol contents
of .15 percent or greater face even more strict penalties.

The new law requires upfront jail time if granted probation for
charges that did not previously require it and additional upfront jail
time for those that did. It also makes a third offense with a blood
alcohol content of .15 percent or higher a felony and increases the
felony charge for any fourth offense.

“The new law makes a new category of a fifth
offense,†said Deputy Dodge County Attorney Mark Boyer.
“There’s never been a charge
(specifically) for a fifth offense.â€

Fourth and subsequent offenses used to be charged as a Class IV felony
and those convicted faced up to five years in prison. Now, a fifth or
subsequent offense carries a penalty of up to 20 or up to 50 years in
prison depending on whether the blood alcohol level is less than .15
percent or more.

The number of offenses remains figured out by considering only those
charges within the past 12 years.

“This legislation has some teeth to it,
there’s no doubt about it,†Boyer said.
“The license loss increases and so do the minimum jail
sentences.â€

All driving under the influence charges up to and including third
offenses previously were considered Class W misdemeanors no matter what
the blood alcohol content. There was no minimum upfront jail sentence for
first offenses that received probation, two days minimum up front for
second offenses and seven days minimum up front for third offenses that
received probation.

Now a first-time offender with a greater than .15 percent blood
alcohol content who receives probation must serve two days in jail and
the sentences go up from there.

“I think the area it could have some positive
effect is it makes it more unpleasant for the first and second time
around,†Boyer said. “Hopefully that will
have an impact.â€

As of Monday afternoon, no weekend DUI charges had been filed by the
County Attorney’s Office, but anyone caught from
Friday on faces the new penalties.

“It shows people the state are treating (drunken
driving) as a serious offense,†Boyer said.
“If you’re above a certain limit,
you’ll see significant jail time.â€

Chronic drunken drivers also will face the crunch.

“The change in the drunk driving laws has the
potential of taking repeat offenders off the street for longer periods of
time,†said Dodge County Judge Kenneth Vampola.
“A repeat offender in prison is not behind the wheel
of a car driving while intoxicated and possibly hurting someone. All of
these enhancements have the potential for deterrence.â€

Source: http://www.fremontneb.com/

Driving While Drugged

Missouri’s Driving-Under-the-Influence law appears to
have a big hole in it… because it doesn’t cover all of the “influences”
the same way. House Transportation chairman Neil St. Onge says he was
“kind of shocked” to learn from a Kansas City Star reporter that the
state’s DUI law does include blood-drug tests similar to the
blood-alcohol tests used for drunk driving cases. St. Onge is sure the
legislature will move to close that loophole next year. The big question
is how the legislature will establish the blood-drug level. He says he
has read that marijuana can stay in a person’s system for a month,
meaning a trace in a person’s blood would not be enough to prove a person
is driving under the influence of drugs. St. Onge assumes other states
have set standards. He also thinks some standards exist in Missouri’s
worker’s comp law and might exist in unemployment law. If history is a
guide, however, passage of a DUI law for drugs might not be a given. It
took several years to get the point-zero-eight drunk driving law through
the general assembly. Law enforcement officers often use section 577.010
of the Missouri statutes to get drugged drivers off the road. The part of
the law says a person is considered to be driving while intoxicated if
they are in an intoxicated or drugged condition. However, officers say
they have to rely on a person’s appearance or behavior to judge if they
are under the influence of drugs because there is no blood-drug
statute.

Source: http://www.missourinet.com