Drunkenness No
Barrier to Getting More Booze

THURSDAY, May 13

(HealthDayNews) — Most bars and liquor stores continue to sell
alcohol to obviously intoxicated patrons regardless of laws that prohibit
it, a new study says.

Although most states have laws that forbid bars and liquor stores from
selling alcohol to people who are obviously drunk, these laws are often
not enforced by the police and are ignored by bar and liquor store
owners. Serving alcohol to intoxicated people leads to car accidents and
violence associated with alcohol abuse.

“Despite laws prohibiting sales of alcohol to obviously intoxicated
people, the vast majority of businesses licensed to sell alcohol would
sell to someone that appeared to be intoxicated,” said lead researcher
Dr. Traci L. Toomey, an associate professor of epidemiology from the
University of Minnesota.

In their study, Toomey and her colleagues had trained actors try to
buy alcohol while appearing intoxicated. Over 10 months, actors visited
372 bars and liquor stores in 11 communities.

The research team found 79 percent of the establishments sold alcohol
to these pretend drunks.

In addition, liquor store clerks who appeared younger than age 31 were
significantly more likely than older servers at bars to sell alcohol to
clearly intoxicated buyers, according to their report in the May issue of
Alcoholism: Clinical and Experimental Research.

Toomey believes that in many cases servers do not know what the law
is. “That should be a key part of server training programs,” she
said.

Sometimes even though servers are aware of the law, they may not know
how to handle the customer. “They don’t want to have a hostile drunk
person to deal with,” Toomey said.

In addition, other research by Toomey’s team found that, in many
cases, management policy insists on serving intoxicated patrons. Also,
communities have not paid the same attention to this problem as they have
to underage drinking, she noted.

These laws are difficult to enforce, Toomey said, adding there are few
systemic enforcement campaigns.

Penalties for violating the law vary by state and include fines and
eventual loss of a liquor license. In addition, under what is called dram
shop liability, bars and liquor stores can be sued for damages by victims
of drunk drivers or other alcohol-related crimes.

Toomey recommends aggressive training programs for servers and
management that will clarify the law and give servers and managers the
skills to help enforce the law.

“This is a risky type of alcohol service,” Toomey said. “We need to
figure out ways to pay more attention to it, and either work with
establishments or find ways to put pressure on these establishments to
make sure that they comply with the law.”

James F. Mosher, the director of the Center for the Study of Law and
Enforcement Policy at the Pacific Institute for Research and Evaluation,
said the findings are “completely predictable.”

“The laws prohibiting sales to intoxicated persons are not being
enforced, and they are not being complied with by retailers,” he
added.

These are very important laws in terms of drinking and driving, Mosher
said. “We know that as many as 50 percent of drunk drivers are leaving
bars,” he noted.

These laws need to be enforced and complied with, Mosher said. There
needs to be strict enforcement and voluntary responsible beverage service
programs, he added.

If these laws are enforced, Mosher said, there would be significant
drops in drunk driving rates and in alcohol-related problems such as
violence.

Lasting Effects of a DUI / DWI, and What To Do About
Them

Most likely when you are first arrested for a drunk driving related
offense your immediate concerns are spent worrying about your freedom and
driving privileges. Those are the two most pressing concerns for someone
who has just been arrested. Depending on the circumstances involved in
your case DUI / DWI convictions can lead to prison terms and/or long term
loss of driving privileges.

DUI / DWI arrests and/or convictions can also lead to many longer
lasting problems in life if not dealt with properly. This article will
explain what these longer term DUI / DWI problems are and what you can do
about them.

Here are the other issues you’ll need to tend to
after you have settled the more immediate concerns of your DUI / DWI
offense.

DUI on Your Permanent Criminal Record.

Yes, in most cases your DUI / DWI related offense was considered a
criminal matter. As such, if you were convicted then it was recorded to
your criminal record history. This criminal history is public information
and will be attached to you for the rest of your life unless you take the
specific actions to clear it with the court that convicted you.

This makes it challenging to apply for future employment opportunities
due to the DUI / DWI resurfacing during pre-employment background checks.
These days many employers conduct background checks as a condition of
employment, and may disqualify you once they discover the previous drunk
driving arrest and/or conviction record. This is the single most lasting
effect of getting a DUI / DWI.

What You Can Do About Your DUI Criminal History.

Most people are not aware of the fact that you can eventually clear
the DUI / DWI record from your criminal history in many states across the
U.S.

If your DUI / DWI offense was a misdemeanor (and your state allows it)
you may seek what’s known as
‘expungement’ of your offense to
formally clear the DUI / DWI from your criminal record history.

Expungement, in it’s simplest form, is the clearing
and isolation of records that the court has about you (pertaining to your
DUI / DWI offense). This also includes records that any detention or
correctional facilities may have, records kept by law enforcement
agencies, etc. When you successfully clear these records utilizing
expungement procedures they will no longer exist (there are certain
exceptions allowing law enforcement and some government agencies to
continue to access them). This will allow you to legally answer,
“no†on pre-employment background checks
when asked if you have ever been convicted of any criminal offense
(provided this was your only criminal matter).

What if My DUI Offense Was Considered a Felony?

Your DUI offense may be considered a felony depending on the specifics
of the case (serious accident/injury/death, property damage valued at a
certain level, habitual offender, etc.). If you have a felony DUI / DWI
then to clear the record you first need to attempt to reduce the felony
to a misdemeanor by obtaining what’s known as a
‘pardon’. This can only be done by
petitioning the Governor of your state and asking for a reduction of your
felony to a misdemeanor.

Once a pardon is obtained then you must go through the expungement
process to clear the record as indicated above for misdemeanor DUI / DWI
offenses. If you can successfully accomplish this then
you’ll have escaped the longer lasting effects of
getting arrested and convicted of a DUI / DWI.

Tim Haider is founder of DUI Process. For
more information about this topic and other information relating to DUI
offenses including SR-22 insurance help please visit his website at: http://www.duiprocess.com

August 15, 2006 By LYNNE TUOHY, Courant Staff Writer

Responsible drunks don’t put, or leave, the key in the ignition.

The state Supreme Court has ruled unanimously that a key in the
ignition, even if the engine is not running, is grounds for charging an
intoxicated person with operating a motor vehicle under the
influence.

The court upheld the conviction of Andrew Haight, who was found asleep
behind the wheel of his legally parked Lexus by a New Canaan police
officer just after midnight Oct. 20, 2001. His car key was in the
ignition, in either the “off” or “accessory” position – a deduction based
on the chimes that sounded when Officer Kevin J. Dowling opened the car
door.

“[State law] prohibits operating a motor vehicle while under the
influence rather than merely driving a motor vehicle under the
influence,” Justice Peter T. Zarella wrote. “It is well settled that
‘operating’ encompasses a broader range of conduct than does
‘driving.’

State laws, however, don’t articulate just what that difference
is.

So the Supreme Court looked back to a 1939 ruling, in a case in which
a car was driven into a New London bank. When police arrived, they found
an intoxicated Lyman Swift sitting behind the wheel attempting to start
the car while his companion was trying to push it. Swift insisted he
hadn’t been driving the car and had moved to the driver’s seat only when
his companion got out to attempt to push the car.

The Supreme Court in that case ultimately upheld the instruction given
to the jury by the trial judge, who said Swift could be found guilty of
operating the vehicle if he “Intentionally does any act or makes use of
any mechanical or electrical agency which, alone or in sequence, will set
in motion the motive power of the vehicle.”

The justices in Monday’s ruling noted that “the present case is
analogous to Swift’s.”

“In both cases, the defendant failed to set the vehicle in motion or
even run the vehicle’s motor,” Zarella wrote. “Nothing in our definition
of ‘operation’ requires the vehicle to be in motion or its motor to be
running. … We conclude that [Haight’s] act of inserting the key into
the ignition constituted operation of a motor vehicle within the meaning
of state law.

The court said it didn’t matter whether the key was in the off or the
accessory position.

Haight’s attorney, Brenden Leydon, said he relied on a 1960 Supreme
Court decision in which the court found there was insufficient evidence
that a driver slumped over the steering wheel of his car, with the key in
the ignition, was operating under the influence. But the court said in
Monday’s ruling that the presence of the key in the ignition was
irrelevant in the 1960 decision. In that case, the two sides had agreed
that the driver was operating the vehicle; the dispute was over whether
there was sufficient evidence of intoxication.

Leydon said the ruling in Haight’s case reflects “the general policy
of getting tough on drunk driving, which is understandable.”

“Our position all along was it was better for people to sleep it off,
rather than get out of town quickly,” Leydon said. “That was our policy
reliance.”

Leydon said Haight had entered his car after having dinner and drinks
at a local restaurant. “There was no evidence he ever moved the car at
all.”

Source: http://www.courant.com

LEGAL GROUNDS — Why the Party’s Over For Some Employers

The San Francisco Chronicle Monday, January 8, 1996 ·
Page C1

By Reynolds Holding

Wine may be fine and liquor quicker but oh, the hangover from
lawsuits.

It’s the end of the office-party season, right about when some very
unlucky bosses discover they’ve been sued for their employees’
shenanigans at the holiday bash. Maybe somebody got drunk and slugged the
guy in accounting, dropped M&M’s down a colleague’s blouse or — God
forbid — killed a person in a car accident. These things happen, and
sometimes the employer who served the cocktails gets blamed.

The good news is that California law usually does not hold people
liable for serving alcohol, says employment law expert Jeffrey Wohl. But
there are exceptions:

— If you give drinks to obviously intoxicated minors — otherwise
known as kids — and they hurt themselves or others, you may be
responsible. And serving alcohol to anyone who is already drunk is a
misdemeanor in California.

— You can also get into trouble for providing a drunk driver with a
car. If the car injures someone, you may have to pay.

— If the drinking occurs at a business event, the boss can be held
responsible. Fortunately, most office parties are considered social
events. But a party can lose that distinction if employees are required
to attend. Their actions become on-the-job behavior — and the boss’s
problem.

The greatest danger for employers, though, is holiday sex harassment,
says Wohl.

“As the workforce keeps getting more diverse, employers have to
remember that what passes for fun and games for one person doesn’t
necessarily for others,” he said.

So how does the boss stay out of trouble?

Don’t hold the party at the office, don’t make people go, don’t serve
drinks to minors — and limit the amount of drinking.

And if you still want to get plastered, stay home.

Despite the risks, holiday office parties are more popular than ever.
In fact, the percentage of companies that give parties has grown rapidly
over the past five years, says executive search firm Battalia Winston
International.

Only 16 percent of 101 large companies surveyed gave big parties in
1990, while 66 percent allowed small departmental events. This year, 89
percent held big bashes, almost all of them paid for by the company.

But corporate gift-giving to workers and clients is way down. About 66
percent of the companies were not planning to give any gifts this year,
more than double last year’s figure.

So what’s with the Scrooge routine? “Gifts don’t build teams,” says
Battalia Winston President Dale Winston.

JUST ADD WATER

Don’t like your attorneys? Then grow your own.

Fed up with the lack of good patent attorneys, high-tech companies in
Silicon Valley are sending their engineers to law school — and getting
back legal experts who really know the business.

Hewlett-Packard has been doing it for about four years, and now has
three homegrown lawyers on staff and four in law school, says associate
general counsel Stephen Fox.

“Folks in-house know the client — the company as represented by
various managers and engineers — and with that comes considerable
efficiency,” Fox said.

Intel is also training its own lawyers, sending engineers to night
school at Santa Clara University Law School and letting them learn about
patents at one of the company’s outside law firms in Sunnyvale.

Employees-turned-attorneys have an advantage over firm-trained
colleagues because they are already comfortable with company culture. But
they sometimes fall short when it comes to communication — high-tech
talk does not go over well in court. Several engineers at Intel, for
example, have been forced to quit the legal program.

The big question: Will the homegrown movement spread to other areas of
law?

It’s possible, says AMD associate general counsel Mikio Ishimaru. He
worked with one engineer who went to law school and ended up doing all
sorts of legal work for the company.

But so far, it’s the dire need for patent attorneys that is forcing
companies to look inside.

“It’s gotten to the point where you don’t have much choice,” says
Ishimaru.

Cartoonists and publishers went bonkers a few months ago when the
state Board of Equalization announced that it would tax the sale of
cartoons to newspapers and other periodicals. But it looks like the
crisis is over.

The board’s committee on business taxes meets January 10, and it’s
sure to recommend some sort of sales-tax exemption for cartoons. From
there, passage of an official exemption is just a matter of time.

How can you tell?

Of the five board members, three — Dean Andal, Johan Klehs and
Kathleen Connell — say they are against the tax, and a majority is
enough to kill it. Brad Sherman also says the cartoonists “have made some
strong arguments.” Only Ernie Dronenberg seems to be holding out.

It was a great year for Bay Area securities lawyers, with high-tech
companies raising more money than ever through public offerings. So how
do the lucky lawyers who did the deals feel about the experience?

“It was pretty miserable,” said one to the Recorder, a legal
newspaper.

——————————————————————–

© 1995 San Francisco Chronicle · All Rights
Reserved · All Unauthorized Duplication Prohibited

For many persons arrested for driving under the influence the question of driving becomes an issue. Is someone sleeping in their car "driving" according to the law?

What about someone who is outside of their car sitting on the fender,
or someone with the keys in the ignition, are they "driving" their
car?

These and many other similar and not so similar circumstances have
forced the court to come up with a definition of what constitutes
"driving".

Driving has two accepted components:

The operation of a vehicle and the controling a vehicle.

Operating a vehicle is what is common referred to is DRIVING or having
the car MOVING. Seems simple enough, but it isn’t.

Moving is not the only element in driving. Controling is the other
element and this has to do with the keys (controling).

If you have the keys you have CONTROL.

I presently have a gentleman in my class convicted of driving when he
was sleeping in his car, legally parked at a Bart Station. He says he was
dropped off by his friends and decided NOT to drive home since he
realized, after being dropped off, that he was unable to safely drive
home. He was convicted because "if it looks like a duck, smells like a
duck, it must be a duck" (1+1=2). Like it or not YOU DON’T HAVE TO BE
OPERATING OR MOVING OR DRIVING A CAR TO BE ARRESTED AND CONVICTED OF A
DUI!

Circumstantial Presence Evidence

People v Bellomo (1984) . . . there was no need to decide whether or not the defendant was driving in the presence of the arresting officer when the defendant was found asleep behind the wheel, with the engine running, in a traffic lane, awaiting a red light . . . guilty (40300.5)……that was 84′ and it just evolved into…….if you’ve got the keys…and you are in the vehicle or about the vehicle and "if it looks like a duck, smells like a duck, it must be a duck".

Have you been arrested for drunk driving and you were not behind the wheel of your car?

Also See:

• High Court Affirms Conviction

Marijuana Users Can Drive Legally in Idaho

1/16/2002

Since Idaho law doesn’t list marijuana as an illegal narcotic, a
federal appeals court ruled that users of the drug can legally drive in
the state, the Associated Press reported Jan. 14.

The ruling was made in the case of Matthew Patzer, 21, who was stopped
for a broken tailgate light in 1998 and admitted to police he had smoked
marijuana at a party. He was later convicted for impaired driving.

Under Idaho law, it is illegal to drive under the influence of alcohol
or narcotics.

But the 9th U.S. Circuit Court of Appeals in San Francisco, Calif.,
ruled that Patzer could not be automatically assumed to be impaired since
the law does not list marijuana as a narcotic and Patzer passed two
sobriety tests.

As a result of the ruling, Patzer’s conviction was overturned. Idaho’s
Assistant U.S. Attorney Michael J. Fica may request the court to review
its decision or ask the U.S. Supreme Court to hear the case.

DMV vs Courts

U.S. v Halper (1989), the U.S. Supreme Court ruled that the Federal
Constitution’s Firth Amendment double Jeopardy Clause prohibits not only
multiple prosecution in criminal proceedings, but also prohibits double
punishment, regardless of the civil or criminal nature of the
proceedings.. Thus the Halper case precludes double punishment, by both
the court and the D.M.V., for driving with a BAC of 0.08% or more.

Note that in Ellis v Pierce (1991), the Court of Appeals held that a
DMV administrative suspension for chemical test refusal imposed after a
court-imposed jail sentence for the same conduct is not violation of
Federal Double Jeopardy suspension for chemical test refusal and was not
punishment, since it only inhibited drunk driving, and did not deter
it…..This Ellis case held only that a chemical test refusal suspension
is not punishment . .it said nothing about a suspension for excessive
BAC.

U.S. SUPREME COURT UPHOLDS ASSET FORFEITURE LAWS

WASHINGTON, June 25 /PRNewswire/ — The U.S. Supreme Court’s 8-1
decision yesterday to uphold current asset forfeiture laws leave many
people asking the question: “So, what happens to all those seized and
forfeited assets, anyway?” The answer is simple: government auctions. Two
upcoming government auctions provide insight of the law in action:

1) This Friday, June 28, at “high noon, ” the U.S. Customs Service
will auction the magnificent 407-acre “Top Gun Ranch” in Whitefish,
Montana, which the agency seized in October 1990. The ranch was seized
from Jimmie Norjay Ellard, a notorious drug smuggler for the late Pablo
Escobar of the Medellin cartel, who oversaw one of the largest smuggling
operations ever investigated by the Customs Service. Between 1985 and
1990, his organization flew 27.5 tons of cocaine from Colombia into
southern Florida. Code named Operation Caballero (Operation Cowboy), the
Customs Service’s five-year investigation of the Ellard organization
began in 1989. It resulted in the arrest and conviction of Ellard and
several others, and the seizure of the Montana ranch, which Ellard used
as a respite in between smuggling runs. The Ellard case led Customs and
other federal agencies to arrest and convict other key members of the
Medellin cartel in the early 1990s, including Pablo Escobar’s number one
hit man, Dandy Munoz-Mosquera.

Top Gun Ranch was part of $5.8 million worth of assets seized in
Operation Caballero. Other assets include aircraft, vehicles, and other
real estate properties in Colorado, Florida, and Texas. These items have
been, or will be, disposed of separately.

2) On July 18 beginning at 9 a.m. in Edison, New Jersey, several U.S.
Treasury agencies will auction several hundred lots of merchandise
representing the booty of many criminal and civil asset forfeiture cases.
The agencies involved will include the U.S. Customs Service, the Internal
Revenue Service Criminal Investigation Division, the Secret Service, the
Bureau of Alcohol, Tobacco and Firearms, and the Office of Foreign Asset
Control. A wide range of property will be offered for sale, including
automobiles, furniture, electronics, jewelry, carpets, household goods,
hardware, and much more.

This auction is expected to generate between $500,000 and $1 million,
all of which will be deposited directly into the U.S. Treasury Asset
Forfeiture Fund. Since 1990, auctions such as these have generated more
than $115 million in net proceeds to the Department of the Treasury’s
asset forfeiture program.

The end result of asset forfeiture is simple: property purchased with
illegally obtained monies is turned back into dollars via public
auctions; these dollars are then used by federal law enforcement agencies
to support crime fighting efforts, thereby offsetting taxpayers’ costs.
No doubt, these auctions are a better source of revenue than more
taxes.

Common types of illegal activities which seizures and forfeitures
result from include drug smuggling, money laundering, and fraud schemes.
EG&G Dynatrend of Wellesley, Massachusetts, and Larry Latham
Auctioneers of Indianapolis, Indiana, conduct auctions throughout the U.S
and Puerto Rico for Department of the Treasury agencies and offices.

The public can obtain more information about the U.S. Treasury Auction
Program by calling the Public Auction Line at 703-273-3441, or via the
Internet at www.ustreas.gov.

DIRECTIONS TO JUNE 28, 12:00 NOON AUCTION: From Central Street in
Whitefish, go 11.4 miles on Highway 93 west to Farm to Market Road just
past mile marker 139. Turn left, go 1.6 miles to Star Meadows Road, turn
right, travel 11 miles to Top Gun Ranch (enter at Caretakers Complex on
your left). It will be just past mile marker 539.

-0- 6/25/96 /CONTACT: Kristi Messner of the U.S. Customs
Service Support Division, 703-273-3441/
CO: U.S. Customs Service Support Division ST: District of Columbia,
Montana