In some areas of the state, veterans' courts preside over non-violent offenders who have been accused of misdemeanors such as drunk driving. However, these courts are not available everywhere.
]]> One of the benefits of a veterans' court is that the presiding judge has a certain amount of sentencing discretion. Because these judges can take a veteran's service into account, they are allowed to modify sentences to better reflect the veteran's circumstances. This may include mandatory substance abuse assistance or use of mental health services.Another critical component of veteran's courts is that their sentencing modifications may help vets retain their government benefits and avoid court-martial for certain offenses. The guiding principles of veterans' courts include the idea that servicemen and women have served their country honorably and the circumstances of that service may warrant leniency and care in the criminal justice system.
Veterans' courts are not designed to excuse the offenses of former military members. They are designed to address the non-habitual and non-violent offenses of these service members with common sense and consideration.
Many military members return from service with post-traumatic stress disorder. Others face social and substance abuse challenges. All these factors may contribute to questionable behavior. Rather than excuse this behavior, judges in veteran's courts take notice of the fact that these factors may have either originated or been exacerbated by service to the nation.
DUI and other non-violent veteran offenders often benefit from the consideration of veterans' courts. However, these courts do not exist everywhere in Pennsylvania. Hopefully their presence will continue to expand.
Source: The Tribune-Democrat, "Vets and crime: Judges consider service to country during sentencing," Sandra K Reabuck, Feb. 4, 2012
]]>After he lost control of the vehicle, the subsequent crash took the lives of three passengers in the car with him. The young man now faces 11 charges including reckless driving, homicide by vehicle and involuntary manslaughter.
]]> Prosecutors are seeking to enter into evidence data taken from the car's electronic data recorder (EDR), which is similar to the "black box" on an airplane. If the evidence is accepted, this trial could reportedly set a precedent as the first criminal case in Pennsylvania to admit EDR evidence.Excessive speed could have been a factor in the crash, and prosecutors are hoping to use speed data taken from the EDR to show that the defendant was driving 106 mph in the final five seconds before impact.
But even if this information was admitted as evidence, it may not prove irrefutable.
The defendant's attorney argues that the car could have traveling at speeds as low as 49 mph, which would have been in accordance with the area's 50 mph speed limit. He submits that because the car went airborne before crashing, the tires could have just been spinning quickly, resulting in a reading that was much higher than the vehicle's actual speed.
The defense attorney also suggests that a patch of black ice - not excessive speed - could have caused the driver to lose control of the car.
Now the judge must determine if data taken from the EDR can be submitted as evidence in the trial. He will likely have to weigh several important factors including whether these devices require calibration and whether they can be trusted as accurate.
Commenting on the importance of the case, a former federal prosecutor noted that if the EDR information is admitted, "This will create an ongoing database of evidence of (the device) being accepted in the scientific community. The opinion itself is not binding on another judge, but it has particular importance in these expert cases. The issue is whether this is generally accepted within the realm of the relevant scientific community."
Sources:
PittsburghLive.com, "Ruling delayed in fatal Parkway West wreck," Bobby Kerlik, Feb. 9, 2012
Pittsburgh Post-Gazette, "Driver verdict expected in crash that killed 3," Feb. 8, 2012
So far, the use of this technology has been somewhat rare in a criminal justice context. But a Pennsylvania case heard earlier this month could set an important precedent for the use of EDR evidence. Nearly two years after a 2010 crash that killed three people, a 21-year-old Pennsylvania man is facing 11 charges including reckless driving, homicide by vehicle and involuntary manslaughter. The verdict in his case has been delayed in order for a judge to determine whether information from his vehicle's EDR will be entered into evidence.
]]> The three deceased victims were all passengers in the car that was being driven by the defendant. According to police and prosecutors, the driver lost control of the vehicle while trying to negotiate a curve in the road. The car then reportedly hit a barrier and went airborne before landing and rolling down an embankment.Explaining his decision to delay the verdict, the judge said he needed more information about EDRs. He noted that, "I can find no Pennsylvania case law which permits this use, which in and of itself does not make it inadmissible. There is no precedent for introducing this into evidence. Are they reliable? Are they accurate? Do they require calibration?"
Check back later this week as we continue our discussion about this case which could set an important precedent in Pennsylvania courts.
Sources:
PittsburghLive.com, "Ruling delayed in fatal Parkway West wreck," Bobby Kerlik, Feb. 9, 2012
Pittsburgh Post-Gazette, "Driver verdict expected in crash that killed 3," Feb. 8, 2012
That's why prosecutors in Pennsylvania and elsewhere often rely on multiple pieces of evidence, including the results of field sobriety tests, squad-car video footage and officer testimony suggesting that a defendant was acting or driving erratically.
]]> But this evidence, too, can be challenged. There are many other factors that could account for strange behavior and erratic driving. For instance, James Loney, who plays for the Los Angeles Dodgers, was arrested on suspicion of DUI last November after his involvement in a multiple-car accident on a California freeway.The California Highway Patrol accused Loney of several behaviors that appear consistent with drunk driving, including sideswiping several cars, stopping in a lane, passing out, and ultimately crashing again after waking up.
But the 27-year-old baseball player's attorney has maintained that his erratic driving was the result of a head injury and not intoxication.
Prosecutors recently announced that Loney will not face criminal charges due to "insufficient evidence." The city attorney's office said that his drug/alcohol test results all came back negative.
In a written statement, his attorney added that, "The traffic accident reports described that . . . paramedics quickly responded to the scene and determined that Mr. Loney displayed symptoms consistent with head trauma, including disorientation."
This case demonstrates that when it comes to eyewitness evidence in a drunk driving case, things are not always as they seem. Erratic driving is not always proof that a driver is under the influence of drugs or alcohol.
Source: LA Times, "Dodgers' James Loney won't face charges for November accident," Andrew Blankstein and Dylan Hernandez, Feb. 1, 2012
]]>There are many factors that can cause inaccurate test results, including human error and malfunctioning testing equipment. In some cases, the suspect has a prior health condition that could contribute to a false reading on a breathalyzer.
]]> As an example of this, a North Carolina man will soon be appealing his DWI conviction using a rare but interesting defense. He and his lawyer intend to show that his gastroesophageal reflux disease (GERD) skewed the results of his breathalyzer test and caused him to register a 0.11 percent BAC, inaccurately putting him just above the legal limit of 0.08 percent.Although rare, his defense strategy has been successfully used by others in the past. GERD often presents symptoms similar severe heartburn. Because of the way it affects the stomach, GERD can sometimes cause acids in the stomach that contain alcohol to be regurgitated up the esophagus.
These gases could then mix with air from the lungs and cause an inaccurately high reading on a breath test.
Attorneys who have helped clients use this defense say that it may not be as successful if there is other evidence of intoxication beyond the results of a breath test. For instance, video evidence of erratic driving or failed field sobriety tests makes it more difficult to claim that the defendant was simply the victim of an inaccurate breath test.
But in certain cases, a defendant's prior health condition can lead to inaccurate test results. At the very least, this reminds us that blood-alcohol tests are not always accurate and can be challenged.
Source: NewsObserver.com, "Apex council member fights DWI," Anne Blythe, Feb. 4, 2012
]]>Many judges and prosecutors are insisting that individuals accused of committing DUI infractions be subject to driver's license suspension, even before they have been convicted of a crime.
]]> In these scenarios, the accused individuals are stripped of their driver's licenses as a condition of bail. They remain unable to drive until their trials are resolved. In this way, the accused are pressured into either pleading guilty or applying for any available diversionary programs.Though these options may save judges and prosecutors time, losing privileges before guilt has been established and pressuring the accused into accepting guilt that they may not have earned is considered unconstitutional by many.
Administrators have cited public safety as their rationale for stripping the accused of their licenses. Their concern is supposedly that until cases are resolved, the accused can continue to drive drunk.
This logic is obviously flawed. Adults can choose to drive without a license, just as they can choose to drive drunk. Both of these behaviors are illegal and ill-advised, but are possibilities nonetheless. In the meantime, courts are stripping those who maintain their innocence and have yet to be recognized as offenders of their legal right to drive.
Though Pennsylvania law does allow judges the discretion to set conditions of bail, the stripping of licenses from the accused prior to conviction is arguably unconstitutional and counterintuitive to the core tenants of the justice system.
Source: The Morning Call, "Policy of taking licenses before a DUI conviction draws critics," Riley Yates, Jan. 28, 2012
]]>But in some cases, legal adults who supply alcohol to minors can also be held criminally responsible. One Pennsylvania mother learned this lesson the hard way and may now be facing decades in prison for supplying the beer that allegedly led to a fatal car accident involving underage DUI.
]]> The 60-year-old woman from Salem Township recently pleaded guilty to dozens of criminal charges including reckless endangerment and corruption of minors. According to police, the woman provided a half-keg of beer to underage guests at her son's graduation party in June of 2010.The woman said she had talked to the teens in an attempt to make sure that no drinking and driving would occur. However, a car carrying four teenagers who had been at the party was later involved in a single-vehicle car crash. Three of the teens died in the accident, while a fourth was injured.
Three of the four teens in the crash had BACs above the adult threshold of 0.08 percent, according to a Pennsylvania State Trooper.
The mother will be sentenced later this spring and could face up to 45 years in prison. The district attorney said that because there were deaths involved, they will be recommending incarceration. He added, "I think adults have to realize there are going to be horrible consequences giving alcohol to minors. This is probably one of the worst cases."
Tragedies like this often stem from good, safety-minded intentions. Some parents feel that if teens are going to drink alcohol anyway, the safest move is to provide both the space and means. But as this case shows, good intentions can nonetheless result in tragic consequences and criminal charges.
Source: PittsburghLive.com, "Salem Township mother guilty of providing alcohol to teens," Rich Cholodofsky, Jan. 24, 2012
]]>However, imposing such a penalty on first-time offenders may be overreaching. After all, only a relatively small minority of states require that a first-time DUI conviction result in mandatory ignition interlock installation. 16 additional states compel installation only if the first-time offender had a blood alcohol concentration (BAC) of 1.5 percent or higher.
]]> While it is in the interest of all motorists that the roads are free of drunk drivers, it may not be entirely justifiable to require first-time offenders to install ignition interlock devices.First, alcohol affects individuals differently. It is entirely possible for an individual to consume only a few drinks in an evening, feel virtually no side effects and be unknowingly over the legal limit of 0.08 percent. Someone's first-time offense may thus be the result of inexperience with the ways in which alcohol affects their system, not a habitual "problem" as the chairman seeks to alert offenders to.
In addition, expensive ignition interlocks must ordinarily be paid for by the offenders. In this economy, such an expense could arguably burden some individuals unjustifiably. Finally, mandating such a severe penalty for a first-time offense does not allow judges any discretion in individual cases.
The chairman is confident that the proposed legislation will go before the Senate within the next few months. Hopefully the Senate will recognize that overburdening first-time offenders is likely not the best solution to keeping Pennsylvania's roads safe.
Source: The Times Herald, "Rafferty bill would require interlock device for DUI offenders," Fran Maye, Jan. 8, 2012
]]>The decision in an ongoing Florida court case relies on information provided by CMI Inc., manufacturer of the Intoxilyzer. However, the company apparently cannot find the computer data that would prove if the breath-test machine provides accurate results. Without this information, the man accused of DUI in this case will not know if the test he received is accurate.
]]> Originally, the defense in this particular case was denied access to the secret code essential to the operation of the Intoxilyzer. After other cases had been successful in obtaining the codes, the court approved the request.Some are highly skeptical of CMI's claim that they lost the computer data. One man compared this to "Coca Cola losing" its recipe.
Nearly 40 cases in Florida alone rely on the accuracy of the Intoxilyzer. If that many people's freedom is riding on this test, there are likely many more across the country and in Pennsylvania that are facing the same issue.
Everyone accused of a crime deserves a strong defense and due-process in court. In order for the legal system to work properly, it is necessary that any evidence gathered against an accused person is undoubtedly correct. Without certainty that breath-tests are accurate, many people face the possibility of a conviction based on flawed evidence.
Source: The Marco Eagle, "Judge grants Collier attorney access to breath-test machine codes; manufacturer says they're lost," Aisling Swift, Jan. 26, 2012
]]>In fact, many Pennsylvania drivers have successfully challenged DUI charges by focusing on the accuracy (or inaccuracy) of a breathalyzer test or blood draw. Test results can be skewed if they are administered poorly or if the machines themselves are faulty.
]]> Readers will likely remember an important series of incidents from last year that caused more than a thousand Philadelphia DUI arrests to be called into question.In order to avoid widespread mistakes like this, police departments around the country are finding ways to make sure that their breath tests are accurate and administered correctly. But an unusual experiment by the Florida Department of Law Enforcement (FDLE) to prove the accuracy of their Intoxilyzer 8000 has drawn more than a little criticism.
In October, the FDLE sponsored a "booze and Doritos" party in which 15 employees were allowed to drink whisky and other alcohol and eat chips. These employees were on the clock at the time and the FDLE paid the $330 cost for drinks and food.
When the employees had consumed adequately, they each blew into a breathalyzer and also had blood samples drawn for analysis. The study was recorded by a video camera and cost about $8,000 to conduct.
When the FDLE went before a panel of judges in December, representatives claimed that the study was a success and the machine proved to be accurate. However, blood work was still not back from the lab and judges also questioned whether their results had scientific validity.
This is in addition to the fact that a significant amount of money was spent on what many viewed as a drunken party for a group of FDLE employees.
It is certainly important for law enforcement agencies to make sure that their blood-alcohol testing equipment is accurate. However, the FDLE probably could have chosen a method that was less expensive, more scientifically valid and more professional than their test.
Source: Syracuse.com, "Florida pays state employees for drinking party to test breathalyzers," Geoff Herbert, Jan. 23, 2012
]]>This proposed legislation would make it illegal to pass a cyclist unless there is at least four feet of space between the vehicle and the cyclist. Pennsylvania is joining 19 other states in proposing a safe passing standard.
]]> The proposed safe passing law would:According to the Pennsylvania Department of Transportation, crashes involving bicycles and vehicles increased to 1,485 crashes in 2010, compared to 1,401 in 2009. With this new legislation, education efforts would need to be communicated to all drivers. Reckless or careless driving in Pennsylvania could cause a driver to face severe penalties including fines, jail time, an increase in car insurance premiums and the loss of your license.
Violations for this type of traffic offense would typically be a fine of $35 with court costs. Overall, the goal in implementing this legislation is to decrease the amount of accidents between vehicles and cyclists.
The state House passed the proposal in 2011, and the legislation is now awaiting approval from the Senate.
Source: The Patriot-News, "Pennsylvania may soon join other states with 'safe passing' laws to protect bicyclists," Dan Miller, Jan. 18, 2012
]]>While this was a victory for the defendant, her celebration was short-lived. Later that month, the prosecution appealed the ruling and wanted the judge to recuse himself from the case. They cited concerns that the judge and defendant were Facebook friends.
]]> However, since both the judge and the state representative are elected officials with thousands of Facebook friends each, it is quite possible that they did not know one another personally.Nonetheless, the appeal recently came before a common pleas court judge who overturned the decision and reinstated DUI charges against the state representative. The common pleas court judge said: "I find that the [municipal court] judge did abuse his discretion. It was improper of him not to have recused himself."
The defendant's attorney said he was "shocked" by the ruling and plans to appeal to the state's Superior Court. Additionally, he was upset that the ruling seemed to put the municipal court judge on trial whom the defense attorney describes as "great" and "reputable."
He also believes that the original decision to dismiss charges was the correct one, noting that in all his years as a DUI defense attorney, the testimony given by the arresting officers in this case was the "worst testimony I've ever seen."
When celebrities and politicians face criminal charges such as DUI, many people allege that they get off too easy and aren't held to the same standards of criminal justice as the rest of us would be.
But in cases like this, arguments could be made that the opposite is true. Because of her high public visibility, it is conceivable that prosecutors may be trying to make an example of this state representative, and have used a technicality as tenuous as a Facebook friendship to overturn an unfavorable ruling.
Source: newsworks.org, "DUI charges reinstated against Pa. state Rep. Cherelle Parker," Aaron Moselle, Jan. 17, 2012
]]>In 2009, one Philadelphia man learned that this law is sometimes too rigidly enforced. He and his girlfriend got into a car accident while driving home from a party. She was the designated driver, but a state trooper became convinced that he had been driving at the time of the accident. He refused to take a blood-alcohol test, and although the DUI charge was later dropped, the test refusal charge was not.
]]> A few days after the accident, he was informed by the Pennsylvania Department of Transportation that both his personal license and his commercial driver's license would be suspended for one year. This later resulted in the loss of his job as a truck driver.The man has appealed twice, and has been unsuccessful both times. A judge in Dauphin County dismissed the appeal, ruling that the state trooper had reasonable grounds to demand a blood-alcohol test. Two Commonwealth Court judges agreed with the first ruling and ruled against the defendant during his second appeal.
A lawyer for PennDOT also put forth those arguments and added that whether or not the trooper made a mistake in identifying the driver of the car was ultimately irrelevant.
But one Commonwealth Court judge disagreed with the ruling. In a dissenting opinion, he wrote: "the purpose of the DUI laws is to prevent persons from operating motor vehicles under the influence of alcohol, not to punish passengers who refuse [blood-alcohol] testing."
Unfortunately, Pennsylvania's DUI laws can sometimes be unnecessarily rigid, leading to court rulings that create, what the man's defense attorney describes as, a "collision between the law and common sense." He adds: "PennDOT's blind insistence on the letter of the law ended up creating an injustice."
Source: PennLive.com, "Passenger's refusal to submit to blood-alcohol test triggers 'collision between law, common sense,' lawyer says," Matt Miller, Dec. 30, 2011
]]>The state's implied consent provision means that all drivers consent to BAC tests at the time that they sign their driver's license. Drivers who refuse to take a test may be penalized with a one-year license suspension.
]]> But as one Philadelphia man learned, there are times when this law is too rigidly enforced by Pennsylvania law enforcement, and it can lead to unfair and irrational consequences.In 2009, he attended a house party in Harrisburg with his girlfriend. She had agreed to be the designated driver that night, allowing him to drink freely and enjoy the party. While they were driving home, they were struck in a head-on collision by another driver traveling in the wrong direction.
Naturally, the crash scene was chaotic. As law enforcement worked to sort out the details of the crash, the man tried to explain that his sober girlfriend had been driving. Unfortunately, a state trooper became convinced to the contrary.
The trooper later noted that the car belonged to the defendant, who was allegedly uncooperative and smelled like alcohol. Additionally, there was blood on both the man's face and the driver's side airbag.
For these reasons, he asked the man to take a BAC test, and the defendant refused. After all, he had been drinking but was not driving at the time of the crash.
Little did he realize how much his test refusal would cost him, including his driver's license, his commercial driver's license and his job as a truck driver. Check back later this week as we continue our discussion about this controversial case.
Source: PennLive.com, "Passenger's refusal to submit to blood-alcohol test triggers 'collision between law, common sense,' lawyer says," Matt Miller, Dec. 30, 2011
]]>Roughly half of states require ignition interlock installation for repeat offenders. Connecticut however, recently joined a minority of states which mandate installation for every DUI offender. Similar legislation is being considered in Pennsylvania.
]]> The purpose of ignition interlock devices is to prevent intoxicated motorists from driving. When an individual blows into the mechanism, the vehicle will fail to start if the person's blood alcohol level is above a certain threshold.Driver, passenger and general road safety are understandable priorities. However, many are concerned that requiring first-time offenders to install the devices on their vehicles is unjustified.
In particular, some have voiced that requiring all DUI offenders to install ignition interlock devices allows few distinctions to be drawn between those who accidentally drive just a hair over the legal limit and those who are drunk at an unquestionably problematic level.
In addition, concerns have been raised that mandating the same punishment across varying levels of DUI infractions will eliminate the ability of judges to exercise discretion in cases involving unique circumstances.
Protecting the public from harm is a worthy goal. But when punishments fail to differentiate between the levels of offense and the unique circumstances surrounding those offenses, those who are accused of breaking the law arguably stand to lose some of the due process which the law should afford them.
Source: MSNBC, "Curbing drunken drivers: Should ignition interlock be required on every car?" Jim Gold, Jan. 5, 2012
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