Articles Posted in OWI

There are several ways to look at this question.  The National Highway Traffic Safety Administration defines the two terms this way. Notice the results-based language contained in these definitions:

  • Impairment—Refers to the deterioration of an individual’s judgment and/or physical ability. Physiological and cognitive impairment begin at BAC levels below those that are associated with intoxication. As a legal standard, impairment and DWI laws are based on a person’s physical or mental impairment as judged on the basis of BAC level, performance in standardized field sobriety tests, or observed behavior. Although this report is focused on impairment from alcohol, impairment can result from other substance use, distracted driving, and other reasons.
  • Intoxication—Refers to the condition of having physical or mental control markedly diminished by the effects of alcohol or drugs. This is usually based on a subjective determination (one feels the sensation or observes a behavior in another person). Physiological impairment begins at BAC levels below those that are associated with intoxication. Intoxication is not a legal standard.

Scientists have produced charts such as this one[i], which much more carefully explain the differences:

Blood Alcohol Concentration  Stage of alcoholic influence Clinical Signs and Symptoms
0.01 – 0.05 subclinical Influence of effects not apparent or obvious.  Behavior nearly normal by ordinary observation.  Impairment detectable by special tests.
0.03 – 0.12 euphoria Mild euphoria, sociability, talkativeness.  Increased self-confidence, decreased inhibitions.  Diminution of attention, judgement and control.  Some sensory-motor impairment.  Slowed information processing.  Loss of efficiency in critical performance tests.
0.09 – 0.25 excitement Emotional instability, loss of critical judgment. Impairment of perception, memory, and comprehension.  Decreased sensatory response, increased reaction time, Reduced visual acuity, peripheral vision and glare recovery.  Sensory-motor incoordination, impaired balance.  Drowsiness.
0.18 – 0.30 confusion Disoriented, mental confusion, dizziness.  Exaggerated emotional states (fear, rage, grief, etc.).  Disturbances of vision (diplopia, etc.) and of perception of color, form, motion, dimensions.  Increased pain threshold.  Increased muscular incoordination, staggering gait, slurred speech, Apathy, lethargy.
0.25 – .40 stupor General inertia, approaching loss of motor functions.  Markedly decreased response to stimuli.  Marked muscular incoordination, inability to stand or walk.  Vomiting, incontinence of urine and feces.  Impaired consciousness, sleep or stupor.
0.35-0.50 coma Complete unconsciousness, coma, anesthesia.  Depressed or abolished reflexes.  Subnormal temperature.  Impairment of circulation and respiration.  Possible death.
0.45+ death Death from respiratory arrest.

 

The legal definition is still different. In Michigan, the law says that it is unlawful to operate a motor vehicle while intoxicated. This is called OWI or operating while intoxicated.  A person is intoxicated if they have a bodily alcohol level at or above .08% and/or where alcohol has materially and substantially lessened their ability to operate a motor vehicle in a normal way.  The standard jury instruction for impairment says this:

To prove that the defendant operated while visibly impaired, the prosecutor must prove beyond a reasonable doubt that, due to the drinking of alcohol the defendant drove with less ability than would an ordinary careful driver. The defendant’s driving ability must have been lessened to the point that it would have been noticed by another person.

 

i[] See, Jones, Garriott’s Medicolegal Aspects of Alcohol, Pharmacology and Toxicology of Ethyl Alcohol, Lawyers and Judges Publishing Company, Fifth Ed., pg 28, 2007. (chart copyright by Kurt M. Dubowski, University of Oklahoma College of Medicine, Oklahoma City, OK, 1997).

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Michigan is likely to have a .05 legal limit for drunk driving within the next five years. This is because the National Highway Traffic Safety Administration (NHTSA) has begun pushing a .05 legal limit at the national level.  Once a .05 legal limit is adopted as national policy, the federal government will use highway funds to force all states to lower their legal limits to .05.  Michigan will capitulate to this new lower legal limit, just as they did in 2003 when the legal limit was lowered from .10 to .08.

The latest round of NHTSA’s efforts toward a national .05 legal limit is contained in its publication entitled:  Getting to Zero Alcohol-Impaired Driving Fatalities: A Comprehensive Approach to a Persistent Problem.  This publication first sets forth their definition of the problem, which is alcohol-related traffic offenses, and then details their proposed solution, which includes a lower legal limit of .05 combined with increasingly aggressive law enforcement practices, including roadblocks.

NHTSA’s initial statement or premise is that:

Beginning in early February 2010, “virtual” work release is available for some offenders.  After the new program starts, the traditional work release program will be eliminated. This significant change has the potential to impact criminal law sentence negotiation and overall sentencing practices throughout Oakland County.

Virtual work release will consist of an ankle tether using a satellite and radio global positioning system (GPS) monitored by the Oakland County Sheriff.  It will give the Sheriff’s Office the ability to carefully track an inmate’s location twenty-four hours a day, seven days a week.  The radio technology will even allow a defendant to be tracked inside a home or workplace.

The eligibility for the new program has not changed.  Accordingly, a judge must authorize participation prior to enrollment in the virtual work release program and offenders sentenced on any CSC charge are not eligible.  Also, there may be no outstanding warrants, holds, or unpaid bonds.

Because an at-home electronic-monitoring program is not incarceration, the Oakland County Michigan work release program is not open to some felony offenders.  Where mandatory incarceration is concerned, the tether program is a restriction, not a confinement, and is not ‘jail’ as that term is commonly used and understood.

In 2010 the Oakland County Jail adopted a “virtual” work release program which employs a GPS tether that tracks the whereabouts of an individual and allows them to leave their home for certain court-approved reasons, including employment.  These whereabouts are monitored and tracked by the Oakland County Sheriff. The Michigan drunk driving felony statute, found at Michigan Compiled Laws § 257.625 requires that offenders serve a minimum of 30 days in jail.  Specifically, the law indicates:

A person who violates this Michigan’s drunk driving laws three times in their lifetime is guilty of a felony and shall be sentenced to pay a fine of not less than $500.00 or more than $5,000.00 and to either of the following: Imprisonment under the jurisdiction of the department of corrections for not less than 1 year or more than 5 years or probation with imprisonment in the county jail for not less than 30 days or more than 1 year. This term of imprisonment shall not be suspended.

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According to articles reported in the NY Daily News, in April 2015, Oliver Wiggins was struck by a police cruiser that had run a red light.  Instead of offering Mr. Wiggins an apology, however, Brooklyn Police arrested him for drunk driving!  A breath test later revealed that Wiggins had consumed no alcohol, and the EMT and DWI technician involved in the arrest both indicated that Mr. Wiggins showed no signs of intoxication.  Despite this, the official narrative police report, prepared by City of Brooklyn Police Officer Justin Joseph, indicated that Mr. Wiggins had red watery eyes, slurred speech, an odor of alcohol on his breath and was swaying.  Mr. Wiggins, a native of Jamaica, claims all of this was false and was only part of an effort by Officer Joseph to cover up for his own wrongdoing!

The prosecuting attorney eventually dismissed the charges against Mr. Wiggins, but Mr. Wiggins still lost his license and had a large repair bill on his car.  His insurance company refused to cover the accident because of the DUI arrest.  Additionally, Mr. Wiggins’ lawyer claimed that he suffered an injury to his wrist.

Because of the wrongful arrest, Mr. Wiggins hired a lawyer to sue the City.  Later, and ostensibly and euphemistically to only “avoid trial,” The City of Brooklyn paid out nearly One Million Dollars in damages!  The worst part of all this is that the officers involved in this egregious abuse of power are still out there on the street making arrests.  They have not lost their jobs nor have any charges been filed against them.

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In Tennessee, a person convicted of DUI would be ordered to pay a “Blood Alcohol or Drug Determination Test (BADT)” fee as part of their court costs.  No BADT fee was charged where a case was dismissed, a not guilty verdict returned, or where a defendant pled to a non-DUI related offense.  Then, according to Tennessee law, the BADT fees collected were paid ultimately to the Tennessee Bureau of Investigation where they were used for all TBI agency operational costs.  The blood testing portion of these fees had recently been increased to $250.00, and the Tennessee forensic lab relied on these BADT fees, and the recent increase, to fund the largest portion of their operating expenses.  This is all written in past-tense language because a Tennessee Court of Appeals has recently ruled that this practice was unconstitutional.  Specifically, the court found:

Because the money from the $250 BADT fees is placed directly in the intoxicant testing fund which is “designated for exclusive use by the TBI,” there is no question that the TBI, an agency of the State, has a direct pecuniary interest in securing convictions. The TBI forensic scientists also have a financial interest in securing convictions because the collection of the BADT fees affects their continued employment and salary, which gives them an incentive to find that defendants’ blood alcohol content is 0.08% or higher.

There are many interesting things about this opinion, not the least of which is the fact that it lays bare the assertion by the States that their forensic labs are independent.  In Michigan for example, the lab techs that test blood samples for alcohol proudly testify that they care not what the results are because they only care about the integrity of the science they employ. In other words, they attempt to hide behind a veil of scientific objectivity. This is a great sound-bite for the jury but that does not make it true.

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Michigan’s intoxicated driving laws cover intoxication by alcohol and all impairing drugs. Reliably detecting intoxication by drugs is more challenging for law enforcement than detecting intoxication caused by alcohol.  One reason for this is that there is no roadside drug test that can help officers in the field determine the cause of impairment, and to distinguish drug-induced impairment from that caused from more benign causes such as sleep deprivation or certain medical conditions.

It is well-established for example, that alcohol can cause nystagmus, which is a jerking of the eye as it moves across a horizontal plane.  Because of this correlation, the horizontal gaze nystagmus test, which looks for this jerking in the eye, is one of the three standardized field sobriety tests. This alcohol inducted jerking is easy to detect, and police officers around the country can testify in court about their observations during the HGN provided it the test is properly administered. The HGN is also part of the 12-step drug recognition protocol because some drugs other than alcohol can also cause nystagmus. However, a limitation for both prosecutors and defense attorneys is that police patrol vehicle video recording equipment is not able to record the nystagmus that officers ostensibly observe.

A novel solution to this need for a reliable roadside test for drugs, and the limitations of no HGN recording, has been developed and involves recording and analyzing the movement of a person’s eyes.  This technology is currently undergoing a new round of funding and Michigan drivers may be subjected to it in the near future.  As of the date of this article this technology is being used in Colorado, California, and Tennessee.

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Existing law may be sufficient to convict an intoxicated occupant of an autonomous vehicle of drunk driving. This is because the law in most states contains a sufficiently broad definition of the term “operate.”  Public safety is likely to be the paramount concern of the courts as they grapple with this important issue.  It is also possible that state legislatures will step in with laws to cover the various scenarios that will arise in the era of autonomous driving.

It remains to be seen if this issue will be addressed by our legislatures before or after autonomous vehicles become common.  History has shown that lawmaking lags technology, so it seems likely that various test cases will arise around the country before state legislatures address this issue.  Baring specific legislation, courts in the various states will apply the existing common law, and this will dictate their decision.

Currently, relative to non-autonomous vehicles, most states have very broad definitions of the term “operate[i]” such that in most of the circumstances that arise with non-autonomous vehicles, the occupant will be found to be “operating” even if they are not literally “driving.” This broad definition arose in case law around the county to cover situations where a traditional definition of operating would otherwise fail, such as those cases involving intoxicated occupants found sleeping inside their vehicles, or in other circumstances where the vehicle is not moving. This drunk operation case law will be discussed in some detail below.

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Yes, a sleeping driving can be convicted of drunk driving in Michigan provided there is enough circumstantial evidence to establish operation.  In a recent Michigan case[i] affirming a drunk driving conviction involving a sleeping driving the court inferred that the driver operated his vehicle because did not live on the road he admitted being on and did not start his evening there.

However, on appeal, the driver argued that he was not operating the vehicle because the engine was not running, and he was asleep. When pleading guilty, the driver indicated he “got in the seat, turned the radio on, keys in the ignition, cops pulled up, knocked on the window, [he] answered the questions and that was it ….”

There are three elements necessary to an OWI conviction, as follows:

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Yes, it may be unlawful to operate a drone while intoxicated at the federal level, and may soon be unlawful at the state level as well.

However, the punishment varies depending on the specific law violated. As drones become more common and more popular, some states are looking at drafting laws that will impose criminal consequences, including the possibility of jail, for operating a drone while intoxicated.   An example of this is the New Jersey law that was introduced in June 2017, and that passed both houses on January 10, 2018.  The law is expected to be signed into law. The punishment for a violation of the New Jersey statute is up to six months in prison or a $1,000 fine.

The text of the New Jersey law first sets forth the definition of the word ‘Operate,” as meaning “to fly, control, direct, or program the flight of an unmanned aircraft system.”  Relative to alcohol, the statute makes droning while intoxicated unlawful, and indicates specifically:

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