The A-B-C s (without singing) of DUI offenses Attorneys Jackson J. Lofgren & Paul H. Myerchin Traffic Safety Partner Summit, April 7, 2015 Ramkota Hotel, Bismarck, ND
What is a DUI? DUI driving under the influence NDCC 39-08-01 Definition of DUI A person may not drive... any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if any of the following apply:
What is a DUI? Five different ways to commit DUI: a. BAC of at least.08 at the time of testing within 2 hours of driving; b. Under the influence of intoxicating liquor; c. Under the influence of drugs... render a person incapable of safely driving; d. Under the influence of alcohol and other drugs....; or e. Refusal to submit to testing
What is a DUI? DUI s sisters: APC Actual Physical Control Had the ability to manipulate the vehicle Falling asleep in a car with the motor running Violated the same 5 ways as a DUI BUI Boating Under the Influence BAC remains at.10 No mandatory penalties
What is a DUI? Most commonly charged BAC at least.08; and/or Under the influence of intoxicating liquor.
What is a DUI? Less Commonly charged: Under the influence of drugs; or Under the influence of alcohol and other drugs
What is a DUI? Hot Topics The Refusal charge New charge in 2013 Different jurisdictions in the State charging differently 2015 Legislative fix? Constitutional issues» Missouri v. McNeeley, 133 S.Ct. 1552 (2013)» State v. Birchfield, 2015 ND 6, 858 NW2d 302
DUI Penalties & Legislative Insights Penalties Criminal Administrative Collateral Consequences
DUI Penalties & Legislative Insights Incremental Increases in Punishment based on: Prior DUI offenses Level of BAC Refusal
DUI Penalties & Legislative Insights 2013 Legislative Session Major DUI law reform Stemmed from the Deutscher and Ruiz family tragedies.
DUI Penalties & Legislative Insights Criminal Penalties before 2013 changes: 1 st & 2 nd DUI Offenses: Class B misdemeanors; $250 fees (District Court only); Mandatory Chemical dependency evaluation (CDE); 1 st Offense mandatory $250 fine; NO jail time 2 nd Offense mandatory $500 fine AND 5 days jail AND 24/7 program nearly every pre-trial release
DUI Penalties & Legislative Insights Criminal Penalties before 2013 changes: 3 rd & 4 th Offenses: Class A misdemeanor; $325 fees; Mandatory $1,000 fine & CDE; 3 rd Offense- mandatory 60 days jail; 4 th Offense mandatory 180 days jail
DUI Penalties & Legislative Insights Criminal Penalties before 2013 changes: 5 th or greater offense Class C Felony; $525 fees; Mandatory $1,000 fine & CDE; Mandatory 180 days jail/prison. Refusal not a crime.
DUI Penalties & Legislative Insights 2013 Legislative Assembly Sen. Mathern/Rep. Gruchalla bill extreme penalties Rep. Koppelman and Sen. Armstrong each present bills final reforms are a combination of these two bills ND Association of Criminal Defense Lawyers and many other players involved in this major reform
DUI Penalties & Legislative Insights Criminal Penalties after 2013 changes: 1 st Offense DUI: Class B misdemeanor; $250 fees (District Court only); BAC below.16 = mandatory $500 fine & CDE BAC.16 or higher = Aggravated DUI Mandatory $750 fine, CDE, & 2 days jail or 20 hours community service
DUI Penalties & Legislative Insights Criminal Penalties after 2013 changes: 2 nd Offense in 7 years Class B misdemeanor; $250 fees (District Court only) Mandatory $1,500 fine, CDE, 10 days jail, and 24/7 program for 1 year
DUI Penalties & Legislative Insights Criminal Penalties after 2013 changes: 3 rd Offense in 7 years: Class A misdemeanor; $325 fees; Mandatory $2,000 fine, CDE, 24/7 program for 1 year, 120 days jail, and 1 year supervised probation. But jail time cut in half if CDE before sentencing
DUI Penalties & Legislative Insights Criminal Penalties after 2013 changes: 4 th Offense in Lifetime Class C Felony; $525 fees; Mandatory $2,000 fine, CDE, 1 year & 1 day prison, 2 years supervised probation with 24/7 program Refusal is now classified a crime.
DUI Penalties & Legislative Insights New felonies Vehicular homicide A Felony 1 st offense 3 year min. mandatory 2 nd offense 10 year min. mandatory DUI causing injury C Felony 1 st offense 1 year min. mandatory 2 nd offense 2 year min. mandatory DUI with minor in car C Felony 2 nd offense
DUI Penalties & Legislative Insights Administrative Penalties after 2013: Suspension ranging from 91 days to 3 years 1 st Offense Work Permit - no 24/7 program; 2 nd or more Offenses Work Permit 15 days after suspension starts Must be on 24/7 program NDCC 39-20-15 SR-22 required Reinstatement fee
DUI Penalties & Legislative Insights Collateral Consequences Loss of employment Loss of residence Child Support arrearages Bankruptcy Travel issues DUS
DUI Penalties & Legislative Insights
DUI Penalties & Legislative Insights
DUI Penalties & Legislative Insights ND Association of Criminal Defense Lawyers: Cost of $50 million (15,000 more jail days) Minimum Mandatory Sentences not appropriate in every case Counteract Culture of Alcohol takes a holistic approach
DUI Penalties & Legislative Insights 2015 Senate Bill 2052 Passed the Senate 46/0; Passed House 90/1 House adds emergency clause ; Senate refuses to concur; now in conference committee Clarifies from 2013 law Only 1 administrative suspension per incident; Some Counties charge DUI, Refusal of Alco-Sensor, and Refusal of Blood/Breath test; Reduces look back period 4 th Offense life to 15 years; Credit pre-trial for 24/7 program; Partial suspension of jail time for Drug Court participation; Requires implied consent warning be given; Allows non-court ordered 24/7 program for Work Permit
Tools for Prosecution Arresting Officer s Observations The Driving (Swerving, etc.) The Driver Odor of Alcohol; Blood Shot Eyes; Slurred Speech; Slow Responses; and Stumbling
Tools for Prosecution Field Sobriety Tests Standardized Tests Horizontal Gaze Nystagmus (HGN) Walk and Turn (WAT) One Legged Stand (OLS) Unstandardized Tests ABCs (without signing) Backwards Number Count (77 to 62)
Tools for Prosecution Video/Audio Patrol Car Video Officer s Microphone Detention Center Chemical Tests Blood Test Intoxilyzer 8000 Breath Test Urinalysis Was there a valid refusal?
Defenses Starting Point The Stop Fourth Amendment Constitutional Law Right to be free of unreasonable search and seizure... Basis for the Stop Reasonable suspicion
Defenses Reasonable suspicion Driver has violated or is violating the law More than a mere hunch Less than Probable cause Traffic violations, even if considered common or minor basis for stop Burnt out license plate or tail lights Failure to signal turn Occasionally still invalid stops
Defenses Testing Non-standardized tests ABCs (without signing) Backwards counts (77 to 62) Standardized tests National Highway Traffic Safety Administration (NHTSA) 3 standardized tests (HGN, WAT, & OLS)
Defenses Horizontal Gaze Nystagmus or Vertical Gaze Nystagmus Nystagmus involuntary jerking of the eyes Defenses Other reason for Nystagmus; i.e., medical reason Follow NHTSA manual /training Motion excluding HGN at trial
Defenses Walk and Turn (WAT) & One Leg Stand (OLS) Environment Ability (physical and shoes) Follow NHTSA manual/training Point out to the Jury the number of elements done right
Defenses Alco-Sensor FST Given if there is a moving traffic violation or accident. NDCC 39-20-14. Results... must be used only for determining whether or not a further test shall be given... Really only relevant to determine whether there is probable cause to arrest Cannot be used at trial in a criminal proceeding
Defenses The Chemical Tests Tests administered within 2 hours of driving? Lawyer requested? Opportunity to contact? Blood Test Defects on the Form 104?» Nurse and Officer check the right boxes. How long did it take sample to get to the lab? Were the two samples within the acceptable range? Putrefaction
Defenses The Chemical Tests Breath Test Did the person have something in their mouth? Was the approved method followed? Was the known sample within acceptable range? Were the two samples that were obtained within the acceptable range? Urinalysis Only a qualitative not quantitative measurement
Who Shows up at Trial? The Arresting Officer Maybe another officer who assisted Maybe a booking officer The Nurse who Drew the Blood Presence can be waived by the Defendant The Lab Analyst or Intoxilyzer Operator Presence can be waived by the Defendant Miscellaneous Witnesses to the driving Maybe a bartender
Contact Information Jackson J. Lofgren Suhr & Lofgren P.L.L.C. 120 N. 3rd St. Ste. 175 Bismarck, ND 58501 (701) 223-3874 jlofgren@suhrandlofgren.com Paul H. Myerchin Bormann, Myerchin & Espeseth, LLP 418 East Broadway Ave, Suite #240 Bismarck, ND 58501 (701) 250-8968 pmyerchin@bmellp.com Thank You