Cops, Ignorance & Tiaras

January 11th, 2013

medium_tiaras82709_jez_512K.flvMiss University of Arkansas, Sarah Gafvert, was arrested a few months ago on a charge of Arkansas DWI.  As I recall, there was the typical rush to judgment on Ms. Gafvert’s guilt.  However, as this ABC News story points out, things aren’t always what they seem.

Ms. Gafvert informed the cop that she had Type 1 Diabetes and was having a hypoglycemic episode.  What does the officer do?  Take her to the hospital to be treated and have a blood test to determine her BAC?  Of course not.  He smelled alcohol on her, so he has to charge her with a DWI even though he readily acknowledges in the video that her “swaying balance” could be caused by the diabetes (obvious admission of reasonable doubt on the part of the cop).

The problem here is that officers are trained that breathalyzers are magical instruments that ALWAYS give the correct answer.  So to determine whether it was the alcohol or the diabetes causing whatever bad driving the cop allegedly observed, the cop offers and Ms. Gafvert “volunteers” (she could have and should have refused) to take a portable breathalyzer test (PBT).  These devices, even when you don’t have diabetes, are inherently unreliable indicators of BAC levels.  So much so that they are inadmissible as evidence in the state of Arkansas and many other states.

When you DO have diabetes, the results of a portable breath test border on “completely irrelevant.”  That is what this ABC News story misses…a diabetic can blow a .13 (as was the result in this case) WITHOUT A SINGLE DROP TO DRINK.  Is this fact taught to officers at the academy?  No.  Do they even bother to Google it before they go out on patrol, ruining the lives of Arkansas’ beauty queens?  Apparently not.  Even a cursory review of scientific literature would reveal that hypoglycemia causes “ketoacidosis.”  Ketoacidosis causes the production of acetone, which will be recognized by a breathalyzer as alcohol.

Bad cop.  No donut.

BJW

“The Best Around”

January 11th, 2013

The-Best-Around-cover-web2012 was another successful year at Bennett & Williams.  More proof that if you’re looking for the best dwi/dui lawyers in Arkansas, you need look no further:

Tommy and Brad were the only DWI lawyers voted Best Lawyers in Little Rock in the December 2012 issue of Little Rock Soiree magazine.

Brad and Chip were selected as one of Arkansas’ 2012 Top 40 Under 40 by The National Trial Lawyers.

Tommy, Brad, and Chip were all selected as 2012 Super Lawyers Rising Stars.

And, most importantly, we won a record 101 drunk driving cases this year.

Best in Show

December 1st, 2011

220px-BestInShow2000Congratulations to Tommy, Brad, and Chip!  All 3 of our attorneys made this year’s DWI lawyer list in the 2011 Mid-South Super Lawyers issue.  It’s always nice when other people recognize what most people already know.  :)

Arkansas DWI & DUI Convictions Can Be Expunged Starting August 1, 2011!

March 28th, 2011

cleanslateI have received MANY inquiries over the years from people who were interested in expunging a past Arkansas DWI or DUI conviction.  Unfortunately, my answer has always been “NOT A CHANCE.”

That is, until now.

On March 23rd, Act 626 was passed, allowing for misdemeanor DWI and DUI convictions to be expunged FIVE (5) years after the completion of his or her sentence for the conviction(s).  It also allows expungement of Arkansas misdemeanor convictions for Negligent Homicide, Battery (3rd Degree), Indecent Exposure, Public Sexual Indecency, Sexual Assault (4th Degree), and Domestic Battery (3rd Degree) with the same 5 year requirement.

For those that do not know, an expungement cleans a conviction from your court record.  It allows a person to legally answer “no” on any employment, loan, rental, license or any other application that asks you to disclose any misdemeanor conviction(s).  Obviously, this could be a great benefit for those who are haunted by a criminal conviction from the past.

Keep in mind that the new law does not give a person an absolute right to an expungement.  However, a judge may not deny an expungement unless there is “clear and convincing evidence” that the conviction should not be expunged.

At the time of this blog entry (March 28, 2011), Act 626 is not yet in effect.  It should become law starting on August 1, 2011.  This law is long overdue, but better late than never!

Enter Sandman

June 30th, 2010

We will all sleep better tonight knowing that all of those people being arrested (at least by the LRPD) for DWI are being arrested ONLY after a thorough and accurate investigation of the person’s mental and physical faculties has been conducted.  In honor of our country’s anniversary of its freedom from oppression and tyranny, local law enforcement is going to arrest as many people as it can.

Fox16 news story of Arkansas DWI / DUI cops getting refresher course for field sobriety tests.

Before they do that, they want to make sure that they aren’t falsely arresting anyone…how nice of them.  So, the LRPD is giving some of its cops a refresher course on Standardized Field Sobriety Tests (SFSTs).  By the way, it sounds like they only give the refresher course when a cop admits that he needs help…I wonder how often that happens.  The cop interviewed for the story made sure to emphasize the importance of instructing and performing the SFSTs accurately every time so that the judge can rely on his allegation at trial that the person failed them.

Sounds nice.  I am all for officers refreshing their knowledge and skill in SFSTs.  However, regardless of all these refreshers courses, I have NEVER seen a cop perform the Horizontal Gaze Nystagmus (HGN) test properly.  NEVER!  Of the 3 SFSTs that exist, this is the one most often relied upon by cops for determining whether you are above the limit.  A defense attorney is lucky to have an officer even ACT like he recognizes the SFST manual.  This is the manual that they are trained with and responsible for knowing by heart.  I have a feeling that this story is a little more about making people feel better about how officers go about “getting drunks off the road,” and little less about making sure that cops aren’t arresting innocent people.  However, I blame the mickey mouse news reporting more than the cops.

Exit light, enter night.

BJW

Batman Hates the Constitution, Too

April 25th, 2010

batmanheaderBatman was always a little darker than Superman.  He always had a little less respect for legal conventions when it came to taking down the bad guys.  Superman, on the other hand, was much more diplomatic and respectful in his approach.  I could see Superman calling Metropolis’ city attorney for advice before storming into someone’s home.  Batman, not so much.

So, it’s not surprising that Batman has lent his name to a mobile blood testing lab (The “Blood Alcohol Testing” or “B.A.T.” Mobile) that is used in what has unfortunately become an all-too-common sight:  DWI roadblocks/checkpoints/shake-downs…whatever you want to call them.  One such shake-down occurred a few days back in Saline County (Benton Courier news story about the new Arkansas DWI / DUI mobile) (link broken).

You don’t have to be a lawyer to know that the Constitution prohibits police from pulling you over without probable cause.  And you’d probably be pretty mad if a cop pulled you for no reason just so he could snoop around.  What you probably don’t know is that, over the years, there has been an exception carved out of our sacred Constitution.  The exception is for when cops decide to conduct a roadblock “to check for drunk drivers” (note the quotation marks).

The company line, at the time (and currently), is that roadblocks are so effective at catching and preventing drunk drivers that they justify making the one and only exception to the Constitutional requirement of probable cause.  I don’t think anyone would argue that there are loads of people driving around late at night on weekends that are probably intoxicated.  So, let’s look at this Saline County experiment and see how well it paid off and what we received for the Constitutional right that we flushed down the toilet.

Well, there were 2 locations for this particular roadblock in Saline County on that Saturday night/Sunday morning.  According to the Benton Courier, over 30 people were arrested or cited for infractions.  Only 3 were arrested for DWI.  Of those 3, only 1 was an alcohol-based DWI.  The other 2 were DWI (Drugs) offenses.  For those that don’t know, DWI (Drugs) is what a cop charges a citizen with when he thinks that the person is driving while impaired but has very little to no proof that this is true.  To make matters worse, it’s even more severe than an alcohol DWI because the person cannot drive AT ALL for a period of 6 months.

By just doing some rudimentary math, over 90% of those people on the road who were committing infractions (allegedly) had NOTHING to do with drunk driving.  Also, don’t forget that (I’m sure) the vast majority of those that were pulled over were not issued any citation for anything.  However, I’m sure local government cares not.  They will receive all the fine money and court costs that will come from the non-DWI-related infractions that they wouldn’t have received if the roadblock had not been conducted.

The Courier stated there were 25 police officers (actual cops with patrol cars and flashing lights, not just administrative people) spending their time at this roadblock.  I’m willing to bet that had they unleashed those same 25 cops onto the streets of Saline County where they might have had the element of surprise and been able to observe people while driving (not just pulling up to a roadblock at 5 mph), then they would have found WAY MORE than 1 real DWI.  And think about it, the Constitution would still have been intact.

Good job, Batman!

BJW

Reinstatement Fees…A Golden Egg for the State, A Golden Pile of $&!% for the Rest of Us

February 1st, 2010

When you are charged with a DWI in Arkansas, you can get your driver’s license back as soon as you serve out your license suspension period (6 months for a first time DWI).

If you want your license back after the period is over, you must (among other things) pay a “reinstatement fee” of $150.  That is, unless you were found not guilty in the meantime.

So who’s the lucky person that gets $150 for the 1000′s of DWI’s in Arkansas every year?

Indirectly and directly, everyone involved in your case EXCEPT your defense lawyer.  Ark. Code Ann. 5-65-119 provides for the following disbursement of that $150 fee:

1.  $10.50 to the Office of Alcohol Testing.  This  should be important to you because the “neutral” expert witnesses that the state of Arkansas usually calls to testify against you at trial are employees of that office.

2.  $15 to the Arkansas State Treasury.  “The Treasurer of State shall credit them as general revenues to the various funds in the respective funds in the respective amounts to each and to be used for the purposes as provided in the Revenue Stabilization Law….”  Your guess on this one is as good as mine.  Maybe that means that somehow or another, every state employee receives a little piece of the pie.

3.  $49.50 to Driver Control.  This is the office that makes the initial determination whether to suspend your license or not.  If they don’t suspend your license, they don’t get a reinstatement fee.  I wonder why Driver Control almost always suspends your license.

4.  $75 to the Arkansas State Police.  Maybe this is why a disproportionate amount of DWI charges are brought by state troopers (relative to city and county cops).  Do you think your trooper might be thinking about his retirement fund when he’s making the determination of whether you’re intoxicated?

BJW

Go Green, Avoid a DWI…Maybe

November 20th, 2009

The recent story about the fella in Minnesota that got a DWI for driving his motorized “La-Z-Boy” chair brings to mind a good point regarding DWI law (The Smoking Gun news story about Minnesota man getting a DWI / DUI while on a La-Z-Boy).  What kind of “vehicle” do I have to be driving to be convicted of a DWI or DUI in Arkansas?

Arkansas law makes it a crime for a person to drive a “motor vehicle” while being intoxicated (or, for a DUI, under the influence) or while having a blood alcohol content of .08 or higher.  The problem is that “motor vehicle” is not defined by Arkansas’ DWI statute.

In 1993, for the first time, the Arkansas Supreme Court was faced with the issue of deciding what “motor vehicle” means.  Basically, the Court concluded that “motor vehicle” means a self-propelled wheeled conveyance that does not run on rails.”

Therefore, one could reasonably conclude that a vehicle that does not generate the power to move itself cannot be considered to be a “motor vehicle,” and you can operate it no matter how hammered you are.

However, there aren’t many vehicles that don’t propel themselves through some sort of conversion of a fuel source (i.e. gasoline, solar energy, electricity, etc.).  I guess this means that you could even get a DWI by riding around on a lawnmower, your child’s battery-powered “big wheel,” or, yes, even a motorized La-Z-Boy.

In case you’re wondering, it does look like bicycles, horses, land yachts, soapbox derby cars, and piggy-back riding are still legal.  However, I would advise wearing headgear, especially if you’re drunk.

BJW

It’s NOT a “Candygram”

September 25th, 2009

If you ask a shark if today’s a good day to go swimming, of course he’s going to say yes.  He’s a shark.  On the other hand, you can’t blame him too much when he bites your leg off.

I read an article in last Saturday’s DemGaz by the “Drivetime Mahatma.”  It was called “Saying no to a breath test a loaded issue.”  In it, a reader asks whether he had to blow into a portable breathalyzer that was stuck in his face at a DWI roadblock.  The Mahatma proceeds to inform the readers that they have the “right” to refuse the test, but implies that if they do so they will be charged with a Refusal under Ark. Code Ann. 5-65-205.

Then, in a very un-Gandhi-like move, he deferred to the police for the answer.  Arkansas State Police Mouthpiece, Bill Sadler, was quoted as saying that you should “comply with the requests of the trooper.”  While you’re at it, you might as well confess to the trooper every crime you’ve ever committed.

Basically, that was the article’s answer.  Here’s mine as it relates to portable breathalyzers:  DON’T BLOW!

The Mahatma is correct that you have the absolute right not to blow.  That is true whether you are talking about the portable breathalyzer (or “PBT”) or the stationary breathalyzer down at the station.

The Mahatma is WRONG in his implication that you will be charged with the separate crime of Refusal if you refuse to blow in the PBT.  We have NEVER had a client charged with a Refusal when the client refused to blow in a PBT.  I can see where one might be confused…the statute (Ark. Code Ann. 5-65-202) does say that if you drive, then you have already consented to a chemical test(s) (i.e. a breath test), and it does not provide an exception for a PBT.

However, Ark. Code Ann. 5-65-204(b) and 5-65-206(c) require that a chemical test be performed pursuant to a method approved by the Department of Health (unless it was performed by the State Crime Lab).  Further, Ark. Code Ann. 5-65-206(d)(2) requires that the instrument  be certified at least 1 time in the last 3 months and that the operator of the instrument be trained and certified.  A PBT meets NONE of these requirements.  As such, you can’t really be required to submit to a chemical test that hasn’t been approved as a “chemical test.”

Not to mention, a PBT is absolutely inadmissible in Arkansas as evidence of intoxication anyway.  There are lots of good reasons why a PBT is inadmissible (i.e. mouth alcohol, calibration, etc.), but I will save that for another day.

As for the stationary breathalyzer down at the station, which IS admissible, you still have the right to refuse that test.  HOWEVER, you WILL be charged with a Refusal.  But there is no jail time or fine for a Refusal.  I know you’re saying to yourself, “What kind of a ‘right’ is that when I get charged with a crime for exercising my right?!”  I don’t have an answer for you on that one.

Lastly, you don’t need me to tell you that anytime you have a legal question regarding criminal law and the only authoritative answer provided comes from a cop, you might ought to get a second opinion.  And if you can’t get a second opinion on short notice, DO THE OPPOSITE!

Don’t get me wrong, I’m not blaming the Mahatma.  LOTS of people are confused in this area of Arkansas DWI law.  So, there you have it…a second opinion.  Now you don’t have to listen to anymore sharks.

BJW

No Cops in Arkansas Town, Per Capita Income Skyrockets

September 10th, 2009

Jericho, ArkansasOk…the picture was a little too easy this time.  It may not be the stuff that the little-remembered CBS series entitled Jericho was made of (the aftermath of nuclear war seen through the eyes of the inhabitants of Jericho, Kansas), but the real-life happenings in Jericho, Arkansas are pretty unbelievable too.  Fox news story about criminal investigation into Jericho, Arkansas (link broken).

The rundown?  Jericho:  a town of 174 residents and SEVEN cops.  Cops write so many traffic tickets that the sheriff’s office can’t get cops to respond to calls.  Jericho’s fire chief (I don’t even want to know how many firefighters they have) was apparently the recipient of one too many of those tickets, and he complains to the town’s judge in open court (as is his right to do).  As it was court day, all Jericho cops were in court, and all or some of them take exception to the fire chief.  Fire chief scuffles with cops.  Fire chief not armed.  Cops armed.  Cops (or at least one) SHOOT fire chief from behind in his hip (yes, I said “shot”…that’s right, with a gun).  Fire chief lives.  Judge resigns.  Police Department disbanded.

Admittedly, this isn’t the kind of thing that happens everyday.  I don’t think “cops shooting defendants in court” has reached an epidemic level enough to call for systemic change…at least not yet.

The bigger story here is “Who in the hell let a town with 174 people have SEVEN cops!?” How long was this going on?  What other towns in Arkansas (and other states) are propping up their police departments (and local government) on the backs of their citizens by charging them with CRIMES?  Hint:  More than just Jericho.  Take a trip to your local district court on any day that criminal court is in session.

The saddest part here is that the poor citizens of Jericho would have been forced to silenty endure this crap if it hadn’t been for the fire chief laying down his life hip for a right and just cause.

BJW