When does telling half of the truth become a lie?

A press conference was held on Tuesday of last week in Little Rock so that Mothers Against Drunk Driving (MADD) and the Arkansas State Police could announce their upcoming and half-truthfully-named “Over the Limit, Under Arrest” campaign for the Labor Day weekend, which apparently now runs from August 21st through September 7th.

To tell the truth and to be legally accurate, the slogan should be “Over the Limit or Intoxicated Based on Some Cop’s Opinion, Under Arrest.”  That’s actually the law.

In Arkansas, and most other states, it is illegal to operate a vehicle with a BAC of .08 or higher OR to operate a vehicle “while intoxicated.”  This lesser known “intoxication” part of the law becomes the “fall back” allegation in a DWI arrest in 2 common scenarios:  the driver refuses to provide a BAC sample or the driver’s BAC result is LESS THAN .08.

It IS possible (especially for less experienced drinkers) to become “intoxicated,” and thus be guilty of a DWI, even with a BAC lower than .08.  Only if you have a BAC of .04 or less are you presumed to NOT be intoxicated.   This does NOT mean that the cop won’t arrest you anyway and let the court system sort you out (especially if the cop thinks he can add some allegations that you also ingested drugs).  If you have a BAC greater than .04 but less than .08, there is no presumption either way.

So, if you have a BAC less than .08 or if you have refused the test, how can they still charge you (and possibly convict you) of a DWI?  Because your opinion about your intoxication is much less important than the cop’s opinion.  As the Arkansas Supreme Court put it in the case of Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999) (emphasis added):

The observations of police officers with regard to the smell of alcohol and actions consistent with intoxication can constitute competent evidence to support a DWI charge.  [Internal Citations Omitted]  Opinion testimony regarding intoxication is admissible.

In other words, “intoxication” is based on the cop’s OPINION.  In addition to the cop’s OPINION of how you looked, sounded, smelled, and acted, the key to a cop’s case against you is his OPINION of how you performed on the Standardized Field Sobriety Tests.  And, guess what, it is VERY rare that the cop’s opinion will be the least bit favorable for you.

Whenever I explain this to clients, they are almost always surprised by this part of the law.  I have to believe that this is due, in large part, to anti-drunk driving campaigns that spout off rhetoric like “over the limit, under arrest,” which is, as you can see, only half true.

If law enforcement is concerned about preventing drunk drivers, then they might ought to considering changing the slogan.  Nothing would scare me more as a potential drunk driver than knowing that my life were in the hands of a cop and his opinion.  Maybe if the public knew that they could be convicted of a DWI based merely on a cop’s biased opinion, then they might think twice about getting into a car after drinking ANY AMOUNT.

BJW

[Note:  An interlock is a breathalyzer installed on your car that you blow into before starting your car and periodically thereafter.  It is supposed to ensure that your BAC is under .02 before allowing your car to start or continue to run.]

Getting a DWI in Arkansas just got a little bit costlier.  Prior to July 31st, if you were charged with a first-offense DWI (under a .15 BAC), then you could have a “free” work permit that allowed the accused to travel to and from work without having an ignition interlock device (often referred to as an “interlock”) installed on their car.  Under the old law, as long as there was not a Refusal also charged, then the suspension period was 120 days.  If you blew over a .15 or were charged with a Refusal, then the suspension period was 6 months and you were required to install an interlock to be able to drive.

Beginning July 31st, the work permit no longer exists (except for a first-offense DUI).  Also, there is no longer any legal distinction between a BAC lower than .15 and one that was .15 or higher.  All first-offense DWI’s and/or Refusals include a 6 month suspension, and you must have an interlock installed to be able to drive during your 6 month suspension period (having an interlock license for 6 months is actually a MANDATORY requirement for you to be able to get your license back).

There IS one silver lining for accused drivers (actually, it’s more of a “gold lining” for interlock retailers).  The old law prohibited 2nd and 3rd Offense DWI’s from obtaining any sort of relief (whether a work permit or an interlock license) for the entire 1st year of each’s suspension period.  The new law allows 2nd and 3rd Offense DWI’s to obtain an interlock license after only 45 days, as opposed to 1 year.  There is no change for 2nd and 3rd Offense Refusals; they are still prohibited from any sort of relief.  Unlike first-offense DWI’s, repeat-offense DWI’s do not appear to have a mandatory interlock requirement.

It should be noted that there are many legitimate reasons why a person may not want to have an interlock installed, such as the cost (roughly $150 for installation and $60 per month), the embarrassment, the hassle of having to constantly blow into the interlock while driving, and the real possibility that a mechanical error or false positive could lock you out of your car and leave you or the driver stranded.

So you’re considering driving during your suspension period without having an interlock license?  Bad idea.  First, if you are caught driving, the crime of Driving on a Suspended License for DWI includes an automatic 10-day jail sentence.  Second, as stated above, the interlock is mandatory, and you will not be able to get your license back until, in addition to other requirements, you have had an interlock installed on your car for 6 months.  That is, unless you win your case in the meantime.  In short, unless you win, there is no way around having an interlock in your car for 6 months if you ever plan on driving legally again.

Luckily, it’s not too late if you want to start up your own interlock retailer to try to recoup some of those interlock fees.  There shouldn’t be any lack of business thanks to our local lobbyists and legislators.

BJW

Is it the name of the next blockbuster movie of the Summer?  Not quite.  Actually, it sounds more like some sort of advanced military maneuver.  The latter is much closer to the truth.  The U.S. Military doesn’t have to worry about whether they have an ulterior motive when pulling over a vehicle in a war zone.  Like it or not, neither does your local Arkansas police department.  And it looks like the Benton County, Arkansas Sheriff’s Office is taking full advantage of the law (YouTube video of Benton County, Arkansas criminal interdiction effort).

After reading the article and viewing the video, I actually find the statements of the deputy, a member of the “Crime Suppression Unit,” to be quite refreshing:

Benton County Sheriff’s Office Deputy Corey Coggin drove an unmarked car past the Bentonville home of a suspected methamphetamine dealer.

He knows what car the man drives but it wasn’t there. Coggin drove on.

“I’ve been trying to get him on a traffic stop the last few nights,” Coggin said. “I’ve been out but I haven’t been able to find him.”

It is rare that a police officer has the courage to speak the truth, and it’s even rarer for such a statement to ever see the light of day.

But, fear not, deputy.  Arkansas law IS on your side:  a stop with an ulterior motive (aka a pretextual stop) is okay under the law.  A cop still needs a technical reason to pull someone over.  To assist cops with finding a reason, Arkansas has a wonderful new “public healthcare” law that allows cops to pull anyone over for not wearing a seatbelt.  Luckily for the deputy, personal safety and seatbelts are not high priorities for most meth addicts.

However, as a bit of an aside, while it may be legal for a cop to have an ulterior motive when he stops an individual, it is NOT legal for a cop to have an ulterior motive when he makes the decision to arrest an individual.  For example, a cop pulls over a suspected meth dealer for a seatbelt violation and then arrests him for that offense so that he can then legally conduct an inventory search of suspect’s car during which he finds a pound of meth.  Result:  pretextual arrest is illegal, meth suppressed.

Be afraid anytime the government applies euphemisms to the actions it takes against its citizens, especially when the euphemisms sound like terms you learn in boot camp…”highway interdiction,” “saturation,” “displacement,” and “crime suppression.”  Bottom line…buckle up (and hope that you have a witness).

BJW

The International Association of Chiefs of Police was in Little Rock over the weekend for its annual training conference.  It appears that the subject this year was “impaired” driving, which includes alcohol or drugs.

Video of IACP Meeting in Little Rock (KTHV)

The crime of DWI (Drugs) is becoming “all the rage” among arrest-hungry cops and cities looking to justify and meet their padded, not so recession-proof budgets.  However, the vast majority of the public does not realize that they can be convicted of a DWI in Arkansas (and most other states) if the State can prove that they were intoxicated BY ANY INTOXICANT at the time of driving.

“But I wasn’t drinking!”  It doesn’t matter.  “But I was taking medicine that was prescribed by my doctor!”  It doesn’t matter.  “But it was over-the-counter.”  Drumroll…it doesn’t matter.

A person can become legally intoxicated for purposes of violating Arkansas DWI laws by ingesting “any intoxicant” to the extent that the driver’s reactions, motor skills, and judgment are substantially impaired.

It is clear that “drugged driving” is a problem.  With the Baby Boomers getting older, the problem is only going to intensify.  However, the bigger problem is the government’s solution:  the self-fulfilling prophecy known as the Drug Recognition “Expert” (”DRE”) program.

The DRE program was created by 2 Los Angeles Police Department sergeants after concluding that medical doctors were too reluctant to give an opinion about a suspect’s condition.

Another reason for its creation was the fact that a forensic test of a suspect’s blood or urine can only confirm that a suspect had a specific class of drugs in his system.  There is NO standardized, quantified level of any drug, other than alcohol, that has been scientifically determined to cause an individual to be intoxicated.  Prior to the DRE program, cops had to rely on basic field sobriety tests and the ole standby of “Well, he just looked intoxicated.”  Apparently, that method wasn’t convicting enough people.  Thus, the DRE program was born.

It should be noted that the E in DRE stands for “Expert.”  This wasn’t always so.  They used to be called “evaluators,” but that didn’t quite have the ring to it in court that “expert” does.

Somewhat ironically, the DRE program consists of 12 steps.  All 12 steps must be properly performed; otherwise, the DRE evaluation should not be admissible in court.  Although many DREs (officers certified in the DRE program are called “DREs”) would not like to admit it, the DRE student manual states that “[t]he drug influence evaluation isn’t an exact science,” and that “DREs are not infallible, and neither are laboratories.”  Drug Evaluation and Classification Training.  “The Drug Recognition Expert School,” Student Manual, 2002 Edition, PP. IV-22, 25.

The purpose of a DRE evaluation is to tie a suspect’s perceived impairment to a specific class of drugs (of which there are 7 classes).  Keep in mind that this link must be proved “beyond a reasonable doubt,” the highest burden of proof in our entire legal system.  In the State of Arkansas, a parent can have her child taken away from her based upon proof of neglect that only meets the level of “clear and convincing” evidence, a lesser standard than “beyond a reasonable doubt.”

A typical problem in a DWI (Drugs) case is that oftentimes the person is taking the drug/medicine (most often a prescribed drug) due to an ongoing illness.  Oftentimes, it is impossible to distinguish signs of a person’s illness from the known effects of the alleged drug class.

For example, our office recently handled a DWI (Drugs) case for a woman who has full-onset multiple sclerosis.  Due to the fact that Arkansas has a law that says (obviously, not in these words) that the prosecutor cannot drop a DWI case regardless of the stupidity of the cops in bringing the charges, we proceeded to trial.  At trial, the DRE testified that, in effect, the lynchpin of his opinion that she was intoxicated from the drug that she readily admitted to taking was that she had nystagmus present in her eyes.  Nystagmus is the involuntary jerking of the eyes.  What the DRE failed to even acknowledge is the fact that multiple sclerosis can ALSO cause nystagmus…along with every other “sign of intoxication” that the woman had.

The Maryland Court of Special Appeals even acknowledged the fact that multiple sclerosis can be a cause of nystagmus in the case of Schultz v. State, 106 Md.App. 145, 664 A.2d 60 (1995).  Not to mention, he could have just Googled it before rendering his “expert” opinion.

So, keep in mind that at the end of the day, a DRE is a cop with roughly 9 days of classes and some in-the-field practice on some lucky citizens.

BJW

p.s.  If you watch the end of the video linked above, you’ll see a nice example of our bailout money at work…a fancy new mobile unit where the DRE cops can try their voodoo on you.