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

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

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

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

Ok…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

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