I recently had the pleasure of being interviewed by Grant Eagle on his podcast “5 Minute Legal Insights”. It actually lasted for ten minutes, and I was just getting warmed up! We discussed common misconceptions about DUI/OVI stops, arrests, and court cases. You can listen to the podcast here, and you can also find it on Apple Podcasts, Google Podcasts, Spotify and Stitcher.
Defense attorneys and forensic experts have claimed for years breath-testing machines are unreliable. Those claims tend to fall on deaf ears due to the inherent bias of the source: defense attorneys are advocates for clients accused of crimes based on the results of the machines. Recently, however, more objective sources investigated the reliability of alcohol breath testers and concluded they are often unreliable.
The Investigative Report
The objective sources are Stacy Cowley and Jessica Silver Greenberg. They are newspaper reporters who investigated breath-testing for an article in the New York Times. They interviewed more than 100 people for the investigation, including scientists, police officers, lawyers and executives. They also reviewed tens of thousands of pages of documents, such as court records, corporate filings and contracts.
The investigation revealed some interesting facts. For example, in the past 12 months, more than 30,000 breath tests were thrown out. The investigation cited many defects with breath testing, including programming mistakes in software, improper calibration, and human error. What I found especially interesting was the investigation uncovered problems with portable breath-testers, evidential breath-testing devices, and one particular device which has created controversy in Ohio.
Some people can’t resist. After having drinks, they get a craving, and they have to satisfy it. For some, it’s tacos or wings. For others, it’s burgers and fries. It’s typically not broccoli and kale. And then they go to a drive-thru when perhaps they shouldn’t be driving, and they end-up arrested for DUI/OVI. Two recent news-making DUI arrests demonstrate the danger of caving to cravings and driving-thru instead of staying home.
It Happens At The Drive-Thru
In the first case, former NFL running back Darren McFadden was reportedly found asleep in the drive-thru of a Whataburger in Texas. Police were called to the scene, and McFadden allegedly resisted their attempts to apprehend him. Strangely, after being uncooperative, he consented to a chemical test, and the result showed a blood alcohol concentration of .15 or greater. He now faces charges of DUI and resisting arrest, which means a possible sentence of two years in jail.
In the second case, Pennsylvania state representative John Galloway allegedly was involved in a two-car accident in a McDonald’s drive-thru. Swartara Township police officers investigated the accident and found Galloway was at fault. They also found he appeared to be under the influence, so they gave him a BAC test. The result of the test was a blood alcohol concentration of .13 (the ‘legal limit’ is .08).
It Happens Fairly Frequently
At the Dominy Law Firm, we have represented numerous clients who were arrested at drive-thrus or had recently left a drive-thru. Some of those clients were on their way home, but many were at home and decided to leave for a fast food fix. A few have been during the day, but the vast majority are late at night.
The New York Police Department recently demanded that Google remove a function from the Waze app which permits users to report DUI checkpoint locations. In its ‘cease and desist’ letter, the NYPD stated posting checkpoint locations is irresponsible and possibly criminal. The agency insisted that Google take every necessary precaution to ensure GPS data of DUI checkpoints is not posted on Waze, Google Maps, or associated platforms under its control. If the police in New York City can place such demands on Google, then law enforcement in Ohio can do the same. This raises the question: should the government prohibit Waze (and other apps) from reporting DUI / OVI checkpoints in Ohio?
Waze is a navigation and traffic app which allows drivers to share real-time traffic information. The app was purchased by Google in 2013 (for a mere $966 million). App users can see information from other drivers on their route, such as average speeds, traffic congestion, potholes, accidents, and police presence. Police presence is indicated by an icon of a police officer. The icon does not indicate the nature of the police presence, but users can add notes to the icon, including the presence of a DUI checkpoint. It’s the DUI checkpoint information which is the subject of the strenuous objection by the NYPD.
The NYPD has good intentions. In the letter to Google, the agency states it is “endeavoring to eliminate traffic fatalities”, and “paramount to the success of this initiative is the New York City Police Department’s (NYPD) enforcement of the Driving While Impaired (DWI) Laws”. Nobody can argue with that.
Electric scooters are a thing. In cities across the country, people are riding them, and leaving them, everywhere. During my recent trip to Santa Monica, I decided I would rent one and ride it on the bike path along the beach (“The Strand”). It turns out e-scooters were banned on The Strand, so I rented a bike. Some people rode electric scooters on The Strand anyway, apparently unconcerned about breaking the law. One Santa Monica scooter rider was prosecuted for breaking the law in a different way: driving drunk on an e-scooter. Could someone in Ohio be prosecuted for DUI/OVI on an e-scooter?
Is An Electric Scooter A “Vehicle” Or A “Motor Vehicle”?
Ohio Revised Code section 4511.19 prohibits operating a vehicle under the influence of alcohol or drugs. The question is whether an electric scooter is a “vehicle” subject to the OVI law. The relevant definitions have changed over time, as chapter 4511 of the Ohio Revised Code is amended frequently. In fact, section 4511.19 has been amended about 20 times since 1982.
When a trooper’s DUI charge is dismissed, it may appear the trooper is getting special treatment. In the case of N.C. trooper Dennis Tafoya, the DUI charge was dismissed because the evidence didn’t prove he committed a crime. Although he may have been very intoxicated while sitting in his car, the car was not running. In North Carolina, that is not an offense. In Ohio, the law is different.
According to the news report about the trooper’s case, officers found him passed out in the driver’s seat of his vehicle, parked near the courthouse. The officers ordered him out of the vehicle and asked him if the vehicle was on. He said yes. The officers determined the trooper was intoxicated, arrested him, and charged him with DUI (called “OVI” in Ohio).
Footage from the officers’ body cameras showed the trooper’s vehicle was not running. One of the officers went to move the car and learned the keys were not in the ignition. It turned out the keys were in the trooper’s pants pocket the entire time: they were not in the ignition when the officers arrived. Once the officer got the ignition key from the arrested trooper, the officer found the trooper’s vehicle was in gear. The vehicle was apparently a stick shift, so, if it was in gear, it could not have been running.
After Tiger Woods’ recent DUI arrest, he issued a statement in which he said, “I want the public to know alcohol was not involved. What happened was an unexpected reaction to prescribed medications.” Prescription medications, as well as non-prescribed drugs, account for an increasing number of DUI/OVI cases in Ohio and throughout the United States. Tiger’s situation very publicly spotlights the complicated problem of drugged driving.
The Effects Of An Unexpected Reaction
At about 3:00 am on Memorial Day, a police officer found Tiger asleep at the wheel of his Mercedes. The car was parked, partially on the road, and the engine was running. The officer approached Tiger and woke him. The officer noticed Tiger was sluggish and observed Tiger’s speech was slow and slurred. When asked where he was going, Tiger said he was coming from L.A. and going to Orange County. He was actually in Jupiter, Florida.
How many times have you seen someone obviously texting while driving? I recently drove by a guy who was operating his phone with both hands while he steered his car with his knees. I’m sensitive to the danger posed by distracted driving, both as a lawyer who represents clients charged with traffic offenses and as a father of a child approaching driving age. The more we learn about the danger of distracted driving, the more we understand it may be as hazardous as drunk driving. Consequently, driving while texting may someday carry penalties like those for DUI (known as OVI in Ohio).
Matt Richtel‘s recent article in the New York Times presents a good discussion of this issue. According to the article, the problem of driving while distracted by a cell phone is getting worse. Surveys show Americans not only continue to text but also take selfies, use Snapchat and post on Facebook while driving. According to the National Highway Traffic Safety Association (NHTSA), 3,477 people in the United States were killed by distracted driving in 2015, and another 391,000 were injured. NHSTA chief Mark Rosekind says it’s increasing, and “radical change requires radical ideas”.
The Movement To Decrease Distracted Driving
One idea for change comes from Candace Lightner, founder of Mother’s Against Drunk Driving. Lightner has formed a new group: Partnership For Distraction-Free Driving. That group is gathering signatures on a petition for social media companies like Twitter and Facebook to discourage drivers from multi-tasking.
A few days ago, the state of Ohio began imposing increased penalties for DUI (known in Ohio as OVI). The increased penalties are part of House Bill 388, commonly known as “Annie’s Law”*. The legislation is not really one law but a revision of nearly 20 statutes and creation of one new one. Effective April 6, 2017, “Annie’s Law” provides for longer driver license suspensions, encourages increased use of ignition interlock devices, and results in more defendants being punished as ‘repeat offenders’.
Ohio DUI / OVI Driver License Suspensions Just Got Longer
If a person pleads guilty to OVI or is found guilty of OVI, the court must impose a driver license suspension. The length of the license suspension is chosen by the judge from a range mandated by legislation. The range mandated by legislation increased with Annie’s Law. The following table summarizes license suspension lengths for Ohio OVI convictions:
|Offense in ten years||Old license suspension||New license suspension|
|First||6 months to 3 years||1 year to 3 years|
|Second||1 year to 5 years||1 year to 7 years|
|Third||2 years to 10 years||2 years to 12 years|
|Fourth or Fifth||3 years to life||3 years to life|
A smartphone app for breath-alcohol-testing was so promising that all five investors on Shark Tank collaborated on a deal for the first time. In 2013, Charles Yim went on the show and pitched his app to the Sharks. The Sharks collectively invested $1 million in Yim’s company Breathometer, Inc. for 30% of the company’s equity. Three years later, the company was the subject of an FTC complaint, and the complaint was recently settled.
The History-Making Shark Tank Pitch
The pitch to the Sharks sounded great. People regularly drink alcohol and then drive, and nobody knows when they are over .08. By downloading the app and plugging in a small piece of hardware to a smartphone audio jack, consumers could blow into the hardware and know their blood alcohol concentration in seconds. In addition, the app would tell them how much time it would take to sober up, and it could even call a cab with one push of a button.
The Sharks were intrigued. Yim was asking for one Shark to invest $250,000 for ten percent of the company’s equity. Mark Cuban quickly offered to invest $500,000 for 20% equity. Yim then invited the other Sharks to join, and they did: all five of them. Ultimately, Cuban put up $500,000 for 15%, and the other four Sharks together put up $500,000 for another 15%.