[Co worker DWI]

When I saw the term "physical control of the movement of vehicle", it reminded me that when I lived in Ontario, someone told me his friend was charged with "having care and control of a vehicle while intoxicated", but he wasn't driving. He walked out of a party in a drunken condition and decided not to drive home, but to sleep it off in his car, which was parked in the lane behind the party host's house. A cop came by in his cruiser, took a look, woke him up and found him to be drunk, so the officer charged him, because he was in possession of the ignition key, thus in control of the vehicle.

Really overzealous attitude on the part of that policeman, in the opinion of everyone who heard about that.

That is the law in most states in the U.S., and it a surprise to a lot of people. Most states require that the key be in the ignition. I have had clients realize they had too much to drink, do the right thing, pull over, get in the back seat but leave the engine or running so they could have the hear or a/c on and get arrested for DWI.

Never lost one of those cases, and now, I am pretty much able to get the prosecutor to dismiss it if the cllient does a short class or something. Every once in awhile run into a prosecutor who feels that they need a bunch of counseling, rehab, or something insane and we tee it up and the state loses. But the fact remains that the cop is within his rights to arrest because it is technically "operating" under the law.

Travis

[Co worker DWI]

How about Nevada?

How about it? I love it there, I'm admitted there. Great place. Oh, the law? You'r a lawyer right?

Looks like you are pretty soft on dui compared to Texas. I'll have to ask him again what the penalty is for refusing a breath test, if anything.

From another friend:

For first conviction in seven years: $400 to $1,000 fine; jail term of not less than 2 days nor more than 6 months or 48 hours to 96 hours of community service and if the driver is found to have a concentration of alcohol of 0.18 or more in his blood or breath, he must attend a program of treatment for the abuse of alcohol or drugs pursuant to the provisions of NRS 484.37945; 90-day license revocation.

For second conviction within 7 years: Jail term of 10 days to 6 months or residential confinement for not less than 10 days nor more than 6 months; $750 to $1,000 fine or an equivalent number of hours of community service while dressed in distinctive garb that identifies the offender as having violated the provisions of NRS 484.379; and the driver may be ordered to attend a program of treatment for the abuse of alcohol or drugs pursuant to the provisions of NRS 484.37945; one-year license revocation.

[Co worker DWI]

The details may vary a bit up here, but the fundamentals are the same as you describe. You're either proven guilty or not proven guilty. This can be a problem in the case of someone who is wrongfully convicted of a serious crime, like murder for instance. He may later be cleared, but even a pardon leaves the person with his reputation in ruins and with many people thinking he got away with it.

Emotions do run high at times, especially in the case of repeatedly convicted drunk drivers who finally kill someone, but we try to at least appear to work in accordance with our Constitution and Bill of Rights and Freedoms. Now and then, though, a judge will mete out a sentence that has the whole country wondering what he was thinking, sometimes because the sentence was too heavy, but more often because it appeared to be too light.

In North America in general, since the countries are so big and public transit on a national scale is a bit limited, a driver's licence is considered by many, even judges, to be more of a right than the privilege that it actually is, so there's a certain reluctance to take people off the road, even if they're a danger due to recklessness, drinking, or simple old age. In other countries, there is less reluctance on the part of judges to ban drivers for long periods or even permanently.

Well said.

I will give you one example of how your rights are greater here. In the U.S. you are not allowed to consult with an attorney to help you decide whether or not to take a breath test. In Canada, not only are you allowed to consult with an attonrey, you are required to consult with an attorney before agreeing. You can call your attorney, if you don't know one, they will give you a list of to call who are on standby 24 hours a day to answer questions.

As JB would say, truly "Top Notch."

Travis

[Co worker DWI]

Sorry I am in PA

I'm not sorry, PA is better off with you then Hong Kong.[]

Pennsylvinia is very complex, you have what we call a tiered approach, a differenet tier of offense based on you blood/breath alcohol level, i.e., .08 to .10, .10 to .15, etc.

You correct in Pennsylvania if you refuse (assuming they have the legal right to request a breath test), it is a mandatory 1 year suspension. I don't know if you can get an occupational or hardship license there in that situation. Pennsylvania, like a few other states such as WI, have made it a crime to refuse the breath test. We don't have that in Texas, nor do we have road blocks, the legislators know, despite MADD, that the people will only be pushed so far.

This is what a friend sent me on the laws in your state:

Travis

N E W P E N N S Y L V A N I A D U I L A W S

Pennsylvania has substantially re-written its laws relating to driving under the influence or controlled substances and have issued harsher penalties as a result. The elements of the new DUI law are:

(75 Pa.C.S. Section 3802) (a) - General Impairment - (1) An individual may not be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the vehicle; (2) An individual may not be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least .08% but less than .10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(75 Pa.C.S. Section 3802) ( - High Rate of Alcohol - An individual may not be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least .10% but less than .15% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(75 Pa.C.S. Section 3802) © - Highest Rate of Alcohol - An individual may not be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least .16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

(75 Pa.C.S. Section 3802) (d) - Controlled substances - An individual may not be in actual physical control of the movement of a vehicle under any of the following circumstances: (1) there is in the individual's blood any amount of a (i) Schedule I controlled substance, as defined in the Controlled Substance, Drug, Devise and Cosmetic Act or (ii) Schedule II or Schedule III controlled substance, as defined in the Controlled Substance, Drug, Devise and Cosmetic Act which has not been medically prescribed for the individual or (iii) metabolite of a substance under paragraph (i) or (ii).

(75 Pa.C.S. Section 3802) (e) - Minors - A minor (an individual under 21 years of age) may not be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is .02% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

Refusal of Breath, Blood or Urine Test - If you refused to take a breath, blood or urine test after being arrested for DUI in Pennsylvania, your license will be suspended for a period of not less than 1 year and a 3 days mandatory incarceration. A person should take immediate action if chemical tests were refused. The arresting officer must forward Notice of Refusal (DL-26 Form), to inform Pennsylvania Department of Transportation (PennDOT) of driver's refusal. Once received, PennDOT forwards order to driver that licence shall be suspended in 30 days from the date of correspondence. Driver has 30 days from correspondence date to appeal in a civil proceeding.

P E N N S Y L V A N I A D U I P E N A L T I E S

Pennsylvania has taken the position that a person’s Blood Alcohol Level (BAC) and the number of times the person has committed a DUI within the last ten years will dictate what punishment they will receive.

As of February 2, 2004 there are three categories a person will fall into based on the level of the alcohol in their system. There is

a) .08%-.099%

.10% - .159%

c) .16% and higher

Included in this category are refusal to submit to a test. All of the categories require a Court Reporting Network (CRN) evaluation; the first and second offenders require Alcohol Highway Safety. (AHSS). BAC .16 or higher and all subsequent offenses require a mandatory Drug and Alcohol (D&A) assessment and treatment. All second and subsequent offense requires the installation of an Ignition Interlock System.

FIRST OFFENSE (NO PRIOR PA DUI OFFENSES WITHIN THE LAST 10 YEARS)

BAC is .08% to .099%. This is an ungraded misdemeanor with a 6 month maximum probation and a $300.00 fine. Required CRN, AHSS and possible D&A. There is no loss of license and no jail time with this particular category.

BAC is .10% to .159%. This is an ungraded misdemeanor with a mandatory 48 hour imprisonment up to a possible 6 months and a $500.00 to $5,000.00 fine. Required CRN, AHSS and possible D&A. The license suspension is 12 months. However there is a possibility to get an Occupational Limited License (OLL) after serving a hard 2 month suspension.

BAC is .16% or higher or refusal to give a blood or breath sample. This is ungraded misdemeanor with a mandatory 72 hour imprisonment up to a possible 6 months and a $1,000.00 to $5,000.00 fine. Required CRN, AHSS and mandatory full D&A. The license suspension is 12 months. Also possibility for OLL after serving hard 2 months suspension.

SECOND OFFENSE

BAC is .08% to .099%. This is an ungraded misdemeanor with a mandatory 5 days imprisonment 6 month maximum jail sentence and a $300.00 to $2,500.00 fine. The license suspension is for 12 months. Required CRN, AHSS, D&A and Ignition Interlock for 12 months.

BAC is .10% to .159%. This is ungraded misdemeanor with a mandatory 30 days imprisonment 6 month maximum jail sentence and a $750.00 to $5,000.00 fine. The license suspension is for 12 months. Required CRN, AHSS, D&A and Ignition Interlock for 12 months.

BAC is .16% or higher or a refusal. This is graded as a misdemeanor of the First Degree with a mandatory 90 days imprisonment 5 year maximum jail sentence and a $ 1,500.00 to $10,000.00 fine. The license suspension is for 12 months. Required CRN, AHSS, D&A and Ignition Interlock for 12 months.

THIRD OFFENSE

BAC is .08% to .099%. This is graded as misdemeanor of the Second Degree with a mandatory 10 days imprisonment 2 year maximum jail sentence and a $500.00 to $5,000.00 fine. The license suspension is for 12 months. Required CRN, D&A and Ignition Interlock for 12 months.

BAC is .10% to .159%. This is graded as a misdemeanor of the First Degree with a mandatory 90 days imprisonment 5 year maximum jail sentence and a $1,500.00 to $10,000.00 fine. The license suspension is for 18 months. Required CRN, D&A and Ignition Interlock for 12 months.

BAC is .16% or higher or a refusal. This is graded as a misdemeanor of the First Degree with a mandatory 1 year imprisonment 5 year maximum jail sentence and a $ 2,500.00 to $10,000.00 fine. The license suspension is for 18 months. Required CRN, D&A and Ignition Interlock for 12 months.

FOURTH OFFENSE

BAC is .08% to .099%. This is graded as misdemeanor of the Second Degree with a mandatory 10 days imprisonment 2 year maximum jail sentence and a $500.00 to $5,000.00 fine. The license suspension is for 12 months. Required CRN, D&A and Ignition Interlock for 12 months.

BAC is .10% to .159%. This is graded as a misdemeanor of the First Degree with a mandatory 1 year imprisonment 5 year maximum jail sentence and a $1,500.00 to $10,000.00 fine. The license suspension is for 18 months. Required CRN, D&A and Ignition Interlock for 12 months.

BAC is .16% or higher or a refusal. This is graded as a misdemeanor of the First Degree with a mandatory 1 year imprisonment 5 year maximum jail sentence and a $ 2,500.00 to $10,000.00 fine. The license suspension is for 18 months. Required CRN, D&A and Ignition Interlock for 12 months.

[Co worker DWI]

People can argue technicalities and particulars all day, but it's pretty hard to see anything wrong with the above statements.

I couldn't agree more, And you, being from Canada, where someone charged with DWI has more rights and more protections than someone in the United States, I'm sure would be in favor in making sure the innocent are not punished.

In Canada, like here, we have this thing that decides who is guilty, or truly guilty, and even truly, truly guilty. It's called a trial. Here in Texas it is a jury trial, not sure if you get a jury trial on a first dwi in Canada, I will have to ask some of my bretheren in Canada. Neither we, nor Canada has a system of determining whether someone is innocent. It is either guilty (or, if you prefer, truly guilty) or not guilty (which does not mean innocent, we don't care if you are innocent here or not). The only thing that matters under our system and yours is if the state/Crown can prove you guilty/truly guilty beyond a reasonable doubt. If they can, you are guilty, if not, you are not guilty.

Best systems on earth, you have some more protection up there, but you folks probably don't let emotions and run rough shod over fundamental principals like we are prone to do here on occassion by trying to legislate around constitutional principals.

Travis

[Co worker DWI]

But hey, my 3 closest friends are lawyers.

That says a lot about you, not sure what, but it says a lot about you.[] Oh wait, you work for a group of doctors right? Well that might explain something[*-)]

Applogy is advance to Paul and JC.

Travis

[Co worker DWI]

How about Nevada?

BTW, how many hours do you spend on a typical DUI trial? I am impressed. It seems that everything is a plea bargain here.

Everything is plea bargined there because you have not right to a jury trial for a misdemeanor in Nevada. In Texas we have the right to a jury trial for anything, speeding, running a red light, anything,

A non breath test case usually takes 1 day, depending on judge, and a breath test case takes 1 to 2 days depending on the court. Some don't start picking a jury until 1:30, others are ready to go right a 9:00 a.m with 30 mins of voir dire per side (we get to do all VD here), and we go. I estimate that I spend 3 hours of prep time for every hour in court, so the typical time spent on a DWI here is 60 to 70 hours. For me at least, but I don't like to lose, so I do everything I can. Go to scene personally, get all records, have a contested pretrial hearing, request contested license suspension hearing, etc., etc. Most attorneys don't do all of that.

When I was practicing in Las Vegas Watkins was about the only one who was specializing in DUI really and the only one trying a lot of cases. He must have about 50 reported opinions by now all on DUI, if he is still practicing. I did not do a lot of criminal when I was there, and the little criminal work I did was all white collar, usually federal, and usually doctors for clients.

Travis

[Co worker DWI]

You are certainly right on one thing. It's always complicated, although usually not terribly unique. The innocent should not be punished, but the guilty should also not go free if we can help it. What I'm dead set against is releasing truly guilty parties from the consequences of their actions.

Michael,

You could have been a founding father, you summed up our judicial system in one sentence, something a legislator or lawyer could never do. That is always the deliema in a system of justice: Is it better to have a system that can convict 9 innocent people so that one guilty person is not allowed to go free, or is it better to have a system that allows 9 guilty people to go free to TRY and prevent one inncoent from being convicted.

Our founding fathers, some having been from backgrounds involving the first situation, thought it better to have a system where the guilty might go free then chance the conviction of an innocent person. That is why we have the presumption of innocence, and, that the state is required to prove to the jury that the defendant is guilty beyond a reasonablle doubt. Those two things result in people who are probably guilty from not being convicted. It is designed that way, on purpose, after a lot of thought, and bloodshed going back to the Magna Carta. It is a shame more people don't understand why our system is the way it is, how it evolved, and why it is the way it is. It is not perfect, but ours is the best on any continent, I can guarantee you that. Because we trust the people, our fellow citizens, to sit in judgement of one of us. A jury is to protect us from the Gov't, not the other way around.

Yes the truly guilty, whatever that is, should not go free or unpunished. If the state has a rock solid case the case usually gets plea bargined, they are found guilty of DWI, and they have to do the required stuff like classes. If the case is marginal it may get plea bargined down to something below a DWI or it may go to trial. If the jury says guilty, then he is truly, truly, truly guilty, by definition. Or he is truly, truly, truly, truly not guilty by definition (which doesn't mean innocent, not guilty does not mean innocent).

Travis

[Co worker DWI]

Travis

If pulled over and asked to submit to a breathalizer and one refuses, I thought that was a manditory loss of your license for one year. Am I wrong? I hope so, but that was what I understood.

Thanks inadvance

What state are you in again? It varies state by state.

In Texas, on a first, if you refuse the test it is a 180 day suspension. If you take test and fail, it is 90 day suspension. Either way you are entitlted to an occupational driver's license which allows you to drive to and from work or school and take care of essential household.

Let me know what state you are in and I can tell you generally what the situation is.

Travis

[Co worker DWI]

Curious here. Would you be just as emphatic at trying to find a legal loophole for this person if he had actually harmed people? Would you defend him if he admitted his guilt to you? You know full well that the breathylizer is a well understood tool that has calibration records. The method of employing the tool is simple and its application in this case was also probably videotaped. Are you inferring that all gov't agencies are totally corrupt intent on incarcerating anyone, anytime for any reason? Is this your line of defense for every defendant regardless of the the allegations? The police lied, used fake equipment, planted evidence, manufactured or doctored video tapes.

Absolutely, but unfortunatley there are no loopholes, in the legal sense, on DWI. If you are referring to consitutional challenges, would I use a constitutional challenge if someone were hurt or killed? Abosolutely, because it means my client's rights were violated. There is no reason for a cop to violate someones rights in a DWI case, because the rights are minimal. There is never a reason to. They violate rights because they are lazy, or stupid and don't belong wearing a badge. The penalty for violating someone's rights is they walk. Period, end of story. We should want our best and brightest being teachers and police. Unfortuantley, all it takes is to be a cop is a high school education and a clean record. Like any profession, most are good, but a few just don't belong. Blame the dumb cop, not me.

Yes I would defend them, whether they admitted their guilt to me or not, if their rights were violated. That is the reason why people walk if thier rights are violated, regardless of the crime, it keeps cops honest, at least you would think it does but it does it.

I know full well that the breathylizer is a brand name and has not been used in any jurisdiction in years. it was actually the most accurate of all breath testing equipment but it could be manupliated by the operator. What is in place now is the Intoxiyzer and Drager. We use the Intoxilyzer 5000 in Texas, which is not the most up to date model available. It is well understood, but it isn't a tool. They call it a instrument, I call it a machine. It is not specific for alcohol, and I'm sure you know what that means. It will read way high if someone has mouth alcohol as opposed to a sample of avelor air, which I know you are familr with. If you have GERDS it will read high, way high. Can it be accurate, sure it can, can it be inaccurate, it sure can, without regard to how it is maintained or calibrated.

I'm not inferering anything at all about agencies, where do you get that from. All I said is the guy needs to talk to a good lawyer, who knows how to defend a DWI case, before he does anything. Then we get people, who know nothing about the case other than a .013 , which is probably wrong, and someone's assumption he was "trashed" and causes them to assume that this poor kid doesn't need legal advice, he needs "help." As in programs, rehab, etc. I then tried to point out that you can't just look at the number and assume anything, that's why he needs to see a good lawyer. The machine may be well maintained for all I know, I just said it could we a defensable case and check your rights.

Why are you such a sheep that you wouldn't question something the govt. says or does? It is our duty as good citizens to question, to investigate, to see what is really going on. But a gov't agency does't have to be corupt for their to be an innacurate breath test, or for someone to be arrested who is not intoxicated. It happens all the time with no bad intent on the part of anyone.

I have never had to use the defense of they used fake equpement, planted evidence, or doctored videotape. A lot of times it is pretty simple, they see the defendant doing field soberity tests on in car video, plus they see them walk and talk, and they look pretty good. And then they hear about a machine that says my client is .12, or .22 or whatever. The higher the better as far as I'm concerned. I get the state's expert to admit that certain things can cause the Intoxiyzer to read high. I then ask the jury whether they are going to believe their own eyes or the govt's machince.

Like I said above, I had a jury trial on Monday, a .12, guy looked good on the video. Jury came back "Not guilty" after 30 minutes. One of the jurror's asked for my card, said they wanted it case they were ever in trouble, they knew that I would "fight for them."

Don't assume because the govt. is behind something that it is all good, perfect and no problems. Most programs are good, most tests are good, but not all are, and the state has to prove it is good beyond a reasonable doubt. It's not my job to prove their case for them, my job is to require the state to meet its burden.

But don't think for one minute that gov't agencies don't manufacture stuff up. Like I said in a post or two up above, there is a gal who ran the breath testing program outside of Houston under felony indictment for manufacturing calibration and maint. records. Don't be so naive that this stuff doesn't happen. It happens with breath testing, DNA, all sorts of stuff. That is why the NIH was recently commissioned to review all sorts of forensic evidence recently and list what was reliable or not. Other than fingerprints and DNA, not much was. It did not meet the standards for scientific reliability. So the gov't had the gov't check itself out, and the gov't said there was lots of problems with forensic testing. I guess we better not believe that either.

Travis

[Co worker DWI]

But, I'm moreover a civil rights activist. I believe more in the constitution, and the right to move about this great land free of harassment. And I believe, while he was drunk, a simple speeding ticket is not Probable Cause to continue with DWI enforcement investigation. Unless there are mitigating circumstances, police officers stop speeders all the time and do not issue DWI enforcement actions. By the mere time of day, or day of week, is not adaquate enough to continue enforcement of DWI, for merely a speeding ticket.

If a police officer stops a speeder and notices that he's "completely trashed", how and why would he ignore that? Freedom of movement is a great right, but if a person puts himself and others at great risk in the course of exercising that right, he should no longer use that means of movement and instead take a bus or taxi, where he's less of a danger to himself and others.

Thursday night he was coming home from a downtown at 1:00 in the morning and was stopped for speeding. Blew a .013 on the breathalizer. Completely trashed.

As well, at that time of night, there are lots of people trying to make it home from bars in varying states of drunkenness and the police are likely looking for any signs of impairment. This guy was speeding. We don't know if that was the only thing about his driving that drew the officer's attention.

As someone pointed out already the number is probably .13 because you are not trashed at a .013. By way of reference the "legal" limt is .08 in every state now. A .013 is a blip on the radar. Even if the number is .13 it does not mean he was "trashed." There is probably a video of him doing the field soberity tests so that is going to be one way to know.

The number from the Intoxilyzer means NOTHING. It is a machine, purchased by the govt. One of the questions I ask of potential juror's is finish this sentence: If theGovt. bought it, it has to be "blank", now fill in the blank.

It is not specific for alcohol (think about that for a minute), it's has technology less advanced then your microwave (eprom chip), having a fever, or naturaly high body temprature will cause it to read high, chewing on white bread and blowing into it, without any alcohol in your system will cause it to read positive for alcohol, if you are a painter you should never blow because you are going to read positive all day every day, etc., etc. etc.

Don't ever take a number the Govt gives you and assume it is accurate.

Travis

Which is probably one of the worst defenses to go on IMO. Any good prosecutor will come to the table with necessary documentation ie maintenance, and validation records to disprove faulty equipment. I am sure this angle is tested at every trial and would assume is mostly debunked.

Well that is the problem when you assume. That is the whole problem with this thread is that people are assuming because of the number .13 he is drunk, needs AA, rehab, is going to kill somebody's mother, cause GM to go bankrupt, whoops, can't pin that on him, but everything else we should.

These machines are mainted by the Govt., you are in private sector so maintance and so on is quite different. As you know, way better than I, maintance and QC are required for hospital and medical labs to be qualified to received medicare and medicade payments so they are going to make sure they are properly maintaned and up to spec,. Bottom line is that it costs them money if they don't.

The same is not true for breath testing equipment. The requirements for maintance and inspection vary from state to state. In Colorado for example, an agency seperate from law enforcement maintains and calibrates them and administers the testing. Their breath testing is seperate and independant from law enforcement.

In Texas, on the other hand, each law enformcent agency has it's own breath testing program, which are all admistered by the Texas Highway Patrol (DPS). There are NO regulations or guidlines on how much maintance and calbration is done. Each program gets to decide on his own. (I know that must blow you away given your background. My two best types of jurors in a breath test case are medical lab equipment people and EE's). But you say, well the manufacturer has a manual that provides for maintance and inspection and service. Wrong, the manual is printed in the way the State wants it. The Breath Testing Manual is specific for Texas, and they can as little or as much in there as they want.

The head of the breath testing program outside of Houston, for 4 or 5 counties, is under felony indictment for faking and forging maintance and claibration records on the machine down there. She was on a private contract, she was paid the same whether she did a lot of calibrations, or none. They are going to have to throw out, or retry about 300 or 400 DWI cases because of it. I think she should get the max of 10 years prison time, or at least have to go to rehab, AA's, and MADD meetings for the rest of her life, whether she drinks or not.

So don't assume anything when it comes to breath testing equipment, it varies greatly from state to state.

Travis

[Co worker DWI]

Drinking and driving is stupid and illegal.

Wrong. While it is illegal to drink and drive at the same time while you are driving in every state now, it does not mean you are DWI/DUI/OUI. It is called an open container violation. Drinking and then getting behind the wheel of a car is not illegal, not in any state in this country. There is nothing to indicate the co-workder had an open container in his car, the subject we are dealing with DWI. You are free to have your opinion about whether it is stupid or not to drink and then drive, but it is not illegal. That is the problem, people think they know what they are talking about in this area but haven't the first clue except what read that the Govt. and MADD campagins put out. "Drink, Drive, Go To Jail." Well unfortunatley it's just not the law.

I think it should be the law, I think it should be no alcohol in your system if you get behind the wheel of a car. It would make me a bizillionaire, but it just makes since. I mean why kid ourselves, as long as it is legal to drink and drive people will.

Arizona was going to require that evey new car sold have an ignition interlock device installed in it (have to blow in it before your car will start, it if detects alcohol, won't start). Everyone was on the band wagon until they saw what the cost to the voters was going to be.

Drinking and driving is not illegal, it is legal. If fact we make it convienient. When is last time you were local 7-11 at 3 or 4 p.m., (maybe it's call Sack-O-Suds where some folks are from), ever notice that giant horse trough sized cooler covered in ice, with every flavor and size of beer being cooled down for folks to buy on their way home. Of course they don't open it until they get home, and those paper sacks that cover just the label are so condensation doesn't drip on your new leather. Almost every bar or resturant that serves alcohol that I have seen has a parking lot.

Travis

[Co worker DWI]

No one should drive impared.

I agree, 100%. But it legal to drink and then drive so long as you are not intoxicated (or impaired, or the influence, depending on your state).

My grandmother was killed by a drunk driver, so I'm kind of against driving drunk.

I'm am sorry for your loss, it is a horrible tragedy. I'm againt driving drunk also, but the standard is well below that, as it should be, Intoxicated is way below being drunk.

Is the legal limit a meaningful number?

A lot of people agree with you. My personal opinion is that it should be zero tolerance--You cannot have any alcohol in your system if you get behind the wheel of a car, the way it is for minors here in Texas. It is very close to that in Europe, .04 in most locations, but they have better mass transit there. I don't see that ever happening here unfortunatley. We don't have good mass transit, save for a few cities, and we are not going to outlaw drinkinng in resturants and bars.

NO!

Back when I only weighed 285lbs, two beers would make me woozy, three and I was staggering. Now in Drivers Education they had us calculate how much beer we could drink for out bodyweight and be under the legal limit (was 0.1 back then). The calculations showed I could drink a twelve-pack and still be legal.

In case anyone out there is reading this who weighs about the same, these numbers are wrong. There are several online blood alcohol calculators that are easy to use that you can use to show this. They are all based on Widmark's formula, a german scientist who did a lot of testing on blood alcohol. The one factor you are omiting, which is key, is time. IJust roughing it out, at 280 if you drank a 12 pack, even over a 4 hour period, you are going to be above a .08.

Here is a link to a simple calculator:

http://www.dot.wisconsin.gov/safety/motorist/drunkdriving/calculator.htm

On the other hand, I could drink an entire fifth of hard stuff and not feel woozy at all (but be at the leagal limit).

Again, depending on the time period involved, you could be way over the legal limit even at 285. To convert from "hard stuff" to equilv. beers you divide the hard stuff by 1.25 to 1.50 depending on the proof of the hard stuff. A fifth is going to equate to way more then a 12 pack.

For a while I worked with a bunch of boozers. They would get caught in a minor trafic violation (as this guy did). If was not their driving skills, but their bad license-plate light that got them stopped. Their average blood levels were around 0.28%!!! One guy got stopped and blew a 0.4%!!! (you're supposed to pass out at 0.3% and be dead at 0.4%) Even though he stayed in jail for the 48hrs (hardly anyone does the whole time), they wouldn't let him leave until he was under 0.1% (which meant he was in until Tuesday, after being picked up on Saturday).

This is probably a old wive's tale in your area, but anything is possible. How would they be checking his bac? Blood? They are not allowed to have him keep blowing in a machine, I guess unless they got him to consent. Human's eliminate, on average, .015 per hour. Even at .4 he would eliminate everything by 24 hours.

That guy probably got up with a level of more that 0.1% every day. He couldn't concentrate enough to work until he had an entire fifth! It would have been interesting to see what his level was at this point.

After I was too trashed to walk after three beers, I would have one of these guys drive me home (because they could drive better than I could).

0.08% is a good number for generating revenue. I don't see the correlation with driving skills.

They fired a guy at work for being over 0.02%! He came in on a Saturday morning for some overtime.

[Co worker DWI]

In years past this could have been me on many occasions. I had a little meeting with my self about this a few years back and put my self on a strict 2 beer limit with food.If I want to drink hard liquior or wine I either have a DD or I drink at the house. I know many otherwise responsible professional people that think nothing of slugging down 4 or 5 martinis and driving home.I try to tell them- some have listened - others have not. This guy drove for like 10 miles before they caught him. Could have killed or injured someone. Something to think about when you order that 3rd or 4th beer at the local sports bar.

You are a responsible drinker and driver. You fit the exact profile of 90% of my clients. They have never been arrested for anything in their entire life, they are pulled over for one reason or another that has nothing to do with bad driving (speeding, not headlights, light out) after having 2 beers or two glasses of wine with dinner and the next thing you know they are arrested for DWI. Most are smart enought to refuse the breath test, but some are not and then and they end up with a high breath test for one reason or another. They look great on their video doing the field soberity tests. 95% of the cases where the person does not blow I'm able to get dismissed or reduced to a non-moving violation. Some still have to do probation and take the classes a person conviced of DWI would have to take.

On the cases where there is a breath test, 90% of those cases have to go to trial and I win 80% of those.

As I mentioned before, 90 to 95% of these folks never have another problem again. Unfortunatley, 5 to 10% are repeat customers, and a lot of them do need some type of help, and we try and get them some.

Winchester, you take good precautions and are responsible, but so are 90% of my clients. Two drinks, driving home, arrested, and away we go. (By the way, 1 beer equals 1 glass of wine equals 1 1/2 oz of 80 proof alcohol, they are all equivilent as far as you body is concerned, but some people feel that they it effects them differently so I understand why you limit yourself to beer if you are going to drive).

Your co-worker friend could easily have had only two beers and posted a .13, it happens all the time. It is caused by mouth alcohol instead of deep lung air (aleviolar). It is too complicated to get into all of the problems with the machine here, but don't judge him based on a govt. machine's number. It means nothing. Get your co-worker friend to a good DWI lawyer, I know two very good ones there, and his life and job won't ruined. It will cost him to be sure, and he will probably learn a valuable lesson, even if it is only never blow.

Travis

[JubScalas who has them to ask questions]

You will be very happy with XTi's I didn't realize you were getting those as well. I can bring over the DX-38 at some point with the new settings from Roy and you can compare for yourself to see if it is worth it, works for your situation.

Travis

[Co worker DWI]

Thursday night he was coming home from a downtown at 1:00 in the morning and was stopped for speeding. Blew a .013 on the breathalizer.

That is a potentially a winable case, that kid needs to see someone who knows how to handle DWI cases before he does anything.

Travis

Travis,

Could you say more about the issues here relating to a potentially winable case?

The main point is that you can tell nothing, absolutely nothing from the number .13 (if it was .13) It if is .013 he has a pretty good civil rights case against the law enforcement agency since he is well below the legal limit. It it was a .13, he is 1 1/2 times over the legal limit if they don't have a split limit system in some states .04/.08.

There are a whole host of things that can cause a braeth test of .13 where the blood test would be well below .08. Are they required in that jurisdiction to offer a blood test if you test over an .08? If so, did they? How long was the test after the arrest? Does he have a medical condition that is know to cause false high positives on the Intoxizlyer 5000 ( I think that is what they use there, but it may be the Drager), such as GERDS or is he diabetic. Has he recently fasted or been on a high protien diet, both documented to cause a false high on breath testing equipment. Was he rununing a fever, etc., etc., etc.

That is just a few issues relating to just the Intoxilyzer. Then he may have technical defenses available, cause to request field soberity tests, then probable cause to arrest after those coordination tests, then proper warning about taking or refusing the breath test, etc.

All I am saying, before we cart this poor kid off to rehab, or to try and "help" him, maybe he should consider letting someone who knows what they are doing take a look at it so he can know what his real options are. Not the family lawyer who wrote the will, not his brother-in-law who practices real estate and personal inury, because they ask what the test is and tell him to plead guilty just the same as any goofball off the street, but someone how specializes in DWI.

It may be he was a drunken fool, and he was lucky and he needs help. Or, it may be that a cop who makes overtime with every DWI arrest was a little over zaealous and there is a problem with the machine or the test, he gets the case reduced, and learns a valuable lesson after all. Win or lose, after they pay my fee, most of my clients have learned a lesson and they don't need "help" thank you very much. That is 95% of them, never see them again but here get updates from friends and family they refer. Unfortuantely, 5% are repeat clients and then we try and get them some help when appropriate.

The thing is that he really needs to talk a lawyer who knows what he or she is doing in that area, and it requires a specialist.

Travis

[Co worker DWI]

What is 'winnable' about putting a drunk behind the wheel again? This guy needs help, not a better attorney.

You don't know this guy was drunk. If he blew a .013, which I doubt, he is not drunk, it's less than an half a beer. If it is a .13 it still means nothing, that number means nothing without knowing about 100 other things. Does he have GERDS, was he around solvents in the last 24 hours, when was the machine calibrated, serviced, was any rf present during the test, was he running a fever, what dental work does he have in his mouth, etc., etc. He drove home after drinking, I didn't see anything about the number of drinks he had, over what period of time, what he ate, when, etc., etc. All we know right now is that he was pulled over for speeding, blew in a device that won out on a low bid, and has a co-worker that assumes he was "trashed." And from this it is sad? He needs help?

Yeah lets send him to rehab on the company's dime, or thier insurance carrier's dime, 30 day program, with pay, oh no lets make it court mandated so it's our dime, 10,000 to 20,000 grand, company is required to pay his wages while he is in rehab. No, he should pay it himself, if he can't afford it he should be jailed until he can pay it. Naw, lets save time and money, let's just shoot him. Better yet, let's deport anyone, citizen or not, who has gets arrested for DWI, or has a drinking problem. Let's make it Canada's problem Better yet, lets outlaw alcohol all together, why didn't we think of this before. Give real harsh prison sentences to anyone caught with booze in there house. We can train a bunch of booze sniffing dogs, something like those beautiful dogs like J4Knee has. Govt. can search your house when it wants, so long as it is random, they are only looking for booze, and they don't profile. And booze and driving, life without baby. When the prisons get too full, start executing 'em.

My god, what are we thinking, this guy had something to drink, don't know how much, but we know it's something, and he had the audacity to drive home. Who does he think he is? He wasn't even born here by golly, we'll show him. That stuff he had to learn to become a citizen, like a nation of laws, not men, right to a jury trial, presumption of innocence, right to counsel, forget that. Were going to show you how good we are at identifying what is wrong with you and then we are going to fix you. Oh, by the way, first rule: The more you say you don't need fixing, the more fixing you really need.

Y'all are turning someone who is a U.S. Citizen and got arrested for drinking while he is driving home after getting pulled over for speeding without knowing how much he had to drink, into someone who needs help. He needs help alright, he needs a good lawyer to protect him from all the do gooders who want to help him.

Charlotte has two very good DWI lawyers there that I know of, I sure hope Winchester's co-workers can get hooked up with one of them so that they can tell him some facts, what he is or isn't looking at based on all of the facts of the case, his situation in life, etc. Although my suggesting he seek the best possible legal advice when his liberty, and possibly job are at stake, I can see the drawbacks of this and where someone would want to turn to a bunch of audio experts instead.

I mean, I know hen I have a tax problem first thing I think of is, ask about it on audio forum. When I feel a mass under my skin that I suspect is cancerous I ask about it on the audio forum, when I need some good investment advice for a secure retirement I ask about it on the audio forum, when I need some good advice about speakers, I ask my urologist, and that's no [bs], I really do.

Travis

[Co worker DWI]

Folks usually stop drinking when it causes them enough pain. Hopefully this fellow will get some help. If the court mandates rehap or other measures he would do well to attend and pay attention.

As a great american once said, "the 9 most terrifying words in the English language are, 'I'm from the government and I'm here to help.'"

Ronald Reagan (GRHS)

[Co worker DWI]

LOL, never had that reponse, but something close "on backorder." It is usually along the lines of "over priced, behind schedule, outdated, worthless, useless, etc." I have never had a postive response. Helps if you ask someone who served in the military, or works for the state.

Travis

[Co worker DWI]

I need a bumper sticker like that,

" You're in America- LEARN ENGLISH and play by the rules "

Well now I know for sure that you don't have any real coona$$ in you if you are against drinking in driving.[]

Do you know why the roads are so bad in LA? Because they were one of the last hold outs on passing an open container law and from going to 21 for drinking age. They were willing to turn away fed highway funds.

The reason why they would not pass an open container law (law that makes it illegal for driver or passenger to have an open container of alcohol in the car) and I'm not kidding you, they thought it would destroy cajun culture if they were not allowed to drive from place to place on Sat and Sun a.m. if they didn't have a beer in their hand.

Travis

[Co worker DWI]

But, I'm moreover a civil rights activist. I believe more in the constitution, and the right to move about this great land free of harassment. And I believe, while he was drunk, a simple speeding ticket is not Probable Cause to continue with DWI enforcement investigation. Unless there are mitigating circumstances, police officers stop speeders all the time and do not issue DWI enforcement actions. By the mere time of day, or day of week, is not adaquate enough to continue enforcement of DWI, for merely a speeding ticket.

If a police officer stops a speeder and notices that he's "completely trashed", how and why would he ignore that? Freedom of movement is a great right, but if a person puts himself and others at great risk in the course of exercising that right, he should no longer use that means of movement and instead take a bus or taxi, where he's less of a danger to himself and others.

Thursday night he was coming home from a downtown at 1:00 in the morning and was stopped for speeding. Blew a .013 on the breathalizer. Completely trashed.

As well, at that time of night, there are lots of people trying to make it home from bars in varying states of drunkenness and the police are likely looking for any signs of impairment. This guy was speeding. We don't know if that was the only thing about his driving that drew the officer's attention.

As someone pointed out already the number is probably .13 because you are not trashed at a .013. By way of reference the "legal" limt is .08 in every state now. A .013 is a blip on the radar. Even if the number is .13 it does not mean he was "trashed." There is probably a video of him doing the field soberity tests so that is going to be one way to know.

The number from the Intoxilyzer means NOTHING. It is a machine, purchased by the govt. One of the questions I ask of potential juror's is finish this sentence: If theGovt. bought it, it has to be "blank", now fill in the blank.

It is not specific for alcohol (think about that for a minute), it's has technology less advanced then your microwave (eprom chip), having a fever, or naturaly high body temprature will cause it to read high, chewing on white bread and blowing into it, without any alcohol in your system will cause it to read positive for alcohol, if you are a painter you should never blow because you are going to read positive all day every day, etc., etc. etc.

Don't ever take a number the Govt gives you and assume it is accurate.

All we know about this co-worker, fellow citizen, child of God, is that he was pulled over for speeding and a machine that the Govt bought and maintains spit out a piece of paper that says .13 (or .013) on it. What does language have to do with anything?

Here is the biggest fact of all which you all really have to sit back and consider. The U.S. is the land of the FREE and the home of the brave, right? In Canada they have more rights and more protections on a DWI arrest then we do in the United States. I don't advocate drunk driving one iota, if you are drunk then you should pay.

Islander, you live in the land of the free when it comes to DWI.

Travis

[Co worker DWI]

If he blew above the limit, then its done. You can plead what you want but the court will order your priviledge to drive gone for a year and he should feel lucky he didn't kill anybody or himself. A major rethink process is in order on how to handle drinking and move on logically from there, and he has his whole life is in front of him and yes still have a sense of humor.

Not if I'm his lawyer he's not done, and not if he gets someone in his area who knows what he's doing. Thank god for the right to a jury trial. I had a .12 breath test jury trial today as a matter of fact, two word verdict.

Rack em!

Travis

[Ok, guys, I get the whole "Groupies" thing... Here's your chance!]

Enthusiasts,

Has my vote, right after those suggested by JaksonBart his are, how you say, "Top Notch."

Travis

[Co worker DWI]

Thursday night he was coming home from a downtown at 1:00 in the morning and was stopped for speeding. Blew a .013 on the breathalizer.

That is a potentially a winable case, that kid needs to see someone who knows how to handle DWI cases before he does anything.

Travis

[JubScalas who has them to ask questions]

Thanks for the input. I will be shopping for a DX 38 LOL

I have a brand new DX 38 in the box, never been opened, that has never been opened that you are welcome to borrow until you find yours.

Travis