Articles Posted in DUI

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Historically, an individual arrested for DUI in Oklahoma automatically has his or her license suspended. The suspension process involves an administrative proceeding with the Department of Public Safety, while the DUI itself is handled by the criminal courts. After a first offense, a driver can have his license revoked for up to six months. But a September 2016 Oklahoma Supreme Court decision put a wrench in this practice — at least for the time being.

In a 7-2 ruling, the Oklahoma Supreme Court affirmed the lower court’s decision setting aside a license revocation based on problems with the Itoxilyzer 8000 breathalyzer.

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Four consolidated cases before the Colorado Supreme Court raised the issue of whether DUI is a lesser included offense of either vehicular assault-DUI or vehicular homicide-DUI. In ruling on them in a single opinion, the state high court also addressed:  (1) whether a double jeopardy claim can be raised for the first time on direct appeal; and (2) which tests courts should apply in evaluating whether one offense is a lesser included offense in another offense.

Regarding (1), the supreme court concluded that unpreserved double jeopardy claims could be raised for the first time on appeal and that appellate courts should ordinarily review these claims for plain error. In so holding, the court rejected the government’s argument that defendants waive their double jeopardy claims unless they raise them at trial through a Criminal Procedure Rule 12(b)(2) challenge to defective charging documents.

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A 28-year-old Sumner, Illinois resident was recently sentenced to 30 months in prison after pleading guilty to aggravated DUI for the June 2014 car accident that killed her boyfriend. She was sentenced this month by Lake County Circuit Court Judge James Booras. Her prison sentence is periodic, meaning she will occasionally be released for treatment and medical services. Following her jail sentence, she will be required to serve four years of probation.

According to Waukegan police records, officers responded to a report that a car struck a utility pole at around 3 a.m. on June 28, 2014. According to witnesses, the driver was traveling at high speeds when she crashed into the pole on North Lewis Avenue. While her 24-year-old boyfriend was killed instantly, the crash also resulted in the driver losing both of her legs. She was immediately airlifted to a hospital in Libertyville, where she was announced to be in critical condition. No other cars were involved in the crash, and both the driver and her boyfriend were wearing seat belts.

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The Times of Wayne County has a reputation in upstate New York for printing all arrests and publishing all mug shots in the county. Accordingly, a 43-year-old DUI defendant bought hundreds of copies in an unsuccessful attempt to prevent his community from reading about his arrest.

After being arrested, he ranted that he didn’t want his photo in that “rag of a newspaper.” As the police press release more politely phrased it, he declined to be photographed “because he did not wish to appear in the local paper.” Based on this refusal (he also refused to provide a breath sample or fingerprints), he was charged with second-degree obstructing governmental administration, in addition to DUI and traffic violations.

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A New Jersey appellate court recently reversed a woman’s 2013 conviction for vehicular homicide. The court concluded that the Somerset County Superior Court erred in not allowing into evidence a note from the defendant’s husband stating that he, not she, was the driver in the 2010 crash that killed a 22-year-old man. The court remanded the case for a new trial.

A 43-year-old woman was sentenced to seven years in prison in May 2014. The collision occurred on Route 78 in Warren Township. Her 2011 BMW struck the man’s 1998 Subaru as the two traveled eastbound. The impact of the crash sent the man’s car spinning across a mound of grass and into a tree, killing him. A chemical test indicated that the woman’s BAC was .087 — just above the legal limit.

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Last month, the Federal Trade Commission (FTC) filed charges against Breathometer, Inc.–a company that markets two smartphone accessories designed to measure consumers’ BAC–and its CEO in federal court, claiming they lacked scientific evidence to support their claims. The complaint, filed on January 23, 2017 in the U.S. District Court in the Northern District of California, seeks a permanent injunction, rescission of contract, monetary damages, and other equitable relief in connection with the marketing and sale of the applications Breathometer Original ($49) and Breathometer Breeze ($99). The company and its CEO recently settled with the FTC.

Both are devices operated in conjunction with the Breathometer smartphone app. While the Original attaches to a smartphone via the audio jack, the Breeze is operated by Bluetooth. The devices work by blowing into the device. Within seconds, a BAC level is displayed on the phone. The company even had a deal with Uber in which Uber would pick up riders whose BACs were too high to drive.

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The Idaho Supreme Court recently vacated a defendant’s DUI conviction because it was enhanced based on a prior conviction obtained in violation of the defendant’s Sixth Amendment right to counsel.

The State charged Farfan-Galvan with felony DUI on November 3, 2014. The DUI was charged as a felony because Farfan-Galvan had two prior DUI convictions, one from 2008 in Jerome County and one from 2010 in Twin Falls County. Farfan-Galvan moved to dismiss or remand the charge, based upon his claim that one of the 2010 convictions upon which the State relied to enhance the charge from a misdemeanor to a felony was obtained in violation of his Sixth Amendment rights. The district court denied the motion.

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After a jury trial, defendant Jeannine Jenkins was convicted of aggravated driving under the influence of alcohol and sentenced to 12 years in prison. Following Jenkins’ direct appeal, the Illinois Court of Appeals for the First District remanded the case to the trial court for a hearing on Jenkins’ pro se motion for a reduction of her sentence. On remand, the trial court denied the defendant’s motion. Jenkins appealed. The appeals court affirmed the judgment against the defendant in an unpublished opinion.

At trial, the evidence established that in April 2012, the defendant picked up her granddaughter from daycare. The daycare workers reported that the defendant was possibly intoxicated. The Palatine police were called and located the defendant within minutes. The defendant appeared to be under the influence. The defendant’s granddaughter was not strapped into a car seat and was “sitting loose” in the car. The defendant was arrested and charged with aggravated DUI. Following a jury trial, the defendant was found guilty of aggravated DUI.

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Defendant Mary Osborne was charged with operating a vehicle while intoxicated in a manner that endangers a person and operating a vehicle with a blood alcohol concentration of at least 0.08. Before trial, Osborne filed a motion to suppress, arguing that the warrantless traffic stop preceding her arrest was constitutionally invalid. The trial court denied her motion. The court of appeals reversed, holding that the police exceeded their Fourth Amendment authority in stopping Osborne’s car out of an alleged concern for her medical state.

On interlocutory appeal, the Indiana Supreme Court vacated the court of appeals’ opinion and reversed the trial court’s denial of the defendant’s motion to suppress, holding that the government failed to show that the stop was justified by an exception to the warrant requirement.

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The Illinois Court of Appeals for the Third District recently held that suspicion aroused by bloodshot eyes, unless confirmed by another factor (such as poor driving, stumbling, or an inability to communicate), does not rise to the level of probable cause that a DUI was committed.

At the hearing on the defendant’s petition to rescind the summary suspension of his driver’s license, Officer Lopez testified that on the morning of the December 2014 incident, he observed defendant Anthony Day driving safely. Lopez pulled Day over because excessive noises were emanating from his exhaust system.

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