Monday, November 11, 2013

Burden of Proof on Felony Idaho DUI's - Prior DUI Offenses

On September 5, 2013 the Idaho Court of Appeals in State v Schall clarified that, in felony Idaho DUI cases, the State has the burden of proving that the DUI offenses leading up to the felony charge are "substantially conforming" to Idaho DUI law. The State has to meet this burden of proof at the time of the preliminary hearing in order for the Magistrate Judge to bind the Defendant over to District Court on the felony charges. The Court indicated that "the magistrate at the preliminary hearing must make the initial legal determination whether the foreign statute is substantially conforming, for without that determination there can be no probable cause for a felony offense and the case may not be bound over to the district court." (See, page 8.)

As a practical point, for a person facing felony Idaho DUI charges, it is important possibly essential to hold a preliminary hearing and make the State (i.e. prosecuting attorney) meet their burden of proving all of the elements of the Idaho DUI charge including any "substantially conforming" prior DUI charges. Simply waiving the preliminary hearing without making the state prove the elements of an Idaho DUI offense may result in the inability to challenge the charge on this issue at a later date. Make sure to have a detailed discussion with your attorney or public defender prior to waiving a preliminary hearing.

Tuesday, May 14, 2013

Possible Changes to Blood Alcohol Content

The federal government is currently considering lowering the Blood Alcohol Content to .05 instead of .08. They base this number on studies out of Europe which showed that lowering the BAC to .05 reduced DUI related deaths by 50%. If the federal government demands that the states support this change, Idaho will likely follow and change the BAC to .05. Right now this is just a talking point but don't be surprised to see Idaho lower the BAC in the near future.

Wednesday, March 31, 2010

Case Law Update - DUI and Vehicle Searches

On March 12, 2010, the Idaho Court of Appeals issued a decision in Idaho v. Cantrell regarding DUI arrests and vehicle searches incident to the arrest. Cantrell was arrested for DUI and, after being handcuffed and placed in the patrol car, the officer searched Cantrell's vehicle finding marijuana. Cantrell was then charged with trafficking marijuana due to the large quantity found in the trunk. Cantrell attempted to suppress this evidence as an illegal search and seizure but was unsuccessful. On appeal, the Court of Appeals decided that the search of the vehicle was proper because a DUI is an offense for which it was reasonable to believe evidence of the offense might be found in the passenger compartment.

The specific analysis of the court is set forth below:

"In this case, Cantrell was arrested for DUI, and the DUI supplied the basis for the search. See Gant, ___ U.S. at ___, 129 S.Ct. at 1719. It was reasonable to believe that evidence of the offense, e.g. alcohol containers or other evidence of alcohol use, "might be found in the vehicle."[5] Gant, ___ U.S. at ___, 129 S.Ct. at 1719 (quoting Thornton, 541 U.S. at 632 (Scalia, J., concurring in judgment)). Cantrell's admission with respect to consuming alcohol does not negate the fact that evidence of DUI "might be found in the vehicle," particularly in light of the fact that officers are not required to accept as true a defendant's version of the events. Moreover, Cantrell's contention that a search of his vehicle is unreasonable because evidence of his DUI would only be contained in his body ignores the realities of a DUI investigation. Indeed, as the State points out, "a DUI trial does not start and end with a breathalyzer report," considering the fact that the report may be suppressed in some instances. Officer White testified that after he placed Cantrell under arrest he intended to continue his DUI investigation, including looking in the vehicle for any open containers or other signs of alcohol use.[6] In addition to finding the Tupperware containing marijuana, Officer White also found a beer can. Officer White's search of the vehicle fit within the second prong of the search incident to arrest exception under Gant."
Practical Application of the Cantrell decision shows that if you are pulled over for a DUI, police officers will be able to search your vehicle without your consent as long as they are searching for evidence of the DUI. If they happen to find other contraband incident to their search, you will likely be cited for these offenses as well. Simply admitting to consuming alcohol will not negate the officer's ability to search your vehicle.

Excessive DUI Penalties

Excessive DUI's have a significant impact on you and your driving privileges. An excessive DUI is when you have an alcohol concentration of 0.20 or greater. If you plead guilty or are convicted of an excessive DUI you will be guilty of a misdemeanor. You will also be sentenced to at least 10 days of mandatory jail time and possibly up to 1 year. You can be fined up to $2,000.00. You will lose you driver's license for a mandatory period of one year, during which you cannot drive at all - no temporary permits.

To say the least, excessive DUI's are a very serious problem for you, your family, and your employment. You will need to obtain legal counsel to assist you in defending against the excessive DUI as well as exploring plea bargain alternatives to hopefully reduce your charge to a non-excessive DUI.

Wednesday, February 3, 2010

What is implied consent?

 When pulled over for a traffic stop, one of the things a police officer will tell you is that you need to submit to field sobriety tests and some form of chemical testing, either a breathalyzer or a blood draw. As a result of you driving a vehicle on Idaho roads with an Idaho driver's license (or an out of state license), you have given your implied consent to submit to the testing requested by the police officer.

Idaho courts have stated that "any person who drives or is in actual physical control of a vehicle [has given their implied consent to] evidentiary testing for alcohol at the request of a peace officer with reasonable grounds for suspicion of DUI. Implied consent to evidentiary testing is not limited to a breathalyzer test, but may also include testing the suspect's blood or urine. The evidentiary test to be employed is of the officer's choosing." State v. Diaz, 144 Idaho 300, 160 P.3d 739 (Idaho 2007).

How does this affect you when you are pulled over for an Idaho DUI traffic stop? First, because you were driving, you have given your implied consent to be tested for DUI. This does not mean that they can force you to complete the evidentiary testing. You can respectfully and politely decline to do the testing. However, if you do decline, odds are they will require a forced blood draw, which has been held as valid by the Idaho Supreme Court. State v. Diaz, 144 Idaho 300, 160 P.3d 739 (Idaho 2007). Also, if you refuse to complete the testing the officer may cite you for a refusal, which could result in a one year suspension of your driver's license.

Another thing, you do not have the right to an attorney prior to taking the evidentiary tests.

So what is the best course of action? If you are confident you blood alcohol content is under the legal limit, take the tests. If you believe that you are under the influence, you can refuse the field sobriety tests and the breathalyzer, but if you do, you probably will be forced to give a blood sample. You will also be cited for a refusal which may result in a one-year suspension of your Idaho driver's license.

To develop a personalized DUI Defense Strategy contact Mark Petersen, a Pocatello Idaho DUI Lawyer with Snake River Law PLLC by email or by calling 208.406.9885. Mention "idahoduilawyer.blogspot" and get your DUI Defense Strategy session, a $400.00 value, for free.