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Category: Law

jail-for-dwi

A glitch in North Carolina’s penal system is short-changing the state’s efforts to reform drunk drivers.

An article in The Marshall Project tells the story of North Carolina DWI offenders who are serving time – years – in jails that are meant for short-term stays. As a result, these offenders have no access to the facilities that prisons offer: drug and alcohol treatment, job training, and education.

Jail For DWI: How Good Intentions Fail

These offenders are in jails because North Carolina decided to reduce the state’s prison population in 2011 with the Justice Reinvestment Act. Misdemeanor offenders, including DWI offenders, were sent to jails instead of state prisons. At the same time, the state was getting tougher on drunk drivers, imposing mandatory sentences on certain DWI offenses. Both these moves had good intentions: the first was designed to reduce state spending and divert funds directly into communities. The second was to reduce drunk driving by getting tough on serious offenders.

There was a problem: as a result of these two moves, repeat DWI offenders, people with alcohol problems and other substance issues, are being sent to local jails where they get no treatment. When they are released, the chances are they will drive drunk again.

What Works: Sobriety Court Plus Ignition Interlocks

The most effective system for dealing with DWI offenders is the sobriety court/ignition interlock combination, which has been praised for the success this method has found in, for example, Michigan:

  • Offenders receive direct supervision by an officer who ensures that all aspects of the program are being followed.
  • Offenders go to regular treatment sessions and the results are shared with officers.
  • The court ensures that an ignition interlock – a device which prevents a vehicle from starting if the driver has been drinking – is installed on the offender’s vehicle. In non-supervised settings, a large percentage of offenders don’t comply with the interlock order.
  • The interlock ensures that an offender retains driving privileges, and can therefore get to treatment.
  • The expense of incarceration is avoided.
  • Offenders can maintain or improve their employment situation, which would not be possible without the interlock and supervision.

Naturally, jail for DWI is sometimes called for. But in cases of long-term imprisonment, offenders must have access to treatment for the issues which caused them to be there. Making people sit in a local jail, without treatment, proper exercise facilities, or opportunities for education or self-betterment, is no way to improve a social ill.

You can’t imprison your way out of an alcohol problem. Better solutions are out there, at least for some of the offenders who are now in North Carolina’s jails.

A trend that has been sweeping legislatures across the country has hit North Carolina. Currently 29 states mandate ignition interlocks for all DWI offenses, and a group of lawmakers want North Carolina to be number 30.

An ignition interlock, or car breathalyzer, prevents a vehicle from starting if the driver has been drinking.

States which have mandated the devices for all offenders, including first offenders, have seen a downturn in alcohol-related road deaths. An all-offender laws is a logical move that other are debating as well.

Currently the state requires the devices for DWI convictions of people arrested with a blood alcohol concentration (BAC) of .15. The new law would require them for anyone with a BAC of .08 or more.

Something Different for NC: Different BAC Device Limits

One interesting departure in the North Carolina bill is the way in which the legislators would like the interlocks to operate. Usually, an ignition interlock will trigger a warning if the tester’s BAC is below a pre-set level – usually .02 or .025.

The current bill would move the low limit to .04 for first offenders. In other words, they could possibly have one drink and then drive right after or soon after.

For repeat offenders and underage offenders, the level would be zero. Any alcohol at all in one’s system would prevent the vehicle from starting.

It’ s an interesting compromise, one that allows for light drinking for first offenders who wish to drive, and then allows for none at all for repeat offenders. This provision would get around the objections that some have that ignition interlocks are too harsh on first offenders.

We don’t agree with that, and we’d be uneasy with a convicted DWI driver who then was permitted to drive under any influence. A .04 BAC level is not that low – there is some impairment, though of course that would vary depending on the person’s age, size, sex, and other factors.

Is this compromise what’s needed to finally get an all-offender ignition interlock law off the ground in North Carolina? Perhaps. In any case, it shows that North Carolina is on board with ignition interlocks as a measure for combating drunk driving. Maybe they’ll tweak the numbers later and make the law a bit safer, after the program proves itself as a life saver.

Drunk driving is an unusual crime for a couple of reasons. One is that, unlike other crimes, it comes with its own measurable, standardized physical evidence. Test a driver for alcohol, and you know whether or not you have a drunk driver on your hands.

The other side of the coin is that the evidence disappears quickly. Fingerprints, bodies and DNA stick around, but a few hours after a person has driven drunk their blood alcohol concentration (BAC) level is  back to zero. The evidence is gone.

That’s why police often have to act fast to obtain evidence of drunk driving. This is going to be harder in Arizona now. The State Supreme Court has ruled that police can’t have DUI blood samples taken from an unconscious suspect without a search warrant or special urgent circumstances.

The fact that the evidence will soon disappear is not considered an urgent circumstance.

The ruling is based partly on a U.S. Supreme Court decision on warrantless blood draws, and it also makes reference to Fourth Amendment privacy laws.

The Unconscious DUI Suspect

The case in question was an incident in which a driver was found unconscious after a collision. Blood was drawn, and his BAC was found to be .21, or more than twice the legal limit. The defendant wanted the blood evidence suppressed, on the grounds that the blood draw was a warrantless search.

But… Implied Consent!

Arizona has an implied consent statute in its motor vehicle laws. This statute says that anyone who operates a motor vehicle gives consent to blood tests for alcohol or drugs. Moreover, dead or unconscious people are not excepted from this clause. That seems to sew things up. So what happened?

The court went with another U.S. Supreme Court case, Missouri v McNeely. The opinion stated that the “physical intrusion” of a needed involves “an individual’s most personal and deep-rooted expectations of privacy.”  So even with implied consent, the state must require either voluntary consent or a warrant, except in cases where a obtaining a warrant in time is impossible – and not just because of the dissipation of the alcohol.

What Does This Mean for Arizona DUI Enforcement?

Police who want to take a DUI blood sample from an unconscious suspect will either have to have a warrant, or will have to show more cause that they couldn’t get a warrant than just that time was running out on the BAC evidence in the blood.

For the record, it was not always customary to draw blood from unconscious suspects. In the early days of drunk driving laws – the 1930s and 1940s – it was considered an unfair invasion of privacy. As a result, a driver who drunk enough to become unconscious was able to escape the prosecution.

That’s not the purpose of this ruling, and we hope it doesn’t have similar results.

North Carolina - prison for felony DWI deathThe message: you can’t kill someone with a vehicle while drunk and not serve jail time. That’s the essence of the bill that the North Carolina House approved recently.

At the core of the argument surrounding the bill is judicial discretion – the belief that a judge should have leeway in sentencing offenders because each case and each defendant is different, and justice can only be served if the sentence reflects the situations of the individuals involved.

Right now a person who drives drunk and kills another person in North Carolina normally gets 38 to 58 months in prison. However, a judge can opt not to send a first offender to jail.

The bill just passed, House Bill 65, removes the judge’s ability to keep a first offender out of jail. A sentence of at least 14 months would be mandatory for anyone guilty of felony DWI death.

Accountability and the Felony DWI Death Debate

Legislators who voted for the bill want to ensure that all drunk drivers whose actions have such serious consequences are held responsible for those actions. Admittedly, it disturbs many that someone could cause the death of another through reckless behavior and not serve any prison time. But opponents of the measure believe that not all DWI deaths are equal. A teenager who crashes on his first drinking bout might not be the best candidate for imprisonment, while a 40-year-old repeat drunk driver who has had ample warnings and chances would be a different case.

Nothing is settled yet. The House Bill 65 still faces approval in the State Senate. The debate will continue: on one side, those who are fed up with seeing offenders get off with light sentences, and on the other, those who believe that we have judges in order to get the benefit of their discretion in fitting punishment to the crimes and criminals at hand.

While dealing with DWI death is an important issue, it’s not the only one that needs attention in North Carolina. Mandating ignition interlocks for all DWI offenders has been proven to reduce instances of the very crime House Bill 65 is dealing with right now. North Carolina should make the devices mandatory for all DWIs over .08 BAC, and require that the devices are only removed when the offender has gone several months with no failed tests (compliance-based removal). A stronger ignition interlock law would mean fewer DWI deaths overall – and less need for judges to impose such serious prison sentences.

DUI tests for Arizona crashesA bill just passed the Arizona Senate that would require DUI tests for any driver involved in a collision resulting in injury or death.

Senate Bill 1054, like many bills associated with drunk driving, began with a tragic incident. Joseph Smith, a teenager from Phoenix, was killed in a crash last June. The driver of the semi that killed Smith and injured others was never tested for alcohol. As a result, the families affected by the crash – seven of them altogether – will never know the true cause of the crash, or if justice was done.

Justice is one of the motives for passing such a law. Another one is to get a more complete picture of impaired driving. If serious crashes are being caused by impaired drivers, states need to know that, and the information needs to be tallied and added to our body of knowledge.

There are those who have misgivings about the bill. Some question whether a crash is in itself a legal justification for DUI tests. Normally a police officer will detect evidence of impairment – slurred speech, odor of alcohol – and use the test for confirmation. Now the question must be asked: is a crash in itself cause enough for a sobriety test?

The bill moves on to the House now. If the 26-3 Senate vote is any indication, it will make it to the Governor’s desk. It’s hard to say how great an effect the law would have on drunk driving in Arizona, but the bills sponsors – and the grieving families that support it – feel that they deserve the whole story whenever a serious collision occurs.

North Carolina DWIIt’s not easy being a judge. When the verdict has come back guilty, it’s your job to determine the punishment. The law sets down guidelines, but you are there to determine how serious the offense was, and if the sentence you deliver will deter others from the same crime. It’s not easy.

In North Carolina DWI court, the law specifies aggravating factors – factors which, if present, will add to the severity of a DWI and likely add to one’s punishment.

Grossly Aggravating Factors

  • A prior DWI conviction within seven years of the one in for which the offender is being sentenced for
  • A DWI conviction after the one in question, but before the sentencing
  • A prior DWI conviction in district court which was appealed in superior court and was withdrawn or remanded back to district court, and a new sentencing hearing has not been held
  • Driving during the offense with a suspended license
  • Causing serious injury due to impaired driving during the offense
  • Driving during the offense with a child under 18, a person with mental development of a child under 18, or a person with a physical disability preventing unaided exit from the vehicle

Aggravating Factors

  • Gross impairment of faculties, or driving with a blood alcohol concentration of .15 or more
  • Especially reckless or dangerous driving
  • Negligent driving that leads to an accident
  • Driving with a revoked license
  • Speeding while fleeing or attempting to avoid capture
  • Speeding at least 30 mph over legal limit
  • Passing a stopped school bus in violation of applicable statute
  • Other non-DWI motor vehicle offenses or combination of DWI and non-DWI offenses, under certain conditions

How Gross is the Outcome?

North Carolina DWI law specifies punishments in levels. You can look up the detail levels here. But the gist of it is, if you’ve got 3 or more grossly aggravating factors, you’re looking at a year in jail and a $10,000 fine. The levels go down if you have fewer aggravating factors. And yes, there are mitigating factors as well to counterbalance the black marks.

North Carolina is telling us that drunk driving, while a crime, is not black-and-white. Just how serious a crime it is depends on how completely you disregarded the safety of others, and how often you have repeated the offense.  There is no room for drunk drivers on the road, but there is some leeway for justice in North Carolina courts.

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