Miranda Warnings or "You have the right to remain silent....etc" are a very important Constitutional right, specifically found in the Bill of Rights (or first 10 amendments to the Constitution, namely the 4th amendment). Below is an interesting article from the Associated Press regarding Miranda Warnings:
High court trims Miranda warning rights bit by bit
By JESSE J. HOLLAND Associated Press Writer
WASHINGTON (AP) - You have the right to remain silent, but only if you tell the police that you're remaining silent.
You have a right to a lawyer - before, during and after questioning, even though the police don't have to tell you exactly when the lawyer can be with you. If you can't afford a lawyer, one will be provided to you. Do you understand these rights as they have been read to you, which, by the way, are only good for the next two weeks?
The Supreme Court made major revisions to the now familiar Miranda warnings this year. The rulings will change the ways police, lawyers and criminal suspects interact amid what experts call an attempt to pull back some of the rights that Americans have become used to over recent decades.
The high court has made clear it's not going to eliminate the requirement that police officers give suspects a Miranda warning, so it is tinkering around the edges, said Jeffrey L. Fisher, co-chair of the amicus committee of the National Association of Criminal Defense Lawyers.
"It's death by a thousand cuts," Fisher said. "For the past 20-25 years, as the court has turned more conservative on law and order issues, it has been whittling away at Miranda and doing everything it can to ease the admissibility of confessions that police wriggle out of suspects."
The court placed limits on the so-called Miranda rights three times during the just-ended session. Experts viewed the large number of rulings as a statistical aberration, rather than a full-fledged attempt to get rid of the famous 1966 decision. The original ruling emerged from police questioning of Ernesto Miranda in a rape and kidnapping case in Phoenix. It required officers to tell suspects taken into custody that they have the right to remain silent and to have a lawyer represent them, even if they can't afford one.
The court's three decisions "indicate a desire to prune back the rules somewhat," Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a victims' rights group. "But I don't think any overruling of Miranda is in the near future. I think that controversy is pretty much dead."
The Supreme Court in 2000 upheld the requirement that the Miranda warning be read to criminal suspects.
This year's Supreme Court decisions did not mandate changes in the wording of Miranda warnings read by arresting police officers. The most common version is now familiar to most Americans, thanks to television police shows: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?"
However, the court did approve one state version of the Miranda warnings that did not specifically inform suspects that they had a right to have a lawyer present during their police questioning.
The Miranda warning used in parts of Florida told suspects: "You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview."
Lawyers - and the Florida Supreme Court - said that didn't make clear that lawyers can be present as the police are doing their questioning. But Justice Ruth Bader Ginsburg, writing the 7-2 majority decision, said all the required information was there.
"Nothing in the words used indicated that counsel's presence would be restricted after the questioning commenced," Ginsburg said. "Instead, the warning communicated that the right to counsel carried forward to and through the interrogation."
The next day, the court unanimously limited how long Miranda rights are valid.
The high court said for the first time that a suspect's request for a lawyer is good for only 14 days after the person is released from police custody. The 9-0 ruling pulled back from an earlier decision that said that police must halt all questioning for all time if a suspect asks for a lawyer.
Police can now attempt to question a suspect who asked for a lawyer - once the person has been released from custody for at least two weeks - without violating the person's constitutional rights and without having to repeat the Miranda warning.
"In our judgment, 14 days will provide plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel and to shake off any residual coercive effects of his prior custody," said Justice Antonin Scalia, who wrote the majority opinion.
And finally, the court's conservatives used their 5-4 advantage to rule that suspects must break their silence and tell police they are going to remain quiet if they want to invoke their "right to remain silent" and stop an interrogation, just as they must tell police that they want a lawyer.
All the criminal suspect needs to say is he or she is remaining silent, wrote Justice Anthony Kennedy. "Had he made either of these simple, unambiguous statements, he would have invoked his 'right to cut off questioning.' Here he did neither, so he did not invoke his right to remain silent."
But Justice Sonia Sotomayor said the majority's decision "turns Miranda upside down."
"Criminal suspects must now unambiguously invoke their right to remain silent - which counter intuitively requires them to speak," she said. "At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so."
Police officers will look at these decisions and incorporate them into their training, said James Pasco of the National Fraternal Order of Police. "Officers are expected to adapt to changes required by the Supreme Court," Pasco said. "This will be no different."
But Fisher thinks the court's Miranda decisions will make it easier for police to get confessions out of people who don't want to confess. "Those decisions open up ways for cops to work around Miranda," Fisher said.
Monday, August 2, 2010
Wednesday, July 28, 2010
Driving Under the Influence of Prescription Drugs
I have had many clients who have been charged with DUI and have blown a 0.00 on the breath test machine. What normally happens is that they are taken to the hospital for blood to be drawn and the blood is subsequently analyzed and reviewed for illegal drugs. Driving under the influence of illegal drugs is just as illegal as driving under the influence of alcohol. The following story comes from the New York Times and is an interesting read.
Drivers on Prescription Drugs Are Hard to Convict
The accident that killed Kathryn Underdown had all the markings of a drunken-driving case. The car that hit her as she rode her bicycle one May evening in Miller Place, N.Y., did not stop, the police said, until it crashed into another vehicle farther down the road.
The driver could not keep her eyes open during an interview with investigators, according to the complaint against her, and her speech was slow and slurred. But the driver told the police that she had not been drinking; instead, the complaint said, she had taken several prescription medications, including a sedative and a muscle relaxant.
She was charged with vehicular manslaughter and driving under the influence of drugs — an increasingly common offense, law enforcement officials say, at a time when drunken-driving deaths are dropping and when prescriptions for narcotic painkillers, anti-anxiety medications, sleep aids and other powerful drugs are rampant.
The issue is vexing police officials because, unlike with alcohol, there is no agreement on what level of drugs in the blood impairs driving.
The behavioral effects of prescription medication vary widely, depending not just on the drug but on the person taking it. Some, like anti-anxiety drugs, can dull alertness and slow reaction time; others, like stimulants, can encourage risk-taking and hurt the ability to judge distances. Mixing prescriptions, or taking them with alcohol or illicit drugs, can exacerbate impairment and sharply increase the risk of crashing, researchers say.
“In the past it was cocaine, it was PCP, it was marijuana,” said Chuck Hayes of the International Association of Chiefs of Police. “Now we’re into this prescription drug era that is giving us a whole new challenge.”
The police also struggle with the challenge of prosecuting someone who was taking valid prescriptions.
“How do we balance between people who legitimately need their prescriptions and protecting the public?” said Mark Neil, senior lawyer at the National Traffic Law Center, which works with prosecutors. “It becomes a very delicate balance.”
Some states have made it illegal to drive with any detectable level of prohibited drugs in the blood. But setting any kind of limit for prescription medications is far more complicated, partly because the complex chemistry of drugs makes their effects more difficult to predict than alcohol’s. And determining whether a driver took drugs soon before getting on the road can be tricky, since some linger in the body for days or weeks.
Many states are confronting the problem as part of a broader effort to keep so-called drugged drivers, including those under the influence of marijuana and other illegal drugs, off the road.
“We have a pretty clear message in this country that you don’t drink and drive,” said R. Gil Kerlikowske, President Obama’s top drug policy adviser, who wants to reduce drugged-driving accidents by 10 percent over the next five years. “We need very much to have a similar message when it comes to drugs.”
There is no reliable data on how many drivers are impaired by prescription drugs, but law enforcement officials say the problem is growing so quickly that states are putting hundreds of police officers through special training to spot signs of drug impairment and clamoring for better technology to detect it.
Even the prevalence of drug-impaired driving is unknown, since many states combine the arrest data with that for drunken driving. Mr. Kerlikowske points to a 2007 survey by the National Highway Traffic Safety Administration, which screened 5,900 nighttime drivers around the country and found that 16.3 percent tested positive for legal or illegal drugs.
The tests could not determine which drivers were impaired by drugs, but Mr. Kerlikowske said the results suggested a problem that had “flown below the radar” for too long.
“You don’t want to scare people,” he said, “but you certainly want to make them aware of the dangerousness. You can be as deadly behind the wheel with prescription drugs as you can with over-the-limit alcohol, and you are responsible for your own actions.”
In interviews, law enforcement officials around the country said anyone who drives while taking prescription drugs is at risk of arrest, not only those who drive recklessly. In one recent case near Bangor, Me., a pickup truck on a rural road was not swerving, speeding or otherwise hinting that its driver was impaired. A police officer stopped the truck because of its noisy muffler, then saw that the driver’s eyes were bloodshot and his speech slurred.
A Breathalyzer test found that the driver, Chester Annance, had not been drinking. Yet he was arrested based on the officer’s suspicion that he was on drugs, and a blood test later found opiate painkillers in his system.
Mr. Annance was convicted this month of driving under the influence of drugs. He received seven days in jail, a three-year license suspension and a fine. He is appealing the conviction.
“You don’t need to wait for a crash to happen before you charge someone,” said R. Christopher Almy, the district attorney in Bangor.
Defense lawyers say that in their zeal to make a statement about drug-impaired driving, the police are casting too wide a net and unfairly punishing people who are taking prescriptions as directed.
Tara Jenswold-Schipper, an assistant attorney general in Wisconsin, said she usually stuck to cases where drivers had mixed drugs, exceeded the proper dose or taken controlled medications without a prescription.
In one such case in that state, a former physician slammed his S.U.V. into a Honda Accord in April 2008, killing the pregnant driver and her 10-year-old daughter. Prosecutors said the physician, Mark Benson, had high levels of the sleep aid Ambien in his system, as well as Xanax, an anti-anxiety drug, and oxycodone, an opiate painkiller. Mr. Benson was sentenced to 30 years in prison.
Defendants can try to prove that they did not realize their medication would affect their driving, prosecutors said, but that argument may not hold up if the bottle had a warning label.
“Would you go home and start a chain saw and cut down a tree?” said Lt. Col. Thomas C. Hejl, the assistant sheriff in Calvert County, Md. “Why should you get behind the wheel of a vehicle when the same medication has the same side effects?”
Unable to prove impairment with blood tests, prosecutors in drugged-driving cases rely heavily on the testimony of “drug recognition experts,” law enforcement officers trained to spot signs of impairment in drivers. But there are only about 7,000 such officers nationwide, Mr. Hayes said, not nearly enough to respond to every traffic stop that may involve drugs.
“When they are involved,” he said of the experts, “our chances of convicting people are much higher.”
But persuading a jury to convict someone of impaired driving due to prescription drugs remains difficult except for the most egregious cases, said Douglas F. Gansler, the attorney general in Maryland.
“Because most people on the jury will also likely be taking prescription drugs for some ailment,” Mr. Gansler said, “whether it’s Lipitor or allergy pills or whatever it might be, they might think, ‘I don’t want that to become criminal.’ ”
Drivers on Prescription Drugs Are Hard to Convict
The accident that killed Kathryn Underdown had all the markings of a drunken-driving case. The car that hit her as she rode her bicycle one May evening in Miller Place, N.Y., did not stop, the police said, until it crashed into another vehicle farther down the road.
The driver could not keep her eyes open during an interview with investigators, according to the complaint against her, and her speech was slow and slurred. But the driver told the police that she had not been drinking; instead, the complaint said, she had taken several prescription medications, including a sedative and a muscle relaxant.
She was charged with vehicular manslaughter and driving under the influence of drugs — an increasingly common offense, law enforcement officials say, at a time when drunken-driving deaths are dropping and when prescriptions for narcotic painkillers, anti-anxiety medications, sleep aids and other powerful drugs are rampant.
The issue is vexing police officials because, unlike with alcohol, there is no agreement on what level of drugs in the blood impairs driving.
The behavioral effects of prescription medication vary widely, depending not just on the drug but on the person taking it. Some, like anti-anxiety drugs, can dull alertness and slow reaction time; others, like stimulants, can encourage risk-taking and hurt the ability to judge distances. Mixing prescriptions, or taking them with alcohol or illicit drugs, can exacerbate impairment and sharply increase the risk of crashing, researchers say.
“In the past it was cocaine, it was PCP, it was marijuana,” said Chuck Hayes of the International Association of Chiefs of Police. “Now we’re into this prescription drug era that is giving us a whole new challenge.”
The police also struggle with the challenge of prosecuting someone who was taking valid prescriptions.
“How do we balance between people who legitimately need their prescriptions and protecting the public?” said Mark Neil, senior lawyer at the National Traffic Law Center, which works with prosecutors. “It becomes a very delicate balance.”
Some states have made it illegal to drive with any detectable level of prohibited drugs in the blood. But setting any kind of limit for prescription medications is far more complicated, partly because the complex chemistry of drugs makes their effects more difficult to predict than alcohol’s. And determining whether a driver took drugs soon before getting on the road can be tricky, since some linger in the body for days or weeks.
Many states are confronting the problem as part of a broader effort to keep so-called drugged drivers, including those under the influence of marijuana and other illegal drugs, off the road.
“We have a pretty clear message in this country that you don’t drink and drive,” said R. Gil Kerlikowske, President Obama’s top drug policy adviser, who wants to reduce drugged-driving accidents by 10 percent over the next five years. “We need very much to have a similar message when it comes to drugs.”
There is no reliable data on how many drivers are impaired by prescription drugs, but law enforcement officials say the problem is growing so quickly that states are putting hundreds of police officers through special training to spot signs of drug impairment and clamoring for better technology to detect it.
Even the prevalence of drug-impaired driving is unknown, since many states combine the arrest data with that for drunken driving. Mr. Kerlikowske points to a 2007 survey by the National Highway Traffic Safety Administration, which screened 5,900 nighttime drivers around the country and found that 16.3 percent tested positive for legal or illegal drugs.
The tests could not determine which drivers were impaired by drugs, but Mr. Kerlikowske said the results suggested a problem that had “flown below the radar” for too long.
“You don’t want to scare people,” he said, “but you certainly want to make them aware of the dangerousness. You can be as deadly behind the wheel with prescription drugs as you can with over-the-limit alcohol, and you are responsible for your own actions.”
In interviews, law enforcement officials around the country said anyone who drives while taking prescription drugs is at risk of arrest, not only those who drive recklessly. In one recent case near Bangor, Me., a pickup truck on a rural road was not swerving, speeding or otherwise hinting that its driver was impaired. A police officer stopped the truck because of its noisy muffler, then saw that the driver’s eyes were bloodshot and his speech slurred.
A Breathalyzer test found that the driver, Chester Annance, had not been drinking. Yet he was arrested based on the officer’s suspicion that he was on drugs, and a blood test later found opiate painkillers in his system.
Mr. Annance was convicted this month of driving under the influence of drugs. He received seven days in jail, a three-year license suspension and a fine. He is appealing the conviction.
“You don’t need to wait for a crash to happen before you charge someone,” said R. Christopher Almy, the district attorney in Bangor.
Defense lawyers say that in their zeal to make a statement about drug-impaired driving, the police are casting too wide a net and unfairly punishing people who are taking prescriptions as directed.
Tara Jenswold-Schipper, an assistant attorney general in Wisconsin, said she usually stuck to cases where drivers had mixed drugs, exceeded the proper dose or taken controlled medications without a prescription.
In one such case in that state, a former physician slammed his S.U.V. into a Honda Accord in April 2008, killing the pregnant driver and her 10-year-old daughter. Prosecutors said the physician, Mark Benson, had high levels of the sleep aid Ambien in his system, as well as Xanax, an anti-anxiety drug, and oxycodone, an opiate painkiller. Mr. Benson was sentenced to 30 years in prison.
Defendants can try to prove that they did not realize their medication would affect their driving, prosecutors said, but that argument may not hold up if the bottle had a warning label.
“Would you go home and start a chain saw and cut down a tree?” said Lt. Col. Thomas C. Hejl, the assistant sheriff in Calvert County, Md. “Why should you get behind the wheel of a vehicle when the same medication has the same side effects?”
Unable to prove impairment with blood tests, prosecutors in drugged-driving cases rely heavily on the testimony of “drug recognition experts,” law enforcement officers trained to spot signs of impairment in drivers. But there are only about 7,000 such officers nationwide, Mr. Hayes said, not nearly enough to respond to every traffic stop that may involve drugs.
“When they are involved,” he said of the experts, “our chances of convicting people are much higher.”
But persuading a jury to convict someone of impaired driving due to prescription drugs remains difficult except for the most egregious cases, said Douglas F. Gansler, the attorney general in Maryland.
“Because most people on the jury will also likely be taking prescription drugs for some ailment,” Mr. Gansler said, “whether it’s Lipitor or allergy pills or whatever it might be, they might think, ‘I don’t want that to become criminal.’ ”
Wednesday, July 7, 2010
New Mexico Supreme Court Overturns DUI Conviction
This entry is taken from the Web site of NBC affiliate KOB in New Mexico. The Supreme Court opinion that comes out of New Mexico could be influential on other state Supreme Courts.
The New Mexico Supreme Court overturned a DWI conviction this week, involving a man who was found drunk and passed out in his car with the keys nearby in 2004. The court ruled that prosecutors didn't have proof that Mark Sims had "actual physical control" of his vehicle.
In 2008, Fidencio Francia was arrested under almost identical circumstances. Police arrested him in the parking lot of the American Legion on Louisiana in Albuquerque. He admits to drinking that night but not driving. Francia says he went to sleep in the driver seat but his keys were not in the ignition.
"If I had been caught driving down the street, I'd be paying for what I did wrong but that night, in my mind, I was not doing wrong," Francia said.
Eyewitness News 4 asked District Attorney Kari Brandenburg if the Supreme Court ruling on Sims' case could mean Francia's case, which is being appealed, would be overturned too.
Brandenburg says, "I would think based upon just those facts, yes, but I also think the courts going to be looking at this case and trying to determine what actual control means."
Brandenburg adds that the new ruling means she won't be prosecuting DWI cases where there's no concrete evidence that someone was driving or had the intent to drive, as was the case in both the Sims and Francia cases.
Brandenburg says, "We can only move forward if we have ethical reasons to believe we can prove our case beyond a reasonable doubt, and with this case law we can't prove our case beyond a reasonable doubt." APD has said it would meet with prosecutors to figure out if officers need to follow new guidelines when it comes to this type of DWI arrest.
The New Mexico Supreme Court overturned a DWI conviction this week, involving a man who was found drunk and passed out in his car with the keys nearby in 2004. The court ruled that prosecutors didn't have proof that Mark Sims had "actual physical control" of his vehicle.
In 2008, Fidencio Francia was arrested under almost identical circumstances. Police arrested him in the parking lot of the American Legion on Louisiana in Albuquerque. He admits to drinking that night but not driving. Francia says he went to sleep in the driver seat but his keys were not in the ignition.
"If I had been caught driving down the street, I'd be paying for what I did wrong but that night, in my mind, I was not doing wrong," Francia said.
Eyewitness News 4 asked District Attorney Kari Brandenburg if the Supreme Court ruling on Sims' case could mean Francia's case, which is being appealed, would be overturned too.
Brandenburg says, "I would think based upon just those facts, yes, but I also think the courts going to be looking at this case and trying to determine what actual control means."
Brandenburg adds that the new ruling means she won't be prosecuting DWI cases where there's no concrete evidence that someone was driving or had the intent to drive, as was the case in both the Sims and Francia cases.
Brandenburg says, "We can only move forward if we have ethical reasons to believe we can prove our case beyond a reasonable doubt, and with this case law we can't prove our case beyond a reasonable doubt." APD has said it would meet with prosecutors to figure out if officers need to follow new guidelines when it comes to this type of DWI arrest.
Thursday, February 4, 2010
U.S. Supreme Court Defines DUI Law
This article comes from Minnesota and was shared with me by my certification instructor with the National Highway Transportation Safety Administration, Col. Bob La Pier.
High court: Asleep at wheel, not driving, enough to get a DWI
Supreme Court upholds conviction of sleeping driver. Supreme Court: Sleeping man was in control of vehicle.
By ROCHELLE OLSON, Star Tribune
Being drunk and asleep at the wheel of his car while it was parked in his apartment lot with the keys on the console was sufficient evidence to convict a Crookston man of drunken driving, the Minnesota Supreme Court ruled unanimously Thursday.
In a seven-page decision, Justice Alan Page said the jury could reasonably conclude that Daryl Fleck was in "physical control" of his vehicle when arrested.
Fleck's appellate lawyer, G. Tony Atwal, an assistant state public defender, disagreed with the ruling. "Presumably, if you're in or about your car, the county attorney could now charge you with a physical control DWI," Atwal said.
In 2007, Fleck was drunk and asleep in his car with the driver's door open in the assigned parking spot at his apartment building when someone called police. He got his fourth drunken-driving conviction and was sentenced to four years in prison. The state Court of Appeals affirmed his conviction, setting up the appeal to the Supreme Court.
Atwal said he pushed the appeals because there was no indication Fleck had driven; the engine was cold, and the car wouldn't even start when an officer tried it. If the car had been by the side of the road, it would have been very different, Atwal said.
The Supreme Court resoundingly disagreed.
Page emphasized that the law says "physical control of a motor vehicle" in an attempt to deter intoxicated people from getting into cars except as passengers and to help nab drunken drivers.
"Mere presence in or about a vehicle is insufficient to show physical control; it is the overall situation that is determinative," he wrote.
He acknowledged that Fleck's circumstances were not typical for a "physical control" drunken-driving offense because the jury couldn't infer Fleck drove to the spot where he was found.
But a jury could reasonably determine that "Fleck, having been found intoxicated, alone, and sleeping behind the wheel of his own vehicle with the keys in the vehicle's console, was in a position to exercise dominion or control over the vehicle and that he could, without too much difficulty, make the vehicle a source of danger," the justice wrote.
Page said that in evaluating whether someone has control, the courts and juries consider a number of factors: proximity to the car, the location of the keys, whether the person was a passenger, the ownership of the car and whether it was operable.
He cited a case in which the state Supreme Court reinstated the drunken-driving charge of a person found behind the wheel of a car that was stuck and couldn't be moved without a tow truck. Page said the court determined that "intent to operate" isn't a requirement for finding that someone was in "physical control" of the vehicle.
Fleck remains in treatment and under court supervision, Atwal said.
Steve Simon, a University of Minnesota law professor and head of the DWI Task Force, said arrests such as Fleck's are so common the suspects have a name: "slumpers." He said that more often police find drivers passed out at a stoplight or parked by a roadside.
He said state law broadly defines "physical control" because "you don't want people to get into a car if they've been drinking." In one case, a person got a drunken-driving charge because he was steering an inoperable car that was being towed, Simon said.
In another Minnesota case, a man was drinking at home, then went to listen to the high-end stereo in his new SUV parked outside. Simon said neighbors called police about the noise, and the man ended up with a drunken-driving charge and an impounded vehicle.
High court: Asleep at wheel, not driving, enough to get a DWI
Supreme Court upholds conviction of sleeping driver. Supreme Court: Sleeping man was in control of vehicle.
By ROCHELLE OLSON, Star Tribune
Being drunk and asleep at the wheel of his car while it was parked in his apartment lot with the keys on the console was sufficient evidence to convict a Crookston man of drunken driving, the Minnesota Supreme Court ruled unanimously Thursday.
In a seven-page decision, Justice Alan Page said the jury could reasonably conclude that Daryl Fleck was in "physical control" of his vehicle when arrested.
Fleck's appellate lawyer, G. Tony Atwal, an assistant state public defender, disagreed with the ruling. "Presumably, if you're in or about your car, the county attorney could now charge you with a physical control DWI," Atwal said.
In 2007, Fleck was drunk and asleep in his car with the driver's door open in the assigned parking spot at his apartment building when someone called police. He got his fourth drunken-driving conviction and was sentenced to four years in prison. The state Court of Appeals affirmed his conviction, setting up the appeal to the Supreme Court.
Atwal said he pushed the appeals because there was no indication Fleck had driven; the engine was cold, and the car wouldn't even start when an officer tried it. If the car had been by the side of the road, it would have been very different, Atwal said.
The Supreme Court resoundingly disagreed.
Page emphasized that the law says "physical control of a motor vehicle" in an attempt to deter intoxicated people from getting into cars except as passengers and to help nab drunken drivers.
"Mere presence in or about a vehicle is insufficient to show physical control; it is the overall situation that is determinative," he wrote.
He acknowledged that Fleck's circumstances were not typical for a "physical control" drunken-driving offense because the jury couldn't infer Fleck drove to the spot where he was found.
But a jury could reasonably determine that "Fleck, having been found intoxicated, alone, and sleeping behind the wheel of his own vehicle with the keys in the vehicle's console, was in a position to exercise dominion or control over the vehicle and that he could, without too much difficulty, make the vehicle a source of danger," the justice wrote.
Page said that in evaluating whether someone has control, the courts and juries consider a number of factors: proximity to the car, the location of the keys, whether the person was a passenger, the ownership of the car and whether it was operable.
He cited a case in which the state Supreme Court reinstated the drunken-driving charge of a person found behind the wheel of a car that was stuck and couldn't be moved without a tow truck. Page said the court determined that "intent to operate" isn't a requirement for finding that someone was in "physical control" of the vehicle.
Fleck remains in treatment and under court supervision, Atwal said.
Steve Simon, a University of Minnesota law professor and head of the DWI Task Force, said arrests such as Fleck's are so common the suspects have a name: "slumpers." He said that more often police find drivers passed out at a stoplight or parked by a roadside.
He said state law broadly defines "physical control" because "you don't want people to get into a car if they've been drinking." In one case, a person got a drunken-driving charge because he was steering an inoperable car that was being towed, Simon said.
In another Minnesota case, a man was drinking at home, then went to listen to the high-end stereo in his new SUV parked outside. Simon said neighbors called police about the noise, and the man ended up with a drunken-driving charge and an impounded vehicle.
Wednesday, January 13, 2010
Drivers License Issues Associated with DUI's
Many of my clients are often confused about temporary driver's licenses related to being charged with a DUI. I am hopeful anyone charged with a DUI in South Carolina will read this and understand some basics with regard to how they may be able to get a drivers license once charged, depending on the scenario.
To begin with, if the Defendant has been charged with a DUI and either refused the breath test or took the breath test and blew a .15 or greater, then the Defendant will have their license suspended for 6 months AND be required to take the ADSAP (Alcohol & Drug Safety Action Program class). That having been said, your lawyer will explain to you that in most cases you will want to request an administrative hearing challenging the suspension of your license for your refusal of the breath test or for blowing a .15 or greater. Requesting this hearing is easily done. Most defense lawyers will have you request this on your own. You should have been given a pink piece of paper. On the backside of that piece of paper at the top you will see where you should sign your name and write in your address and phone number. There is also a place for you to add your attorney's name and address and phone number, although this is not mandatory. BUT, should you choose not to add your attorney's name on that pink piece of paper, you will want to forward the hearing notice to your attorney once you hire one. Below the signature and address lines is a paragraph that indicates the address in Columbia to mail a $150 filing fee check. NOTE: YOU MUST SEND CERTIFIED FUNDS IN THE FORM OF A MONEY ORDER OR CERTIFIED CHECK. The Office of Motor Vehicle Hearings does not take personal checks for obvious reasons.
Typically, within 7-10 days from the date that you mail that pink piece of paper into the appropriate address in Columbia, the OMVH (Office of Motor Vehicle Hearings) or DMV will mail you some paperwork that you can take to the DMV to obtain a Temporary Alcohol License. Please note that this license is not a provisional or route restricted license. It is called a Temporary Alcohol License and is different from a provisional license. Make sure you refer to it correctly at the DMV or you may confuse the person at the DMV trying to help you. The cost for the Temporary Alcohol License is $100 and is good for 6 months. You likely will not need that license for the entire 6 months as your administrative hearing is typically scheduled 2-3 months from the date of sending in the pink piece of paper. Your attorney will advise you as to whether you need to attend this hearing with him or her. The Temp. Alcohol License is unrestricted within the state of South Carolina. The Defendant can drive anywhere within the state, but not out of state at all. Further, this license does not apply to commercial drivers licenses (CDL). A CDL license remains suspended. Consult your lawyer for advice on a CDL issue.
The Provisional License is another type of temporary license. If ever any of my clients plead guilty to a DUAC (Driving with Unlawful Alcohol Concentration), they are eligible for a Provisional License. When a Defendant takes a guilty plea to a DUAC, they are required to enroll and complete the ADSAP course and obtain SR-22 insurance (extra car insurance which must be maintained for 3 years from the date it is purchased). The Provisional License should be called a "Contingency License" because it is actually an unrestricted license obtainable only after the defendant gets SR-22 insurance in place and enrolls in the ADSAP course (which costs $500 to enroll in and they do not do payment plans!)
These are two of the main licenses clients of mine look to obtain. I hope this article explains how they work a little better. In other circumstances a route restricted license may be appropriate for the Defendant. This type of license is a "to and from work" license. Consult with your attorney to discuss which license is appropriate for you.
To begin with, if the Defendant has been charged with a DUI and either refused the breath test or took the breath test and blew a .15 or greater, then the Defendant will have their license suspended for 6 months AND be required to take the ADSAP (Alcohol & Drug Safety Action Program class). That having been said, your lawyer will explain to you that in most cases you will want to request an administrative hearing challenging the suspension of your license for your refusal of the breath test or for blowing a .15 or greater. Requesting this hearing is easily done. Most defense lawyers will have you request this on your own. You should have been given a pink piece of paper. On the backside of that piece of paper at the top you will see where you should sign your name and write in your address and phone number. There is also a place for you to add your attorney's name and address and phone number, although this is not mandatory. BUT, should you choose not to add your attorney's name on that pink piece of paper, you will want to forward the hearing notice to your attorney once you hire one. Below the signature and address lines is a paragraph that indicates the address in Columbia to mail a $150 filing fee check. NOTE: YOU MUST SEND CERTIFIED FUNDS IN THE FORM OF A MONEY ORDER OR CERTIFIED CHECK. The Office of Motor Vehicle Hearings does not take personal checks for obvious reasons.
Typically, within 7-10 days from the date that you mail that pink piece of paper into the appropriate address in Columbia, the OMVH (Office of Motor Vehicle Hearings) or DMV will mail you some paperwork that you can take to the DMV to obtain a Temporary Alcohol License. Please note that this license is not a provisional or route restricted license. It is called a Temporary Alcohol License and is different from a provisional license. Make sure you refer to it correctly at the DMV or you may confuse the person at the DMV trying to help you. The cost for the Temporary Alcohol License is $100 and is good for 6 months. You likely will not need that license for the entire 6 months as your administrative hearing is typically scheduled 2-3 months from the date of sending in the pink piece of paper. Your attorney will advise you as to whether you need to attend this hearing with him or her. The Temp. Alcohol License is unrestricted within the state of South Carolina. The Defendant can drive anywhere within the state, but not out of state at all. Further, this license does not apply to commercial drivers licenses (CDL). A CDL license remains suspended. Consult your lawyer for advice on a CDL issue.
The Provisional License is another type of temporary license. If ever any of my clients plead guilty to a DUAC (Driving with Unlawful Alcohol Concentration), they are eligible for a Provisional License. When a Defendant takes a guilty plea to a DUAC, they are required to enroll and complete the ADSAP course and obtain SR-22 insurance (extra car insurance which must be maintained for 3 years from the date it is purchased). The Provisional License should be called a "Contingency License" because it is actually an unrestricted license obtainable only after the defendant gets SR-22 insurance in place and enrolls in the ADSAP course (which costs $500 to enroll in and they do not do payment plans!)
These are two of the main licenses clients of mine look to obtain. I hope this article explains how they work a little better. In other circumstances a route restricted license may be appropriate for the Defendant. This type of license is a "to and from work" license. Consult with your attorney to discuss which license is appropriate for you.
Friday, January 8, 2010
Often times people ask me what the penalties are for a DUI conviction in South Carolina. The easiest way to answer this question is a simple reading of the DUI statute in South Carolina. It is important to remember that with the help of a South Carolina criminal defense attorney, you greatly increase your chances of mitigating your penalties with an effective defense. I am including the DUI statute in South Carolina below. The statute number is SC 56-5-2930.
SECTION 56-5-2930.
Operating motor vehicle while under influence of alcohol or drugs; penalties; enrollment in Alcohol and Drug Safety Action Program; prosecution.
(A) It is unlawful for a person to drive a motor vehicle within this State while under the influence of alcohol to the extent that the person's faculties to drive a motor vehicle are materially and appreciably impaired, under the influence of any other drug or a combination of other drugs or substances which cause impairment to the extent that the person's faculties to drive a motor vehicle are materially and appreciably impaired, or under the combined influence of alcohol and any other drug or drugs or substances which cause impairment to the extent that the person's faculties to drive a motor vehicle are materially and appreciably impaired. A person who violates the provisions of this section is guilty of the offense of driving under the influence and, upon conviction, entry of a plea of guilty or of nolo contendere, or forfeiture of bail must be punished as follows:
(1) for a first offense, by a fine of four hundred dollars or imprisonment for not less than forty-eight hours nor more than thirty days. However, in lieu of the forty-eight hour minimum imprisonment, the court may provide for forty-eight hours of public service employment. The minimum forty-eight hour imprisonment or public service employment must be served at a time when the person is not working and does not interfere with his regular employment under terms and conditions the court considers proper. However, the court may not compel an offender to perform public service employment in lieu of the minimum forty-eight hour sentence. If the person's alcohol concentration is at least ten one-hundredths of one percent but less than sixteen one-hundredths of one percent, then the person must be punished by a fine of five hundred dollars or imprisonment for not less than seventy-two hours nor more than thirty days. However, in lieu of the seventy-two hour minimum imprisonment, the court may provide for seventy-two hours of public service employment. The minimum seventy-two hour imprisonment or public service employment must be served at a time when the person is not working and does not interfere with his regular employment under terms and conditions as the court considers proper. However, the court may not compel an offender to perform public service employment in lieu of the minimum sentence. If the person's alcohol concentration is sixteen one-hundredths of one percent or more, then the person must be punished by a fine of one thousand dollars or imprisonment for not less than thirty days nor more than ninety days. However, in lieu of the thirty-day minimum imprisonment, the court may provide for thirty days of public service employment. The minimum thirty days imprisonment or public service employment must be served at a time when the person is not working and does not interfere with his regular employment under terms and conditions as the court considers proper. However, the court may not compel an offender to perform public service employment instead of the thirty-day minimum sentence. Notwithstanding the provisions of Sections 22-3-540, 22-3-545, and 22-3-550, a first offense charged for this item may be tried in magistrates court;
(2) for a second offense, by a fine of not less than two thousand one hundred dollars nor more than five thousand one hundred dollars, and imprisonment for not less than five days nor more than one year. However, the fine imposed by this item must not be suspended in an amount less than one thousand one hundred dollars. If the person's alcohol concentration is at least ten one-hundredths of one percent but less than sixteen one-hundredths of one percent, then the person must be punished by a fine of not less than two thousand five hundred dollars nor more than five thousand five hundred dollars and imprisonment for not less than thirty days nor more than two years. However, the fine imposed by this item must not be suspended in an amount less than one thousand one hundred dollars. If the person's alcohol concentration is sixteen one-hundredths of one percent or more, then the person must be punished by a fine of not less than three thousand five hundred dollars nor more than six thousand five hundred dollars and imprisonment for not less than ninety days nor more than three years. However, the fine imposed by this item must not be suspended in an amount less than one thousand one hundred dollars;
(3) for a third offense, by a fine of not less than three thousand eight hundred dollars nor more than six thousand three hundred dollars, and imprisonment for not less than sixty days nor more than three years. If the person's alcohol concentration is at least ten one-hundredths of one percent but less than sixteen one-hundredths of one percent, then the person must be punished by a fine of not less than five thousand dollars nor more than seven thousand five hundred dollars and imprisonment for not less than ninety days nor more than four years. If the person's alcohol concentration is sixteen one-hundredths of one percent or more, then the person must be punished by a fine of not less than seven thousand five hundred dollars nor more than ten thousand dollars and imprisonment for not less than six months nor more than five years; or
(4) for a fourth or subsequent offense, by imprisonment for not less than one year nor more than five years. If the person's alcohol concentration is at least ten one-hundredths of one percent but less than sixteen one-hundredths of one percent, then the person must be punished by imprisonment for not less than two years nor more than six years. If the person's alcohol concentration is sixteen one-hundredths of one percent or more, then the person must be punished by imprisonment for not less than three years nor more than seven years.
(B) No part of the minimum sentences provided in this section may be suspended. Instead of public service employment the court may invoke another sentence provided in this section. For a second or subsequent offense of this section, the service of the minimum sentence is mandatory. However, the judge may provide for the sentence to be served upon terms and conditions as he considers proper including, but not limited to, weekend service or nighttime service in any fashion he considers necessary.
(C) The fine for a first offense must not be suspended. The court is prohibited from suspending a monetary fine below that of the next preceding minimum monetary fine.
(D) For the purposes of this section, a conviction, entry of a plea of guilty or of nolo contendere, or forfeiture of bail for the violation of a law or ordinance of this or another state or a municipality of this or another state that prohibits a person from driving a motor vehicle while under the influence of intoxicating liquor, drugs, or narcotics, including, but not limited to, this section, or prohibits a person from driving a motor vehicle with an unlawful alcohol concentration, including, but not limited to, Section 56-5-2933, constitutes a prior offense of this section. Only those violations which occurred within a period of ten years including and immediately preceding the date of the last violation constitute prior violations within the meaning of this section.
(E) Upon imposition of a sentence of public service, the defendant may apply to the court to be allowed to perform his public service in his county of residence if he has been sentenced to public service in a county where he does not reside.
(F) One hundred dollars of each fine imposed pursuant to this section must be placed by the Comptroller General into a special restricted account to be used by the Department of Public Safety for the Highway Patrol.
(G) Two hundred dollars of the fine imposed pursuant to subsection (A)(3) must be placed by the Comptroller General into a special restricted account to be used by the State Law Enforcement Division to offset the costs of administration of the breath testing devices, breath testing site video program, and toxicology laboratory.
(H) A person convicted of violating this section, whether for a first offense or subsequent offense, must enroll in and successfully complete an Alcohol and Drug Safety Action Program certified by the Department of Alcohol and Other Drug Abuse Services. An assessment of the extent and nature of the alcohol and drug abuse problem of the applicant must be prepared and a plan of education or treatment, or both, must be developed for the applicant. The Alcohol and Drug Safety Action Program shall determine if the applicant successfully has completed the services. The applicant must attend the first Alcohol and Drug Safety Action Program available after the date of enrollment. The Department of Alcohol and Other Drug Abuse Services shall determine the cost of services provided by each certified Alcohol and Drug Safety Action Program. Each applicant shall bear the cost of services recommended in the applicant's plan of education or treatment. The cost may not exceed five hundred dollars for education services, two thousand dollars for treatment services, and two thousand five hundred dollars in total for all services. An applicant may not be denied services due to an inability to pay. Inability to pay for services may not be used as a factor in determining if the applicant has successfully completed services. An applicant who is unable to pay for services shall perform fifty hours of community service as arranged by the Alcohol and Drug Safety Action Program, which may use the completion of this community service as a factor in determining if the applicant successfully has completed services. The court must be notified whether an offender failed to enroll in a certified program within thirty days or failed to participate in the plan of education or treatment. The court may hold the individual in contempt of court if the individual cannot show cause as to why no enrollment occurred within the mandated thirty days or why no progress has been made on the plan of education or treatment.
(I) A person charged for a violation of this section may be prosecuted pursuant to Section 56-5-2933 if the original testing of the person's breath or collection of other bodily fluids was performed within two hours of the time of arrest and reasonable suspicion existed to justify the traffic stop. A person may not be prosecuted for both a violation of this section and a violation of Section 56-5-2933 for the same incident. A person who violates the provisions of this section is entitled to a jury trial and is afforded the right to challenge certain factors including the following:
(1) whether or not the person was lawfully arrested or detained;
(2) the period of time between arrest and testing;
(3) whether or not the person was given a written copy of and verbally informed of the rights enumerated in Section 56-5-2950;
(4) whether the person consented to taking a test pursuant to Section 56-5-2950, and whether the:
(a) reported alcohol concentration at the time of testing was eight one-hundredths of one percent or more;
(b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;
(c) tests administered and samples obtained were conducted pursuant to Section 56-5-2950 and regulations adopted pursuant to Section 56-5-2951(O) and Section 56-5-2953(F); and
(d) machine was working properly.
(J) Nothing contained in this section prohibits the introduction of:
(1) the results of any additional tests of the person's breath or other bodily fluids;
(2) any evidence that may corroborate or question the validity of the breath or bodily fluid test result including, but not limited to:
(a) evidence of field sobriety tests;
(b) evidence of the amount of alcohol consumed by the person; and
(c) evidence of the person's driving;
(3) a video recording of the person's conduct at the incident site and breath testing site taken pursuant to Section 56-5-2953 which is subject to redaction under the South Carolina Rules of Evidence; or
(4) any other evidence of the state of a person's faculties to drive a motor vehicle which would call into question the results of a breath or bodily fluid test.
At trial, a person charged with a violation of this section is allowed to present evidence relating to the factors enumerated above and the totality of the evidence produced at trial may be used by the jury to determine guilt or innocence. A person charged with a violation of this section must be given notice of intent to prosecute under the provisions of this section at least thirty calendar days before his trial date.
(K) For the purpose of this section, any offense carrying a penalty of imprisonment of ninety days or less may be tried in magistrates court.
(L) In cases in which enhanced penalties for higher levels of alcohol concentration may be applicable, upon the determination of guilt, the finder of fact shall determine the alcohol concentration and the judge shall apply the appropriate penalty. In cases involving jury trials, upon the return of a guilty verdict by the jury, the judge shall instruct the jury to make a finding of fact as to the following: "We the jury find the alcohol concentration of the defendant to be (1) at least eight one-hundredths of one percent but less than ten one-hundredths of one percent; (2) at least ten one-hundredths of one percent but less than sixteen one-hundredths of one percent; or (3) sixteen one hundredths of one percent or more." Based on the jury's finding of fact, the judge shall apply the appropriate penalty. If the jury cannot reach a unanimous verdict as to the finding of fact, then the judge shall sentence the defendant based on the nonenhanced penalties.
SECTION 56-5-2930.
Operating motor vehicle while under influence of alcohol or drugs; penalties; enrollment in Alcohol and Drug Safety Action Program; prosecution.
(A) It is unlawful for a person to drive a motor vehicle within this State while under the influence of alcohol to the extent that the person's faculties to drive a motor vehicle are materially and appreciably impaired, under the influence of any other drug or a combination of other drugs or substances which cause impairment to the extent that the person's faculties to drive a motor vehicle are materially and appreciably impaired, or under the combined influence of alcohol and any other drug or drugs or substances which cause impairment to the extent that the person's faculties to drive a motor vehicle are materially and appreciably impaired. A person who violates the provisions of this section is guilty of the offense of driving under the influence and, upon conviction, entry of a plea of guilty or of nolo contendere, or forfeiture of bail must be punished as follows:
(1) for a first offense, by a fine of four hundred dollars or imprisonment for not less than forty-eight hours nor more than thirty days. However, in lieu of the forty-eight hour minimum imprisonment, the court may provide for forty-eight hours of public service employment. The minimum forty-eight hour imprisonment or public service employment must be served at a time when the person is not working and does not interfere with his regular employment under terms and conditions the court considers proper. However, the court may not compel an offender to perform public service employment in lieu of the minimum forty-eight hour sentence. If the person's alcohol concentration is at least ten one-hundredths of one percent but less than sixteen one-hundredths of one percent, then the person must be punished by a fine of five hundred dollars or imprisonment for not less than seventy-two hours nor more than thirty days. However, in lieu of the seventy-two hour minimum imprisonment, the court may provide for seventy-two hours of public service employment. The minimum seventy-two hour imprisonment or public service employment must be served at a time when the person is not working and does not interfere with his regular employment under terms and conditions as the court considers proper. However, the court may not compel an offender to perform public service employment in lieu of the minimum sentence. If the person's alcohol concentration is sixteen one-hundredths of one percent or more, then the person must be punished by a fine of one thousand dollars or imprisonment for not less than thirty days nor more than ninety days. However, in lieu of the thirty-day minimum imprisonment, the court may provide for thirty days of public service employment. The minimum thirty days imprisonment or public service employment must be served at a time when the person is not working and does not interfere with his regular employment under terms and conditions as the court considers proper. However, the court may not compel an offender to perform public service employment instead of the thirty-day minimum sentence. Notwithstanding the provisions of Sections 22-3-540, 22-3-545, and 22-3-550, a first offense charged for this item may be tried in magistrates court;
(2) for a second offense, by a fine of not less than two thousand one hundred dollars nor more than five thousand one hundred dollars, and imprisonment for not less than five days nor more than one year. However, the fine imposed by this item must not be suspended in an amount less than one thousand one hundred dollars. If the person's alcohol concentration is at least ten one-hundredths of one percent but less than sixteen one-hundredths of one percent, then the person must be punished by a fine of not less than two thousand five hundred dollars nor more than five thousand five hundred dollars and imprisonment for not less than thirty days nor more than two years. However, the fine imposed by this item must not be suspended in an amount less than one thousand one hundred dollars. If the person's alcohol concentration is sixteen one-hundredths of one percent or more, then the person must be punished by a fine of not less than three thousand five hundred dollars nor more than six thousand five hundred dollars and imprisonment for not less than ninety days nor more than three years. However, the fine imposed by this item must not be suspended in an amount less than one thousand one hundred dollars;
(3) for a third offense, by a fine of not less than three thousand eight hundred dollars nor more than six thousand three hundred dollars, and imprisonment for not less than sixty days nor more than three years. If the person's alcohol concentration is at least ten one-hundredths of one percent but less than sixteen one-hundredths of one percent, then the person must be punished by a fine of not less than five thousand dollars nor more than seven thousand five hundred dollars and imprisonment for not less than ninety days nor more than four years. If the person's alcohol concentration is sixteen one-hundredths of one percent or more, then the person must be punished by a fine of not less than seven thousand five hundred dollars nor more than ten thousand dollars and imprisonment for not less than six months nor more than five years; or
(4) for a fourth or subsequent offense, by imprisonment for not less than one year nor more than five years. If the person's alcohol concentration is at least ten one-hundredths of one percent but less than sixteen one-hundredths of one percent, then the person must be punished by imprisonment for not less than two years nor more than six years. If the person's alcohol concentration is sixteen one-hundredths of one percent or more, then the person must be punished by imprisonment for not less than three years nor more than seven years.
(B) No part of the minimum sentences provided in this section may be suspended. Instead of public service employment the court may invoke another sentence provided in this section. For a second or subsequent offense of this section, the service of the minimum sentence is mandatory. However, the judge may provide for the sentence to be served upon terms and conditions as he considers proper including, but not limited to, weekend service or nighttime service in any fashion he considers necessary.
(C) The fine for a first offense must not be suspended. The court is prohibited from suspending a monetary fine below that of the next preceding minimum monetary fine.
(D) For the purposes of this section, a conviction, entry of a plea of guilty or of nolo contendere, or forfeiture of bail for the violation of a law or ordinance of this or another state or a municipality of this or another state that prohibits a person from driving a motor vehicle while under the influence of intoxicating liquor, drugs, or narcotics, including, but not limited to, this section, or prohibits a person from driving a motor vehicle with an unlawful alcohol concentration, including, but not limited to, Section 56-5-2933, constitutes a prior offense of this section. Only those violations which occurred within a period of ten years including and immediately preceding the date of the last violation constitute prior violations within the meaning of this section.
(E) Upon imposition of a sentence of public service, the defendant may apply to the court to be allowed to perform his public service in his county of residence if he has been sentenced to public service in a county where he does not reside.
(F) One hundred dollars of each fine imposed pursuant to this section must be placed by the Comptroller General into a special restricted account to be used by the Department of Public Safety for the Highway Patrol.
(G) Two hundred dollars of the fine imposed pursuant to subsection (A)(3) must be placed by the Comptroller General into a special restricted account to be used by the State Law Enforcement Division to offset the costs of administration of the breath testing devices, breath testing site video program, and toxicology laboratory.
(H) A person convicted of violating this section, whether for a first offense or subsequent offense, must enroll in and successfully complete an Alcohol and Drug Safety Action Program certified by the Department of Alcohol and Other Drug Abuse Services. An assessment of the extent and nature of the alcohol and drug abuse problem of the applicant must be prepared and a plan of education or treatment, or both, must be developed for the applicant. The Alcohol and Drug Safety Action Program shall determine if the applicant successfully has completed the services. The applicant must attend the first Alcohol and Drug Safety Action Program available after the date of enrollment. The Department of Alcohol and Other Drug Abuse Services shall determine the cost of services provided by each certified Alcohol and Drug Safety Action Program. Each applicant shall bear the cost of services recommended in the applicant's plan of education or treatment. The cost may not exceed five hundred dollars for education services, two thousand dollars for treatment services, and two thousand five hundred dollars in total for all services. An applicant may not be denied services due to an inability to pay. Inability to pay for services may not be used as a factor in determining if the applicant has successfully completed services. An applicant who is unable to pay for services shall perform fifty hours of community service as arranged by the Alcohol and Drug Safety Action Program, which may use the completion of this community service as a factor in determining if the applicant successfully has completed services. The court must be notified whether an offender failed to enroll in a certified program within thirty days or failed to participate in the plan of education or treatment. The court may hold the individual in contempt of court if the individual cannot show cause as to why no enrollment occurred within the mandated thirty days or why no progress has been made on the plan of education or treatment.
(I) A person charged for a violation of this section may be prosecuted pursuant to Section 56-5-2933 if the original testing of the person's breath or collection of other bodily fluids was performed within two hours of the time of arrest and reasonable suspicion existed to justify the traffic stop. A person may not be prosecuted for both a violation of this section and a violation of Section 56-5-2933 for the same incident. A person who violates the provisions of this section is entitled to a jury trial and is afforded the right to challenge certain factors including the following:
(1) whether or not the person was lawfully arrested or detained;
(2) the period of time between arrest and testing;
(3) whether or not the person was given a written copy of and verbally informed of the rights enumerated in Section 56-5-2950;
(4) whether the person consented to taking a test pursuant to Section 56-5-2950, and whether the:
(a) reported alcohol concentration at the time of testing was eight one-hundredths of one percent or more;
(b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;
(c) tests administered and samples obtained were conducted pursuant to Section 56-5-2950 and regulations adopted pursuant to Section 56-5-2951(O) and Section 56-5-2953(F); and
(d) machine was working properly.
(J) Nothing contained in this section prohibits the introduction of:
(1) the results of any additional tests of the person's breath or other bodily fluids;
(2) any evidence that may corroborate or question the validity of the breath or bodily fluid test result including, but not limited to:
(a) evidence of field sobriety tests;
(b) evidence of the amount of alcohol consumed by the person; and
(c) evidence of the person's driving;
(3) a video recording of the person's conduct at the incident site and breath testing site taken pursuant to Section 56-5-2953 which is subject to redaction under the South Carolina Rules of Evidence; or
(4) any other evidence of the state of a person's faculties to drive a motor vehicle which would call into question the results of a breath or bodily fluid test.
At trial, a person charged with a violation of this section is allowed to present evidence relating to the factors enumerated above and the totality of the evidence produced at trial may be used by the jury to determine guilt or innocence. A person charged with a violation of this section must be given notice of intent to prosecute under the provisions of this section at least thirty calendar days before his trial date.
(K) For the purpose of this section, any offense carrying a penalty of imprisonment of ninety days or less may be tried in magistrates court.
(L) In cases in which enhanced penalties for higher levels of alcohol concentration may be applicable, upon the determination of guilt, the finder of fact shall determine the alcohol concentration and the judge shall apply the appropriate penalty. In cases involving jury trials, upon the return of a guilty verdict by the jury, the judge shall instruct the jury to make a finding of fact as to the following: "We the jury find the alcohol concentration of the defendant to be (1) at least eight one-hundredths of one percent but less than ten one-hundredths of one percent; (2) at least ten one-hundredths of one percent but less than sixteen one-hundredths of one percent; or (3) sixteen one hundredths of one percent or more." Based on the jury's finding of fact, the judge shall apply the appropriate penalty. If the jury cannot reach a unanimous verdict as to the finding of fact, then the judge shall sentence the defendant based on the nonenhanced penalties.
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