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As we mentioned in a May entry, Utah has amended its drunk-driving statutes(s) to lower the blood alcohol content (BAC) necessary to take a simple instance of driving with alcohol in your system and convert it into Driving Under the Influence (this is referred to as ‘Driving While Intoxicated’ in New York).  The new standard in Utah is a BAC of .05 of 1 percent.  This makes Utah’s anti-drunk-driving scheme the strictest in the US, as every other state uses a standard based on a blood alcohol content of .08.

We’re taking a follow-up look at the statute, because it may represent the future standard for the rest of the US.  To cite our 2013 entry on the subject yet again, much of the rest of the world has adopted a .05 (or stricter) standard, and the National Transportation Safety Board (NTSB) has been advocating a .05 limit for some time.

Even New York, under Governor Andrew Cuomo, has apparently considered reducing the blood alcohol content necessary to create a per se criminal offense at .05, just as Utah has.  This was according to an article in Glens Falls’ Post Star, entitled “How Low Should It Go? The .05 BAC Debate.”  A change along those lines would seem to be consistent with the anti-impaired driving push reflected in 2012’s ‘3-strikes’ rule. That rule has been discussed several times in this blog, of course; promulgated by the Department of Motor Vehicles without legislative input, the rule delays, or in some cases prohibits, re-licensing for drivers with a history of offenses involving alcohol or drugs.  Its purpose is to keep impaired drivers off the road, and the purpose of a .05 standard is the same.  The Post Star’s article was published in 2013, though, when the National Transportation Safety Board first suggested the .05 standard. New York is still at .08, of course.

11005141674_a24f87760a_mJust a quick update to an entry we made in 2015, regarding ‘Lèse-Majesté’, the ancient crime of insulting those in power.

As of January 1st, 2018 – According to a German news site, DW.Com – Germany will have no law punishing lese-majeste.  The repeal was prompted by a high-profile prosecution under the law.  A german talk show host had read a ‘defamatory’ poem on the air.  The Turkish president found it defamatory, at any rate: it contained very rude statements that ostensibly referred to him.

The prosecution didn’t go much of anywhere.  Because the author’s purpose in composing and broadcasting the poem was to be offensive generally, the charge was dismissed because prosecutors couldn’t establish a specific intent to insult a particular person.  But the charge HAD been authorized by the German government, and the threat of its use led to law’s repeal.

On March 23rd of this year, the Governor of Utah signed a bill making it illegal to have a blood or breath alcohol concentration (BAC) of .05 of 1 percent or greater, either at the time you take a chemical breath test or at the time you actually operate a vehicle.  A first or second violation of this law is a misdemeanor.

Every other state, including New York, has a .08 limit.  Utah nevertheless finds itself in illustrious company, according to a paper published by NCBI (the National Center for Biotechnology Information; NCBI is an arm of the National Institutes of Health.)”All states in Australia now have a 0.05 illegal BAC limit. Austria, France, Germany, Italy and Spain have lowered their limit to a 0.05 illegal BAC”

For years, the National Transportation Safety Board (NTSB) has been advocating a .05 limit, as we discussed in a 2013 entry.

As we noted as long ago as 2014, there have been a number of lawsuits aimed at undoing the Department of Motor Vehicles’ ‘three strikes’ rule. This set of administrative regulations delays (and sometimes completely rules out) re-licensing for drivers who have had three or more alcohol- or drug-related incidents.

When our earlier entry was put up, it was clear that these cases weren’t getting anywhere in Supreme Court, New York’s trial-level court.  Some of the cases, though, proceeded to the Appellate Division of the Supreme Court.  There they essentially hit the same road block: the courts all agreed that the Department of Motor Vehicles has virtually unlimited discretion when it comes to re-licensing after a revocation.

Police-Car
New York law requires that drivers use ‘due care’ when passing emergency vehicles parked by the side of the road.  The law of course protects police cars and ambulances (and their occupants), but many other vehicles are considered emergency vehicles, including ‘blood delivery vehicles’ and ‘ordnance disposal vehicles of the armed forces of the United States’.  And new categories are added from time to time.  The most recent change, as the Albany Times Union has reported, came when the private conveyances of volunteer firefighters and ambulance crews were added to the list.

What does ‘due care’ involve?  Well, the measure, found in Section 1144-a of the Vehicle and Traffic Law, is informally known as the ‘move over’ law.  It’s called that because, when driving on a four-lane highway, “due care shall include, but not be limited to, moving from a lane which contains or is immediately adjacent to the shoulder[.]”

Due care as defined this way can place you, as a driver, on the horns of an unpleasant – and potentially dangerous – dilemma.  For instance, 1144-a requires you to move over, but only allows you to move over when “such movement otherwise complies with the requirements of this chapter including, but not limited to, the provisions of section[ ] . . . . eleven hundred twenty-eight of this title.”  Vehicle and Traffic Law Section 1128(a), in turn, only authorizes a change of lanes when “the driver has first ascertained that such movement can be made with safety.”

InjusticeIn an entry we published some time ago, we discussed some of the legal risks people run when they drive after smoking marihuana*.  What we didn’t really get into there is that – in New York – the risks run by drivers who use marihuana or other drugs (legally or illegally) are actually greater than those run by people who merely drink and drive.

This is because, when it comes to impairment, alcohol is privileged under Section 1192 of the Vehicle and Traffic Law.

It’s a criminal offense, of course, to drive ‘while intoxicated’ by alcohol.  As defined by Section 1192, you can be found guilty of driving while intoxicated either by meeting an ostensibly objective standard (Subdivision 2), or by meeting a patently  subjective one (Subdivision 3).

Video

Just a quick note – and click to watch the video above.  One of our attorneys was interviewed (very briefly) by Al Vaughters of News 4 WIVB TV in Buffalo.  The subject was something dear to all our hearts: air fresheners and, more generally, things that can obstruct a driver’s view and thereby buy that driver a ticket.  We’ve addressed this, and related topics, in our own home-made video which can be found here, as well as another entry about window stickers (and, unbeknownst to the vast majority of drivers, their illegality).

And a – very quick – note within a note: Mr. Vaughters points out some interesting and surprising things about common air fresheners – things that have nothing to do with the law.  Suffice it to say that what you don’t know can damage your dashboard and upholstery.

THC Pic
A recent New York Times piece bears the pithy headline: ‘How Much Is Too Much Marijuana to Drive? Lawmakers Wonder’. We wondered too. We took a look at the article, and at the American Automobile Association’s new study, cited by the Times. It’s posted on AAA’s website, along with a lot of other interesting information on this topic. The study’s called ‘An Evaluation of Data from Drivers Arrested for Driving Under the Influence in Relation to Per se Limits for Cannabis’ and its answer (on Page 3 of the report) to the question posed by the Times, “how much is too much?” – that “a quantitative threshold for per se laws for THC following cannabis use cannot be scientifically supported,” – boils down to “it depends.”

Meanwhile, at least three states, according to the study (on Pages 2 and 25) have put per se limits on the amount of THC you can have in your system and drive legally. ‘Per se‘ is latin for ‘in and of itself’. If you adopt a per se rule, you’re saying that any other fact is irrelevant. “I don’t care whether you were impaired or not,” the rule says, “I’m not punishing you for being impaired; I’m punishing you for driving with x amount of a substance in your system!”

The authors of AAA’s study concluded, however, that if the purpose of per se statutes is to deter impaired driving, they don’t do a very good job. Because of the nature of THC (‘THC’ is short for ‘delta-9-tetrahydrocannabinol’, and it’s what winds up in your system after you use marihuana), it has different effects on different metabolisms; in particular, you build up a tolerance to it over time. If you set an arbitrary limit on the amount of THC a driver can have in his or her system, you essentially make it legal per se to drive with less than that in your system. The authors fear this means that a good many people who are are impaired will get away with driving in that condition, because they have a low tolerance, but don’t meet the per se standard. Contrariwise, drivers who are seasoned marihuana users, and therefore can have a higher level of THC in their systems without being impaired, will be prosecuted, impaired or not.

Bosch TwoMonsters.jpgImage: Hieronymus Bosch (circa 1450-1516) [Public domain], via Wikimedia Commons

It’s easy to get confused when it comes to your criminal or driving history (and those elements of either that might count as both). Life is long, but memory isn’t.

As of March of this year, prosecutors no longer have to rely on their own memories or guess about the ‘rest of the story’, when it comes to your driving history. According to an announcement by the Governor, prosecutors now have access to an abstract of your driving record that includes not just the moving violations you have been convicted of, but everything you have been accused of in the last ten years, as well.

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Photo Credit: Tillman B. Johnson, Sr. (Texarkana Gazette) [Public domain], via Wikimedia Commons

You sit in a dimly-lit interrogation room across from a police investigator. He is interviewing you in connection to a serious crime. You finish telling your side of the story and lean back in your chair. With an expression of intense concentration the officer asks you (for the second/umpteenth time?) if you committed the crime. You say, of course, that you did not do it. Out of the blue the officer, stumbling over his words, asks you a bizarre non sequitur: “And, uh–I–you know, you, you’re giving me, uh, what do you think should happen to somebody like this?”

How are you supposed to respond to that question? What does he even mean? What is happening here? You have just witnessed the clumsy application of a police interrogation technique meant to make you exhibit some sort of sign of anxiety. While you respond to the officer’s questions he is on the lookout for you incriminating yourself by shifting in your uncomfortable seat, or by flicking some lint off your sleeve. A single inadvertent motion and that investigator may have now pegged you as a liar–and quite possibly guilty of whatever crime is being investigated.

Where this technique came from has been in the news, lately, along with such questions as whether it’s good for anything but getting false confessions, and the proper role – if any – of lying and cheating in the criminal justice system. We’ll get into that below.
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