Adding to the list of bills coming out of the Judiciary Committee last week is a baaaaaad DUI bill.
Among the many and extremely harsh changes:
1. Legal limit for those operating a CDL is .04; legal limit for those under 21 is .02
2. Evidence of BAC is admissible now, even if police failed to (a) “comply strictly” with the requirements of the statute, as long as the state can establish good cause, which includes showing that “the alleged failure does not materially affect the validity of such results”; and/or (b) provide our clients with a reasonable opportunity to contact an attorney before consenting or refusing to perform the requested test.
3. When prosecuted under subsection (1), evidence of BAC is now admissible all the time, not only when the defendant requests it. In other words, if my client blew a .06, thereby precluding a prosecution under subsection (2), the state can introduce the test in support of its case under subsection (1).
4. Fines and penalties are increased.
5. To be considered as a multiple offender, the state can look back over your entire driving record, not just the last 10 years. For example, if you were convicted for DUI at 21 and get convicted again at 50, you will be a second offender, where you used to be considered a first offender.
6. The new mandatory minimum for second offender is 180 days (previously 120). For third offender and beyond, it is two years (previously 1 year).
7. And, perhaps my favorite part, for third offense and beyond, the state will order forfeiture of the vehicle you were driving at the time of the offense, as long as you were the legal title holder of the vehicle. The state will then sell the vehicle at auction to fund the Criminal Injuries Compensation Fund. Please note that your car may also be forfeited if your license is suspended for DUI (even ABSENT any conviction) under certain circumstances. Further note, if convicted of Manslaughter in the second degree with a motor vehicle or Assault in the second degree, the state can order forfeiture of the vehicle involved even if the operator did not have legal title to it. For forfeiture to apply, the operator need only have “lawful possession” of the vehicle. Be wary of lending your car out!
8. Finally, there are MANY changes affecting DMV procedures and operator’s license retention. But perhaps the most significant are the changes to the hearing process. At a hearing, our clients used to be able to challenge whether the officer had probable cause to arrest them for DUI. If successful, they kept their licenses. Now, the hearing officers need not determine whether there was probable cause to arrest, but only whether (1) the person was arrested; (2) the person refused to take or registered a BAC above the legal limit; and (3) the person was operating a motor vehicle. The hearing is not only strictly limited to those issues, but also must be “based on” documentary evidence submitted by the arresting officer. Moreover, the statute now requires our clients to pay the fees of any witnesses summoned to appear at these hearings. Oh, one other thing – there is no longer any appeal from the suspension decision. In the end, our clients enjoy significantly less protection and opportunity to fight the suspension of their licenses, and a license may be lawfully suspended as a result of an arrest for DUI, even absent probable cause for the arrest. If I am pulled over, hauled out of my car with no explanation, immediately placed under arrest for DUI and refuse to take a breath test without first speaking to an attorney, my license will be suspended, and I cannot do anything to stop it. The police report need not justify the stop or the officer’s reasons for believing I was under the influence.
P.S. Not sure it’s worthy of noting but because I have friends who ask me all the time: If this bill becomes law, while it will still not be illegal to have an open container of alcohol in your vehicle, it will constitute a rebuttable presumption that the operator was drinking it at the time of operation, which IS illegal.