Saturday, July 07, 2001

Judges find flaws in DUI law

Two in Kentucky toss out blood-alcohol level evidence

By Patrick Crowley
The Cincinnati Enquirer

        Get pulled over as a suspected first-time drunken driver in Kentucky, and police will tell you that mandatory jail time will double if you fail to submit to a blood-alcohol test. What police won't tell you is that there is no mandatory jail time for first-time offenders. And some judges say that's misleading.

        Kentucky, which enacted its drunken-driving law nine months ago, and Indiana are among 25 states to pass laws establishing a .08 blood-alcohol standard. Bills to lower Ohio's standard from 0.10 to 0.08 have been introduced in the General Assembly every year since 1995, but none has passed.

        Actions this week by judges in Kentucky's Franklin and Jefferson counties — where blood-alcohol evidence for suspected drunken drivers was tossed out of court — have renewed calls for state legislators to change the language in the state's new law.

        “The law needs to be changed,” Boone District Judge Michael Collins said Friday. “It's not written correctly now.”

  When Kentucky police suspect a driver of drunken driving, they ask the driver to take a blood-alcohol test to determine how much they have had to drink. Drivers with a blood-alcohol level of 0.08 or higher can be charged with driving under the influence.
  The police read from what is known as an “implied consent” form that was developed by the Kentucky Justice Cabinet. Here is what drivers are told:
  “If you refuse to submit to a test and are convicted of DUI then you will be subject to a mandatory minimum jail sentence which is twice as long as the minimum jail sentence if you take the test(s) being requested.”
  But state lawmakers, defense attorneys and judges said the wording needs to be changed because for first-time offenders there is no mandatory jail sentence.
        The controversy centers on the warning police must read to those stopped on suspicion of drunken driving.

        Police are required to read the warning before stopped drivers take a blood-alcohol breath test, which is typically administered by a device at a police station.

        The problem with the warning is that it implies that a consequence of refusing the test is a doubling of jail time for first offenders, said Campbell County District Judge Michael “Mickey” Foellger.

        “But there is no mandatory jail time for first offenders,” Judge Foellger said. “Technically, it's accurate because while the inference is jail time will be doubled, doubling zero is still zero.

        “But it needs to be straightened out.”

        This week, judges in Louisville and Frankfort ruled that because of the language of the law, blood-alcohol levels could not be used as evidence in 13 DUI cases, including a case involving state Sen. Joey Pendleton, D-Hopkinsville.

        House Majority Caucus Chairman Jim Callahan, D-Wilder, who co-sponsored the law, said changes will be proposed and, he hopes, passed when the Kentucky General Assembly convenes in January.

        “I know some of the judges have expressed concerns about the way the law is written, and if it's causing a problem we'll look at changing it,” Mr. Callahan said Friday. “But I think this really depends on the individual judge. We don't seem to have a problem with the way our (Northern Kentucky) judges are reading the law.”

        Kentucky's DUI law was altered last year, when the legislature voted to lower the legal blood-alcohol level from 0.10 to 0.08.

        Almost as soon as it became law Oct. 1, lawmakers, judges, prosecutors and defense attorneys said there were problems with the way the law was written regarding suspected drunken drivers taking a blood-alcohol test.

        Tuesday Jefferson County District Judge James M. Green ruled that the standard warning read to DUI suspects fails to accurately state the potential consequences of refusing to take the blood-alcohol test for drivers facing their first offense.

        On Thursday Franklin County District Judge Thomas Wingate took a similar step when he ruled that the blood-alcohol level could not be used in 12 cases, including Mr. Pendleton's. The cases were not dismissed, but the blood-alcohol levels cannot be used in the defendants' trials.

        Because of the rulings, State Justice Secretary Robert Stephens said Thursday that attorneys for his staff will examine whether to change the warning.

        “Now that Franklin County has taken the same action as Jefferson, we need to see if something can be done,” Mr. Stephens said.

        Another problem with the police warning is that it lists a number of aggravating factors — such as speeding, having a child in the car, going the wrong way on a road — that mandate additional jail time for anyone convicted of DUI.

        Among the aggravating circum stances listed in the law is the refusal to take the blood-alcohol breath test. But the law also dictates that aggravating circumstances had to have taken place “while” the car was being driven, said Boone County defense attorney Burr Travis.

        But it is impossible to refuse the test “while” driving a car, Mr. Travis said.

        Mr. Travis said he and other defense attorneys have attempted to use the wording of the law in arguing DUI cases.

        “But it's really a wash,” Mr. Travis said. “The judges just say, OK, let's just look at field sobriety tests, because most of the people charged with DUI failed those tests even if they refused to take the blood-alcohol breath test.

        “But I still think it needs to be changed,” he said.

        Judge Collins said that shortly after the law was passed judges in Northern Kentucky got together to talk about how they would handle challenges to the wording.

        “The limited consent warning is wrong but it really does not affect a lot of cases,” Judge Collins said. “The judges up here reached a consensus that we weren't going to throw cases out because of that, but we allow the attorneys the opportunity to argue (blood-alcohol levels) as part of their cases.”

        Indiana lawmakers have also dropped the level from 0.10 to 0.08. The law took effect Sunday.

        A bill that would lower the limit in Ohio has cleared a House of Representatives committee and could be voted on in the fall, according to the office of Rep. Rex Damschroder, R-Fremont, the bill's sponsor.

        States are under pressure from the federal government to lower the DUI blood-alcohol standard to 0.08. The government has said it will cut highway funding to states that do not adopt 0.08 legislation by 2003.

        Mr. Damschroder has estimated Ohio could lose as much as $65 million in funding.

        The (Louisville) Courier-Journal contributed to this report.

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