Ignition Interlock and You

Recently the Milwaukee Journal, through its "Wasted in Wisconsin" series has examined the pros and cons of the ignition interlock device in an article talking about how the device is used in the State of New Mexico's justice system. The article presents a very compelling case for why these magical devices should be required for drivers who are convicted of operating their vehicles under the influence. It even goes so far as to quote a 2005 study that indicated that three out of four convicted drunk drivers who were required to use the device felt that all convicted drunk drivers should use the device. In a perfect world, this would be an ideal solution to a public safety problem.

In my mind, there are two major problems with this approach. First, the same problems that plague the ignition interlock device plague the larger breath devices used in police stations. Breath machines operated in the police station at least are awarded some degree of accuracy because they are operated by certified individuals who have gone through at least a brief amount of training on how to use the machine. Even with trained operators, these machines make mistakes and issue incorrect readings. The ignition interlocks in vehicles, which are much smaller and operated by unsophisticated operators, do not have some magic programming formula that guarantees accurate results each time they are used. They rely on the same faulty programming that the larger machines rely on, and have much smaller computer chips that operate them, hindering their ability to run clearance checks and complicated analysis. Most devices simply measure for the presence of alcohol, not the quantity. Anyone who uses Nyquil, mouthwash, breath spray, or any other medication with alcohol in it would be unable to start their cars and go about their lives, inconveniencing many innocent people.

Second, reliance on these devices to control the drunk driving crowd does not solve the underlying problem that most drunk drivers have, a dependency on alcohol. At the end of the day, if someone wants to drive drunk, there is nothing stopping them. If we want to get serious in this state about drunk driving, the best thing we can do is help people with substance abuse problems through ongoing treatment. Drivers can spend thousands of dollars keeping a device in their cars. Once that device is gone, they may not be able to control themselves any longer since they have been spending the money on a device and not a recovery program.

At the end of the day, there may be some reasonable middle ground that could be reached with an intelligent approach to these devices. Politicians are too quick to recommend solutions that are not solutions at all, but simply quick fixes that get them through the current election cycle. We need to break that cycle in order to break the cycle of alcoholism that too many people in this state suffer from. Let us decide to make a real change and propose some policies that help people a person make a change that will keep them out of the system and on a permanent path of positive contribution to society.

TJPM

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T.J. Perlick-Molinari, Birdsall Law Offices, S.C.
135 W. Wells St., Ste 214, Milwaukee, WI 53203
414.831.5465 - www.birdsall-law.com

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Let's Stop Everyone

It was only a matter of time before the issue of sobriety checkpoints, otherwise known as "roadblocks," would come back up in the State of Wisconsin.

Just today in the the local Milwaukee newspaper Governor Doyle reiterated his position that roadblocks are good for the public. Mothers Against Drunk Driving has been an advocate for these roadblocks for years and sees nothing wrong with stopping innocent people and detaining them, searching their bodies, and then releasing them.

The United States Supreme Court has ratified these checkpoints in Michigan Dept. of State Police v. Sitz (1990). The argument goes that the infringement of liberty is insufficient enough to outweigh the public's interest in getting drunk drivers off the road.

The reason I find this all rather scary is that recently in the State of Wisconsin our own courts have found the main instrument of these stops that dictates whether or not the police will detain you further, the preliminary breath test device has been deemed wholly inaccurate and unacceptable for use at trial.

No I am not making this up.

TJPM ESQ

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T.J. Perlick-Molinari, Birdsall Law Offices, S.C.
135 W. Wells St., Ste 214, Milwaukee, WI 53203
414.831.5465 - www.birdsall-law.com

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The Assumption of Guilt

One would hope in the land of the free that produced rules of law that allow for the presumption of innocence that law enforcement would do its part to uphold that standard. Yet time and time again those presumptions are falling to the drunk driving exception.

I recently had a client who while avoiding a deer in Western Wisconsin rolled his car over in a horrific accident that totaled his car. By the time the deputy had arrived my client had already extricated himself from the vehicle and was laying in the cornfield.

He was surrounded by first responders, who in rural townships frequently hang out at the bar in between calls. The deputy alleged that my client smelled of alcohol. His immediate assumption was that alcohol was the major factor in this accident and that my client was an irresponsible drinker who had a serious alcohol problem.

In that vein, the deputy arrested my client with little evidence of intoxication and subjected him to a chemical test to determine his level of intoxication that if my client did not submit to would land him with another charge.

I can only imagine after having rolled my vehicle and experiencing one of the most traumatic moments in my life how difficult it would be to have to deal with law enforcement accusing me of a crime at the same time.

Indeed my client ended up getting charged with drunk driving. We appeared in court and won the motion to dismiss based on the fact that the officer did not have probable cause to arrest my client for drunk driving. The district attorney was very upset with the judge's ruling and appealed his decision to the court of appeals.

Just yesterday my client was vindicated in this long and costly struggle. It is amazing to me the someone can be exposed to this kind of drawn out litigation for having a drink and swerving to avoid a deer on a country road.

I agree that drunk driving is dangerous and I firmly believe that anyone who makes an irresponsible decision to get behind the wheel of a car after having too much to drink should be punished. But being assumed to be irresponsible is just kicking someone while he is down in a situation like this where clearly a good man was very lucky and happy to be alive and unhurt.

Thank goodness justice did him right.

TJPM ESQ

T.J. Perlick-Molinari, Birdsall Law Offices, S.C.
135 W. Wells St., Ste 214, Milwaukee, WI 53203
414.831.5465 - www.birdsall-law.com

For Drunk Driving, Is Prison Always The Answer?

On 10/07/2008, the Journal Sentinel reviewed all Milwaukee County criminal convictions for fifth-offense operating while intoxicated (aka drunk driving or OWI) from 1999 through 2006, resulting in a detailed analysis of 161 cases. Just 70 defendants, or 43%, went to prison, receiving an average sentence of 18 months. Seventeen of those had an opportunity to shave substantial time off their sentences by completing boot camp or a treatment program. At least one defendant got out early after petitioning the judge. More defendants were sentenced to probation than prison. Although 70 of the 71 who got probation terms served between three and 12 months in the Milwaukee County House of Correction, about half were allowed to spend their days in the community on work release. Twenty more defendants received jail sentences, 11 with work-release privileges. The blood-alcohol level of a drunken driver was consistently cited as an aggravating factor by sentencing judges.

My own research through a CCAP analysis showed that in other counties sentences vary widely:

Wisconsin Drunk Driving Penalties

COUNTY	JAIL	PRISON	PROBATION	CONDITION TIME
Dane	7.60%	28.74 %	61.69 %	61.30 %
Eau Claire	0 %	13.30 %	86.67 %	86.67 %
Brown	5.93 %	55.93 %	38.14 %	37.29 %
Waukesha	2.13 %	71.99 %	25.53 %	24.82 %

The entire drift of the article is that judges are wimps on drunk drivers. I would bet any amount that when the legislature comes back in January, they will make a 4th offense a felony and up the mandatory minimums on all offenses. It’s also likely they will make a 1st offense criminal - it is currently a civil forfeiture.

What’s wrong with this? It completely adopts the mind-set that prison/jail is the answer to combating drunk driving. Amazingly no one really notices that this MADDness that began in the 80's has failed utterly to stem drunk driving. Much like the War on Drugs - which has likewise failed to stem drug use - increasingly tough penalties on drunk driver’s has virtually no deterrent effect. We have recently begun to unwind the drug policies with new drug courts designed to facilitate treatment rather than merely punishment. When the media whips up hysteria like this way too long Journal-Sentinel series does, it is just stifling any move toward a real solution.

Wisconsin Drunk Driving Laws

On the heels of a national survey that puts the great state of Wisconsin in the not-so-stately top spot for driving drunk, I can only imagine what the reaction will be.

First, interest groups and the state legislatures will call for a crack down on drunk driving, sending out deputies to patrol the highways and make more arrests. Second, the legislature will be pressured to increase the penalties on drunk driving to discourage the behavior.

Somehow, the public will be sold on the program that these remedies will fix the problem.

I just do not have that much confidence in those fixes, I’m sorry. First of all, drunk driving is in itself a very subjective offense. For the purposes of determining how drunk we are to drive we are all treated as if we had the same body, i.e. the same metabolism, the same liver, the same blood. This is utterly ridiculous.

Measuring all people by the same standard when we all have a unique DNA is like having a blood transfusion and not being concerned that the donor is Type A and the recipient is Type O. It’s just not done. And yet we are led to believe that despite each person having our own unique physical body, we should all be treated as if we are all identical twins.

If we are going to get serious about drunk driving in this state, we need to look at how we handle these cases in the court system and how we make assessments about intoxication in the field. Blind increases in jail time have never proven to discourage people from behaviors. Already in this state, the number of people who offend a second time is far less than people who offend the first time. In essence, the threat of the minimal jail time already in place is enough to discourage the vast majority of first time offenders. Will increased jail for second offenders really stop any more people than the current system already does?

People who are risk loving and irresponsible will always be with us in our world and scarily on our roads. No amount of jail is ever going to discourage them from getting on the road. We are never going to get all the most hazardous people off the road and that is something that we have to understand as a society. We need to look at how we assess the needs of drunk drivers and make determinations whether punishment or warnings are appropriate.

On first offenses, apparently warnings are sufficient incentive to keep people from repeating. Maybe someone does not understand how much liquor their system can handle before they end up slightly over the limit.. Being stopped by the police and ticketed seems to scare them into being more conscious of how much they have to drink before they drive. Is jail really an appropriate remedy in these situations where apparently a warning works quite well.

Thinking about it from another perspective, do we want to tie up the court system trying 1st offense intoxicated driving cases to twelve person juries? Is that a good use of our resources when the current system seems to discourage the behavior sufficiently?



See also Wisconsin Drunk Driving Laws

Determining Blood Alcohol Levels

What the State must prove for an OWI conviction

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T. J. Perlick-Molinari, Birdsall Law Offices, S.C.
135 W. Wells St., Ste 214, Milwaukee, WI 53203
414.831.5465 - www.birdsall-law.com

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University Presidents Debate The Drinking Age?

To be honest, I can say that I was surprised by the announcement the other day by several prestigious university presidents regarding their desire to start a debate about the drinking age. This is one of those pink elephant issues that no one ever wants to talk about. The second the issue is raised, Mothers Against Drunk Driving attempt to scare everyone into submission by threatening, without basis, that traffic fatalities would undoubtedly rise again and our roads would be inundated with younger, irresponsible drunk drivers.

Drinking on college campuses has been around since the invention of college. It was even celebrated years ago in the Sigmund Romberg operetta “The Student Prince,” with the joyous and marvelous drinking song entitled (shockingly), “Drink, Drink, Drink.” Fraternization has been part of the young life for ages. In fact, the majority of Americans who attended college prior to 1984 participated in this age old tradition themselves. While I by no means have formulated my own opinion about what the drinking age should be, I am excited that we may have a real debate on the issue for the first time in as long as I can remember. Educated, reasonable people are willing to stick their necks out and have an intellectual discussion about a topic that needs one. I look forward to the discourse and applaud the university presidents for taking a stand on an issue that is not popular.

Drunk Driving Enforcement Taken To Extremes of Insanity

When you are a drunk driving defense attorney in the State of Wisconsin you get attention at parties. I think the reasons for this are obvious.

That being said, I hear people’s stories all the time about how they get pulled over by law enforcement and how it was the most humiliating day of their lives. One story the other night really caught my attention. I was talking with one of my friends about an incident he recalled several years ago when he was in college. He told me that he spent a night of drinking with his friends at a local establishment and had one of his friends drop him off at his car in a Denny’s parking lot. Realizing that there was no way he was getting his car home that night, he simply sat down in the driver’s seat, locked the doors, reclined his chair, and checked out for the night. An hour later, he was awoken by taps on his window. Guess who? The local police were making an inquiry as to why he was in the Denny’s parking lot asleep in his car. Reasonable enough. In all honesty if I saw a car in a Denny’s parking lot in the middle of the night after the restaurant was closed, I would probably just leave the guy to his dreams and set up a candid camera to see how he reacted in the morning! But I suppose the local police had to go and check the situation out since they basically had nothing else to do in a small Wisconsin town.

What happened next was a shameful display of poor discretion and over zealous policing. After not having observed the man in the car operate his vehicle in any way, nor make any determination that the vehicle had been operated at all recently, the police demanded my friend step out of his vehicle and perform a three-ringed circus for them (the standardized field sobriety tests). Because he was still very groggy from his long night, he failed the tests and was arrested. For what you may ask? Parking illegally, open intoxicant, loitering. No, DRUNK DRIVING! I am not kidding.

For doing the right thing and not driving home, my friend was arrested, humiliated, and amazingly enough, convicted! When he told me this story, I was shocked. First, I was shocked that he was arrested, and second and more appallingly that an attorney that reviewed the case thought he should plead guilty. Are you kidding me? Any attorney in Wisconsin that knows the law knows that you need to operate the vehicle to subject yourself to prosecution. My friend sat in his car. Last I checked in any dictionary or law book that is not operating. Have we really come this far in our society that people who make the right decision about drinking and driving are not given the dignity of having anyone respect that responsible decision? I think it is a shame. I still hope I can reopen the case and bring these police imposter's into court and grill them.

In the meantime, my friend was out several thousand dollars in fines, fees, and insurance that he will never get back. And what did he learn from this experience?

Responsibility does not pay.

Theodore J. “TJ” Perlick-Molinari Attorney