Can you get a DUI in a motorized wheelchair? The Oregon Appellate Court has said no.
From the Associated Press:
The Oregon Court of Appeals has reversed the conviction of a wheelchair user who had been found guilty of driving under the influence of intoxicants.
James Greene of Waldport was arrested in November 2012 after entering a crosswalk in a motorized wheelchair and striking the side of a moving pickup. Police determined he was impaired by alcohol and drugs, and a jury convicted him of drunken driving.
In his appeal, Greene argued that he should have been considered a pedestrian, not subject to the DUI law.
The state disagreed, pointing to a law that treats motorized wheelchairs like bicycles when they are driven on bike lanes.
In its opinion Thursday, the Appeals Court decided legislators only intended to have wheelchairs treated like bicycles in that narrow circumstance, and users should be considered pedestrians when in a crosswalk.
What about Illinois? It is an open question. The Illinois Vehicle Code defines a vehicle for DUI purposes as:
Every device, in, upon or by which any person or property is or may be transported or drawn upon a highway or requiring a certificate of title under Section 3-101(d) of this Code, except devices moved by human power, devices used exclusively upon stationary rails or tracks and snowmobiles as defined in the Snowmobile Registration and Safety Act.
For the purposes of this Code, unless otherwise prescribed, a device shall be considered to be a vehicle until such time it either comes within the definition of a junk vehicle, as defined under this Code, or a junking certificate is issued for it.
In Illinois, a motorized wheelchair could qualify as a motorized vehicle. But common sense has prevailed, as I am not aware of any such prosecution ever being brought.
In a recent case from the Illinois Appellate Court, Fifth District, in The People ex. rel. Mathew Hartwich v. 2010 Harley Davidson, 2016 Ill. App. (5th) 150035, it was held that Courts must consider whether a forfeiture is an excessive penalty considering the crime committed.
In this case, a married couple drove to a bar. The motorcycle, a Harley Davidson valued at $35,000, was owned exclusively by the wife. The wife drove the vehicle to the bar, where she did not drink. However, her husband, who became intoxicated, insisted on driving home. He was stopped by police and charged with felony aggravated driving under the influence, because he did not possess a valid driver’s license at the time. He had only driven 12 blocks to his home. He had a blood alcohol level of 0.161, twice the legal limit.
The State filed for a vehicle forfeiture. In Illinois, a vehicle can be forfeited if used in the commission of an aggravated DUI or driving while revoked, and the revocation was based upon a prior DUI conviction. Vehicles can be forfeited even if the owner was not operating the vehicle, so long as he or she knew of the illegal use of the vehicle and consented to it.
The Court found that the forfeiture in this case was grossly disproportionate to the underlying offense of aggravated DUI. To support its finding the Court emphasized three factors: 1) that the owner of the vehicle was not the person who committed the offense; 2) the husband only drove 12 or 13 blocks from the bar to their home and 3) the Harley had an estimated value of $35,000
The Illinois Courts Commission has censured Cook County Judge Beatriz Santiago for making false statement on a mortgage application. The full text of the order can be found here: https://www.scribd.com/document/321625953/Santiago-order
The gist of the complaint was that Santiago has owned a home since 2005. In 2012, she decided to run for a the Sixth Judicial Subcircuit, even though her home was outside the subcircuit. She claimed to have solved the residency issue by moving in with her parents, who do live in the subcircuit. She did not sell the house. There was a residency challenge to her candidacy, which she defeated, and then she went on to win her election.
After being sworn in, she then sought to re-finance her house. As part of this process, she affirmed several times that the house was her principal place of residence. This helped her obtain FHA loan approval for the refinance. It also was revealed by a WGN investigation that the Judge had claimed a homeowner’s tax exemption on the property in 2012, which she later paid back.
In her defense, she claimed that she did not read the paperwork closely, and had quickly signed it during a lunch break. She was a former public defender not familiar with real estate law. She claimed that she in fact lives with her parents in the subcircuit, does not live at the house, and that it is currently being used by members of her family. Several attorneys attested to her good character and reputation for honesty.
The Judge was charged with failing to maintain high standards of conduct and failing to respect and comply with the law. As a sanction, she was censured.
Today the United States Supreme Court issued its Opinion in three consolidated cases that dealt with states that criminalize anyone who is arrested for a DUI and refuses to submit to a blood or breath test (Birchfield v. North Dakota).
The short version of it is that the Court did not find a problem with state laws that make it a crime to refuse a breath test. The Court found that a breath test falls within the right of law enforcement to conduct a search subject to arrest and that one’s right to bodily integrity or to avoid self-incrimination were not significantly affected enough to overcome this.
However, the Court found that blood tests are a significant invasion of one’s right to bodily integrity and privacy, and that states could not require warrantless blood draws in DUI cases, except in exceptional circumstances.
Currently, Illinois does not criminalize breath test refusals, however, it does impose a license suspension of one year for first offenders and three years for repeat offenders who refuse to submit to breath, blood or urine testing subsequent to a DUI arrest. However, now that the Supreme Court has ruled that it is permissible, perhaps that will change.
Personally, I feel that it is deep within our traditions to say no to government, to insist on our bodily integrity, to be free of unreasonable searches and seizures and to have the right to refuse to provide evidence that may incriminate ourselves. I feel that this opinion, like so many when it comes to DUI, ignores our legal history and tradition, and ignores the important Constitutional protections that makes America the freest nation in the world, merely to make it easier to convict DUI defendants. This approach is short-sighted. I hope that our Illinois legislators don’t take this opportunity to further chip away out our freedom and liberty.
In a new decision, the Illinois Appellate Court, Second District, affirmed a ruling from a DeKalb County case, rescinding a DUI suspension and suppressing evidence, after police entered a man’s home, without a warrant or obtaining consent to enter, to investigate a a report of a man acting confused and disoriented which lead to the discovery of a one car accident. The case is People v. Swanson, 2016 IL App (2d) 150340.
In summary, the evidence showed that the defendant left a tavern and got into an accident on a cold, snowy and icy night. He sought shelter at a nearby home, but the homeowner would not let him enter and instead called the police. The defendant ran off, and ultimately arrived at home, where, according to his wife, he consumed alcohol to “warm up.” Prior to his arrival at home, police had responded to the homeowner’s call, discovered the smashed vehicle, and visited the defendant’s home and spoke to his wife. She was asked to call the police when he arrived, which she did, but when police arrived, she did not let them enter and told them that she was taking care of her husband. The police entered anyway and arrested him for leaving the scene of an accident and DUI.
The case upheld a longstanding proposition of law that police cannot enter a person’s home without a warrant or without consent, unless there are exigent circumstances.
Lesson: remember your rights. Because this man’s wife insisted on them, the case against him is history.
In Illinois, the only consequence for a DUI suspect who refuses to take a blood, breath or urine is a license suspension which is longer than the suspension he or she would receive had he or she taken and “failed” the test (and there is no suspension for someone who “passes” the test).
However, thirteen states make it an additional crime for a person to refuse such a test. The Minnesota law was recently struck down but the case, and two others, have been taken up by the United States Supreme Court.
In a move that could have a nationwide effect on the roadside actions of police officers, the Supreme Court agreed on Friday to decide whether a blood or breath test for drunk driving can be made without a search warrant and whether, if there is no warrant, an individual can be charged with a crime for refusing to take such a test. The Justices took on three cases raising the issue: two from North Dakota and one from Minnesota. Thirteen states make it a crime to refuse to take a drunk-driving test….
The drunk-driving cases provide the Court with something of a sequel to its ruling in 2013 in Missouri v. McNeely, which left the clear impression that, if police have enough time, they should get a warrant before taking a test of a suspected drunk driver. The Court ruled that the natural dissipation of alcohol in the bloodstream does not always amount to an emergency situation that permits a DUI test without a warrant.
In North Dakota, state laws bars a person from driving in the state if he or she refuses to submit to a chemical test, of blood, breath or urine, to determine alcohol concentration. It makes refusal to take such a test open to prosecution for a crime that carries the same punishment as a conviction for drunk-driving. In Minnesota, state law makes it a crime to refuse an officer’s request to take a chemical test for alcohol in the blood, if the individual has been validly arrested for drunk driving. The cases to be reviewed by the Court involve either a blood or breath test.
Lawyers for the three men involved in the appeals said that the issues they were raising were coming up more frequently in the wake of the McNeely decision. And they argued that the decisions by the state supreme courts in these cases conflict with the McNeely ruling. The Supreme Court, at its private Conference on Friday, considered thirteen cases on these issues, and chose the three from that list — all filed by the same attorneys.
The three apparently were chosen because they involve different legal scenarios: in two of the cases, the individuals were convicted for declining to take a test — one a blood test, the other a breath test. In the third case, the individual was convicted of drunk driving after he refused field sobriety tests and then was taken to a hospital for a blood test against his wishes. The Court will be reviewing that individual’s punishment for refusing the field tests — a two-year suspension of his driver’s license — instead of the jail time and fine he got for the drunk-driving conviction.
The three cases to be reviewed are Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. North Dakota. The three will be consolidated, and will be heard together at a one-hour hearing.
I just wanted to share a new podcast called Amicus from Slate magazine. The first episode was just released.
The podcast is hosted by Dahlia Lithwick and will concentrate on the United States Supreme Court. In the first episode, there is a discussion of the Court’s denial of cert in the gay marriage cases, and a case about that raises the issue of whether an Arkansas prisoner has a religious right to grow a beard 1/2 inch in length.
Here is a link to the podcast on the Slate website, or you can download it in itunes or the other places where you get your podcasts.