Last month, an Amish man who was driving a horse and buggy was charged with DUI in Lancaster County, Pennsylvania. The man was observed weaving between lanes and was found unconscious at and slumped over while holding the reigns at the time police made contact. I am not familiar with the DUI statutes in PA, but I would address whether a DUI conviction would stand in the Washington State given the same facts.
I have previously written about what constitutes a vehicle for purposes of being charged with Driving Under the Influence (DUI) in Washington.
You do not have to be driving an automobile in Washington to be convicted of DUi; you can be riding a bike. RCW 46.61.502, the Washington statute that defines Driving Under the Influence, begins:
(1) A person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle within this state. . .
"Vehicle" is defined in RCW 46.04.670:
"Vehicle" includes every device capable of being moved upon a public highway and in, upon, or by which any persons or property is or may be transported or drawn upon a public highway, including bicycles. The term does not include power wheelchairs or devices other than bicycles moved by human or animal power or used exclusively upon stationary rails or tracks. (Emphasis added).
So since the Amish man was driving a horse and buggy, he could not be convicted of DUI under Washington law because the term, "vehicle" does not include devices moved by human or animal power other than bicycles.
Sunday, January 31, 2010
Monday, January 4, 2010
DUI ARESTEES FORCED TO SIT IN JAIL FOR 4 NIGHTS OVER NEW YEAR'S WEEKEND
New Year's Eve has long been one of the biggest nights for DUI arrests. Unfortunately, because New Year's Eve was last Thursday night, many people who were arrested for DUI weren't be able to see a judge to set bail until today- Friday was New Year's day, a holiday, and then we had Saturday and Sunday, days on which the courts are closed.
Under the holding of the U.S. Supreme Court decision in Gerstein v. Pugh, defendants who have been arrested without a warrant in a criminal case have the right to a prompt judicial determination of probable cause. In County of Riverside v. McLaughlin, the U.S. Supreme Court set a time frame in which a defendant in a criminal case is entitled to a Gerstein hearing. In McLaughlin, the Court held that when a jurisdiction in which probable cause determinations are combined with other pretrial hearings, i.e. arraignments, the court must conduct the probable cause hearing as soon as feasible, but no later than 48 hours after arrest. That means that individuals arrested on a Wednesday night have the right to see a judge for a probable cause determination and the setting of bail by Friday night.
In practice, I have seen individuals sit in jail without the opportunity to see a judge until 48 hours have passed. In Mclaughlin, the Suprme Court clearly stated that when 48 hours have passed , the burden is on the government to show some sort of emergency circumstances. The government cannot use weekends or intervening holidays as an excuse as to why the defendant did not receive a probable cause hearing within 48 hours. Yet, I have already been made aware of at least one DUI arrest that occurred on New Year's Eve in which the arestee has been denied a probable cause hearing until today due to the prolonged holiday weekend. This practice is unconstitutional.
Under the holding of the U.S. Supreme Court decision in Gerstein v. Pugh, defendants who have been arrested without a warrant in a criminal case have the right to a prompt judicial determination of probable cause. In County of Riverside v. McLaughlin, the U.S. Supreme Court set a time frame in which a defendant in a criminal case is entitled to a Gerstein hearing. In McLaughlin, the Court held that when a jurisdiction in which probable cause determinations are combined with other pretrial hearings, i.e. arraignments, the court must conduct the probable cause hearing as soon as feasible, but no later than 48 hours after arrest. That means that individuals arrested on a Wednesday night have the right to see a judge for a probable cause determination and the setting of bail by Friday night.
In practice, I have seen individuals sit in jail without the opportunity to see a judge until 48 hours have passed. In Mclaughlin, the Suprme Court clearly stated that when 48 hours have passed , the burden is on the government to show some sort of emergency circumstances. The government cannot use weekends or intervening holidays as an excuse as to why the defendant did not receive a probable cause hearing within 48 hours. Yet, I have already been made aware of at least one DUI arrest that occurred on New Year's Eve in which the arestee has been denied a probable cause hearing until today due to the prolonged holiday weekend. This practice is unconstitutional.
Saturday, January 2, 2010
INVESTIGATOR DRIVES DRUNK TO CRIME SCENE AND GETS DUI
A Snohomish County investigator was just fired a couple weeks ago in a very ironic sequence of events. On November 29, 2009, there was a car accident that resulted in the deaths of four people in Everett, Washington. Police believe the accident to be caused by drunk driving. When the investigator from the Snohomish County Medical Examiner's office drove up to investigate the scene, the police smelled the odor of alcohol on his breath. They gave the investigator a breath test and cited him from drunk driving! The investigator was there to presumably gather evidence against a drunk driver and found himself being charged with DUI at the very crime scene he was investigating
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