John Hult offers a good thorough discussion of the ins and outs of the National Transportation Safety Board's recommendation that states lower the blood-alcohol threshold for DUI charges to 0.05%. The policy and enforcement folks Hult talks to don't sound enthusiastic. But Judge Larry Long tells Hult that back in the 1970s, he had trouble getting juries to convict drunk drivers for exceeding the then-BAC limit of 0.15.

I like this summary of the question from Hult:

We all know people who think they’re okay after a few drinks. We all know people who have a higher tolerance and seem unaffected after drinking enough to lay another person out. Some of us have heard stories about Uncle Joe So-And-So who drank 12 beers a night at Yakadee Smack’s Downtown Pub for 20 years and drove home all the time but never hurt anyone.

Setting the bar at a certain level is society’s way of saying it doesn’t matter how lucky Mr. So-And-So has been. Once a person gets X amount of alcohol in their system, the science says it’s too risky for that person to get behind the wheel.

Let’s put it this way: It’s conceivable that there are people out there who, under the right circumstances, could drive away from a place at midnight with no headlights on and still make it home without a wreck. That doesn’t mean the person gets a pass on a law that says you need to drive with your headlights on after hours.

So that’s what the debate is about on a broader level, but changes to the legal limit have serious, real-world consequences in court [John Hult, "Is a .05 blood alcohol limit a possibility in South Dakota?" Amicus Lector, 2013.05.17].

As a teetotaler, I'm not the guy you want making the rules. I would suggest that if you're driving, you're not drinking. Period. There is no compelling reason to have any alcohol in your system when you're operating the deadliest household equipment in the country. When alcohol is the third-leading cause of preventable death in the U.S. and traffic collisions are seventh, we're justified in drawing a pretty strict line between alcohol and driving.

The South Dakota Supreme Court issued two rulings Wednesday hinging on the rules police must follow in traffic stops. In both cases, stops for minor violations of motor vehicle laws led to arrests for larger crimes, specifically illegal drug use and DUI. In both cases, judges named Tim(m) threw out evidence based on defendants' arguments that the police had gone too far in their searches. In both cases, the State appealed. And in both cases, our law-and-order Court sided with the State and law enforcement over technicality-minded defendants.

The more straightforward case brought Attorney General Marty Jackley before the court to get after father-and-son coke- and meth-heads Shane and Richard Erwin. On January 2, 2012, the Erwins were driving west through Watertown on US 212. They turned left (south) onto 29th Street, the road to Walmart. 29th Street has two southbound lanes. Shane turned into the far lane, not the near lane as prescribed by SDCL 32-26-18. Shane executed this illegal yet oh-so-common maneuver with Watertown PD's Kirk Ellis right on his tail. Officer Ellis flashes the cherries, pulls the Erwins over, and writes Shane a ticket.

As they're sitting in the police car, Officer Ellis asks Shane if he's transporting any illegal drugs. Apparently either a bad actor or an idiot, Shane acts nervous. (Arrrggh! If you plan to break the law, you practice your poker face, right? Think ahead, people!) Officer Ellis takes his drug dog for a walk around the Erwins' vehicle. The dog says you betcha, boss! Officer Ellis finds little containers of white powder and a scale with traces of pot. Busted: charges of ingestion and possession of cocaine and meth.

The Erwins contended Officer Ellis stopped them illegally because "the intersection provides inadequate notice that southbound 29th Street is a two lane street." Judge Robert L. Timm bought that and threw out the evidence from Officer Ellis's search of the Erwins' car.

Our Supremes disagreed. The state laid stripes at the 212–29th Street intersection in 2008, and they're still there, faded but visible. (Watertown drivers, I welcome your photos of the intersection to show just how faded those stripes might be.) Judge Timm ruled in favor of the Erwins because Shane turned left on a green arrow, which meant he had full right of way. But the Supremes said that even that green arrow doesn't change the rule that when you turn left, you must turn into the nearest, leftmost lane. The Erwins thus go back to circuit court, which gets to look at the drugs Officer Ellis found.

Lesson #1: when you turn left, keep it tight. Lesson #2: don't do coke and meth!

The second case is trickier. Jerauld County Deputy Sheriff Shane Mentzer was working the night beat in Wessington Springs on September 11, 2011. Wessington Springs had a beat that night, as folks were out celebrating Patriot Day—er, actually, the Bull Bash Rodeo. At 3:25 a.m., Deputy Mentzer saw a black pickup with no rear license plate. Cherries, stop, walk to the car. Someone in the open box of the pickup sits up for a moment, then ducks down again.

Whoa—I want to talk to the guy/gal hiding from the officer's flashlight... but he/she doesn't make the credits in this drama. Deputy Mentzer is more interested in the open beer container he sees in the back seat through the open rear passenger window of the club cab. (Again, idiots! You see cherries, you get the beer out of sight!) Deputy Mentzer jumps from license plate search to DUI investigation. He recognizes the driver, student pilot Brian Dennis Amick, and asks if he's been drinking. Amick admits having "a couple." Deputy Mentzer later notices a temporary license permit in the window, but his main order of business is to arrest Amick for DUI. (We still don't get to find out who was in the back of the truck with how many beers. Nuts!)

Amick went to court and said hold on: Deputy Mentzer stopped him for a violating a traffic rule that he wasn't violating. The stop was for no license plate. If the deputy had looked, he'd have seen the new-purchase permit in the window. At that point, the stop and search should have ended.

Deputy Mentzer said he saw the new Vern Eide license plate bracket when he stopped the truck. He knew that was a sign the truck was a new purchase. He didn't first look with his stoplight. He said the people (plural! Aren't we breaking a law yet?) in the truck bed may have blocked his view of the license, as may have the tinted glass of the rear window. But Brian and his dad Dennis went out and re-enacted the stop, with photos, to show that the temporary license would have been perfectly visible to someone approaching from behind. The State didn't like that, but Judge Tim Tucker did. He said Deputy Mentzer should have focused first on investigating the cause of his stop, should have seen that "readily visible" temporary license, and "[a]t that point the officer simply returns to his vehicle and the other vehicle's free to go."

Now I'll admit, at this point, I was kind of rooting for Amick. I'll have no truck with drinking and driving, but even when police are nailing drunk drivers, they have to play by the Fourth Amendment.

But our Supremes disagree with me and with His Honor Judge Tucker. The justices agree with Judge Tucker's assessment that the bobbing heads in the back of the truck would not have obstructed Deputy Mentzer's view of the temporary license. But citing precendent, they say that even if Deputy Mentzer had spotted the license, he was still authorized (and perhaps obligated by courtesy) to approach the driver and explain his mistake. With the initial concern motivating the stop dispelled, the officer couldn't ask for license and registration or conduct any other investigation unless "new reasonable suspicion of criminal activity immediately arises that justifies further detention"... and an open beer bottle in the backseat counts as "new reasonable suspicion."

Amick could have avoided that DUI if he had just rolled that rear window up before Deputy Mentzer reached the side of his big truck. Then again, he could also have avoided it by not drinking and driving the party wagon.

An eager reader suggests that Brendan Johnson is making the right choice to forgo a U.S. Senate campaign in favor of his "cushy... plum job."

Bob Mercer agrees that Johnson is making a good call... but says Johnson's job is anything but cushy:

When Johnson received the presidential appointment as U.S. attorney for South Dakota from the Obama administration, there was a big question about his credentials, especially in the wake of predecessors Marty Jackley and Jim McMahon. Johnson has shown, week by week, that he intends to drive home respect for the law on reservations and won’t tolerate physical attacks on law enforcement. There also seems to be emphasis on drug, firearm and federal-benefit enforcement. This tough work is performed by the tribal and federal law agents in the field and by the federal prosecutors in the courthouses. All of them, from Johnson down, face some of the most violent and lawless conditions – beatings with baseball bats as one small example – that we can imagine in South Dakota. Brendan Johnson, on a real-life basis, is in a position to accomplish much, much more for the betterment of South Dakota as U.S. attorney in the next two to three years of the Obama administration, than if he did run for the U.S. Senate — and certainly much, much, much more than if he ran and lost [Bob Mercer, "Our U.S. Attorney, Earning His Pay," Pure Pierre Politics, 2013.05.10].

A U.S. Senate candidate has a great opportunity—and a great responsibility—to lead public conversations and, unlike M. Michael Rounds, inform and educate voters. That's now Rick Weiland's job (and step one, Rick is getting a website up!). A U.S. Attorney has a great responsibility to bring justice for all citizens. That's Brendan Johnson's job. Both men have chosen noble callings, and both men have a lot of work to do.

By the way, Josh Verges links to the U.S. Attorney's 2012 report on the hard and ugly things Attorney Johnson fights every day. Sex trafficking, child porn, immigration violations, drugs, fraud, general mayhem... doesn't sound cushy to me.

I was close! On Sunday, court swami said a judge would toss Sen. Dan Lederman's lawsuit against Daniel Willard and other as yet unidentified robocallers. Today, Second Circuit Court Judge Stuart Tiede didn't toss the suit... but he "peppered Lederman’s attorney Joel Arends with skeptical questions":

...Tiede said it seemed only the secretary of state or prosecutors could use the courts to enforce election law.

“This is not the attorney general bringing an action on behalf of the secretary of state to enforce campaign finance laws,” Tiede said of Lederman’s lawsuit. “This is a private individual, essentially becoming a private attorney general to enforce campaign finance laws” [David Montgomery, "Judge Skeptical of Lederman Lawsuit, But Grants Delay," Political Smokeout, 2013.04 29].

Judge Tiede also said the affadavit filed by Lederman's lawyer Joel Arends last week smells like "inadmissable hearsay"... which is just what the state rep Lederman and Arends sought to smear, Stace Nelson, said about their stunt.

Mr. Montgomery reports that Judge Tiede gave Lederman and Arends more time to offer evidence, but he is keeping Willard's motion to dismiss the case before him. That's not a loss for Lederman, but it sure doesn't read like a good day in court.

Senator Dan Lederman's civil suit against Daniel Willard and still undiscovered, unproven anonymous robocallers gets a hearing tomorrow afternoon in Minnehaha County. The Lederman PAC will drive over to the courthouse from its office in a mailbox on Westport Avenue to tell a judge not to dismiss their case.

The judge, if she or he is a good South Dakota non-activist judicial minimalist, will dismiss. The plaintiffs, Lederman and his PAC, appear not to have standing, as neither appears to have been directly harmed by the named and unnamed defendants' actions. The plaintiffs seek no specific damages for the robocalls, e-mails, and postcards sent last summer. Lederman is simply asking the court to waste its time by declaring those anonymous election communications violated campaign finance law. The lawsuit gives the judge no practical remedy beyond declaring someone broke the law and making those someones pay Lederman's legal expenses for bringing an unnecessary lawsuit.

Help me out, solicitous readers: what business does a judge in a civil case have declaring that a criminal statute has been violated? If we have evidence that a law has been broken, don't we call the state's attorney or the attorney general and press charges, as is happening to Dan Willard as Attorney General Marty Jackley drags him through the legal wringer in circuit court in Lake County?

Lederman's lawsuit seems to serve no purpose other than to generate politically charged press releases that can't come from the AG's supposedly confidential grand jury inquiries in the criminal case against Willard. The Second Circuit should decline to be co-opted by this political move and let the Third Circuit properly address these criminal questions.

As we all know, more than half of the farm folk Dodge hagiographized with Paul Harvey's voice during the Super Bowl are illegal immigrants.

Now, because rural flight leaves Big Dairy without enough workers to get us our yogurt (no, really, the NYT article says all that), the Senate wants to give amnesty to illegal farm workers:

Farm workers in the country illegally who agree to work in agriculture for an additional five to seven years would become eligible for a "green card" allowing permanent U.S. residence, according to two officials. The workers hold legal status, dubbed a "blue card" by negotiators, during the interim [Charles Abbott, "Pact Is Reached for Immigration Reform on Farm Labor," Reuters, 2013.04.12].

What Senators are foisting this crony-corporate breach of the rule of law upon us? California Democrat Dianne Feinstein (boo, liberal!), Colorado Democrat Michael Bennet (boo, liberal... kinda!), Florida Republican Marco Rubio (boo! li—wait a minute...), and Utah Republican Orrin Hatch (uh oh).

We have Senators from across the spectrum supporting this prioritization of economic needs over strict immigration law. So we're all o.k. with this plan, right? Senator Thune, Senator Johnson, Congresswoman Noem, you're all o.k. with giving lawbreaking workers and employers a free pass to keep that milk flowing, right?

Rep. Scott Munsterman, trust-bustee?

We like our politicians to build trust.... but not the kind that draws anti-trust investigations. Rep. Scott Munsterman (R-7/Brookings) runs Chiropractic Associates of South Dakota. The Department of Justice sued Munsterman's outfit for using something like monopoly status since 1997 to stifle competition and drive up prices for South Dakotans who were already bent out of shape.

Munsterman has decided to quit fighting that lawsuit. If a federal judge approves a proposed settlement, CASD will stop negotiating reimbursement rates for its member chiropractors, who include four out of five South Dakota practitioners. Or, as Justice puts it, Munsterman's organization must stop "conspiring to raise fees."

Ah, trust busted, trust restored, right?

South Dakota will pay the price in numerous ways for Governor Dennis Daugaard's ongoing cuts (the "new norm") in our state investment in education. One small part of that cost: unemployment benefits for Jenny Easton.

Easton taught music in the Hanson School District from 2004 to 2011. In March 2011, following the Governor's hatchet job on K-12 funding, the school district decided to save money by cutting her position and offering her the chance to come back in the fall to a part-time position that would drop her pay from $30,260 to $21,975 and reduce her leave and retirement. Easton, apparently wanting to keep her income closer to a living wage, understandably said no.

In September 2011, Easton filed for unemployment benefits. The Unemployment Insurance Division and an administrative law judge approved Easton's claim. Then Daugaard-appointed Labor Secretary Pam Roberts denied Easton's claim. Easton appealed to circuit court, which reversed Secretary Roberts's reversal.

And now the Daugaard-Roberts cheese stands alone. On Wednesday, the South Dakota Supreme Court upheld Easton's claim. An employee has good cause for rejecting a 25% pay cut and demotion to part-time status... and now the state's unemployment  insurance fund will pay for that cut.

Of course, the students in the Hanson School District have been paying for that cut for two years now.