Last updated on 2014.12.29
Put down the beer.
Within ten minutes of posting on lawyer Tim Whalen's bold argument on behalf of his accused manslaughtering client that the 2012 Legislature repealed our DUI laws, an eager reader sends me a case in which the First Circuit Court rejected the same ploy.
This summer, one Tana Herrlein was arrested in Brule County for DUI. Her lawyer argued that the Legislature repealed South Dakota's DUI statutes in 2012 with House Bill 1027. In September, First Circuit Court Magistrate Judge Gordon Swanson rejected that argument:
If the Legislature intended HB 1027 to eliminate DUI laws in South Dakota, it would have needed to include notice of the nullification and implied repeal of not only all of the state's DUI laws, but also all other laws that have criminal or civil penalties that comfortably fall within the provisions of SDCL 34-20A-95. There was no such notice.
...It is clear the Legislature still intends that DUI offenses be prosecuted in South Dakota as evidence [sic] by its continuing modification to the DUI laws in 2012 and 2013 [Magistrate Judge Gordon Swanson, State of South Dakota v. Tana Herrlein, South Dakota First Judicial Circuit, 2013.09.22].
And in case anyone still wants to press the case, Judge Swanson gets technical and notes that even if SDCL 34-20A-93 prohibits punishing people for "drinking" or "drunkenness", our DUI statutes punish people for driving while "under the influence", which isn't technically the same thing.
Attorney Whalen is arguing his case before Swanson's fellow First Circuit Judge Bruce Anderson. It shouldn't take long for Anderson to review Swanson's notes and stamp "legislative intent" on Whalen's doomed argument.
Update 14:09 CDT: Mr. Montgomery noticed last month that Whalen himself made that no-DUI-law argument in the Herrlein case. If at first you don't succeed... quit wasting your clients' time and money!
Does anyone actually believe the courts would rule that DUI is legalized?
Perhaps nobody would believe that, but that says something about the courts. SD courts seem to allow stretching any law into whatever prosecutors want to make it and give no slack to anyone claiming they just made an error.
But, take a grand legislative, governor's, and AG's colossal screwup and suddenly the legislature is assumed to have another intention besides the apparent obvious result.
This looks like something that should require an emergency legislative session instead of court and prosecutor mental masturbation and excuses for lame-brained behavior clothed in legal nonsense.
Maybe a class action suit against the state for such an ambiguous writing of the law may be in order. That may be a very good deal as it would maybe expunge a charge that is hurting the pocketbook of a citizen. If it is not clear, ye shall have thee beer.
Uh, Jerry? "That would be a very good deal . . . hurt the pocketbook of a citizen."
I'm guessing/hoping you didn't really think that through. The families of the hundreds of thousands of people who've been killed by drunk drivers probably don't have much sympathy for the citizens who've been fined. If the options are a hurt pocketbook or a dead, innocent American; my choice is the fine.
In addition to Whalen's motion to dismiss based on the defects from HB 1027, they are also asking that the BAC test results be thrown out based on the US Supreme Court's McNeely decision of April 2013 (Fischer measured 0.232 an hour after the killing and was still 0.17 the next morning).
Our wonderful SCOTUS ruled that a drunk driver can refuse a sobriety test and blood draw and that police must get a warrant, unless there are "exigent circumstances". Fischer will be in court AGAIN on November 22 when the state has to bring in a dozen witnesses to demonstrate that "exigent circumstances" did exist on July 8 when he killed our daughter Maegan.
Consider the blatant hypocrisy of the Supreme Court -- the "liberal" Warren Court established the right of the state to do a mandatory blood draw from drunk drivers in 1966. McNeeely reversed that ruling. The current court says drunks can refuse the test and police must get a warrant. This is the same court that thinks warrantless spying by the NSA or telecom companies is OK.
How this applies in a rural place like Charles Mix county is ridiculous. There were two dead people and the county has one sheriff, 4 deputies and 1 trooper regularly assigned there. And somebody is supposed to go before a judge to get a warrant to take a blood draw from a person that reeked of alcohol and killed two people.
God Bless the USA. We need all the divine help we can get.
See http://www.sgsstat.com/sd_dui_initiative
Gregg, thank you for that link and that human context for the legal games Whalen is playing for his client.
I don't know if I am comfortable with a court ruling on "legislative intent" vs. interpreting the law. I am inclined to agree with Doug, a special session should be in order.
South Dakota has an "implied consent" law which may make the SCOTUS decision inapplicable to SD. I don't know for sure.
I do know that Spindler's ideas while claimed to be data-based, etc. are wrong-headed. The problem starts with the liquor industry irresponsibility and a really stupid SD Supreme Court decision which makes "dram shop" laws unconstitutional.
After working in SD:ASAP helping to get what DWI and DUI laws including mandatory blood tests in fatal crash victims and drivers, That Larry Long's ideas to control drunken driving while keeping DWI and DUI drivers sober is a better approach than long-prison terms which often don't serve any purpose other than providing high-cost housing for drunks.
The Spindler tragedy is raising the profile of dangers of drunken driving, and that is good, but it is heading in the wrong direction on several fronts.
If there is a legal problem with the legislative screwup, correcting it now might not make any difference in this case since it would be ex post facto.
Sure seems to be a lot of silence from legislator's on this issue.
@Douglas Wiken 2013.10.26 at 11:32
IIRC, South Dakota Implied Consent was repealed as part of a 2005 change in the DUI laws. I was told driving on SD highways had explicit consent. I think this is where the problem lies and why McNeely is relevant for the state. I understand McNeely has caused major changes in handling DUI cases, but it has clouded ours.
But I am not a lawyer.
As I understand Larry Long started the 24/7 sobriety program for repeat offenders. Recidivism is a real problem. But it is a comparatively SMALL part of the overall DUI problem.
The key point of our proposed reforms is deterrence. 93% of fatal incident are from first time offenders. Based on CDC survey data, a person drives drunk 80 times before being caught. Ron Fischer is a first time offender -- although I highly doubt that July 8 was the first time he drove drunk.
The problem is deterrence is insufficient, it is too easy to drive drunk and not get caught. Not just in SD, but everywhere in the US.
24/7 and ignition interlocks would not have stopped Ron Fischer -- it didn't apply to him. It doesn't apply to 93% of drivers causing fatal incidents (and likely a similar proportion of injuries).
I am not saying abandon 24/7 and ignition interlocks. But let's work on the biggest part of the problem, also, that of first offenders and deterrence.
Lastly, I don't see anything wrong with a first time offenders spending a weekend in jail, eating jail food and sleeping in a cell block. I think that is GOOD. It will certainly make profound impression on a 22 year old in addition to taking alcohol classes one evening a week for a month or two.
Read our proposal, read the NTSB May 2013 report. Read the references cited therein.
It was 40 years ago, but when we finally got the SD legislature to pass the legislation and get the Governor to sign it so we had blood test data in fatal crashes, 68% of the crash fatalities involved alcohol impairment. I suspect that percentage has dropped in SD. Perhaps you mean that 93% of crashes with alcohol impairment involve first time offenders.
When we first checked the arrest records of SD Highway Patrolmen, some had never made a single DWI or DUI arrest in 10, 20, or more years. We did get them convinced that drunken driving warranted enforcement.
Road blocks may be the most effective deterents, but patrol just could not get them organized with enough patrolmen in one place even though 8 or 10 of them could find the same restaurant to eat lunch.
Highways in SD are a lot safer now then they were 40 years ago, but could be much safer. The tribal areas in SD are a separate kind of problem that complicates effective DWI enforcement.
If the liquor industry had to pay the half of SD vehicle insurance their drunken clients generate, they might obey the law regarding selling to those already drunk or those with limitations on their drinking. Then if the joints selling booze were shut down across the state a week after a fatal alcohol-related crash, they would have a little more incentive to be responsible instead of just being greedy drug pushers.
Independent statistical analysis was part of SD:ASAP. Our data showed a positive cost-benefit ratio, but as soon as the SD legislature ran into one of its periodic budget crises, the first thing they killed was the SD:ASAP highway safety program.
@ Douglas Wiken 2013.10.26 at 18:40
You are correct, 93% of fatal DUI incidents are from first time offenders as cited in the May 2013 NTSB “Reaching Zero: Actions to Reduce Alcohol-Impaired Driving”.
The NTSB report also cites "low manpower" (with as few as 4 officers) checkpoints case/control study in WV that lowered incidence of drivers with > 0.05 BAC by 70% after one year. This is very relevant for a state like SD.
Checkpoints and other high visibility enforcement are the proven methods to reduce DUI incidence. People have to fear getting caught.
Immediate sanctions such as a 7 day license suspension and vehicle impoundment on arrest have also been very effective.
Periodic budget problems, changed priorities or declaring victory too soon is why we advocate that the current alcohol excise tax be increased and dedicated to DUI enforcement, adjudication and education (and transition to a mix of DUI and treatment after some period). Most importantly, it has to be shared with county and city governments (and tribal LE if they adhere to identical standards). Counties bear the brunt of DUI costs and some simply lack resources for effective enforcement.
Doug makes a good point that the problem here is how to put a cork in the liquor industry's bottles. My urge is to say, throw the book at first time offenders, give killer DUIs the stiffest penalty possible. But that doesn't stop the killing. As Gregg notes with that remarkable 93% fatal–first-time-DUI stat, we need to figure out how to stop those DUIs from happening and keep anyone from getting hurt. Making an example of Fischer with some huge penalty, while just retribution for his case, may not send much message to the non-news-readers tipping the bottle every Friday night.
Could we assess a DUI tax on distributors and sellers? Add a fee to each annual liquor license renewal, say $10 for each DUI conviction in the state, $50 for each DUI involving property damage, $100 for each DUI involving injury, $200 for each death caused by DUI. Or even scale that by county: license holders only pay that surcharge for DUIs taking place in the past year in their county. Would that motivate the industry to build a marketing campaign discouraging excessive drinking?