*sigh* Just read this on the DRE listserv... Wish we had one like this!


28-1381. Driving or actual physical control while under the influence; trial by jury; presumptions; admissible evidence; sentencing; classification

A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.

2. If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle.

3. While there is any drug defined in section 13-3401 or its metabolite in the person's body.

4. If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver license as defined in section 28-3001 and the person has an alcohol concentration of 0.04 or more.

How about Washington's version:

46.61.502. Driving under the influence

(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:

(a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or

(b) While the person is under the influence of or affected by intoxicating liquor or any drug; or

(c) While the person is under the combined influence of or affected by intoxicating liquor and any drug.

(2) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state shall not constitute a defense against a charge of violating this section.

(3) It is an affirmative defense to a violation of subsection (1)(a) of this section which the defendant must prove by a preponderance of the evidence that the defendant consumed a sufficient quantity of alcohol after the time of driving and before the administration of an analysis of the person's breath or blood to cause the defendant's alcohol concentration to be 0.08 or more within two hours after driving. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.

(4) Analyses of blood or breath samples obtained more than two hours after the alleged driving may be used as evidence that within two hours of the alleged driving, a person had an alcohol concentration of 0.08 or more in violation of subsection (1)(a) of this section, and in any case in which the analysis shows an alcohol concentration above 0.00 may be used as evidence that a person was under the influence of or affected by intoxicating liquor or any drug in violation of subsection (1)(b) or (c) of this section.

(5) A violation of this section is a gross misdemeanor.

Kansas is very similar KS ST � 8-1567

(a) No person shall operate or attempt to operate any vehicle within this state while:

(1) The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;

(2) the alcohol concentration in the person's blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;

(3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;

(4) under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or

(5) under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.

(b) No person shall operate or attempt to operate any vehicle within this state if the person is a habitual user of any narcotic, hypnotic, somnifacient or stimulating drug.

Wow, I love that Metabolite portion of #3. You can snatch up Tweakers in 'crash mode' coming down of Meth that way without having to bring in an expert to explain the fatigue caused by the recovery or 'hangover'.

Minnesotahas the two hour rule and does not seem to distinguish between a DWI and a test refusal, M.S.A. � 169A.20:

Subdivision 1. Driving while impaired crime. It is a crime for any person to drive, operate, or be in physical control of any motor vehicle within this state or on any boundary water of this state:

(1) when the person is under the influence of alcohol;

(2) when the person is under the influence of a controlled substance;

(3) when the person is knowingly under the influence of a hazardous substance that affects the nervous system, brain, or muscles of the person so as to substantially impair the person's ability to drive or operate the motor vehicle;

(4) when the person is under the influence of a combination of any two or more of the elements named in clauses (1), (2), and (3);

(5) when the person's alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the motor vehicle is 0.10 or more;

* * *

Subd. 2. Refusal to submit to chemical test crime. It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license).

Subd. 3. Sentence. A person who violates this section may be sentenced as provided in section 169A.24 (first-degree driving while impaired), 169A.25 (second-degree driving while impaired), 169A.26 (third-degree driving while impaired), or 169A.27 (fourth-degree driving while impaired).


Indiana creates a rebuttable presumption:

(b) If, in a prosecution for an offense under IC 9-30-5, evidence establishes that:

(1) a chemical test was performed on a test sample taken from the person charged with the offense within the period of time allowed for testing under section 2 of this chapter[three hours]; and

(2) the person charged with the offense had an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per:

(A) one hundred (100) milliliters of the person's blood at the time the test sample was taken; or

(B) two hundred ten (210) liters of the person's breath;
the trier of fact shall presume that the person charged with the offense had an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per one hundred (100) milliliters of the person's blood or per two hundred ten (210) liters of the person's breath at the time the person operated the vehicle. However, this presumption is rebuttable.

Ohio just says a test within two hours is always admissible, R.C. � 4511.19:

(D)(1) In any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section or for an equivalent offense, the court may admit evidence on the concentration of alcohol, drugs of abuse, or a combination of them in the defendant's whole blood, blood serum or plasma, breath, urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within two hours of the time of the alleged violation.

Are we going to get a statue like this passed for us next session? It should be at the top of the list; I can't understand why legislators have a problem with it.

oops, forgot to press spell check. Sorry about that.

Only defense attorneys (particularly those specializing in or deriving significant income from DWI cases) and those persons likely to be directly affected by such a change (which includes purveyors of alcohol) have a problem with it. But, that will likely create a "problem" for many legislators. Don't be fooled. This would represent a very significant change in how the issue has always been handled (since 1935).

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... Wish we had one like this!

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Are we going to get a statu[t]e like this passed for us next session? It should be at the top of the list; I can't understand why legislators have a problem with it.

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Georgette, Bill, et al.: TDCAA's DWI Workgroup is planning to recommend a fix to the extrapolation problem, and others, to be unveiled at the Elected Conference. But nothing is going to pass unless everyone on this board lets their local legislator hear about it, and often. I trust we can count on each of you at the appropriate time.

And c'mon, Bill, you've been around the block enough times to know what the holdup is--or shall I just give you the phone number of the legislators who have refused in the past to blow upon arrest, and their brethren who will do the same if arrested in the future?

[This message was edited by Shannon Edmonds on 09-27-04 at .]

In 2003 I prepared and obtained a sponsor for legislation on this very subject (breath test result within 2 hours created a presumption) and allowing extrapolation as an affirmative defense. Despite the best efforts of my state representative, we could never get the House Criminal Justice committee to even schedule a hearing on the bill!

States with similar statutes are as follows:

a)CALIFORNIA: Cal Veh Code � 23152
b)INDIANA: Burns Ind. Code Ann. � 9-30-6-15
c)IOWA: Iowa Code � 321J.2
d)NEVADA: Nev. Rev. Stat. Ann. � 484.379

It will take a concerted effort to get a hearing on this bill and greater effort to get it to pass.

I will confess that I have not done my share of supporting this effort, but I declare here in front of God and my fellow prosecutors that I will do everything that I can to help get this passed. Shannon, sign me up and maybe we can get Senator Duncan tied down on this at the elected.

Anotherissue that I have pressed with Duncan is assessing an additional dime on every beer or mixed drink above and beyond whatever taxes or fee that are currently assessed and dedicate it to law enforcement. i.e. make sure we don't run out of witness fees etc. A DIME TO FIGHT CRIME. No one will refuse to buy a beer because of an additional dime. Talk about a legetimate sin tax. I know alcohol lobby is strong, but I am going to see where I can get with this.

Anybody see the September 27, 2004 Texas Lawyer article Wake-Up Call. It looks like a puff piece for those who want to get Ex parte Graves overruled. This campaign was started by a "study" done by the Texas Defender's Service. Maybe some D.A. should do a "study" of how awful BTR's and extrapolation requirements are.

Last year, in a project for the Breath Testing Bureau, I went through the DWI/DUI laws of all 50 states and the U.S. territories. More than 25 have some form of time of test law or provide a stronger presumption than the Texas law. I have the chart if anyone wants a copy, or contact Mack Cowan at the Breath Testing Bureau (512-424-2000) for additional information. He is on some national committee that is looking into this issue.

Janette Ansolabehere
DPS

Is Mata II and Stewart still "good" law? And Bill Sowder, you have certainly gotten active.