Category Archives: Eluding

The Right to Privately Speak With Defense Counsel

Court hearings via video conference have pros and cons, area lawyers say - masslive.com

In State v. Bragg, the WA Court of Appeals held that the trial court violated Mr. Bragg’s
right to confer with his attorney by requiring Bragg to participate in all nontrial
hearings via Webex while his counsel appeared in the courtroom.

BACKGROUND FACTS

Mr. Bragg allegedly fired a gun at sheriff’s deputies during a high-speed car chase. He was apprehended. The State charged him with three counts of Assault in the First Degree, Drive-By Shooting, Attempting to Elude, and Fiream Offenses. The trial court set Bragg’s bail at $750,000, which he was unable to pay.

Before trial, the court granted multiple continuances requested by Bragg and the State. For all pretrial proceedings, Bragg appeared on video via Webex from jail, while his counsel and the State appeared in person before the trial judge. Multiple times, Bragg expressed frustration with the pretrial proceedings and distrust of his counsel. At a hearing on December 29, 2021, defense counsel tried to withdraw due to allegedly irreconcilable conflicts. The court denied counsel’s motion to withdraw.

The four-day jury trial began January 3, 2021. Bragg appeared in person for trial. After the State rested, Bragg did not call any witnesses. The jury then found Bragg guilty of numerous counts. The court sentenced Bragg to 648 months of prison. Again, Bragg appeared at sentencing via Webex.

On appeal, Bragg argues that at least 8 court hearings were critical stage proceedings. Consequently, the court violated his Sixth Amendment rights because he was unable to privately consult with his attorney during those hearings.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that a criminal defendant is entitled to the assistance of counsel at “critical stages” in the litigation. A “critical stage” is one “‘in which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or in which the outcome of the case is otherwise substantially affected.

Furthermore, the constitutional right to the assistance of counsel carries with it a reasonable time for consultation and preparation. This includes the opportunity for a private and continual discussions between the defendant and his attorney during the trial. The ability for attorneys and clients to consult privately need not be seamless, but it must be meaningful.

“Like the right to counsel in general, whether the court violated the defendant’s constitutional right to privately confer with his attorney is a very facts-specific inquiry.” ~WA Court of Appeals.

The Court of Appeals also pointed out that in February 2020, our governor declared a state of emergency due to the COVID-19 Pandemic. It discussed how the WA Supreme Court authorized criminal defendants to appear via video.

Nevertheless, the Court of appeals reminded all parties that the Supreme Court’s pivot to video court hearings was meant to be limited in its scope:

“However, the Supreme Court further made clear that for all hearings that involve a critical stage of the proceedings, courts shall provide a means for defendants and respondents to have the opportunity for private and continual discussion with their attorney.” ~WA Court of Appeals

In rendering its decision, the Court of Appeals reasoned the Supreme Court made it clear that for all hearings that involve a critical stage of the proceedings. Also, courts shall provide a means for defendants and respondents to have the opportunity for private and continual discussion with their attorney.

“Here, by way of summary, the trial court violated Bragg’s right to counsel by not providing guidance to Bragg and his counsel about how to confer privately during at least four nontrial critical stage proceedings and by placing an unreasonable expectation on Bragg to assert his rights. And the State fails to meet its burden to prove beyond a reasonable doubt that such errors were harmless. Thus, without making any comment on the weight of the evidence or the conduct of the trial, we are compelled to reverse and remand this matter for further proceedings.” ~WA Court of Appeals

With that, the Court of Appeals revesed Mr. Bragg’s convictions.

My opinion? The use of technology in the courtroom has resulted in numerous benefits to the litigants and the public. These technological benefits should only improve as our courts, judges and litigants become more familiar with the features of the existing technology.

Clearly, however, the over-use of technology may undermine a defendant’s right to legal representation.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Governor Inslee Signs Police Pursuit Bill

Police poised to regain ability to undertake more pursuits | HeraldNet.com

A new bill Gov. Jay Inslee just signed changes when law enforcement can chase criminals. It gives more latitude to police on when they can initiate a pursuit. Now, police don’t need probable cause of a violent crime to chase a criminal – just reasonable suspicion.

“I believe this is a step forward, a reasonable measure and balance, to ensure public safety.” ~Governor Jay Inslee.

The new law went into effect immediately after the signing.  Law enforcement officials need “reasonable suspicion” for violent and sexual crimes, DUI, domestic violence, and vehicular assault. The previous law, passed in 2021, required law enforcement to have “probable cause” – or hard evidence – of violent and sexual crimes, and DUI.

“With the laws that they put in place before, I could not chase that red car without probable cause, which means I need a license plate, a really specific description of the driver, or something on the vehicle that stands out that says this is the vehicle that committed that crime.” ~Sgt. Darren Moss of the Pierce County Sheriff’s Department.

Lawmakers opposed to that say pursuits are just too dangerous for the public to warrant a chase when no one has been hurt.

“Limit police vehicle pursuits to the most serious crimes. Those crimes that don’t involve injury to person can be solved in other manners,” said Rep. Roger Goodman (D-Kirkland) during session on March 28.

Inslee acknowledged Wednesday that many law enforcement groups are hoping for more changes in the future.  He compared the police pursuit problem to climbing Mount Everest at the bill signing, saying it needs to be addressed step by step.

Please contact my office if you, a friend or family member are charged with Eluding or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State Lawmakers Approve Police Pursuits

10 crazy Southern California police car chases - Los Angeles Times

This week, Senate Bill 5352 passed with a vote of 26-22. This legislation would lower the requirements for police pursuits passed the Washington state Senate on Monday. In recent public statements, Governor Inslee indicated that he would approve the new law.

If signed, police may engage in a pursuit if they have “reasonable suspicion” a person has committed or is committing a violent or sexual crime. These crimes include Assault, DV cases, Vehicular Assault and DUI. Following the bill’s passage, law enforcement agencies have greater ability to pursue people during and immediately after a crime.

“It allows us to use our training, experience in judgement in making these difficult decisions in whether to pursue somebody or not . . . It allows us just those few extra tools to deal with these situations.” ~Marco Monteblanco, Washington State Fraternal Order of Police.

Under the current law, police can only chase a suspect when they have proof of a crime involving violence, a sex crime, or a DUI.  As a result, law enforcement agencies argued that current restrictions give criminals confidence to flee and lead to more crime.

Opponents like State Representative Darya Farivar (D-Seattle)  said police chases are too dangerous and do not always result in arrests.

“It’s a risk for absolutely everyone,” she said.  “It’s everyone from the subject of the pursuit, to the passenger in the vehicle, to bystanders, to law enforcement.”

Rep. Farivar added that she also opposed the new legislation because she said minorities and underprivileged groups are often disproportionally targeted by police.

“It’s not just the individual who may or may not be at fault of something (to be impacted by police pursuits). There are a lot of people who can be hurt,” she said.

In 2021, Olympia legislators passed House Bill 1054, which barred high-speed pursuits except in very limited circumstances.

The law was included in a series of police reforms passed in response to the murder of George Floyd and other high-profile police killings. The reforms were aimed at addressing racial disproportionality in policing.

According to Washington State Patrol (WSP), before the change between 2014 and 2020, an average of 1,200 drivers per year fled from police. In 2022, after the change, 3,100 drivers fled from police, a spike of over 150%.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Traffic Deaths Increase

US traffic deaths way up; reckless driving blamed by feds

Excellent article from journalist of the Washington Post reports that U.S. traffic deaths jumped in 2022, hitting 20-year high.

More than 9,500 people were killed in traffic crashes in the first three months of this year, federal transportation officials said Wednesday — a figure that represents the deadliest start to a year on U.S. roads in two decades.

In seven states and the District, officials estimated crash deaths jumped at least 50 percent. Nationwide, deaths were up 7 percent compared with the same period last year.

The figures are preliminary estimates, and the National Highway Traffic Safety Administration (NHTSA) did not release breakdowns of the causes of crashes. Officials say a surge in traffic fatalities that started in 2020 as the pandemic began has continued unabated.

“The overall numbers are still moving in the wrong direction . . . Now is the time for all states to double down on traffic safety.”  ~Steven Cliff, Administrator for NHTSA.

EXPLANATIONS FOR THE SURGE IN TRAFFIC FATALITIES

Experts have struggled to come up with an explanation for the spike in deaths but have pointed to less congestion amid changed driving patterns during the COVID-19 Pandemic, which they say have allowed more dangerous speeds. Officials say there’s also evidence of an uptick in Reckless Driving, DUI,   DUI or Driving Without a Seatbelt.

The early stages of the pandemic saw roads become emptier as people stayed home. However, drivers quickly returned to their vehicles, even as driving was no longer as dominated by morning and evening commutes. NHTSA reported that Americans drove more than 750 billion miles between January and March, an increase of more than 5 percent compared with 2021.

NHTSA reported 7,893 traffic deaths in the first three months of 2020, a period mostly before the onset of the pandemic. In 2021, the figure jumped to 8,935 deaths, then rose to 9,560 this year. The number of deaths this year was the highest in the first three months of a year since 2002. The first quarter is consistently the least deadly on U.S. roads.

SOLUTIONS FROM THE GOVERNMENT

Transportation Secretary Pete Buttigieg earlier this year said the nation would work to eliminate crash deaths, pledging to adopt a “safe system” approach that would look as much at the design of roads and cars as the behavior of individual drivers. The effort is backed by billions in new safety funding from last year’s infrastructure law, including a $5 billion fund that will provide grants aimed at protecting bicyclists and pedestrians.

The infrastructure law included mandates for technology that could address some of the biggest causes of fatalities, such as calling for NHTSA to require breath monitoring devices for alcohol in new cars. Such a system is in testing, but a mandate is likely years away.

Please contact my office if you, a friend or family member are charged with Reckless Driving, DUI, or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

High Court: Race Must be Considered in Determining Legality of Police Stops and Seizures

Center for the Study of Race and Law | University of Virginia School of Law

In State v. Sum, the WA Supreme Court held that  a person’s race – and law enforcement’s long history of discrimination against people of color – should be taken into account when determining the legality of police seizures.

FACTUAL BACKGROUND

The case concerns Palla Sum, a person of color who identifies himself as Asian/Pacific Islander. Mr. Sum was sleeping in his car in Tacoma one morning in April 2019 when police came upon him. Deputy Rickerson An officer ran his plates. The car was not stolen. There is no indication that it was parked illegally. Nevertheless, the car attracted the deputy’s attention because “it was parked there.”

The officer knocked on the window, asked Sum questions and asked him for identification. Sum gave a false name and the officer went back to his cruiser to check records. Sum then drove off, crashed into a front lawn and was caught as he attempted to run away.

Sum was subsequently charged with Making a False Statement, Eluding and Unlawful Possession of a Firearm, after a gun was found in his car.

Sum filed a pretrial motion to suppress pursuant to CrR 3.6. He argued that he was unlawfully seized without reasonable suspicion when Deputy Rickerson requested Sum’s identification while implying that Sum was under investigation for car theft. The court denied Sum’s motion to suppress. It ruled that because Sum was not seized when Rickerson asked him to identify himself, because the did not retain Sum’s physical identification to conduct his records check. Sum was convicted of all three charges by a jury.

Although the WA Court of Appeals upheld his conviction, Sum again appealed to the WA Supreme Court. He argued  that there is no justification—aside from unacceptably ignoring the issue of race altogether—for courts considering the totality of the circumstances to disregard the effect of race as one of the circumstances affecting evaluation of police contact.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court discussed the standard of review for addressing similar cases. It reasoned that the search and seizure inquiry is an objective test. An allegedly seized person has the burden to show that a seizure occurred. It further clarified that a person is seized if, based on the totality of the circumstances, an objective observer could conclude that the person was not free to leave, to refuse a request, or to otherwise terminate the encounter due to law enforcement’s display of authority or use of physical force.

The Court also took its “objective analysis” test a step further:

“For purposes of this analysis, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in disproportionate police contacts, investigative seizures, and uses of force against Black, Indigenous, and other People of Color (BIPOC) in Washington.” ~Justice Mary Yu, WA Supreme Court

Furthermore, wrote the Court, if the person shows there was a seizure, then the burden shifts to the State to prove that the seizure was lawfully justified by a warrant or an applicable exception to the warrant requirement.

Next, the Court applied its now race-conscious test to the facts of the case. It reasoned that based on the totality of the circumstances, Mr. Sum was seized when Deputy Rickerson requested Sum’s identification while implying that Sum was under investigation for car theft.

“As the State properly concedes, at that time, the deputy did not have a warrant, reasonable suspicion, or any other lawful authority to seize Sum,” wrote Justice Yu. “As a result, Sum was unlawfully seized, and the false name and birth date he gave to the deputy must be suppressed. We therefore reverse the Court of Appeals and remand to the trial court for further proceedings.”

My opinion? Good decision.

In an amicus brief, public defender and civil rights groups argued that law enforcement’s history of discriminating against people of color needs to be reflected in how the law is interpreted. The groups, including the King County Department of Public Defense and the ACLU of Washington, wrote the following:

“Centuries of violence and dehumanizing treatment of people of color have required BIPOC communities to develop survival strategies that demand over-compliance with law enforcement . . . For courts to continue to blind themselves to that reality when evaluating the freedom an individual would feel to unilaterally terminate a law enforcement contact is to further enshrine existing racial disparities into the legal system.”

Please review my Search & Seizure guide and  contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Consecutive v. Concurrent Sentencing

Consecutive vs. Concurrent Sentencing in Kentucky - Baldani Law Group

Clients often ask, “What’s the difference between consecutive and concurrent sentences?”

Quite a lot, actually!

The question applies to Clients facing criminal charges from numerous jurisdictions. For these clients, sometimes the best approach is to seek a global resolution. This can happen if the prosecutors of the different jurisdictions are willing to coordinate their efforts toward a plea bargain involving reductions and dismissals of some criminal charges in exchange for guilty pleas to other charges.

Naturally, a big question in these negotiations is whether the defendant shall serve their jail time under a consecutive sentence or a concurrent sentences. Here’s some definitions:

Concurrent sentences: When sentences run concurrently, defendants serve all the sentences at the same time. This outcome is favorable to the defendant.

Consecutive sentences: When sentences run consecutively, defendants have to finish serving the sentence for one offense before they start serving the sentence for any other offense. This sentence outcome is not favorable to the defendant.

To illustrate the point, in State v. Brown the WA Court of Appeals recently held that firearm enhancements must be served consecutively in cases in which the defendant was 18-years or older when s/he committed the crimes.

BACKGROUND FACTS

A jury convicted Mr. Brown of four counts of first degree robbery, one count of attempted first degree robbery, two counts of second degree assault, and one count of attempting to elude a pursuing police vehicle. Five of the convictions included firearm enhancements, which are increased sentencing penalties.

At sentencing, the State recommended a sentence of 381 months. The State recommended five firearm enhancements ran consecutively to each other and to Mr. Brown’s base sentence of 129 months. The trial court imposed the State’s recommended sentence. Brown appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals raised and dismissed Mr. Brown’s arguments on appeal. It reasoned that under the Sentencing Reform Act – and specifically, RCW 9.94A.533(3)(e) – all firearm enhancements require prison time and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements.

“Brown’s sole claim is that he is entitled to resentencing because the sentencing court erroneously believed it lacked the discretion to depart from the required term of confinement for a firearm enhancement. We disagree.” ~WA Court of Appeals

To support its reasoning, the WA Court of Appeals relied on State v. Brown (no relation) a WA Supreme Court case which held that Washington law deprives sentencing courts of the discretion to impose an exceptional sentence with regard to firearm enhancements.

“In any event, a decision by the Washington Supreme Court is binding on all lower courts of the state,” reasoned the WA court of Appeals. “This court does not have the
authority to overrule Brown.”

With that, the Court of Appeals upheld Mr. Brown’s lengthy prison sentence.

My opinion? Again, if a defendant is convicted of a number of crimes that carry lengthy prison terms, the difference between consecutive and concurrent sentences can be tremendous. The same factors that judges tend to consider when deciding on the severity of a sentence (for example, a defendant’s past record) also affect their decisions on whether to give concurrent or consecutive sentences.

As you can see, however, some criminal statutes require that the sentence for the crime in question be served consecutively to any other crime committed in the same incident.

Please contact my office if you, a friend or family member face criminal charges involving the possibility of concurrent or consecutive sentencing. It’s crucial to hire an experienced criminal defense attorney who understands the law.

A Police Vest Is a Uniform

Image result for police vests

In State v. Connors, the WA Court of Appeals held that a police vest is a uniform.

BACKGROUND FACTS

Mr. Connors was driving a stolen car when he failed to respond to a signal to stop issued from a police vehicle. Instead of stopping, Mr. Connors sped away to an apartment complex. He then abandoned the stolen car and fled on foot until he was apprehended by the pursuing officer. The officer’s attire at the time of the incident consisted of a black external vest which fit over normal clothes, a Spokane Police patch on the front and reflective letters across the back that says “Police.”

Mr. Connors was charged with, and convicted of, attempting to elude a police vehicle and possession of a stolen motor vehicle. He appealed his eluding conviction.

COURT’S ANALYSIS & CONCLUSIONS

“A conviction for attempting to elude a police vehicle requires the State to prove, beyond a reasonable doubt, that the defendant was signaled to stop by a uniformed police officer,” said the Court of Appeals.

The Court further reasoned that when interpreting statutory text, the goal is to discern legislative intent. When a statute does not define a term, courts will give the term “ ‘its plain and ordinary meaning unless a contrary legislative intent is indicated. “Generally, courts derive the plain meaning from context as well as related statutes,” said the Court. “But a standard English dictionary may also be employed to determine the plain meaning of an undefined term.”

Here, the Court found that the clothing described during Mr. Connors’s trial readily meets the ordinary definition of a “uniform.” The vest worn by the officer was specific to the Spokane Police Department. It served to notify the public that the officer was an official member of the police department. The fact that the officer wore “normal clothes” under his police vest does not mean he was not wearing a uniform. “Some uniforms are comprehensive from head to toe,” said the Court. “Others are not. The eluding statute makes no preference.”

“So long as an officer deploying the signal to stop is attired in a distinctive garment that clearly identifies him as a member of law enforcement, the statutory requirement of a “uniform” is met.”

With that, the Court of Appeals affirmed the conviction.

Please contact my office if you, a friend or family member are charged with a crime and it’s questionable whether the law enforcement officer was appropriately and/or distinctly uniformed during the stop and arrest. Hiring competent defense counsel is the first and best step toward achieving justice.

Unlawful Opinion Testimony of Police Officer

Chicago cops reluctantly testify against 1 of their own

In State v. Winborne, the WA Court of Appeals held that an officer’s use of the word “reckless” or “eluding” while testifying in a Felony Eluding trial was improper opinion testimony.

BACKGROUND FACTS

The State of Washington charged Tishawn Winborne with Theft of a Motor Vehicle, two counts of Attempting to Elude a Police Vehicle, one count of Second Degree Assault, and one count of Third Degree Assault. The assault charges arise from his resisting
of police officers.

At the start of trial, Tishawn Winborne made a motion in limine to prohibit the State’s witnesses from testifying regarding ultimate factual issues such as whether Winborne “eluded” or drove “recklessly.” However, the trial court denied the motion. For those who don’t know, a motion in limine is a pretrial motion asking that certain evidence be found inadmissible, and that it not be referred to or offered at trial.

During trial, State witnesses repeatedly testified to Tishawn Winborne’s driving “recklessly” or “eluding” law enforcement. At the close of the State’s case, the trial court dismissed the Theft of a Motor Vehicle charge because of insufficient evidence.

The jury found Tishawn Winborne guilty of both counts of Attempting to Elude a Police Vehicle, but acquitted Winborne of both assault charges.

Winborne appealed. Among other issues, he challenged the trial court’s denial of his motion in limine to prohibit any witness from testifying that Winborne drove “recklessly” or “eluded” police.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that no witness, lay or expert, may testify to his or her opinion as to the guilt of a defendant, whether by direct statement or inference. Whether testimony provides an improper opinion turns on the circumstances of the case, including (1) the type of witness involved, (2) the specific nature of the testimony, (3) the nature of the charges, (4) the type of defense, and (5) the other evidence before the trier of fact.

Next, the Court held this case was similar to the controlling precedent of State v. Farr-Lenzini:

“The state trooper in State v. Farr-Lenzini did not employ the word “reckless” in his testimony as did officers in Tishawn Winborne’s trial. Nevertheless, the same reasoning behind excluding the testimony applies. An officer can testify to his observations of the driving of the defendant without drawing conclusions assigned to the jury.”

Finally, the Court of Appeals held that the trial court abused its discretion by denying Tishawn Winborne’s motion in limine. It reasoned that the State’s police officer witnesses testified by direct statements to Tishawn Winborne’s guilt. “Whether Tishawn Winborne drove ‘recklessly’ or ‘eluded’ the officer is an element of attempting to elude a police vehicle,” said the Court. “A law enforcement officer’s improper opinion testimony may be particularly prejudicial because it carries a special aura of reliability.”

With that, the Court of Appeals reversed Tishawn Winbome’s convictions for Felony Eluding a Police Officer and remanded for a new trial.

My opinion? Good decision. The Court of Appeals is correct in saying that a police officer’s improper opinion testimony may be particularly prejudicial because it carries a special aura of reliability. This is true. Instinctively, most jurors give much weight to the testimony of police officers. And the police officers know that. For those reasons, it is imperative for defense attorneys to argue pretrial motions in limine asking the trial judge to prohibit the police officers from offering their opinions at trial and to take exception to the court’s adverse rulings; thus preserving the issue for appeal. Kudos to the defense attorney in this case.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Bellingham’s Most Dangerous Intersections

Informative article by David Rasbach of the Bellingham Herald reports on statistics provided by the Bellingham Police Department Traffic Division showing Bellingham’s most dangerous intersection.

Apparently, at least in terms of the sheer number of accidents, West Bakerview Road and Northwest Drive reigns as the most dangerous intersection in the city.

In a distracted driving study conducted by its traffic division from January 2016 through June 2017, Bellingham Police received 1,350 reports of accidents within city limits, regardless of severity or injury. Of those, 43 accidents occurred at the intersection of Bakerview and Northwest — the highest total of any intersection in town.

Rasbach also reports that three of the top four most dangerous intersections during the 18-month study were in that same corridor: West Bakerview Road and Eliza Avenuehad the third highest accident total with 22 wrecks, while West Bakerview Road and Cordata Parkway was fourth highest with 18.

The only intersection breaking up Bakerview’s stranglehold on the top of Bellingham’s dangerous intersections list — Lakeway Drive and Lincoln Street, which had 25 reported accidents — is very similar, with two busy shopping centers and a school occupying three of the four corners. Nearby Lakeway Drive and King Street tied for sixth-most dangerous with Woburn Street and Barkley Boulevard with 14 reported accidents, each.

Also, the lone roundabout at Cordata Parkway and West Kellogg Road had 16 accidents reported.

Please contact my office if you, a family member or friend are criminally charged for traffic-related incidents. Unfortunately, it’s very easy to be charged with DUI, Reckless Driving, Negligent Driving, Driving While License Suspended, Eluding and/or numerous traffic citations. Bellingham’s dangerous intersections only exacerbate the situation and make it more likely that an unlawful pretextual pullover will happen.

Most of all, drive safe!

The Neurology of Risky Driving Behavior

Image result for risky driving behavior

A very interesting article from the Association for Psychological Science discusses how a team of Canadian psychological scientists is looking at the personality, cognitive, and neurobiological factors that contribute to reckless driving behavior. By better understanding the patterns of emotional processing and risk perception shown by repeat offenders, the researchers hope to design interventions that more effectively target these subgroups of dangerous drivers.

The evidence certainly exists. According to the article, drunk driving accounts for 35-40% of all driver fatalities in Canada and the United States, and drunk driving crashes kill more than 10,000 Americans every year. Amazingly, an estimated 30% of DUI offenders will continue to drink and drive, even after being arrested and punished.

“Surprisingly, these drivers usually don’t consider themselves as risk takers,” lead author Thomas G. Brown of McGill University said. “If drivers don’t believe they are risky, they will not accept the need to change. On the other hand, if we and they don’t understand their behavior, how can they be expected to change it effectively?”

The study began when Brown and his colleagues recruited four groups of male drivers who had different criminal histories: 36 men with at least two convictions for drunk driving (DUI group); 28 reckless drivers with at least three speeding violations in the past two years (speeders); 27 men with arrests for both DUI and speeding (DWI-speeders); and 47 low-risk drivers with no history of serious traffic offenses (control group).

According to the article, participants completed a battery of personality and impulsivity assessments, ranging from a Big Five personality measure to an executive control task that assessed their sensitivity to punishment and reward. Participants’ cortisol response, a hormonal reaction to stress, was measured by collecting saliva samples before and after they completed a timed mental arithmetic task previously shown to elicit stress.

Even more interesting, participants also completed a session of simulated driving that included driving on virtual highways, merging lanes, turning at intersections, and avoiding pedestrians.

The researchers found that different subgroups of risky drivers had distinctive neurobiological profiles. Compared to the low-risk control group, speeders were prone to making decisions based on thrill-seeking and a need for high levels of stimulation. Repeat DUI offenders, in contrast, had the lowest level of risk-taking behavior while sober.

“One possibility in line with the present results is that once heavy drinking has occurred, more impulsive drivers are more vulnerable to alcohol’s disruptive effects on the behavioral control mechanisms required to avoid DWI,” the researchers explain.

All of the dangerous driving groups exhibited significant blunting in their cortisol stress response compared with the control group. Cortisol, along with other stress hormones, influences cognitive processes that range from risk assessment to encoding emotional memories. These results suggest that dysregulation of the body’s cortisol response could act as a neurobiological marker for risky driving behavior.

“Relative to the other [risky driving] profiles considered here, the profile exhibited by group DUI may be the most amenable to interventions that aim to augment recall of the negative consequences of DUI behavior and pre-emptively decouple alcohol use from driving,” the researchers conclude.

Stated differently, interventions designed to improve drivers’ recall of the negative consequences of drinking and driving are effective for preventing drunk driving. This explains the findings why repeat DUI offenders had the lowest level of risk-taking behavior while sober.

My opinion? The study is interesting, for sure. Not surprisingly, the criminal justice system uses many of these these psychological deterrents to “decouple alcohol use from driving.” When it comes to DUI cases, gaining a worthwhile reduction of the charges often means the defendant obtaining an alcohol/drug evaluation, attending mandatory treatment, attending AA meetings and attending a Victim Impact Panel. Additionally, the financial costs of DUI fines and mandatory ignition interlock devices are constant reminders to DUI offenders that future risky behavior is simply not worth it.

That said, hiring a competent DUI attorney to fight DUI charges might be a worthy endeavor. The basic legal issues surrounding a DUI arrest are (1) whether the stop was lawful, (2) whether there was enough evidence to arrest, (3) whether the officer informed the defendant of Implied Consent Warnings, and (4) whether the defendant either (a) refused the BAC breathalyzer machine or (b) blew over .08 and/or had .05 nanograms of active THC in their blood when pulled over.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.



Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

119 North Commercial St.
Suite #1420
Bellingham, WA 98225

117 North 1st Street
Suite #27
Mount Vernon, WA 98273

Phone: (360) 746-2642
Fax: (360) 746-2949

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