Judging Traffic (November 2017): Georgia Supreme Court on Compelled Breathalyzer Tests; Oklahoma Supreme Court Halts New Impaired Driving Law; Michigan Starts Roadside Drug Testing Program...
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Georgia Supreme Court Holds That Compelled Breathalyzer Tests Violate Georgia Privilege Against Self-Incrimination

The Georgia Supreme Court ruled on October 16 in Olevik v. State that the privilege against self-incrimination found in Georgia's Constitution is more protective than the Fifth Amendment privilege against the same and includes physical evidence and consequently that compelled breathalyzer tests violate the Georgia privilege against self-incrimination. The court interpreted Paragraph XVI of the Georgia Constitution ("No person shall be compelled to give testimony tending in any manner to be self-incriminating.") through an originalist lens, saying that the paragraph in question is not coterminous with the scope of the Fifth Amendment, but must be interpreted in light of prior Georgia case law regarding similar language in earlier versions of the Georgia state constitution. Having established this, the court then cited a line of judicial precedent all the way back to 1879 that interpreted the Georgia privilege against self-incrimination as applying to acts, not just verbal testimony. Because of this interpretation, the court held that the act of asking the defendant to "breath[e] deep lung air into a breathalyzer," thereby providing evidence against himself, violated Georgia's privilege against self-incrimination, overturning the Georgia Supreme Court's 2000 ruling in Klink v. State. However, the court also rejected the defendant's facial and as-applied challenges to the state's implied consent statute. The court rejected the defendant's facial challenge to the statute because it found that Georgia's implied consent statute is not per se coercive, and it rejected his as-applied challenge because it found no basis for a finding of coercion beyond the language of the police notice mandated by the statute. To read the full decision of the court, click here.

Oklahoma Supreme Court Halts Implementation of State's New Impaired Driving Law

The Oklahoma Supreme Court stayed implementation of the state's new impaired driving law, the Impaired Driving Elimination Act 2 (IDEA2), on October 30th, 2 days before it was scheduled to take effect. The IDEA2 would have criminalized refusal of a breath test after an arrest and created a diversion program for all first-time DUI offenders, requiring installation of an ignition interlock for all DUI offenders. However, a pending lawsuit alleges that the law is unconstitutional and denies defendants the right to due process. As a result of the Oklahoma Supreme Court's stay, the law will not be enforced until the court has conducted a review of the law on the merits. To read the court's order staying implementation of the law, click here, and to read the text of the bill as enacted, click here.

Michigan Starts Roadside Drug Testing Program

Michigan has started a roadside oral fluid drug testing pilot program. The program was authorized by a 2016 bill from the Michigan Legislature which was signed by Michigan Governor Rick Snyder on June 23, 2016. After a delay to evaluate different testing mechanisms, the Michigan State Police selected five counties in which the initial public tests would be held (Berrien, Delta, Kent, St. Clair, & Washtenaw) and began the program on Wednesday, November 8th. The program was established to counteract the rising number of drug-related traffic fatalities in Michigan, and is being administered in conjunction with the state's current DRE protocol. To read the bill and fiscal analysis of the bill, see this page from the Michigan Legislature. You can learn more about the implementation of the program in this press release from the Michigan State Police.

Poll Shows Utahns Slightly In Favor of New DUI Law

new Salt Lake Tribune poll shows that a slim majority of Utahns are in favor of the state's new 0.05 BAC DUI law which is scheduled to take effect at the end of 2018. The law has generated significant public attention, including multiple advertising campaigns by the American Beverage Institute opposing the law. Despite the opposition of the ad campaigns, the Salt Lake Tribune found that 52% of Utahns are in favor of the new DUI threshold law, while 45% oppose it. (The margin of error for the poll is 3.98%.) The poll found that religious affiliation was strongly correlated with one's views on the new DUI law, with 71% of "very active" LDS members supporting the law while 25% opposed the law (and 4% having no opinion). In contrast, 86% of Catholics and 64% of Protestants opposed the DUI law, with only 14% of Catholics and 36% of Protestants opposed the law. LDS members who described themselves as "somewhat active" or "not active" opposed the law in greater numbers than they supported it. You can see the full breakdown of the Salt Lake Tribune's poll numbers here, along with comments from respondents and legislators.

ABA Job Postings

The ABA's National Conference of Specialized Court Judges currently has two job openings for salaried positions for sitting or retired judges with experience handling impaired driving cases. The first position is in the ABA Judicial Fellowship Program, which offers the candidate the opportunity to share their knowledge and experience in impaired driving adjudication with the ABA and their peers. A lengthier job description can be found here, and the application for the Judicial Fellowship position can be found here. The other position is for the Region 3 Judicial Outreach Liaison, which helps provide a foundation for the American Bar Association Judicial Division support and education on impaired driving and other highway safety issues to courts and judges in six Mid-Atlantic States (NC, KY, WV, VA, MD, DE) and the District of Columbia. A lengthier job description for the JOL position can be found here, and the application can be found here. The application deadline for both openings is December 1.

New Newsletter Software and Look

As you've probably noticed, we've made a number of changes to the newsletter while transitioning to our new newsletter software. If you had any issues with newsletter delivery or have any issues viewing the newsletter, please let me know at nralstin@ncsc.org.

NCSC Traffic Resources

If you have not seen the redesign of the Traffic Resource Center for Judges yet, we invite you to take a few minutes to browse the website here, including the FAQ from our September feature on Fresno County's remote video proceeding system. We also still have physical copies of our recently released issue brief compendium, which may be acquired by emailing Greg Hurley at ghurley@ncsc.org.

Upcoming Courses at the National Judicial College

The following courses are offered by the National Judicial College in Reno, Nevada, in the coming year. A limited number of scholarships are available through generous funding from the National Highway Traffic Safety Administration. Please contact Katheryn Yetter at yetter@judges.org or (775) 327-8269 for more information.

Properly and Effectively Adjudicating Drugged Drivers (October 30 - December 8; online; free) Unlike alcohol-impaired driving, drugged driving has fewer tools in the field to detect impairment and concentration levels in the body. Drugged driving cases require a judge to utilize a variety of judicial tools to effectively adjudicate these cases. In addition to the ability to determine which kinds of drugs an individual may be using, it is important to know how these drugs affect the individual and their ability to operate a vehicle. It is also imperative that a judge knows how to effectively craft sentences, which include treatment options, in order to provide a participant with the most beneficial mode of recovery.

FMCSA National Webcast Series (online webcasts; free)

  • Latest Appellate Opinions Regarding CMV/CDL Issues - December 6, 2017, 11 AM PST
  • Your Role in Commercial Motor Vehicle Safety - February 7, 2018, 10 AM PST
  • Partners in CMV Safety: The Traffic Court and the Administrative Adjudicator - April 4, 2018, 12 PM PST

Ethically Adjudicating CDL/CMV Cases for Traffic Judges (various dates; online; free) This webcast will answer: (1) What constitutes a “conviction” under federal regulations? (2) What does “masking” mean? (3) Why Federal law prohibits the “masking” of CDL violations? NJC’s webcast will provide you with guidance on handling these technical and troublesome cases. Dates vary by state.

Drugged Driving Essentials (May 22-24, 2018; Reno, NV) Unlike alcohol-impaired driving, drugged driving has no bright line test for impairment. Drugged driving cases require a judge to utilize a variety of judicial tools to effectively adjudicate these cases. In addition to the ability to determine which kinds of drugs an individual may be using, it is important to know how these drugs affect the individual, and may impair their ability to function. It is also imperative that a judge knows how to effectively craft sentences, which include treatment options, in order to provide a participant with the most beneficial mode of recovery.

Traffic Issues in the 21st Century (October 8-11, 2018; Reno, NV) Judges are facing more complex traffic issues as the law and technology progress. This course is designed to provide an overview of current traffic laws and technological trends and their applications to the judiciary. After this course, participants will be able to: improve public perception of the courts; manage and adjudicate fairly and efficiently; identify the behaviors that impair safe driving; explain the basic provisions relating to commercial motor vehicle laws and regulations; identify key issues associated with special driving populations, including younger and older drivers; summarize new technology and practices used in traffic law enforcement, adjudication and sentencing; and fully understand cultural diversity issues, including racial profiling.

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