IOWA CHAMPION

Taking the easy way out

It is that time of year again. I saw the kids walking out to their bus stops for the new school year today.  The start of classes are usually a good time for that refresher course on what you are supposed to do when the bus stops to pick up kids.  I may try to sort through that for you, but I wanted to talk about the statement released from the 100 university and college presidents that asked for the legal drinking age to be lowered to 18.

First a little background: There technically isn't a national drinking age. Each State is responsible for setting the age at which alcohol can be legally consumed.  What Congress did in 1984 was tie highway funding to the minimum drinking age chosen by each State.  Chose to set your minimum age below 21 and you lose 10% of your federal money for roads and bridges.  Of course, nobody wants to have the government tit put out 10% less milk, so by 1987 every state set 21 as the minimum drinking age. For me this is just like the V-chip in your television: another example of the government having to step in and be the parent because a large part of its population is too stupid or lazy to do it themselves.

The argument for 21 as the drinking age is based largely on the "fact" that it saves lives because of fewer drunk driving deaths.  There has been a 13% reduction in traffic fatalities among 18-20 year olds since 1984, or about 900 fewer deaths per year.  There a couple of problems: (1) The methodology is suspect due to the subjective process that police use to determine if something is alcohol related; and (2) the law doesn't exist in a vacuum so you can't say that the minimum age of 21 is the cause of the reduction.  During that same time frame laws against drunk driving were strengthened with much more severe penalties, there was an increase in public education and awareness of drunk driving, there was an increase in vehicle safety standards, and the use of seat belts.  The groups like MADD claim that the statistics are "filtered" or "corrected" to take these other changes in laws or technology into account, but whenever you have a group that is so closely identified to a particular position, WATCH OUT FOR THE STATISTICS!

While there is certainly is some small reduction attributable to the change in the law, there are certainly other factors that contributed more (seat belt usage).

So where is the harm in a minimum age of 21?  What does it cost? To me, the harm comes in the erosion of respect for the law, the criminalization of normal adult behavior, and creating a culture that glorifies binge drinking.  It makes no sense to me that we allow an 18 year old to enlist in the army to fight and die in Afghanistan or Iraq and we tell them they aren't mature enough to go down to the bar with their friends for a beer.  I also can't understand why we are criminalizing normal adult behavior.  I know of several of my clients that have had to worry and fret over whether they will be able to get a job after college with a PAULA (Possession of Alcohol Under Legal Age) ticket on their record.  It is a scheduled violation, so you can't get most judges to give you a deferred judgment on it.

I believe that anyone vested with the rights and obligations of adulthood should be able to legally drink.  If you can serve on a jury, serve our country in time of war, get married without anyone else's approval, buy a house, or sign a contract, you should be able to drink. I believe that most parents are lazy.  They don't want to confront their children (read: under 18) on anything, let alone drinking.  They don't want to take the time to talk with their kids about alcohol abuse. By a legal prohibition for anyone under 21, they get off the hook (unless they are one of the "cool parents" that let their kids drink at home). The government is also taking the easy way out.  Instead of an education program aimed at younger persons they preach total abstinence by anyone under 21. That always works. Look at teen pregnancy, STD's or street drugs. 

The United States has a higher drinking age than all of western Europe and Canada.  Those countries have achieved the "results" of fewer traffic deaths through education and safety initiatives.  We could do the same if we weren't so lazy.  The bonus is that we would have a law that matched reality and made sense.  It reminds me of a quote from The Simpsons when Ned Flanders' hippie parents are at a loss for his hyper behavior...."You gotta help us, Doc.  We've tried nothing and we're all out of ideas".

Harold and Kumar get busted for OWI

A couple of weeks ago the Clive City Council approved a liquor license for a mom-and-pop fast food restaurant called "Iowa Castle". The license would allow the store to sell beer to its patrons in the lobby as well as unopened bottles of beer out the drive-through window. And thus, a firestorm was born. 

The Clivearians Clivers Clivetonians  The people who live in Clive thought this was the first step down the road to oblivion. Never mind the dozen bars within four blocks of the restaurant, or the weekly "Clive After 5" bash where a couple of thousand Cliveareans people who live in Clive gather on summer Fridays to get soused in the park and then drive to the various bars in the area to get even drunker.  The Iowa Castle situation was a WAAAAYYYY more serious threat to public safety.

I heard the owner of the program on the radio today talking about what his requirements were for the drive-through beer sales: 

(1) It had to be with a food order 

(2) ID's for everyone in the car were checked and the magnetic strip scanned

(3) Only unopened bottles of beer were to be sold

(4) Only one beer per person per order

My first thought was: What's the point...who would order just one bottle of beer with a value meal?

My second thought was: How can people seriously think that this is going to increase the number of people driving drunk or getting arrested for OWI?

The biggest complaint from Cliveites people who live in Clive was that it would encourage drunks to drive all the way to Clive so they could buy alcohol from the drive-through. Because drunks wouldn't have to walk in and talk to a clerk face to face, they would be able to surreptitiously obtain more alcohol to fuel their Mad-Maxian terrorization of the otherwise tranquil streets of Clive.The logic misses on several levels. 

First, if people are already driving drunk to get the beer, how has the restaurant done anything to make the situation worse?  If anything the store is helping because it cuts down on the enhanced "empty stomach buzz" that happens when you drink without eating. 

Second, If they are not drunk, one beer will not make them drunk, unless they are a total lightweight. 

Third, if a cop sees you drinking the one beer you got from Iowa Castle while are driving, you are busted. Again, they are helping stop the worst offenders: those brazen enough to drink WHILE driving.

Fourth, since you have to buy food with the beer, it would probably cost like $10.00 for one beer. Even if you are drunk you know that is way too much to pay for one beer. As a result, you'd go down the street to the Git-N-Go, thus alerting the clerk to your drunk driving and causing you to be arrested for OWI. Again, they have taken drunk drivers off the street with their store policy.

And lastly, given that Iowa is 88% Caucasian, why hasn't White Castle sued the pants off this guy for copyright infringement?

Unfortunately, the controversy will not see another day. During the radio interview, the owner said he was pulling the drive-through sales because of the controversy.  He did however announce a hilarious (and totally original) movie idea he had: Harold and Kumar go to Iowa Castle. It's about two college kids who get stoned and drive around Des Moines looking for a fast food chain knock-off that sells beer through their drive-through. After they each finally get one beer they die in a fiery head on collision.  OK, maybe hilarious isn't the right word.

Begay decided; drunk driving not a "violent felony" for A.C.C.A. enhancement

Douglas Berman was correct when he said that this decision is more important to your average federal criminal defense attorney than the lethal injection ruling in Baze. Here is the skinny: The United States Supreme Court has decided the Begay case in favor of the defendant/petitioner. As a result, convictions for felony drunk driving will no longer be allowed as predicate offenses for application of the Armed Career Criminal Act: 18 U.S.C. §924(e)(1).

The Court examined the language of the A.C.C.A. and found a conviction for felony drunk driving was outside of both clauses defining a violent felony:

...any crime punishable by imprisonment for a term not exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

The Court stated that it was "a given that DUI does not fall within the scope of the Act's clause (i) 'violent felony' definition". This was also the Decision of the District and Appeals Court, so no surprise. 

The reversal came upon the examination of the "otherwise" language of clause (ii). The Court stated that while drunk driving undoubtedly "presents a serious risk of physical injury to another" it was "outside of the scope of clause (ii)" because drunk driving is too dissimilar to the Act's listed examples (Burglary, Arson, Extortion, or conduct involving the use of Explosives).

The majority did a fairly detailed analysis of statutory construction, history of the statute, and legislative intent. If you feel the need, I encourage you to read it.  The bottom line for the majority is that because Congress gave specific examples in clause (ii), it intended that only crimes "roughly similar in kind, as well as in degree of risk posed" to be included as predicate offenses for the A.C.C.A. enhancement.  Because drunk driving is not the same purposeful, violent, and aggressive conduct, as the listed examples, it is outside of the statute.

The majority was concurred with separately by Scalia, who takes a different path of statutory construction,  but still ends up in the same place.  Scalia's approach is to answer the question "Does drunk driving pose at least as serious a risk of injury to another as burglary?" (Which in his eyes has the least amount of risk of violence of the listed examples).  Because he answers his own question "No.", Scalia also votes to reverse the Court of Appeals.

Alito writes the dissent and is joined by Souter and Thomas.  Their statutory interpretation is much more on the plain language of the statute and they focus more on the harms caused by drunk driving.  Because they say it is a serious offense that is "extraordinarily dangerous", it falls squarely in the residual clause of the statute.

John Messina from the Des Moines Federal Defender's Office feels that in addition to the win on this specific issues, Begay "effectively overturns the Eighth Circuit cases that treat drunk driving as a crime of violence for career offender (§ 4B1.1) and § 2K2.1 (firearms offenses) purposes". B. John Burns has also posted about the decision, and rightly points out the impact of this decision will be felt by many, many federal defendants. This is a big win for the defense bar.

Jake and I have an appeal pending in the 8th Circuit on the same issue as Begay . Our brief was filed a couple of weeks before Begay was argued.  It looks like we will get a good result.

Downward spiral continues for former Assistant Pottawattamie County Attorney

A former Assistant Pottawattamie County Attorney convicted of theft and felonious misconduct in office is facing more jail time after he was arrested recently for OWI. 

Jeff TeKippe was arrested just after midnight, Sunday, March 30th after police say he was involved in a hit run with a parked vehicle.  TeKippe was charged with OWI, leaving the scene of a property accident, and failure to maintain control of his vehicle.

The drunk driving allegations come about six months after TeKippe was sent to prison for stealing drugs from the Council Bluffs Police Department evidence room. He was out of custody on an appeal bond at the time of his arrest.

This will be an interesting case to follow. Reading the article you can bet there will be several suppression issues raised. There also is the question of what TeKippe will do if the appeal on the felonies fails and he has to start serving his prison sentence.  He may decide to plead out just to end all the drama and come out of prison with a clean slate. Of course, by the same logic, the State could decide that prosecuting an OWI where the defendant is already in prison isn't worth it.  Considering who the defendant is though, that probably won't happen.

Commercial drivers may see stricter sanctions for OWI test failures

My heart skipped a beat when I read the first part of the legislative briefs in the Des Moines Register today.  "Iowa drivers would automatically lose their licenses for a year if they fail a drunk driving test under a legislative proposal that passed the Iowa House ". It sounded like a big expansion of the current driver's license penalties for first offense OWI.  The current suspension is six months for test failures, and depending on the situation temporary restricted licenses are available, sometimes immediately. Since the driver's license consequences are usually  every defendant's biggest concern; I was worried we were going to see something like a one year hard suspension for first time drunk drivers.  Thankfully it was just another example of the Register misreporting what a law is actually going to do.

Upon reading House File 2651 it appears to only change Iowa Code Section 321.208 dealing with Commercial Driver's License Disqualification.  The current law only applies a one year suspension of a commercial driver's license if you are convicted of OWI first offense.  The new legislation would change that to have the suspension occur upon "test failure", meaning any test to determine blood alcohol concentration or drugs, not field sobriety tests.  There are some other changes to the general language to reflect the added section. Not as bad as the headline read.

This is the second measure this year designed to strengthen existing OWI laws in Iowa.  The first dealt with lowering the BAC limit in drunken boating cases to .08 to conform with the level for other motor vehicles.