Court Finds Breath Mints Are Evidence Of DUI

Use of breath mints can be considered evidence a driver is intoxicated, according to a divided Texas Court of Appeals ruling delivered earlier this month. The three-judge panel made the decision in the case of limousine service driver Robert Richardson who was stopped in Lewisville, Texas on August 25, 2010 while transporting customers from the airport.

Texas Department of Public Safety Trooper Fulford was about to issue a speeding ticket to a motorcycle on Interstate 35E when he noticed Richardson's Chevy Tahoe change lanes without signaling, almost hitting the motorcycle. Trooper Fulford was concerned primarily about the bad driving, but in the back of his mind he thought it could also be a case of driving under the influence (DUI). Once stopped, there was a mild odor of alcohol in the Tahoe, the passengers denied drinking, and Richardson was nervous. Trooper Fulford told Richardson he would write him a warning for his failure to signal before changing lanes. When he returned from his squad car with a warning notice in hand, Trooper Fulford said he noted an "overwhelming" odor of breath mints.

"Did you just take a breath mint?" Trooper Fulford asked.

When Richardson said yes, he was ordered out of the Tahoe. From there, he was arrested and convicted of DUI. Richardson appealed, arguing the traffic stop was complete after the trooper handed him back his driver's license with a warning, and that anything that happened beyond that point amounted to an illegal detention. The Texas judges acknowledged the principle that once a traffic stop concludes, it should not be used as a fishing expedition for unrelated criminal activity. The court had to decide whether the use of breath mints constituted a specific articulable fact suggesting another crime had been committed beyond the bad lane change.

The appellate judges agreed with the trial court that all of the clues Trooper Fulford picked up on prior to smelling the breath mints combined to provide the suspicion needed to make the search reasonable and consistent with the Fourth Amendment.

"These facts, which Trooper Fulford identified during his testimony at the suppression hearing, were sufficient to provide him with reasonable suspicion that Richardson had been driving while intoxicated," Justice Anne Gardner ruled for the court. "We overrule Richardson's sole point. Having overruled Richardson's sole point, we affirm the trial court's judgment."

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Source: The News Paper (AP, 4/18)

To text or not to text

A proposed statewide law banning texting while driving may make Texas roads safer — but the question is if it’s enforceable.

The bill that would make cellphone texting while driving illegal passed its final reading in the Texas House on Thursday, April 18, by a vote of 97-45. The Senate will review the bill next, and if it is successful there, it will go to Gov. Rick Perry.

The governor vetoed a similar bill in 2011.

The current bill, HB 63, was sponsored by Rep. Tom Craddick, R-Midland. It is referred to as the Alex Brown Memorial Act in honor of West Texas teen Alex Brown, who was texting when she died in a vehicle accident in 2009.

If the bill becomes law, a driver caught texting would face a $100 fine for a first offense and a $200 fine for a second offense.

Lubbock County Sheriff’s Office spokesman Lt. Bryan Taylor said he isn’t familiar with the bill’s language but personally supports any legislation that gets drivers off their phones.

“I think it’s gonna save lives,” Taylor said. “The whole concept is beneficial.”

As written, the bill would still allow people to look up phone numbers and talk on their cellphones. This aspect of the bill might cause problems for lawmen trying to enforce it.

An email sent to Craddick’s office asking why he didn’t include all cellphone use in the bill wasn’t immediately answered.

Lubbock Police Department Sgt. Jason Lewis said he hadn’t read the bill, but if people are still allowed to use their phones for some functions it could make enforcing the law a challenge.

Trying to determine just what a driver is doing on the phone could be difficult, but Lewis has an example to illustrate where it wouldn’t be. He said if an officer sees a driver sitting through a green light while using a phone, it’s pretty obvious what the driver is doing.

Taylor agreed with Lewis that the proposed law may pose enforceability issues for officers if suspected texters refuse to allow police to look at their phones to obtain definitive proof they were texting while driving.

Currently, Lubbock has a city ordinance that prohibits the use of electronic devices in active school zones. Some Texas cities have already enacted ordinances that are stricter than Lubbock’s ordinance or the proposed bill.

Amarillo enacted an ordinance last year that made cellphone use illegal while driving.

Amarillo Police Department spokesman Cpl. Jerry Neufeld said APD officers have written 25 tickets to violators of the ordinance since February.

If the bill becomes law, Amarillo’s ordinance will be voided because municipalities can’t make ordinances that are more strict than state laws.

Neufeld said his department isn’t worried about whether or not the bill is signed into law, and APD generally doesn’t comment on pending legislation.

“We’ll just follow the rules that are given to us,” he said.

The Texas Department of Public Safety isn’t commenting on the pending legislation either, according to Sgt. Bryan Witt. He deferred comment on the matter to Tom Vinger, the department’s spokesman in Austin.

DPS does not take positions on any proposed legislation, Vinger said in an email. Further, in certain cases, a department employee may provide testimony or serve as a resource witness during a committee hearing as requested by a member of the Texas Legislature.

He was unsure if any member of DPS had testified before the House on this matter.

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source: Lubbockonline (Loesch, 4/20)

Texas Supreme Court rules against Fort Worth family whose dog accidentally euthanized

The Texas Supreme Court ruled against a Fort Worth family who sued for the sentimental value of their dog after it was mistakenly euthanized at a Fort Worth animal shelter.

The case was being watched by animal advocates, pet product manufacturers and veterinary groups after the 2nd Court of Appeals in Fort Worth that said owners can claim sentimental value for their deceased pets, overturning a 120-year-old state Supreme Court decision stating that a person can only sue for the market value of a pet.

But the court, in a unanimous decision from the court, stood by its earlier precedent and said that a pet owner's attachment to their family pet, while unquestionable, is also uncompensable.

"Throughout the Lone Star State, canine companions are treated -- and treasured -- not as mere personal property but as beloved friends and confidants, even family members," wrote Justice Don Willett. "Given the richness that companion animals add to our everyday lives, losing "man's best friend" is undoubtedly sorrowful. Even the gruffest among us tears up (everytime) at the end of Old Yeller."

"We acknowledge the grief of those whose companions are negligently killed. Relational attachment is unquestionable. But it is also uncompensable. We reaffirm our long-settled rule..."

Kathyrn and Jeremy Medlen sued a Fort Worth animal shelter employee after their dog, an 8-year-old Labrador mix named Avery, was mistakenly euthanized several years ago.

Avery had escaped from Kathryn and Jeremy Medlens' back yard during a thunderstorm. The next day, Jeremy Medlen went to the animal shelter to get his dog, but found out he had to pay $80 in order for the shelter to release Avery. Medlen didn't have the cash on hand but was told he could come back to claim Avery.

He returned to the shelter the next day, but matters were complicated even more when he learned that a veterinarian would have to implant a microchip in Avery's ear. A "hold for the owner" sign was placed on the dog's cage to prevent the dog from being put down.

But when Medlen returned to the shelter with money to claim Avery, he learned that his pet had been euthanized by mistake.

Initially, their lawsuit was dismissed in a Tarrant County civil district court because the family sued for the sentimental value and not the market value of their dog, but the Medlens appealed, and the Fort Worth appeals court issued its ruling in favor of the family.

An attorney representing the former animal shelter employee, Carla Strickland, in her appeal, said pet owners can already sue for reasonable damages if their animal is killed accidentally.

The attorney said that the Fort Worth appeals court ruling would also have a "devastating" effect on the economy, forcing veterinarians to pay more for malpractice insurance and pet owners to pay more for vet visits.

Previously -  Texas court asks: Is man’s best friend priceless?

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Source: Star Telegram (Campbell, 4/5)

Texas Senate unanimously approves tougher hit-and-run penalties

A major hurdle was jumped in the effort to stiffen the penalties for fatal hit-and-runs accidents across Texas.

In a unanimous vote, the Texas Senate passed the legislation forward on the floor Tuesday.
Known as the 'hit-and-run bill,” Senate Bill 275 looks to close loopholes in the state's current law which can encourage an intoxicated driver to flee the scene, rather than to stay and perhaps call for help.

"Often, alcohol is a factor and people know to leave the scene of an accident to avoid intoxication related charges," Democratic State Senator and co-author of the bill Kirk Watson said.

Currently, an intoxication manslaughter penalty is a second degree felony, punishable by up to 20 years in prison. Failure to stop and render aid is a third degree felony, punishable by up to 10 years.

The bill would make failure to stop render aid in a deadly accident the same level of penalty as intoxication manslaughter: a second degree felony.

An incident in which former legislative aide Gabrielle Nestande hit Courtney Griffin, 30, with her car and drove away brought attention to the loophole in the law. Nestande was found guilty of criminally negligent homicide in the hit-and-run death of Griffin in February. Authorities could not test her blood alcohol content at the time of the crash because Nestande fled the scene.

It's a loophole Austin Police Chief Art Acevedo is happy to see one step closer to closed.

“I'm pleased for the families of victims who have been left on the side of the road as if they were some animal of no value," Chief Acevedo said.

As the bike and pedestrian-friendly city continues to grow in population, the chief hopes Tuesday's vote will send a message to drivers.

"If we don't start sending a message that we are not going to tolerate the death and maiming of our neighbors, of our relatives, of our friends, of our co-workers, it's only going to get worse," Chief Acevedo said.

According to the Austin Police Department, there were 393 hit-and-run accidents in the city in 2012—12 of which were fatal.

The bill will now go to the House for consideration. If it passes, it'll head to the Governor’s desk for a final signature.

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Source: YNN (Wallace,4/2

Older Fords can suddenly speed up

A multistate lawsuit filed Thursday says 2002-10 Ford Motor vehicles contain a "design defect" in the electronic control of the gas pedals, making them susceptible to sudden, unintended acceleration.

The lawsuit filed on behalf of Ford owners in 14 states is seeking class-action status and goes into great detail about the alleged defect in the models named in the lawsuit that don't have brake override technology. That technology stops the car if both the brake and the gas pedal are activated at the same time. Ford began installing it, known as "brake over accelerator," in all vehicles it makes in 2010.

"For too long, Ford has put its own financial interests ahead of its consumers' safety," says Chicago-based attorney Adam Levitt, one of the lawyers leading the litigation. "We hope this lawsuit sheds light on this important situation and requires Ford to correct its ways, compensate its customers and put them first."

Attorneys for the plaintiffs are seeking compensatory damages for the lost value of the affected cars -- the difference between what they paid for the cars vs. the value of the defective vehicles. The lawsuit also asks Ford to "fix the problem."

Lawyers involved in the case told USA TODAY in late March that most Ford owners probably don't realize their cars could take off on their own.

The lawsuit was filed in the U.S. District Court for the southern district of West Virginia. It cites a 2011 report by the Transportation Department's inspector general that showed Ford had the same number of deaths and injuries from these electronic throttle controls as Toyota: 374 from 2003 through 2009. Ford had 22% of all complaints of unintended acceleration during that period, more than any of the other major auto manufacturers, the report said.

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Source: USA Today (O'Donell, 3/28)