Soft Drink Ban Tossed Out by New York Court

            If you have travel plans to New York City coming up, good news!  It appears that you will still be able to buy a large soft drink while eating out.  Mayor Michael Bloomberg’s administration had famously banned “sugary” drinks larger than 16 ounces from being served in restaurants, street vendors, and other venues within the city.  With 20 oz or larger drinks being the norm for most restaurants, this was setting up to be a major problem for consumers and businesses.  However, the state court declared that such a ban on large drinks was “arbitrary and capricious” and ruled that the city was permanently restrained from implementing or enforcing the regulation on drink sizes. 

            The bottom line is, the judge reasoned that, along with this regulation being difficult to uniformly enforce, the administration’s unelected Board of Health was tasked with issuing regulations to help deal with the imminent threat of disease – and that soft drinks, and the effects they can have on health, didn’t fit the bill.  And as soft drink loving citizens all over the country have been arguing since this foolishness came to light, if such a ridiculous regulation is to be the law, it at least should come from the legislature…so that the will of the people has at least a chance of being considered.  And maybe so that the lawmakers can be voted out in the next election.  

Drunk Driving in Sweden

          Is it possible to use a high tolerance for alcohol as a defense to a drunk driving charge?  A defendant in a Swedish criminal court did just that.  He apparently is in the habit of drinking "six small snapps" of beer and an additional amount of traditional mulled Swedish wine (called glogg) every day before work.  He was eventually pulled over for it and, as you would expect, his blood-alcohol content (BAC) was 5 times the legal limit in Sweden.  He was arrested and charged with a form of aggravated drunk driving.  

          In his trial, he used as his defense the fact that he was such a heavy drinker that he had developed an extremely high tolerance for alcohol and was therefore not inebriated or impaired.  The judge apparently agreed and dismissed the charge against him, setting him free.  I wonder if he drank six more small snapps of beer as celebration that night....

          So could a similar defense work in Alabama?  The short answer is, probably not.  Alabama DUI law sets forth five statutory methods to be charged with DUI, and they are found in Ala. Code section 32-5A-191(a)(1) through (a)(5).  The first two deal with alcohol related impairment, while the last three deal with other substances used alone or in conjunction with alcohol.  We'll focus on the alcohol-related ones here.  (a)(1) prohibits being in physical control of a vehicle with 0.08 percent or more by weight of alcohol in the bloodstream.  (a)(2) generically prohibits being in physical control of a vehicle while "under the influence of alcohol."  In theory, one could argue to a judge that "six small snapps" of beer and an additional amount of traditional mulled Swedish wine does not cause you to be "under the influence of alcohol" however it may be tougher to get past that per se limit of the 0.08 percent limit found in (a)(1).  For the most part, if your BAC is 0.08 or above, it's tough to win your case on the argument of how much you have consumed, and your attorney is better off attacking the procedures the police used leading up to the blood alcohol test.  

Want My Blood? Come Back With a Warrant!

         
           Does the 4^th Amendment protect citizens suspected of driving under the influence from having a blood sample taken without consent and without a warrant?  In case you missed that day in your high school Civics course, the 4^th Amendment generally protects citizens against unlawful searches and seizures.  That means that in order for the police to conduct a search or seize property, the individual must either provide consent, or a judge must issue a warrant based on probable cause.  There are many exceptions to the rule (a search incident to an arrest, plain view searches, emergency – or exigent – circumstances, etc.) but for the most part, without prior consent or a warrant, the police are prohibited from conducting a search or seizure of property. 

In the past, blood has been treated as the property of an individual for 4^th Amendment purposes, and therefore a warrantless sampling (or seizure) of that blood would be unlawful, and therefore inadmissible in court.  However, the Supreme Court is taking a look at a case where a Missouri police officer ordered a hospital lab technician to take a sample of blood from a DUI suspect, even though the suspect had refused to volunteer the sample.  No warrant was ever granted, nor even applied for.   As you may have anticipated, the suspect’s blood-alcohol content (BAC) was well over the legal limit and the prosecution intended to use the BAC result in the trial.  The defense filed a motion to suppress the blood test results, citing an unconstitutional search/seizure.  The government argued that the rate of dissipation of alcohol in the blood stream required a quick sample, and was therefore an emergency situation.  The Supreme Court must now determine whether the results are admissible, given the nature in which they were obtained.

Comments from the oral arguments, which occurred today, suggest that a majority of the Justices are skeptical of the constitutionality of a warrantless blood sample.  Both conservative and liberal Justices grilled the attorney for the state about the intrusiveness of needles, and the ease at which a warrant could have been obtained if the officer had just picked up the phone.  From reading the transcripts of the statements made by the Justices, it appears that most, if not all, are uncomfortable with the 4^th Amendment being trumped by the convenience of law enforcement.  Of course, as demonstrated last year, until the formal opinion is issued, comments and questions by the Justices should be taken with a grain of salt.  

Seeking a Solution to Violence

           What is the appropriate response to tragedies such as the one that occurred in Newtown, Connecticut last Friday?  Certainly, the best immediate response is to pray for those whose loved ones were ripped away in a matter of minutes.  And, of course, to be thankful that your family is safe.  But what can we do as a society about these man-made tragedies, which seem to occur over and over again?  One argument would be to strengthen gun control.  To me, that sounds like taking a pill to treat the symptoms, instead of addressing the disease itself.  Mass killings have happened throughout history, long before handguns and semi-automatic rifles existed, or as President Obama would say, back when men fought with “horses and bayonets.”  To be sure, knives and swords have surely killed far more people than guns have.  So we can’t really blame mass shootings on the weapons themselves.  To draw on a tired cliché, guns don’t kill people, people kill people. 

            So back to my earlier question.  What can we do as a society about these tragedies?  It’s not just the Connecticut shooting.  It was the Aurora theater shooting back in July.  Columbine 13 years before that.  The NFL's Javon Belcher's murder-suicide earlier this month.  Here in Birmingham, a local restaurant owner recently took his mother’s life and then his own.  Just last week in Birmingham, a federal courthouse employee committed suicide in front of his coworkers.  Over the weekend, in separate incidents, several gunmen were killed by police, one at a local hospital in Birmingham.  A quick reading of the newspaper articles on these events suggests that in nearly all of them, the shooter was suffering from some level of mental disease or distress.  That’s not excusing the crimes.  All of the shooters likely knew what they were doing at the time.  But whether you look at Dylan Klebold and Eric Harris from Columbine High School 13 years ago, James Holmes from the Aurora movie theater massacre, Adam Lanza in the Newtown shooting, or any of the murder-suicides or other recent shootings, there is a thread that seems to connect them all.  Extreme mental distress or disease during the period of time leading up to the shooting.  An argument can be made that strong restraints on gun ownership could have prevented one or more of these incidents.  But an equally strong argument can be made that each of these tragedies would have unfolded in the exact same way.  The sad truth is a motivated killer will find a way to accomplish what he wishes.

            In the wake of most of these tragedies, there has been a common theme: those acquainted with the killer either suspected serious mental issues or knew of the fact that the killer was, in fact, a ticking time bomb.  It was the case at Columbine, it was the case in Newtown, and, tragically, it will probably be the case in the next shooting, unless we as a society are willing to take responsibility for those around us.  Mothers and fathers need to be involved with their children and understand what’s going on in their lives and in their heads.  Wives need to be aware of changes in their husband’s behavior, and husband’s their wives.  Coworkers need to be familiar enough with other coworkers so that trouble can be spotted before it erupts.  Actions must be taken by those family and friends.  Warning signs can't be ignored or explained away.  To this lawyer and writer, admittedly untrained in the ways of the mind, this seems to be the only viable way to get to the actual disease that has infected society for so long now.  I know the solution may not be as simple as I just stated, but it can’t be as simple as taking guns away either.  

How Does Marijuana Legalization Affect Businesses and Universities?

            When a state passes a law making recreational use of marijuana legal, what does that mean for schools, businesses, and other entities located within that state?  This very issue is being raised in several states, such as Colorado, that have recently legalized marijuana.  To completely understand the issues at hand, it’s important to realize that marijuana remains illegal under federal law.  Even if Colorado state law allows personal marijuana use, federal law does not.  To take that a step further, some believe that businesses involved with federal contracts or receiving federal grants, as well as educational institutions/universities could lose their federal funding and research funds if marijuana is used by those employees or other personnel.  After Colorado legalized marijuana last month, University of Colorado president Bruce Benson explained that "marijuana threatens to cost the university nearly a billion dollars annually in federal revenue, money we can ill afford to lose.”

            Another issue is whether employers will be able to terminate an employee who tests positive for marijuana in a state where it has been legalized.  In some states, like Alabama, an employer has the ability to terminate an employee for almost any (non-discriminatory) reason.  Some states, however, specifically forbid an employee from being terminated for any private conduct that is legal.  These laws are generally aimed at preventing an employee from being fired for smoking or drinking while away from the office, but with the legalization of marijuana, these employment laws may need to be reexamined, especially given the conflict between an activity that is legal under state law but remains illegal under federal law.  Should an employer to be required to retain an employee who (now legally) smokes marijuana after work?

            With every election bringing another handful of states deciding on whether to keep marijuana use criminalized, it will be interesting to see how states move to protect employers and universities, in particular those relying on federal funding, that wish to prohibit marijuana use.

My Take on the Secession Talk

            

            One of the reactions from last week’s election is the growing buzz over states seceding from the Federal government of the United States.  What started with a handful of residents of individual states has now erupted into hundreds of thousands of people signing petitions calling for their state to secede.  To be clear, these petitions are not supported by the governors or legislators of the individual states, and they have no legal significance whatsoever.  They are aimed at forcing the Obama administration to issue a response to the frustrations of these Americans who believe the country took a wrong turn last week.  And they may actually accomplish that very thing, as the Administration had previously said it would respond to any filed petition that accumulated at least 25,000 signatures.  Alabama and several other states have already reached this mark, and I would expect some type of response from the Obama administration, although it will probably be as meaningless as the petitions themselves. 

            Legally speaking, it is unlikely that it is even possible for a state to secede from the United States.  The Civil War began, of course, in part, when several states actually declared their secession and the United States rejecting the legality of such.  Following the end of the Civil War, the United States Supreme Court, in Texas v. White briefly addressed this very issue, stating that “[w]hen, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States…. Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null.”

            The republican governors and legislators of these states have called the petitions “silly” and “non-productive" and they're probably right.  But similar petitions have been started after previous elections of both democratic and republican presidents and we will see them again in 4 years.

Political Speech, the IRS, and Churches

            Most people are aware of the fact that churches (as not for profit entities) risk forfeiting their non-profit status if a pastor urges his congregation to vote in a particular way.  It’s why your pastor may have urged you to vote, maybe even in a manner reflecting the specific scripture or tenants of your faith, but stopped short of naming the candidate you should vote for.  Here is a link to an interesting read about the Internal Revenue Service’s enforcement (or lack thereof) of these rules prohibiting churches from endorsing specific candidates for political office. 

            The rules prohibiting churches or their leaders from political speech are controversial to many people, for both “religious integrity” and free-speech reasons.  However, according to this AP article, the IRS has avoided enforcement of these rules for a number of years.  Attorneys involved in these types of cases claim that they are unaware of any investigations into partisan statements by churches during this time.  In fact, hundreds of pastors have directly endorsed a candidate from the pulpit and sent a recording to the IRS, in an attempt to force the IRS’s hand (and as protest to the IRS rules).  So far, the IRS has never investigated, or even contacted one of these pastors.  Very interesting, especially given the intense campaign our country is emerging from.