MILITARY DUI

Chapter 21- Motor Vehicle Matters

The Law Offices of David M. Manilla, Esquire
2060 Valley Forge Road
Worcester Pennsylvania 19490
(610) 584-0364
(610) 584-9595- fax
Duipa@aol.com- email address

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Driving While Intoxicated and Other Offenses Involving Intoxication

*Provided by the Law Offices of David M. Manilla, Esquire - (610) 584-0364

INTRODUCTION

Alcohol-related driving offenses committed by military members, whether they are "on" or "off' duty and alcohol-related non-driving offenses while a member is on duty, pose special problems for a Commander. The duty status of the member (Title 10 or Title 32, or "off duty"), the place of the offense; and the law of the state are factors which will determine what courses of action are available to a Commander to deal with those special problems.

DRIVING OFFENSES

Civilian

Depending on state law, the offense may be Driving While Intoxicated (DWI), Driving Under the Influence (DUI), Driving While Ability Impaired (DWAI), or similar term, and the offense may be either or both: (1) a function of alcohol concentration in the blood measured by a chemical test of the breath, blood, urine or saliva; or (2) a function of the opinion of the investigating or arresting law enforcement officer or other eyewitness, that the offending driver is intoxicated, under the influence or impaired. In the first stated offense; the blood alcohol concentration of .08% to .10% is usually, under state law, the cutoff for DWI Or DUI. In the second stated offense, the blood alcohol concentration may create a presumption or inference of intoxication, being under the influence, or impairment, to aid the prosecution in its proof of the charge.

Military Title 32 Status

The UCMJ does not apply to members in Title 32 or civilian status. Most state military laws or regulations do not specifically address these alcohol-related driving offenses, leaving their prosecution to state civilian authorities. If your state's military law or regulation specifically covers these offenses, it will usually govern when a member is in Title 32 status, and is on base when the offense is conunitted.

Military Title 10 Status

The UCMJ (Article l 11) applies. However, under the UCMJ "intoxication" is defined not in terms of a percentage of alcohol concentration but in terns of impairment. Specifically, "intoxicated" for military justice purposes is defined as the presence in the blood of any amount of alcohol, however small, sufficient to sensibly impair the rational exercise of the mental and physical faculties (required for vehicle operation). Thus, the alcohol concentration percentage (via breathalyzer, blood test, or urinalysis) is not determinative in and of itself. Rather, results of these chemical tests should be considered together with other evidence of intoxication (manner of driving; behavioral/sobriety test; observations of investigating police and other witnesses). Thus, it is entirely possible for a person to be DWI even though a breathalyzer or BAT (blood alcohol test) eventually discloses a blood alcohol concentration considerably below .l0%.

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SPECIAL PROBLEMS

Here are some special problems with which a Commander may be confronted involving these offenses and military members, and the courses of action available.

1. Member in Title 32 status or state active duty and on ANG base at time of offense. Unless state military law or regulation specifically applies, the member will be prosecuted by civilian authorities for violating the civilian law. Security forces should detain the member and call civilian authorities for further processing of the member. A Commander may take disciplinary or adverse administrative action against the member either pending the outcome or after the disposition of the civilian charge. Suspension of base driving privileges may be authorized. Before taking any action, however, the Commander should consult the Staff Judge Advocate.

2. Member in Title 32 status and on Air Force base or other active duty installation at time of offense. The UCMJ does not apply because of the member's status but the Installation Commander of the place of offense can suspend or restrict the member's driving privileges on that installation, as well as on other active duty installations. The member's Commander should consider appropriate disciplinary or administrative action depending upon the provisions and applicability of the state military law or regulation of the member's unit's state. Consult the Staff Judge Advocate before action is taken.

3. Member in non-duty status at time of offense. Whether the member commits the offense on civilian or military land, and is or is not subject to prosecution for violating that jurisdiction's DWl, DUI or DWAI laws, the member's Commander may be able to take appropriate disciplinary or administrative action, if the state military law or regulation provides that simply because the member is a part of the organized militia of the state, the member is therefore always subject to state military law or regulation. Consult the Staff Judge Advocate before action is taken to see if your state's law so provides.

4. Member in Title 10 status and on active duty installation at time of offense. The UCMJ applies. If security forces suspect a person is DWI, DUI or DWAI, due to erratic driving, alcohol on the breath, presence of an open container in the vehicle, etc., then the security forces officer may require the vehicle operator to take a field sobriety test, the results of which are documented on DD Form 1569. If the performance on the sobriety test reasonably suggests alcohol caused impairment, the operator will be asked to take a breathalyzer test. If the driver cannot or will not consent to the breathalyzer test, the base Commander may issue an "authorization to search" for an involuntary BAT. That may not be necessary however if the SF's observations of the driver are well documented. If the suspect refuses the test, the Installation Commander may suspend or revoke installation driving privileges regardless of the outcome of the charges, and may also prosecute the suspect for failure to obey a lawful order. Furthermore, if there is suspicion the driver is under the influence of chemicals or drugs other than alcohol, then depending on the level of suspicion; a command directed urinalysis or "authorization to search" to take a BAT may be issued. Note also that state military law or regulation may have a special provision governing Guard members in Title 10 status, so that both the UCMJ and state law may apply. Consult the Staff Judge Advocate in this situation.

ADVERSE CIVILIAN CONSEQUENCES

In addition to any adverse military effects on the member, upon conviction of an alcohol-related driving offense the following adverse civilian consequences will likely befall the member:

l. Restriction of the Offender's driving privileges or a temporary suspension of the Offender's driver's license-,
2. Substantial increase in automobile insurance premiums or cancellation of insurance;
3. No medical or lost wage coverage under the member's automobile insurance policy if the member is injured and/or is disabled from employment due to an alcohol-related accident;
4. Substantial private attorneys fees in the civilian proceeding; and/or

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10 U.S.C. 2683 provides for retrocession of jurisdiction by military departments. Some State consent or cession laws provide that Federal jurisdiction continues only so long as the property is used for specified purposes; and cessation of the conditions results in reversion of jurisdiction to the State. A grant of minor interests inland to private hands does not result in loss of Federal jurisdiction.

The need for acceptance of retrocession by the State is unclear. Federal law (I0 U.S.C. 2683) does not require State acceptance, but section 2683 defers to state procedures, which might.

PRACTICAL EFFECT

Exclusive jurisdiction is rarely beneficial. The lack of State jurisdiction means that any criminal prosecutions, even misdemeanors, must be prosecuted by the federal government, or not at all. Crimes that violate state; but not a specific federal law, must be prosecuted through the federal assimilative crimes act. Exclusive jurisdiction or lack of it does not affect the military mission. For example, many ACC bases have never been under exclusive jurisdiction.

Concurrent jurisdiction creates a "primary jurisdiction" problem in criminal matters: which of two equals shall prosecute a criminal case? This question is usually resolved by custom and occasional bargaining over an individual case. Although prosecution by both sovereigns would not violate the double jeopardy provision of the Constitution, one sovereign will ordinarily defer to a prosecution by the other.

Partial jurisdiction just costs money--taxes are paid by contractors and passed on to the Air Force hidden in contract prices. Congress has consented in the Buck Act to imposition of income, sales and gasoline taxes on areas of exclusive, concurrent, or partial jurisdiction, so only property taxes are involved.

DoD/AF POLICY

In 1956, an Attorney General's Commission recommended that exclusive and concurrent jurisdiction should no longer be acquired, and unneeded jurisdiction should be retroceded: The report was approved and Federal administrators of real property were directed by President Eisenhower to follow it as a guide. The policy also provides that the head of a military department may still acquire exclusive jurisdiction under exceptional circumstances. In 1971, the Public Land Law Review Commission, a Congressional-Executive Branch body, came to the same conclusion. DOD has followed this policy since 1956, based on the Presidential endorsement. Federal law (40 U.S.C. 255) authorizes acceptance of exclusive jurisdiction but does not require it. Prior to 1940, it was required.

Since 1956 the Air Force has acquired exclusive jurisdiction in only a few instances due to "exceptional circumstances."

RELATIONSHIP BETWEEN MILITARY CRIMINAL JURISDICTION AND CIVILIAN LAW

Some individuals have the impression that the military is totally separate and apart from the civilian community, and that the military is governed by laws and rules made by and for the military. This, of course, is not true. Although there is a substantial difference between military and civilian life, we are all a part of the same American community. An inter-relationship between the civilian and military communities exists in many areas, including the area of law enforcement. The purpose of this section is to point out the origin of military law and its operation in conjunction with civilian law.

The primary source documents for military law on active duty are the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM). For the ANG, the primary source document is the state Code of Military Justice, if you have one.

The UCMJ is a law passed by the Congress of the United States. The MCM is an executive order promulgated by the President of the United States and contains the specific procedures to be followed in operating under the UCMJ. A State Code of Military Justice is a law passed by the State legislature of the state where the base is located.

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The military has UCMJ court-martial jurisdiction over off-base offenses committed by Title I0 active duty military members. Whether the Guard has jurisdiction to court-martial an ANG member for an off-base offense depends upon the particular provisions of the state code and the status of the member at the time of the offense.

ANG members in Title 32 status are not subject to the UCMJ even if they are on an active duty base.

All ANG members are still subject to civilian criminal laws while in the military. Some offenses are violations of both civil and military laws and both civil and military authorities have concurrent jurisdiction. However, for some uniquely military offenses such as AWOL, only the military has jurisdiction. If one act violates both a civilian and a military law, as a matter of law, it is possible that an ANG member might be tried by both military and civilian authorities for the same offense. However, Air Force and ANG policy precludes prosecution by court-martial by the military for an offense disposed of in civilian courts, regardless of the outcome in civilian court.

However, if an ANG member is convicted of an offense, particularly a felony offense, by civilian authorities, the ANG Commander should impose some form of quality force management action, i.e., the administrative discharge of the member. SHOULD YOU BECOME AWARE THAT A MEMBER OF YOUR WING/SQUADRON/UNIT HAS BEEN ARRESTEDANDICTED OR OTHERWISE INVOLVED WITH THE CIVILIAN CRIMINAL JUSTICE SYSTEM, REGARDLESS OF THEIR STATUS AS A TRADITIONAL, AGR OR AIR GUARD TECHNICIAN, YOU SHOULD IMMEDIATELY CONTACT YOUR WING SJA. YOU DO NOT WANT TO BE EMBARRASSED TO DISCOVER A CONVICTED FELON, WHO IS INCARCERATED, ON YOUR ROLLS AS A MEMBER.

CONCLUSION

As you have seen, the concept of jurisdiction affects the ability to enact laws, regulate conduct, prosecute crimes, and control activities.

It affects people and places. It resolves the conflict between two sovereigns - the federal and state government - as to which has the power to pass and enforce laws affecting those people and those places.

Once Commanders know which sovereign's law governs and the status of their members in a particular situation, they will know the scope and extent of their authority over the people and places under their command.