Anonymous “Tips” Now Enough to Stop Drivers for DUI

Posted by Lawrence Taylor on April 23rd, 2014

The U.S. Supreme Court has done it again.

Yesterday, in a typical 5-4 decision, the Court held that an anonymous tip — an unidentified call with absolutely no indication of truth or reliability — was sufficient to justify police stopping a driver on the road and detaining him on suspicion of drunk driving.  Navarette v. California

Amazing.

The Fourth Amendment of our Constitution clearly states that "The right of the people to be secure in their persons…against unreasonable searches and seizures, shall not be violated…but upon probable cause".   In other words, a cop can't just stop a driver on suspicion of drunk driving unless he has "probable cause" — a reasonable belief — that he is intoxicated. 

So, the issue is:  Does a telephone tip from an unidentified source constitute a reasonable suspicion of guilt — even where the responding cop sees no indication of drunk driving?  Or, for example, can an anonymous phone call from a spiteful former wife or a disgruntled neighbor be enough to get you pulled over by the police and subjected to a DUI investigation?

As I've said so many times on this blog, there exists a DUI Exception to the Constitution — and there is no better example of this than the Supreme Court holding in Navarette.  But it's easy for some to ignore these destructions of our constitutional rights, since they only apply to those "drunk drivers", right?  The problem is, as I've also repeatedly written, we are a nation of legal precedent : a loss of constitutional protections in a DUI case will be used as a precedent in any other criminal case.  See my post, Who Cares About the Rights of Those Accused of DUI?.  


Clarence Thomas vs. Antonin Scalia on 4th Amendment and 'Reasonable Suspicion'

Washington, DC.  April 22 - The U.S. Supreme Court handed down a major ruling today with profound implications for the Fourth Amendment rights of all persons who drive or ride in automobiles on public roads. At issue in Navarette v. California was a traffic stop prompted by an anonymous call to 911 claiming that a truck had driven the caller off the road. Going by the information supplied in that call alone, the police located a matching truck in the vicinity of the alleged incident and pulled it over on suspicion of drunk driving. That stop led to the discovery of 30 pounds of marijuana stashed in the truck.

The question before the Supreme Court was whether that single anonymous tip to 911 provided the police with reasonable suspicion to stop the truck. Writing for the majority, Justice Clarence Thomas ruled that the "the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated." While this is a "close case," Thomas acknowledged, it still passes constitutional muster. Joining Thomas in that judgment was Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, and Samuel Alito.

Writing in dissent, Justice Antonin Scalia came out swinging against Thomas. "The Court's opinion serves up a freedom-destroying cocktail," Scalia declared, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. It elevates an anonymous and uncorroborated tip above the bedrock guarantee of the Fourth Amendment. "All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police." That state of affairs, Scalia declared, "is not my concept, and I am sure it would not be the Framers', of a people secure from unreasonable searches and seizures."


So even if such a telephone call were reliable — and there is now no longer requirement that it has to be — you can be stopped for suspicion of drunk driving if the caller says that you were…speeding.  Even if  the responding cop sees no evidence that you are intoxicated.

In his dissent, Justice Antonio Scalia wrote further:


Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving. I respectfully dissent.


…and they continue to chip away at our Constitutional freedoms.
 

Welcome to Our Guest Blogger, Jon Ibanez!

Posted by Lawrence Taylor on April 17th, 2014

I have the pleasure to announce that our recent guest blogger, Jon C. Ibanez, will become a regular contributor to DUIblog.  

A graduate of the University of California at Santa Cruz, and an honors graduate of Western State University College of Law, Jon's law practice has focused on criminal defense, with a particular emphasis on DUI cases.  He also serves as "Of Counsel" to a number of criminal defense firms in Southern California, and is an Adjunct Professor at Westwood College where he teaches criminal justice and paralegal courses.

I am pleased and proud to welcome Jon as he joins me in presenting commentary upon the most interesting, controversial and important topics — legal, evidentiary and constitutional — in the fascinating field of DUI law enforcement and litigation.

DUI DMV Hearing: Where’s the Due Process?

Posted by Jon Ibanez on April 16th, 2014

I often tell my students that when they hear the phrase “due process” they should think of fairness. When it comes to criminal actions in a court of law, due process (at least in theory) is the cornerstone to the proceedings. Unfortunately, the same can’t be said for DMV hearings (Admin Per Se hearings) following a DUI arrest.

When a person is arrested on suspicion of a California DUI their license will be suspended by the California DMV if one of two things will happen:  1.) law enforcement takes a blood or breath test which indicates that the driver’s blood alcohol concentration level is 0.08 percent or more, or 2.) the driver refuses to complete either a blood or breath test. Due process provides that a driver has the right to request an administrative hearing to challenge the DMV’s evidence.

However, just because a driver is provided the right to a hearing does not mean that due process will be present at the hearing.

Imagine a criminal court case in which the defendant attends the hearing at the prosecutor’s office. During the hearing, prosecutor argues for a conviction. Immediately following the argument, the prosecutor throws on a robe, steps up to the judge’s bench, and rules on his own argument. Doesn’t sound fair, does it? It’ not, but that’s essentially what happens at a DMV Admin Per Se hearing.

The DMV, the same agency which is trying to sustain the suspension, is the agency which conducts the hearing. What’s more, the DMV hearing officer, who, believe it or not, is a DMV employee, conducts the hearing. (Starting to see a pattern?) The hearing officer can object to the driver’s evidence. The hearing officer can rule on his own objection. Finally, the hearing officer decides if he or she wins. They almost always do.

Forget about impartiality. Surely, the hearing officer must be someone versed in the law, perhaps a lawyer or someone holding a law degree. Think again. In fact, according to the DMV’s employment eligibility requirements, a hearing officer need not have a college degree!

Winning a DMV hearing is difficult for lawyers (although not impossible). Since the hearing is considered civil, there is no right to an attorney. What about those drivers who have to conduct the hearing themselves because they can’t afford an attorney? How difficult must it be for them to prevail in a hearing where the cards are already stacked against them?

Speaking of the hearing being civil, there’s much lower standard of proof that the hearing officer must meet before they can suspend your license. In a criminal court case, the prosecutor must prove beyond a reasonable doubt that a driver was driving with a BAC level of 0.08 percent or above. At the DMV hearing, the hearing officer only needs to prove more likely than not the driver had a BAC of 0.08 percent or more.

It is much easier for a hearing officer to meet this lower standard when they’re allowed to introduce hearsay police reports. Hearsay statements are generally excluded from court cases because the person making the statement cannot be cross examined. Not the case in DMV hearings. Most of the time, arresting officers are absent from DMV hearings. If a driver wishes to cross examine the arresting officer who wrote the report, he or she must subpoena the officer at his own cost. This includes paying for the officer’s salary for the time that they attend the hearing.

Loss of a driver’s license can have devastating consequences. One would think that with so much at stake, people would be afforded safeguards that would ensure fairness.  But where’s the fairness in any of this? Where’s the due process? 

Legislators Continue to Crack Down on Drunk Driving….but Exempt Themselves

Posted by Lawrence Taylor on April 14th, 2014

I've posted in the past about the disturbing — but not surprising — phenomenon of legislators, in their never-ending efforts to get reelected, stumbling over themselves to loudly trumpet the passage of ever-tougher drunk driving laws.  See Whatever Happened to "Drunk Driving"?.   Not so loudly, however, in many states laws sit quietly on the books that give these same politicians immunity from being prosecuted for DUI.  See my post Legislators Vote Themselves Exempt from DUI Arrest

As an example, in yesterday's news….


Are Lawmakers Getting a Special Exemption from Drunk Driving?

Minnesota, April 13 —  Written into Minnesota’s constitution is a 19th century provision that exempts state lawmakers from arrest for certain violations, like drunk driving. Lawmakers receive a physical card that grants them “privilege from arrest,” except for treason, felony, and breach of the peace,” that lasts for an active legislative session. Critics from the Mothers Against Drunk Driving, the House and Senate, and Concordia University say it amounts a “get-out-of-jail-free” card.

Minnesota is not alone: In 2012, a Colorado Republican invoked her legislative privilege during a DUI stop with a police officer. Some 43 states have versions of legislative immunity.

After a group of Concordia University political science students raised the issue, Minnesota has become a kind of bellwether on the issue. Wednesday night, the Minnesota House of Representatives passed a bill to remove legislative immunity, clarifying that any “breach of the peace” would include drunk driving. It passed on a 115 to 13 vote. However, a similar bill in the Senate has faced a dead-end in committee due to surprising resistance in the Senate Judiciary Committee. The debate is over whether existing law adequately removes DWI immunity or if the confusion warrants a new law.

According to House bill sponsor Rep. Ryan Winkler (D), Minnesota’s immunity law as written creates confusion for both legislators and law enforcement over what to do if a representative or senator is caught driving drunk.

“The concern is that by not passing this law there is a big chilling effect on police officers to enforce the law,” Winkler told ThinkProgress. He thinks it is worth addressing so that representatives do not appear to be above the law. “Public perception is something we should be concerned about.” Mothers Against Drunk Driving cites the bill as one way the state can improve its poor rating on drunk driving.

Bill opponents generally agree with the principle that legislators should not have special treatment, but contend that a U.S. Supreme Court decision in 1908, Williamson v. United States, already allows for prosecution.

Sen. Scott Newman (R) opposed the bill in the Senate Judiciary Committee, moving to table it and killing its chances for a floor vote. While he did not return ThinkProgress’ request for comment, he has previously claimed a new law is redundant and unnecessary. “As we’ve heard from the Minnesota Sheriffs’ Association, it doesn’t matter who you are, if you fail an impaired driving test you will be arrested,” Newman said in a statement Friday. “I have faith in our law enforcement to handle these situations properly. If there is evidence of abuse of power that would be curbed by passing this bill, I will gladly move to reconsider.”

The Senate’s bill sponsor Sen. Kathy Sheran (D) told ThinkProgress that legislators are now asking the Attorney General for clarification on whose interpretation is the right one. In the meantime, she is looking for other avenues to pass it in the Senate, including attaching it as an amendment to a related bill.

Does the immunity card cause legislators to think differently about violating the law? It is difficult to answer, because no one has offered a verified story about a drunk driving incident. But anecdotally, one advocate for the bill says she has heard legislators say, “‘I would rather have them drive drunk than miss a vote.’”


Strange…how difficult it is for politicians to do something as simple as making DUI a crime for themselves just as it is for common citizens…
 

California Assemblyman Proposes Marijuana Zero-Tolerance DUI Standard

Posted by Jon Ibanez on April 11th, 2014

We recently referred you to an American Bar Association Journal article in which Lawrence Taylor was interviewed about the difficulties of correlating traces of marijuana in the blood and intoxication. We also mentioned the use of zero-tolerance laws for marijuana by some states as a way to address issue. It seems that one California assemblyman looks to include California in that list of zero-tolerance states.

Currently, for a person to be convicted of a California marijuana DUI, it must be proven that they were “under the influence.” A person is under the influence when his or her physical or mental abilities are impaired to such a degree that he or she no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.

Assemblyman Jim Frazier recently introduced AB 2500. The bill, if passed, would change California’s current DUI law making it unlawful for a person to drive with any detectable amount of marijuana in the system. The law also seeks to make it illegal to drive with any trace of any other controlled substance in the system.

The proposed language of the law would read:

“It is unlawful for a person to drive a vehicle if his or her blood contains any detectable amount of delta-9-tetrahydrocannabinol of marijuana or any other drug classified in Schedule I, II, III, or IV under the California Uniform Substances Act (Division 10 (commencing with Section 11000) of the Health and Safety Code).”

The legislature rejected a similar bill introduced last year by Senator Lou Correa. Rightly so. Let’s hope they do the same to AB 2500.

Delta-9-tetrahydrocannabinol (THC) can remain in a person’s blood for up to weeks and longer after marijuana use, and well beyond the point at which a person cannot safely operate a vehicle. That doesn’t matter to those who support the proposed law. It seems they would be okay with punishing perfectly sober drivers simply because they ingested marijuana at some point in the last several weeks.