Anonymous “Tips” Now Enough to Stop Drivers for DUI

Wednesday, 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.
 

Share

DUI DMV Hearing: Where’s the Due Process?

Wednesday, 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? 

Share

“First they came for the drunk drivers…”

Monday, March 24th, 2014

For many years now I’ve written and lectured extensively on drunk driving litigation – on the science of blood and breath alcohol analysis, the flaws in breathalyzers, the ineffectiveness of field sobriety testing.  In recent years, however, my focus has increasingly shifted to the gradual erosion of constitutional rights in DUI cases.

So who cares about drunk drivers and their constitutional rights?

You should care.

The importance of what is happening in DUI law and procedures can be summarized in one word: precedent. We are a nation of laws, more specifically, the common law inherited from the British legal system. Unlike most nations, which use some version of the French civil law where laws are found in codes, we look to the precedent of judicial decisions interpreting statutory law. When a court looks at the facts in a specific case, it applies not only statutes but decisions in appellate court cases to determine what the law is.

The genius of this common law system of precedent is its flexibility; its flaw is what many call "judicial legislation". The flaw becomes particularly noticeable when dealing with politically unpopular subjects. And few topics are as politically "incorrect" as drunk driving. Judges are, after all, politically sensitive animals who want to be reelected. Put another way, it is very easy to rule in favor of the prosecution in DUI cases — particularly when powerful pressure groups like Mothers Against Drunk Driving (annual revenues of over $50 million) are so vocal in elections and in legislatures.

In contrast, there are few advocates for the accused or the Constitution during election campaigns. This judicial attitude is not limited to judges considering re-election. A majority of the U.S. Supreme Court has been consistent in depriving the accused in DUI cases their constitutional rights. To mention just a few notable examples:
 

Michigan v. Sitz. The Court held that sobriety roadblocks were permissible — despite the fact that there is no exception in the Fourth Amendment for stopping citizens without reasonable suspicion.

South Dakota v. Neville. The Fifth Amendment right against self-incrimination was held inapplicable in drunk driving cases (refusing to submit to testing).

Blanton v. North Las Vegas. Even though punishable by six months in jail, fines and diver’s license suspension, there is no Sixth Amendment right to a jury trial in a drunk driving case.

California v. Trombetta. Although police normally have to save evidence, they do not have to save breath samples in DUI cases (even though it is easy and inexpensive to do so). So…we have seen a steady flow of appellate decisions at all levels taking away the constitutional rights of those accused of DUI.

Again, so what?

Again, precedent: What happens today to a citizen accused of DUI can happen tomorrow to a person accused of any other crime. If police can set up roadblocks to check everyone for intoxication, they can set them up to search for drugs (which, incidentally, has already happened). If a citizen accused of DUI has no right to a jury of his peers, then the precedent exists to deny the right to citizens accused of any other offense.

The danger of precedent in the DUI field is not limited to judicial decisions. Legislatures are also guilty of passing unfair and/or unconstitutional — but politically popular — statutes. We have certainly seen a seemingly unending series of unfair and unconstitutional statutes across the country in recent years: immediate license suspensions at the police station; double jeopardy/punishment (dual license suspension and criminal prosecutions); so-called per se laws (.08% blood-alcohol is illegal, even if the driver is sober); presumption of guilt (if .08%, driver is presumed to be under the influence; if .08% when tested, it is presumed to be .08% when driving); ad nauseum. And having passed such unfair and unconstitutional laws relating to DUI, they are less reluctant to do so in other areas as well.

So who cares about DUI?

To paraphrase the famous quote about the rise of Hitler"First they came for the drunk drivers, but I was not a drunk driver so I did not speak up….."

 

Share

The Futility and Costs of the “War on Drunk Driving”

Sunday, March 16th, 2014

For the past couple of decades we have seen increasingly severe punishment for misdemeanor drunk driving offenses, often exceeding those imposed for serious felonies.  Spurred on by MADD's "War on Drunk Driving", this never-ending flood of politically-popular laws has continued to blindly accept the idea that imposing harsher sentences will eventually eradicate DUI-caused traffic fatalities.  With each new law, MADD issues press releases trumpeting their latest achievement with promises of an end to the "carnage on the highways" — along with solicitations for contributions to their over $50 million annual revenue.  And yet it continues…along with the collateral costs to our Constitution (see The DUI Exception to the Constitution).

Albert Einstein once defined insanity as "Doing the same thing over and over again and expecting different results".  Maybe it's time for a change….

I have not dealt with 1000s of DUI clients over the years without drawing certain conclusions:

1. The system, clearly, does not work: despite unfair laws, constitutional violations and increasingly harsh penalties, the problem remains…and people continue to die on the highways.

2. Playing games with statistics, as MADD and the government are so fond of doing, only obscures the problem.

3. The problem is not black-and-white, but involves shades of gray. It is convenient to punish anyone with a .08% blood-alcohol concentration, but neither fair nor productive. It is easy to lump all offenders into the same category of "drunk drivers" and simply adjust jail time by a reading on a machine, but neither fair nor productive.

4. You cannot simply identify what the problem is ("drunk drivers are dangerous"), but who the problem is. The problem is not people who drive with .08% BAC or higher, but people who represent a real danger to others on the highway. Who are they?

The problem is the person who severely abuses alcohol and chooses to drive. You can call him an "alcoholic", but it has been my experience in dealing with those 1000s of clients that there are different kinds of "alcoholics" and that using a simple label is no answer (we do love to put things in neat categories).

Statistics repeatedly show that the vastly disproportionate majority of alcohol-caused injuries and deaths are caused by a few "problem drinkers" (for want of a better term). Thus, the first objective in any solution is to identify these individuals. In my experience, they can usually be identified by a combination of factors:

1. Their blood-alcohol level is not just high — it is very high, say .16% to .30% or more.

2. This is probably not the first DUI — and prior incidents are likely to be relatively recent.

3. There is a genetic flag: the individual is likely to have one or two "alcoholic" parents.

All right, we've identified some markers for who the problem is , but what do we do with them? To begin, let's understand what we don't do: we don't hit them with stiff jail sentences. If we do, we simply remove the person from society for a few days or months — and on the day he gets out, he gets in his car and drives directly to a bar. What has been accomplished? Is society being protected — or are we simply punishing people for drinking too much?

Since the punishment model clearly doesn't work for the problem drinker, we must consider the other criminal justice models — isolation, deterrence and rehabilitation.  

1. Isolation. Yes, we can put the problem drinker in jail for a few months or even a few years, and we are safe from him for that period. But can we really afford to house tens of thousands more inmates? For how long? And what happens when they get out? For that matter, given the evidence, aren't we punishing them for a genetic condition?

2. Deterrence. How do you deter an "alcoholic"?

3. Rehabilitation. Once the favored approach in the criminal justice system, rehabilitation fell into widespread disfavor many years ago. Yet, this would appear to be the only logical approach with problem drinkers.

Ok, but what about the driver who is not a problem drinker but who is simply impaired from drinking too much? Answer: Treat him like any other misdemeanant. Statistically, we know he is unlikely to cause serious injury or death, but there is undeniably some risk there. Can this individual be deterred from such future conduct? Unlike with the "alcoholics", statistics show he can. Thus, it may be fair and productive to impose a fine on the typical first-offender, perhaps even suspend his driver's license for a short period; if a high blood-alcohol level is involved, say .20%, the punishment may include a 2-day jail term. But certainly not the punishments so destructive to families and careers that are now being administered to all caught up in the dragnet.

While we're at it, a refreshing approach — and a healthy one for society — would be to reinstate constitutional rights in DUI cases: due process, presumptions of guilt, timely right to counsel, protectiona against double jeopardy, the 5th Amendment right against self-incrimination, the right to confront witnesses, 4th Amendment "sobriety checkpoint" violations, ad nauseum. (Again, see The DUI Exception to the Constitution.)

Does all of this finally solve the drunk driving problem? No: people will always drink and drive. But it will focus on the real threat — the truly dangerous driver — rather than on drinking and driving per se. And, in the process, reinstate the essential fairness and due process that has been slowly removed from the criminal justice system.
 

Share