Can a Person Be Charged and Convicted of Attempted DUI?

Monday, August 11th, 2014

Let’s envision a scenario: a man is drinking rather heavily at a bar. Barely able to stand, the man closes out his tab and stumbles to his car intending to drive home. However, after getting into his car, the man unsuccessfully attempts to fit the key into the ignition because he’s just that drunk. The man then passes out before he is able to start his vehicle. Unbeknownst to the man, an officer has witnessed the man’s unsuccessful attempts at driving home.

Since California DUI law requires that a person actually drive a vehicle, the question becomes, “can a person be arrested for attempted DUI?” Does such an offense even exist?

States are divided as to the answer. However the issue in California was addressed by the California Appellate Court in the 1989 case of People v. Garcia, 262 Cal. Rptr. 915.

In People v. Garcia, the defendant was found in the driver’s seat of her vehicle. Her vehicle, at the time, was in the fast lane of the highway with the hazard lights on. Her vehicle began to roll backward and the defendant unsuccessfully attempted to start the car. She was, however, able to stop the vehicle from rolling backward by putting it in park. Unfortunately, for the defendant, officers were observing and arrested her.

The court held that the California Penal Code sections dealing with the crime of “attempt” are applicable to DUI cases.

California Penal Code section 21(a) states that an “[a]ttempt requires a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.”

Driving under the influence is, what is called, a “general intent” crime because it only requires that a person intend to commit the act of driving. A “specific intent” crime, on the other hand, requires that a person intent to commit a crime. Murder, for example, is a specific intent crime because it requires that the person have the specific intent to kill someone. If someone is killed unintentionally, say during a traffic collision, the crime becomes involuntary manslaughter which is a general intent crime.

In applying California’s attempt laws to DUI, the court in Garcia essentially made attempted DUI a specific intent crime. In doing so, the court created an interesting paradox.

If attempted DUI requires the specific intent to commit the crime of driving drunk, the mere fact that a defendant was drunk may serve to negate the possibility that they specifically intended to commit the crime of DUI.

Perhaps this paradox is exactly what the Garcia court was referring to when it said that it was “not unmindful that there might be some troublesome questions which will have to be resolved in later case.”

Troublesome questions indeed…

 

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Law Enforcement and the Confirmation Bias

Monday, August 4th, 2014

While I have a bachelor’s degree in psychology, I’m by no means a psychologist. Nor can I say that there’s much that I remember from my college studies except those things that are proving to be particularly relevant in my law career. One of those things is the “confirmation bias.”

The confirmation bias occurs when a person has beliefs or expectations and unconsciously seeks out and interprets information to confirm those beliefs and expectation while ignoring contradictory information. Put in simple terms, people see what they want to see.  

The confirmation bias is proving to be particularly relevant in criminal law because unfortunately, it affects law enforcement decisions, particularly in DUI cases, more often than I’d like to admit.

Although proven to be unreliable, the purpose of field sobriety tests are to allow officers to obtain information sufficient to establish probable cause that a person has been driving drunk. However, often is the case that the officers have already decided that a person is guilty of drunk driving even before the field sobriety tests are conducted.

Regardless of how the DUI suspect performs on the field sobriety tests, the officers will interpret the performance to justify their own expectations about the DUI suspect. This is exactly why I always advise my clients and anyone else who may happen to find themselves in the unfortunate predicament of being stopped on suspicion of DUI: never agree to perform field sobriety tests.

While I’ve seen this psychological phenomenon play out in more than a number of California DUI cases that I’ve handled, until recently I was unaware that the confirmation bias effect on law enforcement in DUI cases has actually been empirically tested.

In 1977, the National Highway Transportation Safety Administration (NHTSA) commissioned a study by the Southern California Research institution to test the best field sobriety tests. Ten police officers observed several hundred subjects who were given varying amounts of alcohol. Neither the officers nor the participants knew how much alcohol was ingested by each participant. Based on the subject’s performance on the field sobriety test, the officers incorrectly identified subjects as having a blood alcohol content above 0.10 percent a whopping 47 percent of the time.

In 1994, Dr. Spurgeon Cole, a researcher at Clemson University, conducted a study which tends to confirm the 1977 study. Dr. Cole videotaped 21 sober individuals performing six field sobriety tests. Fourteen police officers, with a median experience level of 11.7 years, viewed the videotapes. I would be remiss not to mention that all of the officers had completed state-mandated DUI detection training courses. Even though the subjects were completely sober, the officers determined that the subjects were too drunk to drive an astonishing 46 percent of the time.

Leo Tolstoy once said, “The most difficult subjects can be explained to the most slow-witted man if he has not formed any ideas of them already; but the simplest thing cannot be made clear to the most intelligent man if he is firmly persuaded that he knows already, without a shadow of a doubt, what is laid before him.”

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Lasers to Detect Drunk Drivers?

Monday, June 9th, 2014

We all know about those red light cameras, speed cameras, and other automated traffic enforcement devices that inconveniently hover over the most convenient intersections. Well, there may soon be a new traffic device that will detect another “no no” on the streets; drunk driving.

According to a new study published in the Journal of Applied Remote Sensing, Polish researchers at the Military University of Technology in Warsaw have developed lasers that detect the presence of alcohol in passing vehicles.

The researchers used “stand-off” detection which identifies substances at a distance. This type of detection is traditionally used for identifying explosive and hazardous materials without getting close to them.

The researchers shot a laser into a vehicle’s windows and through the cabin. The cabin of the test vehicles were filled with an amount of alcohol vapors similar to the amount that a person with 0.10 blood alcohol content would exhale. The laser would then reflect off of a mirror located on the other side of the vehicle and back through the cabin of the vehicle to a photodetector.

The reflected light could then be analyzed by the researchers to determine how much of the original laser beam had been absorbed by the alcohol vapors in the cabin of the vehicle. This allowed the researchers to determine the amount of alcohol in the cabin.

If the device detects alcohol, rather than sending a citation to the driver of the vehicle as in the case of current traffic enforcement devices, an automated photo system would snap a picture of the vehicle and send it to law enforcement waiting down the road a ways. There, the officers could use a breathalyzer to determine if the driver was actually drunk.

In their study, the researchers acknowledged that “countermeasures” could distort the results such as driving with the windows down or driving with an air conditioner on.

Additionally, it is entirely possible that alcohol vapors located within the cabin of a vehicle are coming from drunk passengers or spilled alcohol.

Even if such was the case, would officers be able to stop the car to “check” if it is the driver who’s drunk?

If this device were to be used and operate in this manner, this would eventually be up to the courts to decide. But let’s hope it never gets to that point.

Officers need, at a minimum, reasonable suspicion that a driver is drunk to stop the vehicle on suspicion of DUI. The question becomes whether the information provided by the laser analysis gives the awaiting officers reasonable suspicion that the approaching driver is drunk.

I think not.

If it did, every single designated driver would be stopped because of their drunk passengers. Without other independent corroborating information observed by law enforcement, the reasonable suspicion is based solely on a device that cannot verify what the source of the alcohol is. And it goes without saying that alcohol can come from a number of sources other than a drunk driver.

Forget about the 4th Amendment. A device like this would give officers carte blanche to stop anyone whom the device detected as having some alcohol in the vehicle whether it’s coming from the driver or not.

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Report a Drunk Driver, Receive Reward

Monday, May 26th, 2014

Memorial Day provides weekend warriors the three-day weekend to remember those who died while serving our country. However, as the unofficial kick-off to summer, it also provides three full days to barbeque and indulge in some pre-summer drinks.

If you happen to be in Illinois, you could earn yourself a cool $100 for reporting a drunk driver. Or you could find yourself the target of a DUI investigation because someone else thought they could make an easy $100.

Chicago’s WBBM’s Steve Miller reported that, this Memorial Day weekend, the Alliance Against Intoxicated Motorist (AAIM) will be paying tipsters $100 for reporting a drunk driver in the state of Illinois.

“The tragic consequences are heartbreaking when somebody decides to get into a car and they think that they’re OK to drive. And they’re not,” said Rita Kreslin, the executive director of the AAIM. “We have paid out over $486,000. That’s 4,866 people that have been drinking and driving that have been removed from the roadways.”

She also said AAIM has taken some criticism for this approach, but “the majority of those people are probably the same people that would drink and drive and not think twice about it.”

Sorry Rita, not true.

I’m giving this approach flak because it creates the possibility of innocent people being stopped and investigated for drunk driving. How many people were reported who weren’t drunk? How many people will be stopped simply because it was a possibility that the tipster be paid $100? Unfortunately, I can’t answer these questions.

More importantly, how many of the tipsters actually know that a driver is drunk? This one, however, I can answer.

None.

Forget tipsters making completely false reports. Let’s say there is a reason for the tip. Tipsters will be reporting mistakes in driving, not drunk driving. And we all know there is a multitude of reasons why someone can make a mistake in driving other than intoxication. But that’s not going to matter, is it? With a $100 incentive, driving error equals drunk.

Fortunately, we’re all the way over here in California and about 1,700 miles away from AAIM’s incentivized witch-hunt. But it begs the question: Does the tip even give the officers the authority to pull someone over when they, themselves, saw nothing that would indicate a DUI?

Unfortunately, in California (…and the rest of the country) the answer is yes.

Recall my colleague, Lawrence Taylor’s post http://www.duiblog.com/2014/04/23/anonymous-tips-now-enough-to-stop-drivers-for-dui/

The United States Supreme Court recently held that an anonymous tip is sufficient to justify a police stop for the purpose of investigating a DUI even though there is no way to verify the truth or reliability of the anonymous tip.

So much for the 4th amendment and probable cause. And in Illinois, people actually get paid for their participation in the undermining the Constitution!

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Another Weapon in the “War on Drunk Driving”: Forced Catheterization

Thursday, May 22nd, 2014

Just how far are we as a free nation willing to go in MADD's jihad on drunk driving?  

Well, how about ramming a catheter up a male DUI suspect's penis to get a urine sample for alcohol analysis — even after he has already had a blood sample taken?


C.P. Man Seeking $11M in Catheterization Lawsuit

Hammond, IN.  May 12 – A Crown Point man is seeking at least $11 million in damages from Schererville, two of its police officers and the owners of Franciscan St. Margaret Mercy Health in a federal lawsuit in which he said he was subjected to a forced catheterization following a traffic stop.

William B. Clark, a former Schererville resident, is suing the town, police Officers Matthew Djukic and Damian Murks and Franciscan Alliance Inc., doing business as St. Margaret Mercy…

In the lawsuit filed Friday in U.S. District Court, Clark, 23, claims he was driving on U.S. 30 near the intersection of U.S. 41 in Schererville last May when he was stopped by Djukic. According to the lawsuit, Djukic allegedly observed the vehicle, which contained one other occupant, driving erratically and claimed he detected a moderate odor of alcohol in Clark's vehicle. Murks allegedly responded in a separate car.

The suit states that Djukic falsely claimed Clark's breath test results were 0.11, exceeding the legal limit of 0.08. The lawsuit also alleges the town failed to provide proof of the test result when a motion for discovery was filed in the criminal case against Clark, which is still pending.

According to his lawsuit, Clark submitted to a blood test at the Dyer hospital that showed his blood alcohol was below the legal limit. It states Djukic, however, became impatient with Clark's inability to urinate to provide a urine sample and made an effort to forcibly get the sample. The suit claims Djukic physically restrained Clark while hospital personnel inserted a catheter to extract the fluid.

The suit claims Murks either used inappropriate force against Clark or failed to take reasonable steps to protect him from being subjected to the use of such force.

The lawsuit states Clark allegedly "loudly moaned in pain" as the process began. It adds that the actions taken to obtain the sample were "painful, degrading and humiliating."…


An isolated incident?  Hardly.  See my previous posts:  Catheter Forced up Penis After DUI Arrest (Washington) and DUI Suspect Forced to Have Penis Catheterized (Utah), to name just two such incidents.   

What's next for citizens suspected of drunk driving?  Why not strap female DUI suspects down on a table and forcefully extract urine samples from them as well?
 

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