Can you be Stopped for a DUI after an Anonymous Tip?

Friday, August 17th, 2018

I’ve seen them and I’m sure you have too; road signs or billboards that encourage drivers to call the police if they spot a suspected drunk driver on the road. I can tell you that drivers often do, in fact, anonymously call police to report other drivers whom they suspect are driving drunk. If the callers are anonymous, how do the police know whether they are telling the truth about what they saw or whether they are even accurate? Police don’t know and, unfortunately, they don’t need to know. According to the law, an anonymous tip is enough for law enforcement to stop someone on suspicion of driving under the influence.

In 2014, the United States Supreme Court decided the case of Navarette v. California, which concluded that law enforcement can go off of an anonymous tip to stop a suspected drunk driver.

The case stemmed from a 2008 stop where a motorist was pulled over by California Highway Patrol after an anonymous tip. The anonymous tipster told the dispatcher that they had been run off of Highway 1 near Fort Bragg by someone driving a pickup truck and provided the pickup’s license plate number. As the CHP officer approached the pickup, they smelled marijuana and discovered four bags of it inside the bed of the truck.

Following the stop, the occupants of the truck were identified as brothers Lorenzo Prado Navarette and Jose Prado Navarette.

At the trial level, the brothers filed a motion to suppress evidence claiming that the officers lacked the reasonable suspicion needed to stop them, thus violating the Fourth Amendment of the United States Constitution. The judge, however, denied the motion. The brothers then pleaded guilty to transporting marijuana and were sentenced to 90 days in jail.

The brother appealed. However, the appellate court in a 3-0 ruling said, “The report that the [Navarettes’] vehicle had run someone off the road sufficiently demonstrated an ongoing danger to other motorists to justify the stop without direct corroboration of the vehicle’s illegal activity.”

The appellate court relied on the 2006 California Supreme Court case of People v. Wells, which stated, “the grave risks posed by an intoxicated highway driver” justifies a brief investigatory stop. It found that there are certain dangers alleged in anonymous tips that are so great, such as a person carrying a bomb, which would justify a search even without a showing of reliability. The court went on to say that a “drunk driver is not at all unlike a bomb, and a mobile one at that.”

The case was appealed once again to the United States Supreme Court. And, once again, the Court ruled that an anonymous tip can give law enforcement the reasonable suspicion to pull someone over on suspicion of driving under the influence.

The Supreme Court stated that ““under appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop,’” quoting the 1990 case of Alabama v. White.

In finding “sufficient indicia of reliability,” the court relied on 1.) the fact that the caller claimed eyewitness knowledge of dangerous driving, 2.) the fact that the tip was made contemporaneously with the incident, and 3.) the fact that the caller used 911 to make the tip likely knowing that the call could be traced.

According to the Court, if the tip bears “sufficient indicia of reliability,” officers need not observe driving which would give rise to suspicion that a person was driving under the influence or even that the driver committed a traffic violation. They only need the unverified and unsupported anonymous tip. 

The problem with this ruling is that people are not anonymously reporting drunk drivers. Rather, they are reporting driving errors, any of which can be interpreted as drunk driving. Everybody makes mistakes while driving. In fact, it might be fair to say that no driving excursion is flawless. This necessarily means that everyone on the road is a target of anonymous tipsters and anyone can be arrested on suspicion of DUI simply because someone else reported their mere driving mistake.

In his dissent, Justice Scalia voiced the same concerns:

“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…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.”

 

 

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Video Evidence in a California DUI Case

Thursday, June 21st, 2018

No longer are the days where it was the cop’s word against the driver’s word about what exactly happened when the cop pulled the driver over on suspicion of driving under the influence. Fortunately, video evidence is becoming increasingly available in California DUI cases to confirm or refute the facts of the case.

Mobile video and audio recording systems (“MVARS”), often referred to as “dash cams,” were first used by law enforcement in the late 1980’s in Texas to keep law enforcement safe in remote rural areas. Back then, the camera was mounted on a tripod and the footage was recorded on a VHS cassette. Remember those? This necessarily meant that they were big, bulky and expensive. As a result, law enforcement agencies did not begin using dash cams regularly until the technological efficiency of dash cams increased, and price decreased in the late 2000’s. This is not to say that all agencies use them, because some still do not.

If, however, a patrol car has one, it may help officers gather evidence that a driver was driving under the influence as well evidence that a driver may not have been driving under the influence.

Dash cam footage is objective. An officer’s perception and recollection of the event unfortunately are not. Unlike a police report which is written hours after the DUI stop occurred (and well after an officer’s memory begins to fade), a dash cam records the events as they occur.

Law enforcement needs probable cause of a traffic violation to initiate a traffic stop, which is usually the first step in the DUI investigation process. Absent probable cause, a driver cannot be pulled over. Unfortunately, many officers fabricate the probable cause for stop, claiming that a driver never used a blinker, or they were swerving, or they ran a stop sign, so on, so forth. The dash cam, however, can show that there was no probable cause for the stop. It can show that the blinker was used, there was no swerving, and the driver did stop at the stop sign.

Even in agencies that use dash cams, some officers are finding their own ways to circumvent the transparency that the dash cam provides.

More often than not, at least in my experience, officers will take the driver out of the camera’s view to perform field sobriety tests. The officer will then write up their police report claiming that the driver “failed” the field sobriety tests providing little or no explanation as to why they failed.

Hopefully, this will soon be a thing of the past as more law enforcement agencies are beginning to use body cameras rather than or in addition to dash cams.

A body camera would serve to provide first-hand evidence to support officer claims that a person was, in fact, driving drunk. If an officer justifies a DUI arrest by claiming that an arrestee had slurred speech and bloodshot, watery eyes, the footage would verify the officer’s claims. If an officer determines that a person failed field sobriety tests, the footage from the body camera could support the officer’s interpretation of the person’s performance.

What if a patrol car doesn’t have a dash cam and the officer doesn’t have a body cam? Can you or someone else record officers during a DUI stop?

I don’t know anyone who doesn’t have a smartphone with a camera on it. If you, a passenger, or some other third party have a camera, such as a smartphone camera, readily available, you can record law enforcement performing their duties in public. The First Amendment protects the right to discuss the government, the right to free press, and the right to public access of information. And the courts are fairly unanimous that citizen journalists are protected just as much as members of the press. This includes the right of citizens to record officers performing their duties in public as long as the citizen isn’t recording officers surreptitiously, doesn’t interfere with the officer, or doesn’t break the law while recording.

Whether it comes from a dash cam, a body cam, or a smart phone, video evidence provides transparency during DUI stops. Transparency means finding the truth, which is what should be at the heart of every DUI case. Unlike officers, video footage can’t lie.

 

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Prosecutors Decline to Prosecute Long Beach Councilwoman for DUI

Thursday, October 26th, 2017

This story is disturbing to me not just because it occurred in my hometown of Long Beach, but because it exemplifies the partiality with which prosecutors and police treat DUI’s of those whom they have a working relationship with versus everyday citizens.

Prosecutors have decided not to prosecute Long Beach Councilwoman, Jeannine Pearce with domestic violence nor driving under the influence in a June 3rd incident involving her former chief of staff, Devin Cotter.

District attorney declines to charge Long Beach Councilwoman with drunk driving, domestic violence

October 26, 2017, Los Angeles Times – Prosecutors have decided not to charge Long Beach Councilwoman Jeannine Pearce with domestic violence or driving under the influence in connection with a June clash with her former chief of staff.

But a district attorney’s memo detailing the decision also raises questions about the Long Beach Police Department’s response to the June 3 incident involving the councilwoman and Devin Cotter.

In its initial statement, the Police Department said it received a call for assistance from the California Highway Patrol about a possible drunk driving incident on the shoulder of the 710 Freeway in Long Beach at 2:40 a.m.

The city’s officers smelled alcohol on Pearce, who admitted to drinking that night, according to the district attorney’s memo. A field sobriety test conducted about 4 a.m. showed she was mildly impaired.

But the memo said a test of the councilwoman’s blood alcohol level was not conducted until 4:20 a.m., nearly two hours after the CHP called. At that point, the test showed Pearce had a blood alcohol level of 0.06%, under the legal limit of 0.08%, the memo said.

The testing device used on Pearce was unreliable, the prosecutor’s memo said. A department toxicologist had recommended it not be used a month before the incident. Additional tests were not performed, according to the district attorney’s memo.

A police spokesman said in a statement that officers initially investigated whether domestic violence had occurred when they arrived, interviewing Cotter and Pearce before realizing that the councilwoman had been drinking. At that point, the officers called for a colleague who is a certified drug recognition expert to investigate, Sgt. Brad Johnson said in the statement.

He said the testing device had been “tagged to be replaced but was not removed from its storage cabinet. The officer who retrieved the device did not realize … and unfortunately used it during the DUI investigation.”

Police at the scene saw Cotter with swelling, redness and a cut to his head and cuts to his hand, according to the district attorney’s memo. Pearce at one point had shoved Cotter, causing him to fall to the ground, the memo said.

Prosecutors ultimately decided that Pearce, who was first elected to the City Council in 2016, could argue she was defending herself when she shoved Cotter.

Pearce said she could not immediately comment. Cotter could not be reached for comment.

 

I can tell you that, had this been an average Joe Schmoe driver, it would not have ended up in a refusal to file DUI or domestic violence charges.

Many DUI cases are filed everyday where the blood alcohol content is below the legal limit or a breathalyzer is faulty. While it may have been true that Pearce was under the limit at the time of the test and that the breathalyzer was inaccurate, had it been a regular member of the public, charges for driving under the influence would still have been filed and prosecutors would have left it to the defendant their attorney to dispute the results.

The same thing can likely be said for the refusal to file domestic violence charges. If prosecutors declined to prosecute domestic violence charges when anybody “could argue [they were] defending [themselves],” then they’d never prosecute anyone. And believe me, in the many domestic violence cases I’ve handled, not once has a prosecutor dropped a case because a person “could argue that they were defending themselves.”

So now let me ask you: Is this a coincidence?

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Miranda Warnings and the California DUI

Thursday, July 20th, 2017

An officer pulls over a person and begins asking questions. “Where are you going?” “Where are you coming from?” “Have you had anything to drink?”

The driver says, “I’m going home from the bar and I had two beers.” Boom. The next thing that the driver knows is that they’re getting arrested and only then did the officer read the Miranda Warnings to the driver.

Why did the officer not read the driver the Miranda Warnings before they arrested him or her? And more importantly, can this be used to help the driver’s DUI case?

All statements given to law enforcement must be voluntarily given, even those given during a DUI stop. The United States Supreme Court in the landmark case of Arizona v. Miranda said that a statement cannot be voluntarily given if a person doesn’t know they have a right not to say anything under the 5th Amendment. Therefore, in order for a statement to be voluntarily given, a person must be made aware that they have a right to remain silent.

Thus, was we have the Miranda Warnings.  

So, when must law enforcement actually read a person their Miranda Warnings?

Courts have held that an officer must read a person their Miranda Warnings before a “custodial interrogation.” This means after an arrest and before an interrogation.

When a person is stopped on suspicion of a DUI or even a traffic violation that leads to a DUI investigation, the person is not arrested even though they may be temporarily detained. And inevitably the officer is going to ask questions after stopping the person.

Now, the person has the right not to speak to the officers or answer their questions. But the officer’s duty to advise the driver of the Miranda Warnings has not yet been triggered because the person is not yet under arrest.

Questions asked during this time are considered merely preliminary in nature. And yes, any answers given by the driver during this time are fair game for officers and prosecutors to use in a DUI case against the driver.

It would be a different story if, after the DUI stop, the driver is arrested, but not given Miranda Warnings. If the officer then proceeds to ask the driver questions and the driver answers, those answers would be in violation of Miranda and thus in violation of the 5th Amendment.

So whether it’s before a driver is arrested or after with Miranda Warnings given, a person never has to talk to officers or answer questions. The 5th Amendment right to remain silent exists whether the Miranda Warnings are given or not. Use it! When stopped on suspicion of a California DUI, simply respond to any questions with, “I respectfully decline to answer any questions under the 5th Amendment. Am I under arrest or am I free to leave?”

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Two DUI’s in Less than Three Hours

Thursday, June 15th, 2017

A Wisconsin man was arrested twice in about two and a half hours for driving under the influence according to Ashwaubenon, Wisconsin Public Safety. What’s more, he’s only 18 years old.

18-year-old Preston Bierhals was on his way home from a graduation party last week when he lost control of his vehicle and struck a light pole. Bierhals told responding officers that he was trying to make a phone call when he lost control of his car.

His blood alcohol content was later determined to be 0.157 percent.

At the time, Bierhals’s license was suspended.

“The legal limit for him is zero, but he was still above the 0.08, he was over 0.10 actually both times,” said Capt. Jody Crocker.

Bierhals was booked for “operating while intoxicated” (OWI), which is the Wisconsin equivalent of California’s “driving under the influence” (DUI).

Instead of keeping Bierhals to sober up, officers released him to someone who signed a Responsibility Agreement not to allow him to drive a vehicle.

“They signed an affidavit that says to us that they will take that responsibility in lieu of this person sitting in jail for the next 12 hours. Here of course, that didn’t work,” said Capt. Crocker.

Why didn’t it work? Well, because less than three hours later, an officer working traffic detail for a triathlon that morning spotted Bierhals driving and recognized him from the arrest just hours prior.

The officer stopped Bierhals once again and administered field sobriety tests to which Bierhals failed again. And again he was arrested on suspicion of OWI.

This time, Bierhals’s blood alcohol content was a 0.121. This is consistent with the average rate of alcohol metabolism (burn-off) of 0.015 percent per hour, assuming no more alcohol was consumed since the first arrest.

In Wisconsin, prosecutors cannot file charges for a second drunk driving offense until the citation Bierhals received for the first OWI is resolved.

According to Capt. Crocker, law enforcement is looking into whether charges should be filed against the person whom Bierhals was released to.

Some of you may be thinking, “What could happen to someone like that?”

Well, here in California a minor who is caught driving with alcohol in their system can face several charges and penalties.

California Vehicle Code section 23136 makes it illegal for a minor to have a blood alcohol content of 0.01 percent or greater while driving. This is knowns as California’s “Zero Tolerance” law for underage drivers. Under this law, a minor faces a one-year suspension of their driver’s license.

California Vehicle Code section 23140 makes it illegal for a minor to have a blood alcohol content of 0.05 percent or greater while driving. Unlike section 23136, this section is an infraction which can result in fines of up to $100 and a one-year suspension of their driver’s license.

However, in Bierhals’s case, had it occurred here in California, prosecutors would have likely charged him with the standard adult DUI under California Vehicle Code section 23152 (driving under the influence and driving with a blood alcohol content of 0.08 percent or greater). A violation of section 23152 is a misdemeanor which carries a three to nine month DUI program, three years of summary probation, up to $1000 in fines, up to six months in jail, and a six-month suspension of driving privileges.

Of course, Bierhals is facing the penalties for a second-time DUI as well. A second time DUI, here in California will also be charged as a misdemeanor, but this time, he’s facing between 96 hours and one year in jail, an 18-month DUI program, and two-year suspension of driving privileges.

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