DUI BLOG

If you’re anything like me, the speed with which technology is advancing is almost too much to keep up with. No doubt, while some technology is proving to be a detriment to society, like the diminishment of person-to-person interaction, other technology serves to benefit technology, like the various ways lives can be saved as a result of technology. Two law makers are hoping that new technology can stop drunk driving and save lives in the process.

Recall the post Can Alcohol Sensors in All Cars Eliminate Drunk Driving? where I discussed the prospect of introducing alcohol sensing technology into all new vehicles available for purchase.

Since then, as expected, alcohol sensing technology has advanced and Tom Udall, a democratic senator from New Mexico, and Rick Scott, a republican senator from Florida, have said in a recent interview with Reuters that they plan on introducing bi-partisan legislation making the technology a requirement for all new vehicles off the lot.

“This issue has a real urgency to it,” Udall said in an interview with Reuters. “The industry is often resistant to new mandates. We want their support but we need to do this whether or not we have it – lives are at stake.”

According to the National Highway Traffic Safety Administration (NHTSA), almost 30 people die in the United States as a result of drunk driving. In 2017, that amounted to 10,847 fatalities involving drunk driving.

The technology that Udall and Scott are referring to are devices implanted within a steering wheel or a push-button ignition that can detect the blood alcohol content of a driver through infrared lights shined through the driver’s finger tips. They are also looking at sensors that monitor a driver’s eye movement and breath. Whatever the method, should the technology detect a blood alcohol content higher than the legal limit, the driver will not be able to start their vehicle.

A similar bill has been introduced in the U.S. House of Representatives by Debbie Dingell, a Democrat, that would require setting rules for advanced vehicle alcohol detection devices by 2024.

The NHTSA has invested over $50 million spanning 10 years in similar technology to what Udall and Scott are seeking to implement. The technology is already undergoing limited field testing in Maryland and Virginia, according to Udall.

Earlier this year, Volvo announced plans to install cameras and sensors in its vehicles by the early 2020’s to monitor the driver for distractions, errors, and even drunk driving. And should the technology detect anything that could result in a collision, the vehicles internal system would limit the vehicle’s speed, alert the “Volvo on Call” assistance service, or slow down and parking the car.

Udall and Scott’s Reduce Impaired Driving for Everyone Act, or RIDE Act, can be read here.

A New Jersey man was stopped for a DUI in Hoboken, New Jersey after police found him intoxicated riding an “e-scooter;” the public scooters scattered across many cities that can be rented through a smartphone app.

Nicholas Cutrone, 26, was arrested this past weekend for DWI (the New Jersey equivalent of California’s “DUI”) for riding a e-scooter. According to police Cutrone was found “unsteady and staggering” when he unlocked the scooter and rode away.

“[Cutrone] was driving unsteady as he swayed back and forth appearing as if he was going to lose control at any moment,” said Detective Sgt. Jonathan Mecka.

Police say that Cutrone’s arrest marks the second drunk driving scooter arrest since the service was launched in spring.

As is the case with many cities here in Southern California, Lime e-scooters now sit on the corner of many busy intersections available to be rented to anyone with a credit card and a smartphone.

In August, a 45-year-old man because the first to be arrested for drunkenly operating an e-scooter in Hoboken after crashing, according to police.

Jeffrey English suffered multiple fractures to his face and mouth when he crashed his e-scooter between two cars. English “admitted to drinking a substantial amount of alcohol” before jumping off the scooter.

As I mentioned, e-scooters are already here in California, and I’m sure you’ve seen them around town. How do they work? Well, like many things today, there’s an app for it. Download the app onto your smartphone for one the scooter companies that offer their services in your area; Bird, Lime, Skip, Scoot, or Spin. Once downloaded, you can access a map that tells you where the nearest scooter is. Find the nearest scooter, enter your credit card number into the app, and scan the bar code on the scooter with your smartphone to unlock the scooter. Ride.

But can you ride after having a few drinks here in California?

California Vehicle Code section 21221 states in pertinent part, “Every person operating a motorized scooter upon a highway…is subject to all…provisions concerning driving under the influence of alcoholic beverages or drugs.”

Based on this language, it seems as though the California Legislature intended to treat e-scooter riders the same as traditional vehicle drivers the same, even when it comes to driving/riding under the influence.

However, section 21221.5 states in pertinent part, “[I]t is unlawful for any person to operate a motorized scooter upon a highway while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug…A conviction of a violation of this section shall be punishable by a fine of not more than two hundred and fifty dollars ($250).”

The conundrum here is that in the latter section, the penalty for a DUI on a scooter cannot, under the law, be more than $250. Additionally, California Penal Code section 19.8 states that “any violation which is an infraction is punishable by a fine not exceeding two hundred fifty dollars ($250). This necessarily means that a DUI on an electric scooter in California cannot be charged as anything more than an infraction with a penalty of nothing more than the $250 fine. In other words, a DUI on a scooter in California cannot be treated like a misdemeanor DUI. It cannot carry the same penalties as a DUI and, as an infraction, it will not appear on the rider’s criminal record.

Unfortunately, police and prosecutors in California have been only considering the first law mentioned above and treating DUIs on e-scooters the same as a DUI in a regular vehicle. For this reason, it is imperative to hire an experienced and knowledgeable California DUI attorney to argue the difference in laws between scooters and vehicles.

I recently had one of these cases. My client, the scooter rider, was originally charged with a misdemeanor DUI as though he had been driving a traditional vehicle. If convicted as a misdemeanor, my client was looking at three to five years of probation, an 18-month DUI course (because he had a prior conviction), fines and fees, and a probation violation for a previous DUI conviction, which could have very well led to jail time. However, after arguing that the language of the law only allowed for a fine of no more than a $250 fine, the case was dropped to an infraction with that $250 fine.

It should be noted that, before scooter renters are allowed to rent and ride the scooters, they are required to confirm that they will not ride while under the influence of alcohol or drugs.

According to a group of researchers at the University of California, Davis, people who have been convicted of a California DUI are at a higher risk for committing violent gun crimes.

Building upon prior research that suggested a correlation between alcohol and gun violence, researchers from the university monitored nearly 80,000 people who purchased guns between 2001 and 2013. They found that nearly three percent of gun purchasers with a prior California DUI conviction later committed a violent gun crime. Additionally, according to the researcher’s finding, which were published in the Journal of the American Medical Association, only 0.05 percent of people without any prior DUI conviction went on to later commit a violent gun crime.

Can DUI convictions help keep guns out of the hands of people prone to violence?

October 2, 2019. Los Angeles Times – Drinking and driving is already a deadly cocktail. New research finds that adding gun ownership to the mix heightens the risk for violent outcomes.

A study that set out to track about 80,000 legal gun purchasers in California found that handgun buyers with a DUI on their record were more likely to go on to be arrested for a violent crime. That was the case even if driving under the influence of alcohol was the only criminal conviction in his or her past.

In the roughly dozen years after purchasing a gun in 2001, Californians who had already been convicted of drunk driving were 2.5 times more likely than those with no DUI convictions to be arrested on suspicion of murder, rape, robbery or aggravated assault, according to the study published this week in JAMA Internal Medicine. If the range of violent offenses was broadened slightly to include crimes like stalking, harassment or child neglect, handgun buyers with a prior DUI were more than three times likelier than those with no DUI conviction to be arrested.

The new findings come as the California Assembly considers a bill that would revoke a person’s right to own a gun for 10 years if he or she has been convicted of two or three (depending on the offense) misdemeanors involving alcohol in a span of three years.

Senate Bill 55 was passed in May by a vote of 26 to 10. It is opposed by Gun Owners of California, a gun rights group, and by the American Civil Liberties Union, which argues the bill would disproportionately affect black people and fails to address the “root causes” of substance abuse and violent behavior.

Under California law, people who have a felony conviction can’t receive a gun license from the state. In addition, people with misdemeanor convictions for crimes involving violence, hate, the unlawful use of firearms and certain other things aren’t eligible to receive a license for 10 years. SB 55 would add convictions for public intoxication, disorderly conduct under the influence of alcohol, and drunk driving to that list.

The new research goes some way toward filling a gap in research that prompted then-Gov. Jerry Brown to veto an earlier version of the bill in 2013. In blocking the proposed law, Brown wrote that he was “not persuaded that it is necessary to bar gun ownership on the basis of crimes that are non-felonies, non-violent and do not involve misuse of a firearm.”

The study comes from researchers at UC Davis’s Violence Prevention Research Program. Its findings suggest that denying gun ownership rights to those with a history of drunk driving convictions would reduce violent crimes and might save lives. In 2017, 14,542 homicides and more than 400,000 violent victimizations involved the use of a firearm.

But the researchers did not draw a causal line between drunkenness and criminal violence. Although roughly a third of all firearms deaths in the United States are thought to have involved alcohol, these new findings do not suggest that alcohol itself prompts or predisposes a gun owner to victimize others.

Instead, they suggest that, across broad populations, many people who engage in risky behavior involving alcohol will also engage in the kinds of risky behavior that endanger other people’s lives. And in cases where heavy drinking and gun access are combined, impaired judgment might heighten the risk that an individual predisposed to violent behavior will act out.

In that sense, the new findings zero in on a subgroup of gun owners who may have driven some of the sobering findings of a 2011 study by Dr. Garen Wintemute, the director or the Violence Prevention Research Program and senior author of the new report.

Drawing from a survey of Americans’ risk behaviors, Wintemute found that gun owners in general were twice as likely as those who do not own guns to drink heavily, and 2.5 times more likely to get behind the wheel after having drunk, by their own admission, “perhaps too much.”

The new study makes clear that lawless behavior is not the norm among gun owners. The researchers were able to track 65,387 Californians between the ages of 21 and 49 who bought a handgun legally in 2001 and could still be found in the state in 2013. Of those overwhelmingly male and mostly white gun buyers, 1,495 — fewer than 2% — had a prior conviction on a drunk driving charge. And just over 14% of that small group of gun owners were arrested for violent crimes during the 12-year study period.

That is much higher than the 3% rate at which gun buyers with no DUI or other convictions went on to be arrested for a violent crime. (After adjusting for factors such as age, gender and ethnicity, the researchers found the risk for those with a prior DUI conviction was 2.5 to three times higher than those with no such conviction.)

In focusing on DUIs, “we’ve identified a risk factor for future violence among people who buy handguns, and the association is fairly strong — an almost threefold increase in risk,” said study leader Rose M.C. Kagawa, an assistant professor of emergency medicine at UC Davis.

At the same time, she acknowledged, the number of gun sales blocked by a measure like SB 55 would be small, as would the number of violent crimes prevented.

“It’s a bit of a balancing act,” Kagawa said.

Such reasoning riles Sam Paredes, executive director of Gun Owners of California.

Using past or present behavior as a predictor of future violent acts — “that whole concept is very difficult,” he said.

“You’re being stripped of your rights because someone believes you are a danger in the future?” Paredes said. “I cannot even contemplate what the future consequences of such a perspective could be. It’s not just guns. This could translate to all manner of things.”

A prior conviction for drunk driving seems to be a better predictor of future criminal violence than a prior conviction for other, non-alcohol-related, nonviolent misdemeanors, the study results suggest, but just by a little bit. Lawful buyers of handguns with a conviction like that on their rap sheet were more than twice as likely as buyers with squeaky clean records to be arrested for a violent crime over the next dozen years.

“These findings unmistakably support the pending California DUI convictions legislation,” according to an editorial that accompanied the study.

Though the number of potential wrongdoers barred from gun ownership “may seem small,” the broad adoption of such laws “has the potential to avert larger numbers of acts of firearm violence,” wrote the editorial authors, a trio of injury prevention experts from the University of Pennsylvania and Columbia University.

Adoption of a federal law like SB 55 — an unlikely prospect in the current Congress — would “decisively signal that, as a nation, we are as intolerant of mixing alcohol and firearms, so-called drunk firing, as we are of drunk driving,” they wrote.

As I’ve said in the past, while I’m not the biggest proponent of guns and gun ownership, it troubles me that legislators are attempting to use DUI convictions to prevent gun ownership.

Given the numbers, it is difficult to argue that there is at least some correlation. However, based on those same numbers, there are a lot of people out there who have been convicted of a California DUI that have not subsequently engaged in a violent act involving a firearm.

Surprisingly, I agree with Sam Paredes. Predicting future gun violence based on a weak, albeit real, relationship to a DUI conviction seems like a step too far. What’s more, stripping an entire class of people (who all made a mistake, but by no means are all at risk for future gun violence) of their constitutional right based on what a few within the class might do sometime in the future should not be law.  

The holiday season is fast approaching and before you know it, law enforcement will be ramping up its efforts to catch drunk drivers. Their efforts will inevitably include saturation patrols and DUI checkpoints, but they might also include, as they’ve done in the past, an ad campaign encouraging motorists on the road to contact law enforcement if they suspect that another driver is under the influence.

If an anonymous caller tips off police that someone might be driving drunk, the officer has no personal knowledge of facts that would lead them to believe that someone is driving drunk. The officer is only going off of what the tip had said. The tip could be accurate, it could be a lie, or it could just be mistakenly inaccurate. An officer must have probable cause to stop a driver on suspicion of a DUI, and probable cause means that the officer has reasonable and trustworthy facts that the driver is drunk.

The question becomes: Can an anonymous tip give an officer the required probable cause to stop a driver on suspicion of driving under the influence?

The United States Supreme Court in 2014 concluded in the case of Navarette v. California that an officer can use an anonymous tip as the basis for a DUI stop.

In Navarette v California, 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.

Officers identified the occupants of the truck as brothers Lorenzo Prado Navarette and Jose Prado Navarette.

At trial, 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, but appealed.

At the appellate level, the court ruled against the brothers saying, “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 brothers appealed again, this time to the United States Supreme Court. Once again, the court concluded that an anonymous tip alone can give law enforcement the justification to pull someone over on suspicion of driving under the influence.

In quoting the previous case of Alabama v. White, the Supreme Court said, “[U]nder appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.’”

In finding that the anonymous tip was reliably, the court relied on the fact that the caller claimed eyewitness knowledge of dangerous driving, the fact that the tip was made contemporaneously with the eyewitness knowledge of the dangerous driving, and the fact that the caller used 911 to make the tip (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. 

Does anyone else see the problem here?

Justice Scalia did and he voiced his concern in his dissent to the majority opinion in Navarette v. California.

 “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.”

Anonymous tipsters are not necessarily reporting on drunk drivers (they don’t know if who they’re reporting on is even drunk). 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 trip is perfect and that all driving trips, no matter how short or simple, contain some mistakes. This necessarily means that everyone on the road is a target of anonymous tipsters and anyone can be stopped on suspicion of DUI simply because someone else reported their mere driving mistake (even if they are not drunk).

Imagine the following scenario: A person drives to a bar only expecting to have a couple of drinks, certainly not enough to keep them from being able to drive home. Lo and behold, the person has more than expected and, instead of driving home, they decide to sober up by sleeping it off in the car. While the person is asleep in their vehicle, a police officer walks by and notices the person in their vehicle.

Can the officer arrest the person for a DUI when they were attempting to sober up in their car, but not actually driving?

As a preliminary matter, the police officer would have to have probable cause (reasonable and trustworthy facts that the person was driving under the influence) before the officer could investigate them for a DUI. Let’s assume for discussion purposes that the officer had probable cause to investigate for a DUI.

Whether the officer could arrest the person for a DUI for merely sobering up in a vehicle depends on the state where the incident occurred.

Some states hold that a person can be arrested, charged, and convicted of a DUI if they are in “dominion and control” of their vehicle with the ability to drive it, even though they may not have actually driven it.

California, on the other hand, requires at least some proof that the person actually drove the vehicle.

In the 1991 California Supreme Court case of Mercer v. Department of Motor Vehicles, the court held that the word “drive” in California’s DUI law means a person must volitionally and voluntarily move the vehicle. The court has held that even a “slight movement” is enough to meet the requirement that the defendant drove the vehicle as long as it was voluntary.

Having said that, just because an officer doesn’t see someone drive, as is the case with many DUI arrests, doesn’t mean that the person can’t be arrested for a DUI or something else.

Just because the officer did not see an intoxicated person drive a vehicle doesn’t mean that they didn’t actually drive the vehicle, and if the officer can obtain circumstantial evidence that a person drove, then that might be enough to support the “driving” requirement for a DUI arrest and conviction.

For example, an intoxicated person is found asleep in their vehicle which is in the middle of the road or an unconscious and intoxicated person in their vehicle after crashing it, can still be arrested for a DUI. The vast majority of these types of cases, the officer does not observe the person drive and then stop in the middle of the road. That, however, is not necessary. The prosecutor only needs to introduce facts that can create the inference that the intoxicated person drove without directly proving that the intoxicated person drove.

In other words, if the prosecutor introduces the fact that the person was found intoxicated in the middle of the road, the prosecutor can argue that the person would not have come to the middle of the road had they not driven there. The same thing can be said for someone who is unconscious at the steering wheel of a vehicle involved in an accident.

What about when there is no circumstantial evidence to suggest that the person drove?

In the 1966 case of People v. Belanger, officers found the intoxicated defendant asleep in his vehicle which was located in a parking lot. Although the facts in that case were not enough to create the inference that the defendant had driven to the location while under the influence, the officers still arrested the defendant for drunk in public. 

The Court concluded that, in order to prevent the defendant from waking up and driving away drunk, they needed to arrest him on suspicion of being drunk in public.

Although California requires that a person actually drive a vehicle before they can be convicted of a DUI, no person should be in a vehicle, whether they’re driving it or not, if they are intoxicated. Why risk a California DUI, or some other charge like drunk in public?