DUI BLOG

Last week, Franky Provencio, 19 and from Pomona, was arrested for murder amongst other charges after it was suspected that he drove drunk, collided with another vehicle, and killed the six-year-old passenger of the other vehicle.

On Tuesday of last week, Provencio veered his GMC Yukon into oncoming traffic on White Avenue in Pomona and collided with a pickup truck. The pickup truck, driven by Peter George of Upland, was also carrying his six-year-old son, Julian Anthony George. While Peter George was hospitalized in critical condition, Julian Anthony George was pronounced dead at the scene. Provencio and his passenger were also hospitalized, although the passenger was released shortly thereafter.

Officers responding to the scene determined that Provencio was under the influence of alcohol and/or drugs. Officers also determined that George had been drinking prior to the collision. Julian was not properly secured in a child seat.

Provencio was found to have suffered a prior DUI conviction from last year that he was still on probation for. Additionally, Provencio was driving on a suspended license.

Provencio was arrested after he was released from the hospital late last week and now faces charges of murder, DUI causing great bodily injury, and possession of a controlled substance. He is being held on $2.63 million at the Men’s Central Jail in Los Angeles.

While the crime of murder is generally reserved for people who intend on killing another person, California has created an exception that allows prosecutors to charge murder for DUI-related collisions that kill someone else if the suspect has suffered a prior DUI conviction.

Prior to 1981, a person who killed someone while driving under the influence could not be charged and convicted of murder. However, the landmark case of People v. Watson changed that.

California Penal Code section 187(a) provides that “Murder is the unlawful killing of a human being…with malice aforethought.” “Malice” refers to the deliberate intention to unlawfully kill someone else. However, malice can be also be “implied” and implied malice exists when a person knowingly engages in an act that is dangerous to human life and they engage the act with a conscious disregard for human life.

The court in the Watson case found that if the facts surrounding a DUI-related fatality support a finding of “implied malice,” second degree murder can be charged. In other words, if a person engages in driving under the influence when they know that it is dangerous to human life to do so, and they kill someone, they can be charged with murder.  

Now the question becomes, “Did the person know it was dangerous to human life to drive drunk?”

While we all know that it’s dangerous to drive drunk, since Watson, courts started expressly advising people who have been convicted of DUI, on the record, that it is, in fact, dangerous to drive drunk. This was not because the court actually thought that the defendant didn’t know it, but rather to ensure that the prosecutor could charge murder instead of manslaughter upon a subsequent DUI causing the death of someone.

Having handled hundreds of DUI cases myself in Los Angeles County, I can tell you almost positively that Provencio was told the “Watson advisement” by the judge while being convicted in his first DUI case, or at a minimum signed a document acknowledging the “Watson advisement,” or both.

Provencio is due at the Pomona Courthouse on June 5^th.

South Carolina, a state that carries the unfortunate honor of having one of the highest rates of DUI-related deaths in the country, also has one of the most unique DUI laws in the country. But it’s not a law that you would have expected, such as a lower BAC limit or unusually high punishment for a DUI. Rather, the law requires that law enforcement video record all DUI stops.

The law and the repercussions for not following the law has led to law enforcement, prosecutors and even the media to call the law a “camera loophole” that allows drunk drivers “off the hook.”

This week, WBTW News13 reported on this so-called “loophole.”

News13 investigates: ‘Camera loophole’ still letting drunk drivers off the hook

May 9, 2019 – WBTW News13 – South Carolina’s per-mile rate of DUI fatalities is among the highest in the nation every year.

A report released last year ranks the Palmetto State second in the U.S. for drunk driving deaths.

Police and prosecutors say current state law is putting you and your family in danger, because drunk drivers that should be getting convictions are walking away scot-free.

They say one contributing factor is a loophole in the state’s DUI law. It’s called the “camera loophole.”

News13 investigated the camera loophole in 2016. Since then, there has been little effort to fix the law. 

The South Carolina chapter of Mothers Against Drunk Driving released a three-year report last year. It found that DUI cases that were resolved in less than a year resulted in a 52 percent conviction rate compared to 33 percent in cases that dragged on for more than a year.

South Carolina law requires police to videotape DUI traffic stops. Any small misstep could jeopardize a case — if the driver stumbles out of frame, the driver’s feet can’t be seen, or the shot is too dark.

One video shows a Horry County officer giving a field sobriety test to a man who ran off the side of the road. He can’t walk in a straight line, and the officer said he also failed an eye test.

But because you can’t clearly see his face, Horry County Solicitor Jimmy Richardson said this situation probably wouldn’t hold up in court.

“You’re not all the way on. Or, if your feet as you get closer to the car cut off for a second then that throws the case out,” Richardson said.

You read that correctly: a blip, static, or stumble doesn’t just get the video dismissed, it can get the whole case dropped.

PFC Shon McCluskey with the Myrtle Beach Police Department said a lot of effort goes into setting up the perfect shot.

“It is a process. We’ve actually joked around at times saying sometimes you feel like you have to have an entire live PD scene with you to get every aspect of the case to make sure that everything is perfect.”

McCluskey said he takes extra precaution to make sure his dash cam video frame is wide enough and that there is nothing blocking the shot. But some things are out of his control.

“We’re not working in perfect environments out here every day. It’s not always sunny, it’s not always calm. Sometimes it can be a little windy, it can be rainy.”

Efforts at the legislative level in recent years to change the video requirements have failed. Bills introduced in the House and Senate in 2015 adding more wiggle room to the video requirements never moved out of committees.

None have been introduced in the current session.

News13 asked Jimmy Richardson why little progress has been made.

“Some of my best friends are in the legislature,” Richardson replied, “So present company excluded, about 40 percent of our legislature are attorneys. Only two or three of them are former prosecutors, the other 39.9 percent are defense attorneys. And this is where defense attorneys make their money. So, I would suggest that’s probably why the law is so complicated.”

Attorney and South Carolina Senator Stephen Goldfinch said it’s so complicated, because lawmakers are trying to balance the constitutional rights of everyone.

“Even if they are the lowest of the low, the murderers, the DUI drivers that kill people, the people that none of us want to protect, we have a legal duty, a constitutional duty to protect,” Goldfinch said.

Goldfinch said video evidence isn’t being tossed out of cases as often as law enforcement and advocates claim, but he admitted there are problems with the law.

“There are cases out there that show us that there have been problems in past history in regards to the loophole that you’re talking about,” Goldfinch said. “And I think there are some cases where we could probably close that loophole on. But we’ve got to be careful not to interject ourselves into the middle of the court system and the judicial system and the province of the judge.

Richardson also said that closing any DUI loopholes may need to come from the judges instead of the lawmakers.

“Case law will probably be the way to change that, saying that it doesn’t have to be 100 percent, it’s what is reasonable under the circumstances,” Richardson said. “And just with those four or five words you fix the entire system.”

But is it really fair to call the South Carolina law a loophole?

The purpose of the law is transparency, plain and simple, and for good reason. At a time when the public trust in law enforcement is waning, due in large part to police getting caught engaging in less-than-honest interactions with people, transparency with law enforcement is absolutely essential.

I can tell you firsthand that there is a problem with law enforcement fabricating information in DUI police reports. I have personally handled a case where the police deliberately took a DUI suspect out of dashboard camera range to perform the field sobriety tests, stated in the police report that the suspect failed the tests, and then the person’s blood alcohol content later turned out to be only 0.02 percent, well below the legal limit and an extremely strong indication that the suspect was sober. When handling the case, the prosecutor, who I personally knew, admitted that this was a problem she had seen with several DUI cases.

Let me simplify what I’ve just said. The police deliberately tried concealing their own lie just to put someone in jail for a DUI when that person wasn’t even drunk!

This South Carolina law is not “loophole.” It is ensuring transparency to protect the rights of the public. And if people who are actually driving drunk are “let off the hook,” it’s not because there’s a problem with the law. Rather, it’s because there’s a problem with law enforcement’s ability to abide by the law.

Here are some suggestions: Give better training to your officers, invest in some better dash cam equipment, or better yet, get some body cameras.

Personally, and I hope you would agree, I would rather see law enforcement take a few extra steps towards ensuring transparency than see wrongful DUI arrests by police who just want to add a notch on their belt.

So far in 2019, the Bellingham Police Department of Washington state has seen 110 DUI arrests through April 19, 2019. That is approximately one DUI arrest per day. According to Lieutenant Claudia Murphy that’s a 134% increase from the 47 arrests made in the same period in 2018.

It is not that there is all of a sudden a huge increase in the number of drivers who appear to be imbibing and getting behind the wheel, but rather that the Traffic Division of the Bellingham Police Department is emphasizing on what they believe is the first step in keeping their community safe. According to Sergeant Carr Lanham, the department’s success in achieving this arrest rate has much to do with the $20,000 grant they received from the Washington Traffic Safety Commission’s Target Zero Program.

The Target Zero Program aims to achieve “Zero Deaths & Zero Serious Injuries by 2030.” The grant money allowed the department to train their officers in recognizing drug use through a mentoring program with the department’s drug recognition expert, Officer Zack Serad. According to Sgt. Lanham, the grant and mentoring program allowed Officer Serad to take other officers with him to gain knowledge and experience in properly spotting and processing impaired drivers as well as allow him to do ride-alongs with other officers. Serad was also able to focus on training other officers in testing for intoxicants other than alcohol.

In addition to the mentoring program, increased staffing has allowed for more officers to be on duty on the streets during the peak DUI hours which Lt. Murphy has also credited for the higher arrest rates. Murphy has also attributed the “success” to a more “mature” staff in comparison to 2018.

The Bellingham Herald called this “an impressive start to 2019.” But is it really?

Sure, the number is much higher than last year, but the number doesn’t necessarily reflect the number of convictions. We have no real data about how many of these arrests are legitimate DUI arrests. Other counties in the area are not seeing this huge jump in arrest numbers. Remember, an arrest means nothing without a conviction because without a conviction a driver suspected of DUI is innocent.

We recently posted an article about “experts” in the police force being used in court (see article Should Courts Allow Cops to be “Experts” in Drug Intoxication for DUI Cases). Is a mentoring program by a police force drug recognition expert enough to gain the proper knowledge and experience to have made such a huge impact on the arrest rate? Or is there a possibility that, as a result of the mentoring program and focus on DUIs, the officers are a bit more quick to arrest drivers with DUI? If you recall from the article, “proficient” in the eyes of law enforcement is a 43% to 49% accuracy rate.

It would be interesting to know how the mentoring program may have focused on recognizing marijuana use as recreational use of marijuana has been legal in the state of Washington since 2012. Washington state does not utilize roadblocks as part of their system in controlling impaired drivers so it would also be interesting to receive more details about how the officers are even able to spot impaired drivers on the road. Sure, having more officers out on the roads will raise the probability of an impaired driver being recognized, but to the extent of a 134% increase? Seems a bit suspicious.

If in fact, a majority of the arrested drivers were legitimately impaired and the Bellingham police force was able to get them off the streets so that other drivers can have a safer environment to drive, then all the power to them. Being able to get the potentially dangerous drivers off the roads is an incredible feat, but if these numbers are just a façade making it look like they are 134% more effective than last year at catching drunk drivers, then we may need to take another look at a breakdown of this number.

Wisconsin state law makers are continuing the trend of proposing bills that call for more stringent driving under the influence laws.

Under current law in Wisconsin, operating while intoxicated, or “OWI” as it’s called in Wisconsin, is a civil violation with the first offense subject only to a fine of no less than $150 and no more than $300. A second offense will only have increased penalties if the person has committed the OWI within ten years of the first offense or if the OWI offense caused death of great bodily harm to another.

A bi-partisan plan of bills was introduced, with one of the bills pushing to make the first offense a misdemeanor and would call for a fine of up to $500, imprisonment for up to 30 days, or both. This same bill will also subject a second offense to increased penalties regardless of the offense occurring within ten years of the first OWI-related offense.

There is another bill within this plan that calls for a mandatory minimum jail sentence of five years for committing a homicide while driving drunk. Current penalties include imprisonment of up to 25 years if a Class D felony and up to 40 years if a driver is found to have had prior convictions and thus charged with a Class C felony. However, neither one of these penalties have a minimum imprisonment limit.

A public hearing at Wisconsin’s Capitol was held to address several bills, including those mentioned above. The hearing included testimony from families who have lost family and loved ones through the actions of drunk drivers and many of them have called for stricter punishments for under the influence offenders.

In comparison to other states that have already categorized driving under the influence as a criminal offense, this change may seem fairly minor and certainly a long time coming. If you recall one of our earlier posts about states with the most DUIs (States with the Most Drunk Drivers), Wisconsin clocked in at number 4. It is quite possible that part of the reason why their numbers are so high in the survey is that their citizens have less incentive to refrain from getting behind the wheel after a few too many drinks. Republican Representative Jim Ott, who authored the bills, was quoted “I think it would be a deterrent effect. I think if people recognized and were taking drunk driving more seriously in Wisconsin than we have in the past, that it would cause people to not drive drunk and be a first offender.”

According to the Wisconsin Department of Transportation there were 25,734 OWI citations in 2015, 93% of which were found guilty. In theory, categorizing a first offense OWI as a criminal act and processing a drunk driver’s sentence as such should be a deterrent and keep those who are considering the additional drink from climbing behind the driver seat. However, I am fairly certain that there is a significant number of people who didn’t want to deal with civil action and simply plead guilty since the penalty was only a fine. However, if that were to be a criminal mark on your record, people will undoubtedly start to pay a little more attention to the seriousness of the situation. Consequently, criminal defense attorneys can apply their expertise to make sure that the arrests are legitimate before allowing their clients to plead guilty to what is now a criminal action with more serious consequences.

There is also a major question that will need to be addressed should these bills go forward: Is Wisconsin’s court system actually prepared for this change? The bills still have to go through another group of lawmakers before being presented to the floor for a vote, but if they do go through, there are changes to the court system and the entire criminal process that may make things difficult in other ways.

Because even first offenses will be considered criminal, all OWI cases will need to start going through the District Attorney’s office. If there is a lack of sufficient personnel to handle such an increased caseload at the District Attorney’s office, the delays in charges being filed that would result is likely inevitable. Not only that, are the jail systems prepared to handle the increase for if offenders as a result of the new laws?

Time will only tell what happens with the new laws, whether they get passed, and, if so, what effect it will have on deterrence, the court system, and the district attorney’s office.

It is not uncommon for police to be trained in recognizing drug intoxication. But should they be allowed to testify as experts in court about drug intoxication in DUI cases?

At least one judge believes not, and rightfully so.

Timothy B. Callahan, from Cheshire, Massachusetts, was pulled over in May of 2016 after police received a report that he had smoked laced marijuana and was acting violently. Additionally, he was alleged to have been speeding and driving erratically before the stop.

Callahan was arrested on suspicion of driving under the influence (operating a motor vehicle under the influence or “OUI” as it’s called in Massachusetts).

While being booked, police called in Officer Brennan Polidoro to observe Callahan.

Polidoro received a drug-recognition certificate in 2014 and has since been considered the only Drug Recognition Expert in the county. As of the summer of 2018, Polidoro had evaluated over 15 people accused of driving under the influence of narcotics.

Following Polidoro’s evaluation of Callahan, Polidoro determined that Callahan was under the influence of drugs and Polidoro’s conclusions were included into the police report.

During Callahan’s criminal case, prosecutors sought to have the court recognize Polidoro as an expert so that he could provide testimony about the effects of drugs on a human and offer an opinion as to whether someone was under the influence of drugs.  

Callahan’s attorney filed a motion seeking to exclude Polidoro’s testimony as an expert.

During the hearing on whether Polidoro should be allowed to testify as an expert, the prosecution offered evidence that Polidoro was trained in drug recognition and that the training was based on three law enforcement studies from 1985, 1986, and 1994. Evidence was also offered that after evaluating 12 individuals during training, Polidoro was determined to be “proficient” by his instructors who formed their opinions as to his proficiency based on the same studies.

Let me get this straight. The prosecution is arguing that an officer should be deemed an “expert” in how chemicals affect the human body if other law enforcement officers think they’re proficient, not physicians or chemists or other medical professionals? “Proficiency” after 12 training evaluations, really? Am I missing something? Does Polidoro have a background in chemistry or medicine?

What’s more, “proficiency” as determined by law enforcement is an accuracy rate of 43% to 49% when people did not have drugs in their system. Really?!?! That means that law enforcement considers being wrong 57% to 51% of the time as “proficient.” With people’s lives at stake, you’d think they’d set their standards a little bit higher.

Fortunately, the court disagreed with the prosecution.

“As law enforcement has embraced these studies as the basis for their trainings, the Court finds that, `proficient,’ as used by law enforcement means a 43% to 49% accuracy rate for identifying those subjects with no drugs in their systems,” said Judge Jennifer Tyne. “The Court does not find this to be reliable, let alone proficient.”

“Based on the evidence presented at this hearing, the Court finds that the body of knowledge, the principles and the methods that the officer was instructed on are not reliable predictors of whether an individual is under the influence of certain narcotics,” Tyne said.

Having denied the prosecution the ability to introduce Polidoro’s testimony about drug recognition and the effects of drugs on humans as an expert, Judge Tyne did, however, say that Polidoro could testify about his observations of Callahan and any statements Callahan might have made after Callahan’s arrest.

Callahan may very well have been under the influence of drugs while driving, but that’s not the point. The court should not allow the testimony of “experts” without a sufficient basis to deem that person an expert. Doing so can lead to wrongful convictions in DUI and any other types of criminal cases.