Monthly Archives: July 2014

What Happens When a Cop Taps at Your Car Window…and You Just Drive Away?

So you've had a few drinks.  You decide to pull over, and you're sitting behind the wheel of your car in an empty parking lot with the engine running.  Suddenly, in your rear-view mirror you see a police car pull in behind you with his headlights on.  You wait for the friendly face to appear in your driver's side window.  Sure enough, a uniformed cop walks up from his car and knocks on your window.  He shines a flashlight in your face and motions for you to roll the window down.

Then you pop it into gear and drive away…

Major problems, right?  Maybe not:

Wisconsin Supreme Court Upholds Driving Away from Cop at Window

Grant County, WI.  July 25 — When Wisconsin police officers knock on the window of a car and motion to roll down the window, the state Supreme Court said in a 5 to 2 ruling that the motorist is free to ignore the cop and drive away.

"Although we acknowledge that this is a close case, we conclude that a law enforcement officer's knock on a car window does not by itself constitute a show of authority sufficient to give rise to the belief in a reasonable person that the person is not free to leave," Justice David T. Prosser wrote for the majority.

The justices argued in the context of the December 25, 2011 incident in which Grant County Deputy Sheriff Matthew Small knocked on the window of Daniel A. Vogt who was parked with the engine running in the Riverdale Park parking lot the village of Cassville at 2am. It was 37 degrees at the time. Vogt had done nothing illegal, but Deputy Small thought it was suspicious that Vogt was in the parking lot of a park that had closed at 11pm.

Deputy Small stopped behind Vogt's car with his headlights on, but his overhead red and blue lights off. He walked up to the car and saw Vogt in the driver's seat and Kimberly Russell in the passenger seat. He testified that he would have let Vogt go had he driven off because he "had nothing to stop him for."

Vogt did not drive off, because he thought he could no do so without hitting the deputy. He believed that he had no choice but to comply. Once the window was down, Deputy Small smelled alcohol and noticed Vogt's speech was slurred. This led to Vogt's arrest for driving under the influence of alcohol (DUI). The court's majority argued that the initial interaction was voluntary.

"The objective of law enforcement is to protect and serve the community," Justice Prosser wrote. "Accordingly, an officer's interactions with people are not automatically adversarial. A court's 'seizure' inquiry into one of these interactions must examine the totality of the circumstances, seeking to identify the line between an officer's reasonable attempt to have a consensual conversation and a more consequential attempt to detain an individual."

Because the deputy did not have his emergency lights activated, the majority believed a reasonable innocent person in the same situation could have driven off while the officer knocked at the window. The majority refused to speculate what would have happened to Vogt had he actually driven away. The dissenting justices said the majority position was absurd.

"The world of legal decisions does not reflect the real world," Chief Justice Shirley S. Abrahamson wrote. "No reasonable person I can imagine would feel free to drive away under the circumstances of the present case when the officer knocked on the car window and instructed the person to roll down the car window. A reasonable person would be concerned that driving away could be viewed as violating some law that governs obstructing an officer, disobeying an officer, or fleeing."

Why is this state supreme court court decision so surprising to most of us?  The reason this ruling is newsworthy is that we've slowly accepted the fact that in DUI investigations, most constitutional rights have gradually been eliminated.  See The DUI Exception to the Constitution.  This decision is a somewhat startling reminder that the Constitution still exists — even in suspected drunk driving cases. 

Can Out-of-State Priors Increase a California DUI Sentence?

If a person suffers a California DUI conviction, any subsequent California DUI conviction within a ten year period carries with it an increased punishment.

Generally a first-time California DUI conviction carries three to five years of summary (informal) probation, up to six months in jail, between $390 and $1,000 in fines, completion of a court-approved three month DUI program, and a six-month license suspension.

A second-time California DUI conviction carries three to five years of summary probation, a minimum of 96 hours to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court-approved 18 month DUI program, and a two-year license suspension.

A third-time California DUI conviction carries three to five years of summary probation, a minimum of 120 days to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court approved 30-month DUI program, and a three-year license revocation.

What if someone suffers, say, a Florida DUI conviction in 2007 and then gets arrested this year in California for DUI? Can the Florida conviction be used to increase the punishment in the California DUI conviction?

As the answer is with many legal questions: It depends.

It depends on whether the conduct that led to the Florida conviction (or any out-of-state conviction) meets the elements of a California DUI charge.

In Florida, the DUI statute reads:

“A person is guilty of the offense of driving under the influence… if the person is driving or in actual physical control of a vehicle within this state and…[t]he person is under the influence of alcoholic beverages…when affected to the extent that the person’s normal faculties are impaired…”

Florida’s statute requires that a person impaired “to the extent that the person’s normal faculties are impaired.” This standard is less strict than California. California requires that a person be impaired to an appreciable degree. Thus, a person may be deemed impaired under Florida’s standard, but not necessarily under California’s.

Florida’s statute also requires that someone drives or is “in actual physical control of a vehicle.” This makes Florida what is called a “dominion and control state.” A person can have dominion and control over a vehicle by simply being in the driver’s seat. California’s DUI law, on the other hand, requires that a person actually drive the vehicle. Therefore, a person can be convicted under Florida’s DUI law by sitting in the driver’s seat while intoxicated. However, someone sitting in the driver’s seat while intoxicated cannot be convicted under California’s DUI law.

Let’s put this into context as it relates to whether an out-of-state prior can be used to increase the punishment in a California DUI case.

In 2007, John Doe is arrested and convicted in Florida under Florida’s DUI law because he was drunk and unconscious in the driver’s seat of a parked vehicle. Seven years later (and within the 10 year “washout period”) in 2014, John Doe is arrested in California under California’s DUI law when he is spotted swerving on the highway by law enforcement.

Prosecutors will be unable to use John Doe’s Florida conviction to increase the penalties in his California case because the facts which gave rise to the Florida conviction would not meet the elements of California’s DUI law because California requires that a person actual drive the car.

Mixing Energy Drinks with Alcohol Increases the Risk of Drunk Driving

I always preferred a cold beer to other drinks. This was true even back in my college partying days. But for many college students nowadays, an increasing trend is mixing alcohol with energy drinks. Popular combinations include vodka and Redbull, vodka and Rockstar, and Jagerbombs (dropping a shot of Jagermeister into half a pint of Rebull).

Several mistaken beliefs have given rise to the trend of mixing alcohol and energy drinks, some of which includes being able to drink more, stay up later to continue drinking, staying alert to drive home.

Unfortunately, the mixing of alcohol and energy drinks actually increases the risk of over intoxication and drunk driving.

A recent study conducted by the Center for Research on Aging, Health and Well-Being at the Australian National University in Canberra found that mixing alcohol with energy drinks increases the urge to drink more alcohol.

Participants were given either a mixture of vodka and Redbull or a mixture of vodka with soda water. Pineapple juice was added to both cocktails so that the participants would not know whether their drink contained an energy drink. The participants were asked to complete an “Alcohol Urge Questionnaire” 20 minutes before and after drinking their respective mixtures to indicate how strong their desire was to continue drinking.

The participants who drank the mixture of alcohol and energy drink reported a greater urge to continue drinking alcohol than those participants who drank the cocktail without the energy drink.

Energy drinks contain stimulants like caffeine, taurine, and ginseng. Alcohol, on the other hand, is a depressant. While drinkers might think that the effect from stimulants might counterbalance the depressant effects of the alcohol, the combination of stimulants and depressants is actually sending the body mixed signals.

This is supported by a 2010 study which found that college students who mix energy drinks with alcohol are also more likely to engage in risky behaviors including driving drunk or accepting a ride from someone who was drunk. According to Dr. Mary Claire O’Brien of Wake Forest University, who conducted the study, “Students whose motor skills, visual reaction times, and judgment are impaired by alcohol may not perceive that they are intoxicated as readily when they’re also ingesting a stimulant. Only the symptoms of drunkenness are reduced – but not the drunkenness. They can’t tell if they’re drunk; they can’t tell if someone else is drunk.”

Therefore, if people are less likely to tell if they are drunk, they are more likely to think they are sober enough to drive or someone whom they accept a ride from is sober enough to drive. This is particularly troubling when coupled with the findings that energy drinks increase the urge to drink more alcohol.

If you enjoy mixing alcohol with energy drinks, regardless of why, be aware of a few things: you are more likely to over drink, you are probably drunker than you think you are, and you are more likely to mistakenly believe that you’re ok to drive home.  

Murder Conviction for a DUI Fatality

A Southern California man was sentenced to 34 years to life in a California State prison last week for a 2012 DUI that led to the death of two Caltrans workers. Amongst other charges, Yocio Jonathan Gomez was convicted of second degree murder.

Gomez, 25, was driving a Ford Explorer 90 miles an hour through a construction zone in Torrance in the early morning hours of July 22, 2012. According to the Los Angeles County District Attorney’s Office, Gomez lost control of his vehicle which struck another SUV. The SUV spun out of control striking Caltrans workers, Ricardo Zamora, 58, and Ramon Lopez, 56, killing both. A third worker was also injured.

It was later determined that Gomez’s blood alcohol content was 0.21 percent. Gomez was charged with and subsequently convicted of second degree murder.

A conviction of second degree murder for a DUI related fatality such Gomez’s always raises questions, especially amongst students of mine. How can someone, who doesn’t intend to kill anyone, be charged with murder?

Gomez’s conviction of second degree murder turned on one very significant fact: it wasn’t his first DUI.

Prior to 1981, a person who killed another in the course of driving under the influence could not be charged and convicted of murder. However, the landmark case of People v. Watson (1981) 30 Cal.3d 290, changed all of that.

California Penal Code section 187(a) provides that “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” Section 188 provides that malice can either be expressed or implied and implied malice is present “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

What does that mean?

According to People v. Phillips, (1966) 64 Cal.2d 574, 587, second degree murder based on implied malice has been committed when a person does “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”

With this foundation, the Watson court found that if the facts surrounding the DUI support a finding of “implied malice,” second degree murder can be charged. If the facts surrounding the DUI only support a finding of “gross negligence,” only vehicular manslaughter may be charged.  

The difference between implied malice and gross negligence is wafer thin. Gross negligence occurs when a person acts in a reckless way that creates a high risk of death or great bodily injury and a reasonable person would have known that acting in that way would create such a risk.

How does the prosecutor prove that a person acted with implied malice rather than gross negligence?

Since Watson, courts began expressly advising convicted DUI defendants that it is extremely dangerous to human life to drive while under the influence of alcohol or drugs or both and if the defendant continues to do so and, as a result of their driving, someone is killed, they can be charged with murder.

In other words, it’s the court’s way of telling someone, “You’ve done it once, now consider yourself warned. If you do it again, it’s no longer reckless, it’s a conscious disregard for human life.”

Is Blood-Alcohol Analysis at a Hospital Accurate?

If you are arrested for drunk driving, you will usually be given either a breath or a blood test.  

The breath test is far more commonly given in DUI cases in most jurisdictions; it is quick, cheap, easy and gives immediate results.  In many cases, however, a blood sample will be withdrawn – typically at the police station if a phlebotomist is available, at a law enforcement crime laboratory, or at a private lab contracting with law enforcement.  This may be because a breath machine is unavailable, because the suspect is being treated at a hospital for injuries from an auto accident, or – increasingly – blood is forcefully taken where the suspect refuses to breathe into the machine.  

Generally speaking, the blood test is more accurate than the breath test.  See, for example, How Breathlayzers Work (and Why They Don't).  But blood testing in DUI cases has its own sources of inaccuracy.  See, for example, Fermentation in Blood Samples Produce…Alcohol and Can Coagulation of the Blood Sample Raise the Alcohol Level?  

One source of error in blood testing, however, is encountered in the situation mentioned where the DUI suspect has been involved in an automobile accident and has been taken to a medical facility for treatment.  A blood sample may be withdrawn for diagonostic reasons — during which blood-alcohol levels may be determined and given to law enforcement. Or the arresting officer accompanying the drunk driving suspect may direct hospital personnel to extract a blood sample for alcohol analysis at the hospital.  In either case, there exists a built-in source of error — which may lead to the conviction of an innocent citizen.

From my book Drunk Driving Defense (7th edition):

Blood samples obtained in drunk driving cases are generally — but not always — analyzed as whole blood (sometimes called "legal blood").  If the sample is analyzed for medical purposes, however, the test will probably be done with serum (often referred to as "medical blood").  Serum is the clear yellowish fluid obtained from separating whole blood into its solid and liquid components (usually by centrifuging the sample); the liquid portion of the blood is called plasma, which is similar to serum.  A third method involves precipitating proteins from the blood sample and centrifuging it; the result is a clear liquid called supernatant which is then analyzed.

Will analysis of serum/plasma or supernatant result in the same blood-alcohol readings as analysis of the whole blood?  In a study entitled "Distribution of Ethanol: Plasma to Whole Blood Ratios" (Hodgson and Shajani, 18 Forensic Science Journal 73, 1985), scientists attempted to determine the answer to this very question.  The conclusion:  Blood-alcohol concentrations in plasma were approximately 11 percent higher than that of whole blood, and those in supernatant were about 5 percent higher….

For a study that found that serum-alcohol concentration can be up to 20 percent higher than blood-alcohol concentration, see Frajola, "Blood Alcohol Testing in the Clinical laboratories: Problems and Suggested Remedies", 39(3) Clinical Chemistry 377 (1993).

Bottom line:  Any method of analyzing the amount of alcohol in a DUI case is subject to wide-ranging sources of error.