Monthly Archives: August 2014
In a widely-criticized 5-4 decision, the United States Supreme Court in Michigan vs Sitz decided some years ago that DUI sobriety checkpoints (aka “DUI roadblocks) did not violate the search-and-seizure provisions of the Fourth Amendment of the U.S. Constitution. See my post Are DUI Roadblocks Constitutional?.
However, it is not illegal to detect and avoid DUI sobriety checkpoints. And, in fact, the court in Sitz indicated that there were restraints on law enforcement in planning, setting up and administering these sobriety checkpoints. These restraints were left up to the individual states to determine, but most have adopted guidelines similar to those recommended by the California Supreme Court in Ingersoll vs Palmer. Among these are that the checkpoints must be publicized to minimize intrusiveness.
A further requirement, the Court in Ingersoll said, is that “A sign announcing the checkpoint was posted sufficiently in advance of the checkpoint location to permit motorists to turn aside, and under the operational guidelines no motorist was to be stopped merely for choosing to avoid the checkpoint.” See Turning Away from a California DUI Sobriety Checkpoint. Of course, the police will be suspicious of anyone attempting to avoid a DUI sobriety checkpoint — and will commonly try to find some justification for stopping them, such as the driver making an illegal U-turn or having defective brake lights.
The best course of action: since the sobriety checkpoints must be previously publicized, find out where and when any DUI checkpoints in your area are going to be set up — and avoid them. Unfortunately, the police usually choose to “publicize” them in a tiny notice in the back pages of a minor newspaper.
So how can you locate planned DUI sobriety checkpoints in your area?
Simple: Visit the sobriety checkpoint page on my DUI defense law firm’s website: Sobriety Checkpoints: Laws and Locations. Understandably, the focus is on sobriety checkpoints located in California, but there is also information on access to the locations of checkpoints nationwide.
Last year, the United States Supreme Court issued its long-awaited decision in Missouri vs. McNeely, a DUI case that involved the right of police officers to forcefully take a blood sample from a driver without his consent or a search warrant. The Court ruled that absent any exigent circumstances, such a taking of blood constituted a violation of the 4th Amendment’s right to be free from unreasonable searches of the person. Natural dissipation of alcohol from the system (present in every case) did not constitute such an exigency. (I am, incidentally, flattered and greatly honored that in his written opinion Chief Justice Roberts cited my book, Drunk Driving Defense (7th edition), as recognized legal authority in the field.)
Question: Most states have "Implied Consent" laws which basically state that anyone who drives on the highways impliedly consents to submit to blood-alcohol testing. Further, a refusal to do so can result in extended licenses suspensions and/or criminal punishment. So, doesn’t the McNeely decision overrule this? Is an officer permitted to forecefuly take a blood sample without that drivers express consent?
The state supreme courts have been silent about this….until now:
S.D. Supreme Court: No Implied Consent in DUI Cases
Sioux Falls, SD. Aug. 21 — The South Dakota Supreme Court confirmed Thursday that police cannot collect blood samples from DUI suspects without consent or a warrant.
The ruling strikes down the state’s 2006 implied consent law that allowed police to draw blood from DUI suspects, by force if necessary.
The decision leaves legislators to decide whether to return to a previous law, which suspended the driver’s licenses of those who refuse a blood test, to write a new law or to do nothing.
A penalty for refusal was in place before and could be modified by incoming lawmakers. Some say a return to the old system would be wise.
“Everybody’s going to refuse it unless there’s some kind of penalty,” said Sen. Tim Begalka, R-Clear Lake.
Others, including the law’s author, Lee Schoenbeck, say the strike down means that police now will need to incorporate telephonic warrants for blood draws into their standard practices.
“It takes about five minutes,” Schoenbeck said.
The state high court’s ruling comes more than a year after the U.S. Supreme Court decision in Missouri vs. McNeely, which held that the natural dissipation of alcohol in the blood does not constitute an exigent circumstance justifying a warrantless blood draw in drunken driving cases.
Defense lawyers have argued since then that McNeely invalidated South Dakota’s implied consent law. South Dakota Attorney General Marty Jackley had argued that the decision did not deal a death blow to implied consent, as McNeely dealt with a different law in a different state…
It will be interesting to see how the other states decide to apply the U.S. Supreme Court’s decision.
Have you ever wondered what the statistics are for drunk driving? Have you ever thought, for example, “I wonder what percent of people arrested for drunk driving are female”? Or, “What is the average age of drivers arrested for DUI”?
Well, now the answers are readily available in clearly displayed graphics — at my own 5-attorney DUI defense firm’s extensive legal resource center. In a section entitled (appropriately) DUI Statistics, the answers to these questions are displayed, along with dozens of others such as:
What is the average age of individuals arrested for drunk driving?
How many people are arrested annually in the United States?
What percent of those arrested for DUI are African-American?
Approximately how many Americans drive under the influence of alcohol per day?
What is the average blood alcohol level of drivers arrested for DUI?
What is the recidivism rate — that is, the percentage of drunk drivers convicted a second time?
What is the statistical chance of your being involved in a DUI-related crash in your lifetime?
The California Supreme Court recently issued a decision that has followed an unfortunate line of similar decisions which continue to corrode away our constitutional rights. The California Supreme Court, in the case of People v. Tom, has ruled that silence can be used against suspects.
The case stems from a 2007 case where Richard Tom collided with another vehicle while speeding, killing an 8-year-old girl and leaving her sister and mother injured. Tom was placed in the back of the police car, but not read his Miranda rights until later in the evening. During the trial, prosecutor Shin-Mee Chang repeatedly referenced Tom’s failure to inquire into the wellbeing of the victims following the collision and argued that his silence was “substantive evidence of guilt.”
“I’m not saying that he has to say sorry as an expression of his guilt or as some kind of confession but simply as an expression of his regret,” Chang told the jurors.
Tom was also charged with DUI. Immediately following the collision, Tom’s blood alcohol level measured 0.04 percent. Although prosecutors argued that Tom’s blood alcohol content was actually 0.98 percent at the time he drove, the jurors acquitted Tom of alcohol-related charges.
Tom was convicted of manslaughter and was sentenced to seven years in prison.
The California Court of Appeals held that Tom was under de facto arrest when he was placed in the back of the police car and, therefore, “the trial court erred in admitting evidence in the prosecution’s case-in-chief of the defendant’s post arrest, pre-Miranda failure to inquire about the welfare of the occupants of the other vehicle…”
The issue before the California Supreme Court in this case was, thus, slightly different than the issue in last year’s United States Supreme Court case of Salinas v. Texas (2013) 133 S.Ct. 2174. In Salinas, the Court held that, when a person does not expressly invoke his 5th Amendment privilege not to incriminate, pre-arrest and pre-Miranda silence can be used as evidence of their guilt.
The California Supreme Court, however, relied rather heavily on the rationale behind United States Supreme Court’s decision in Salinas.
“If an ambiguous act, omission, or statement could qualify as an invocation, ‘police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression “if they guess wrong.”’” (Citing Berghuis v. Thompkins (2010) 560 U.S. 370)
Amongst other criticism, Justice Goodwin Liu remarked in his dissent, “The court today holds, against common sense expectations, that remaining silent after being placed under arrest is not enough to exercise one’s right to remain silent.”
“It’s a very dangerous ruling,” said Tom’s attorney, Marc Zilversmit. “If you say anything to the police, that can be used against you. Now, if you don’t say anything before you are warned of your rights, that too can be used against you.”
I agree with Zilversmit’s conclusion; you’re damned if you do and damned if you don’t.
The 5th Amendment right against self-incrimination is a right. It has no beginning, nor does it have an end. The right exists indefinitely and it should not be inferred that a suspect waives it when their actions are exactly what the right confers; remaining silent.
Tom, and other people who happen to find themselves in a similar position, should not be compelled to announce that right. The Constitution has already done so.
I've commented in the past on the increasingly severe punishments meted out in DUI cases. See, for example, Life in Prison…for Drunk Driving, Another Life Sentence for Drunk Driving and Third DUI = Life in Prison. With one eye on the next elections, politicians continue falling over themselves in passing ever-tougher DUI laws. Prosecutors and judges, too, are anxious to appear "tough on DUI" in their desire to gain MADD's endorsement and be re-elected.
Result: citzens — commonly suffering from the recognized disease of alcoholism – convicted of committing a thrid misdemeanor DUI are given prison sentences normally imposed on murderers.
A recent example:
Appeals Court Upholds Life Term for DWI Convict
Austin, TX. Aug 2 – A state appeals court has upheld the life sentence of a Central Texas woman who contended her imprisonment for a third felony conviction for driving while intoxicated was improper cruel and unusual punishment.
The 3rd Court of Appeals has ruled the lawyer for Rose Ann Davidson didn't properly object to the sentence during her Hays County trial. But a three-judge panel of the court said Friday even if the issue was preserved properly for appeal, her sentence wouldn't be reduced because of her repeated convictions.
The Austin American-Statesman reports that when Davidson was convicted in 2012, it was her third offense since 2008, making her eligible for punishment as an habitual offender.
"Habitual offender". Translation: suffering from alcoholism.
I suppose throwing an addict in prison for the rest of her life is politically more convenient than providing treatment.