Monthly Archives: October 2014

Drunk Driving…on a Horse

Police and prosecutors are constantly trying to stretch DUI laws to ensnare more citizens. One of the more creative ways is to simply re-define the language in those laws. For example, it is a criminal offense to drive a vehicle under the influence of alcohol. Well, what does “vehicle” mean? A car or truck, right?

Let’s look at a few examples of some of the more successful “interpretations”. The appellate courts of this great nation have sustained DUI convictions for driving a tractor, (N. Carolina: State v. Green, 110 S.E.2d 805), a moped (New Mexico: 24 P.2d 365), and even a snowmobile (Michigan: 475 N.W.2d 717). So where does it all stop?

Well, the Associated Press reported the arrest of a gentleman in Arkadelphia, Arkansas, for DUI — on a lawnmower.  And an Ohio appellate court, in its judicial wisdom, sustained a conviction for drunk driving on a bicycle (531 N.E.2d 775). A bicycle, the court said, was a “vehicle” — at least, for the purposes of the DUI statute.

Hmmmmm….the next thing you know they’re going to start arresting people on horseback!  Oh, right, it’s been done….

San Francisco police, for example, arrested one Tyrone McDonald and charged him with “driving” (a horse) under the influence of alcohol. McDonald had become intoxicated and stolen a horse from a nearby racetrack, which he promptly rode into the path of an oncoming truck. He was arrested for grand theft, cruelty to animals…and drunk driving.

Not to be outdone, police in Mercer County, Pennsylvania, arrested a man for riding a horse while intoxicated. The trial judge, cleverly realizing that the term “vehicle” in the drunk driving statute did not really mean “horse”, threw the charges out. The prosecution, apparently unable to see the judge’s logic, appealed all the way to the Pennsylvania Supreme Court. Fortunately, sanity again prevailed and the lower court’s decision was affirmed. One justice on the Court, however, insisted that a horse was, in fact, a vehicle and wrote a dissenting opinion in which he (no joke) wrote the following poem:

“A horse is a horse, of course, of course, but the Vehicle Code does not divorce its application from, perforce, a steed as my colleagues said. ‘It’s not vague’, I’ll say until I’m hoarse, and whether a car, a truck or hors, this law applies with equal force, and I’d reverse instead.”

At least, the guy has style….

CHP Officer Stole Nude Photos of DUI Suspect from Her Phone

I remember as a kid being told to find a police officer if I was ever in trouble, the idea being that we, as citizens, should be able to trust that law enforcement will protect and serve our best interests. As a child, I had no reason to question my parent’s advice. However, as an adult, I find it increasingly difficult to follow my parents’ words of wisdom.

So what is the latest transgression in, what seems like, an ever-increasing upsurge of law enforcement transgressions?

According to court documents obtained by the Contra Costa Times, a California Highway Patrol officer is alleged to have gone into the phone of a DUI suspect whom he pulled over and sent nude images to himself of the DUI suspect.

Sean Harrinton, a five-year veteran of the California Highway Patrol, and his partner pulled over a woman on August 29th of this year for making an unsafe lane change in Northern California. The woman allegedly failed field sobriety tests and was determined to have a blood alcohol content of 0.29 percent. She was subsequently arrested and taken to the local county jail for booking.  

While at the county jail, Harrington secretly went into the woman’s phone and sent himself images of the woman, both nude and in a bikini.

Although the District Attorney’s office and the CHP declined to comment on the case, the Contra Costa Times has reported that a Contra Costa District Attorney investigator has recommended felony computer theft charges against Harrington.

Harrington has been assigned to desk duties pending the investigation.

"We think it’s a horrendous breach of the public trust," said Rick Madsen, a private Danville attorney representing the woman. "We believe Officer Harrington committed a clandestine and illegal intrusion into her privacy which is unspeakable considering his sworn duty to protect the public. My client remains understandably distraught as we await further information about who else may possess the photos and what further investigation may uncover."

Although Harrington’s search of the phone may not have been for the purpose of obtaining evidence against the woman, the breach of privacy is nonetheless disturbingly illegal.

The United States Supreme Court recently unanimously held in Riley v. California, 573 U.S. ___ (2014), that warrantless searches and seizures of digital contents of a cellphones during an arrest are unconstitutional.

“Modern cellphones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’ wrote the Court. “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.”

The woman apparently had given Harrington the password to her phone for the purpose of obtaining a number from the phone. The scope of her consent was to the phone number and only the phone number, nothing more.

According to court records, the woman’s DUI case has since been dismissed as a result of the investigation into Harrington’s actions. And rightly so. If Harrington was willing to violate the woman’s privacy rights, what else was he willing to do to taint the DUI investigation?

California DUI Probation

Most people who are convicted under California’s DUI laws will receive probation. One of the most common questions I get from my clients during DUI sentencing is, “What does probation consist of?”

Generally speaking, probation is supervision for a specified period of time, during which a person must satisfy specific conditions. Probation can be either formal or informal. Formal probation requires that a person periodically report to a probation officer who supervises the probationary period. Informal probation, on the other hand, is almost always given for a misdemeanor California DUI conviction and does not require a person to report to a probation officer. Rather, a person on informal probation agrees to complete the conditions on their own and without the supervision of a probation officer.

Depending on the circumstances of the case, a person convicted of a California DUI is usually given between two and five years of informal probation. A person convicted of a California “wet-reckless” may be given two years of probation while a person who has been convicted of a second or more DUI within ten years may be given five years of probation.

During the probationary period, a person convicted of a California DUI must complete “conditions of probation.” If the person fails to complete the conditions of probation, they will be charged with a probation violation. If a person is convicted of a probation violation, the court has the authority to (although rarely does) sentence the person to the maximum allowable punishment by law for a DUI. In California, the maximum sentence when probation is granted is six months in jail and a fine of $1,000 (not including court penalties and assessments which usually quadruple the amount).

So what are some of the conditions that the court requires following a California DUI conviction?

First and foremost, stay out of trouble. This means do not pick up any other convictions, either misdemeanor or felony, during the probationary period. This does not include infractions.

The court will also require that a person enroll and complete a DUI program. The length of the program can range between twelve hours and thirty months. Information on the different types of programs can be found on my last post:

Fines ranging between $390 and $1,000 must also be paid by a certain date set by the court within the probation period. As stated above, this amount usually quadruples after the court tacks on “penalties and assessments.”

The court will order the driver’s license suspended independent of any action taken by the California DMV. The length of the suspension will range from six months to four years.

California Vehicle Code section 23154(C)(1) requires that a person on probation for DUI “who drives a motor vehicle is deemed to have given his or her consent to a preliminary alcohol screening test or other chemical test for the purpose of determining the presence of alcohol in the person…”

California Vehicle Code section 23600 prohibits anyone who on probation for a California DUI from driving with any measurable amount of alcohol in their system. This means that a person cannot even have a blood alcohol content level of 0.01. If a person on probation violates this law and has a blood alcohol content level of 0.04 percent or more, their probation will be revoked unless they spend at least two days in county jail.

The court may also order the installation of an ignition interlock device (IID) as a condition of probation.  Some counties, including Los Angeles, require an IID be installed on any vehicle to be driven by the person on probation.

If the case involves aggravating facts such as a high BAC or an accident, the court may require the person to attend Alcoholics Anonymous meetings, a Mothers Against Drunk Driving Victim Impact Panel, or a Hospital and Morgue Program.

New Marijuana Study Skewed by the Media


Have you seen the recent headlines, “Study Finds Marijuana as Addictive as Heroin” or “Marijuana Makes you Stupid.” I did and immediately asked myself, “Have we gone back in time?”

After reassuring myself that we hadn’t, in fact, gone back in time, I pulled up the study that prompted so many Reefer Madness-esque headlines.

Recently published in the latest volume of the journal, Addiction, the article is a review of the last 20 years of research on the health effects of marijuana. As it turns out, the study, authored by Wayne Hall, a drug advisor to the World Health Organization, is not telling us anything we don’t already know. Instead, the media has skewed and misquoted the findings to, surprise surprise, create an eye-catching headline.

Although the study found that marijuana use had no permanent effect on the IQ of people who use marijuana periodically or started using as adults, media alarmists chose to focus their attention on the one and only group of people whose IQ was affected by marijuana use. That group was “the small proportion of cannabis users who initiated in adolescence and persisted in daily use throughout their 20s and into their 30s.”

Is marijuana really as addicting as heroin as many of the headlines read? Let’s see what the article actually says. “The life-time risk of developing dependence among those who have ever used cannabis was estimated at 9% in the United States in the early 1990s as against 32% for nicotine, 23% for heroin, 17% for cocaine, 15% for alcohol and 11% for stimulants." Yes, you can become addicted to marijuana, just as you can become addicted to nearly anything, but the study makes it quite clear that it is significantly less than most drugs.

The study doesn’t say anything we don’t already know about marijuana’s effect on driving, namely that marijuana use doubles the risk of an automobile accident. According to the study, “…it was clear from laboratory studies that cannabis and THC produced dose-related impairments in reaction-time, information-processing, perceptual-motor coordination, motor performance, attention and tracking behaviour. This suggested that cannabis could potentially cause car crashes if users drove while intoxicated, but it was unclear whether in fact cannabis use did so. Studies in driving simulators suggested that cannabis-impaired drivers were aware of their impairment and compensated for these effects by slowing down and taking fewer risks. There were similar findings in the few studies on the effects of cannabis use on driving on the road…In summary, the epidemiological and laboratory evidence on the acute effects of cannabis suggests strongly that cannabis users who drive while intoxicated increase their risk of motor vehicle crashes 2–3 times as against 6–15 times for comparable intoxicating doses of alcohol.”

Other shocking revelations by the study:

Marijuana use has dramatically increased in recent times, yet there has been no increase in the rates of psychosis…despite what the headlines say.

You actually can overdose on THC, the active compound in marijuana. Based on animal studies, the estimated fatal dose of THC is between 15 and 70 grams. Let’s put this in perspective. The average joint has about 0.06 grams of THC. So based on animal studies, it is estimated that someone can die if they smoke between 238 and 1,113 joints in a day.

Pregnant women should not use marijuana. Big surprise. The study found that there is an evidentiary link between marijuana use during pregnancy and cognitive problems of the child later in life. However, “uncertainty remains because of the small number of studies, the small samples of women in each and the researchers’ limited ability to control for the confounding effects of other drug use during pregnancy, maternal drug use post-birth and poor parenting.”

Don’t believe everything the headlines tell you.

Ohio Supreme Court Rules: Breathalyzers Are Not Immune from Attack

As I’ve written over and over in past years, breath machines used in DUI cases to determine blood alcohol level are inaccurate and unreliable.  See. for example, How Breathalyzers Work (and Why They Don’t), Attorney General Finds Massive Breathalyzer Inaccuracies: Police Shut Down All Machines, and 400 Wrongly Convicted in Washington: Faulty Breathalyzers.  And yet these machines continue to be treated by the courts and legislatures as bullet-proof.  Laws continue to admit breath test results in as nearly conclusive evidence of guilt — and severely restrict those accused of challenging their accuracy.

One of the most significant examples was an Ohio Supreme Court case, State v. Vega.  In that 1984 case, the court incredibly held that in DUI cases breath test results could not be challenged: if the state legislature approved the use of the device, then defense attorneys could not attack it in cross-examination or offer independent evidence of its inaccuracy or unreliability.  See my post Ohio Bars Defendants from Challenging Breathalyzers.

This has been the law in Ohio for over 30 years: a citizen accused of drunk driving could not question the machine’s accuracy.  A few days ago, however, that blind acceptance finally changed….

Ohio Supreme Court Ruling Could Change State Breathalyzer Test Laws

Columbus, OH.  Oct 1 – Defense attorneys are calling it a major blow to alcohol breath machines used to convict people of driving under the influence.

For the first time, the Ohio Department of Health must turn over all data captured by a machine that helps to determine if a person is driving under the influence. The ruling by the Ohio Supreme Court is a considered a victory by defense attorneys. Many have argued for years that denying that information to clients makes it difficult to prove if the alcohol breath machines are reliable.

Defense attorneys believe the ruling will give them a better chance of helping prove their clients were not above the legal limit when they blow into the state’s two approved breathalyzer machines.

The Ohio Health Department says the machine is scientifically proven to accurately measure a person’s alcohol level in their lungs. It’s the breathalyzer police use to determine if someone is guilty of driving over the limit.

“Clearly, if you have a situation where a breath test machine shows a lot of issues, then the folks who blessed it really ought to be re-thinking that decision,” says attorney Tim Huey…

The Ohio Supreme Court was also puzzled, and later ordered the state to turn over the information.

“You’re telling me that if a defendant is about to go to jail, and a physicist from Harvard that wanted to say these machines are voodoo and they don’t work… you’re saying that would be improper and not admissible,“ said Justice William O’Neill.

“Correct,” answered Jennifer Bishop, an attorney representing the city of Cincinnati…

Welcome to “The DUI Exception to the Constitution”.   At least, this court got it right…this time.