Monthly Archives: December 2014

$100 for Reporting a Drunk Driver

It goes without saying that there are more drunk drivers on the road during the holiday season. Some counties like those in Southern California are increasing patrols and DUI checkpoints. Palm Beach County, however, is offering a $100 reward for reporting a drunk driver as part of its holiday DUI crackdown.

“It gives law enforcement additional eyes on the road,” said the spokeswoman for the Safety Council of the Palm Beaches, Donna Bryan. “Everyone should have an interest in getting impaired drivers off the roads because it could be someone who hits your loved one.”

Palm Beach’s Mobile Eyes program has been operating since 2001 and has reportedly led to hundreds of DUI arrests. But recently, the program was promoted as a way to earn a little extra holiday cash this season.

To most this seems like a win-win situation. Drunk drivers are taken off the road and the person responsible for the arrest earns themselves $100 for the holidays.

So what’s the problem with rewards for reporting drunk drivers?

I’m sure Palm Beach County officials report exactly how many actual drunk drivers are arrested as a result of the program. But I highly doubt they report how many innocent people were stopped and investigated for a possible DUI as a result of the program.

Although well-intentioned, the program encourages people to call 911 on drivers who may or may not be driving drunk simply because there is the possibility of receiving $100. And, what’s more, these people have absolutely no personal knowledge that the driver is actually drunk.

Unfortunately, people are not reporting drunk driving. They’re 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 excursion is flawless. This necessarily means that everyone on the road is a target of Mobile Eyes and anyone can be arrested on suspicion of DUI simply because someone else could make $100 for reporting a mistake.

Ok, so someone calls 911 to report a possible drunk driver. Does the tip give law enforcement the right to stop a driver when the officers, themselves, saw nothing to indicate that the driver is driving drunk?

According to the United States Supreme Court, the answer is yes.

In the case of Navarette v. California, the United States Supreme Court held that an anonymous tip gives law enforcement the authority to pull someone over on suspicion of driving under the influence. This is true even though it is impossible to verify the reliability of the tip and the officer has not witnessed any driving that would indicate intoxication.

In his dissent, Justice Scalia voiced the same concerns I expressed above:

“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.”

After the Navarette decision, not only is it acceptable to assist law enforcement in violating the Constitution, now in Palm Beach County, we’re actually rewarding people for doing so.


“Ignorance of the Law Is No Excuse”….Except for Cops?

Ignorantia juris non excusat.

It is a very old axiom of our legal system of justice that "ignorance of the laws is no excuse".  Anyone who violates a law may not escape responsibility merely because they are unaware of its existence or misunderstands it.  That means, for example, that if you or I possess an illegal drug, not knowing that it is an illegal substance, we can nevertheless be prosecuted for violating the law.  It also means that if a police officer arrests a citizen without probable cause to believe a crime has been committed, the arrest is unlawful — even if the officer believed he had legal cause.

The reason for this legal doctrine should be obvious.  If ignorance of the law were an excuse, then anyone arrested for a criminal offense could avoid prosecution by simply saying that they were unaware of that law.  Similarly, an officer making an illegal arrest could simply claim that he mistakenly believed that it was legal.

Clearly, then, this ancient maxim of ignorance of law not excusing unlawful conduct applies to cops as well as citizens….or does it?

Court Rules for a Mistaken Officer

Washington, DC.  Dec. 15 (New York TImes) – A police officer can stop a car based on a mistaken understanding of the law without violating the Fourth Amendment, the Supreme Court ruled on Monday in an 8-1 decision.

The case arose from a traffic stop in North Carolina based on a broken brake light. But state law there required only a single working “stop lamp,” which the car in question had.

In an opinion by Chief Justice John G. Roberts Jr., the Supreme Court ruled that the officer’s mistake was reasonable and so did not run afoul of the Fourth Amendment’s ban on unreasonable searches and seizures…

Justice Sonia Sotomayor dissented. She said the court’s ruling “means further eroding the Fourth Amendment’s protection of civil liberties in a context where that protection has already been worn down.”…

Chief Justice Roberts conceded that the court’s decision at first blush ran afoul of the maxim that “ignorance of the law is no excuse.”…

In recent years, we have seen increasing judicial decisions finding ways around the Constitution and our laws to justify unlawful conduct by law enforcement.  One of the most glaring examples in the DUI field was the U.S. Supreme Court’s decision in Michigan v. Sitz — in which the Court somehow found an exception to the Fourth Amendment by allowing police to stop citizens at sobriety checkpoints with no reasonable suspicion that a crime may have been committed.  In Chief Justice  Rehnquist’s 5-4 decision, he admitted that these checkpoints were a violation of a citizen’s constitutional rights — but that they were only a "minimal intrusion", outweighed by the greater interest of the government in minimizing fatalities on the highways.  See Growing Number of States Outlawing DUI Checkpoints

Apparently, the Supreme Court has now clearly recognized that we have a separate set of laws that apply to police officers…and we now have a new legal maxim:  "Ignorance of the law is not an excuse….unless you are a cop".

Can a Personal Breathalyzer Prevent a California DUI?

Many people are arrested on suspicion of a California DUI after only having one or two drinks. Could those arrests have been prevented if the arrestees knew their blood alcohol content was only, say at a 0.09 percent blood alcohol content and they waited a little while before getting behind the wheel? Maybe, if they had their own breathalyzer. 

I’ve written several posts on the availability of different types of personal breathalyzers from single-use disposable breathalyzers to breathalyzer phone apps. People can, however, also purchase regular multiple use breathalyzers. Some are attached to keychains and tend to be low-quality novelty items. Others are a more expensive and are of a quality similar to what law enforcement uses.

Not surprisingly, quality breathalyzers will, in most cases, cost well more than inferior breathalyzers. Costs will vary between $15 and several hundred dollars. Breathalyzers under $50, and those coming on key chains have questionable accuracy from the start and accuracy continues to decrease after several uses.

Unlike novelty breathalyzers, quality breathalyzers will be backed by the Food and Drug Administration (FDA). This means that the FDA conducts research to confirm that the breathalyzer does what its literature says it does.

So is it still possible for a person to get arrested on suspicion of a California DUI even if their personal breathalyzer indicates that they are under the legal limit?

Of course it’s possible.

I can’t even count how many times I’ve told my readers that breathalyzers, even the high-quality breathalyzer, are inaccurate. Almost all quality breathalyzers, like those the police use, require calibration after repeated use to ensure accuracy. Some products allow for owners to calibrate themselves and some require that the breathalyzer be sent to the manufacturer for calibration. Heavily used and non-calibrated breathalyzers will likely not be accurate.

It is possible for a person’s blood alcohol content to continue to rise after a breathalyzer reading, especially if they’ve only recently stopped drinking. Therefore, it is also possible for a person to have a blood alcohol content of 0.07 when they leave the bar (and when they test themselves) and a 0.09 after they’ve been driving for a while. If that is the case, you can still be arrested and charged for a California DUI.

Lastly, a person does not necessarily need to be above a 0.08 blood alcohol content to be arrested and charged with a California DUI. A person can be arrested and charged with a California DUI if they are above a 0.08 percent blood alcohol content or if they are “under the influence.” In other words, you can be a 0.07 percent, but if an officer determines that you cannot safely operate a vehicle as a sober person could, you can still be arrested and charged with a California DUI.  A breathalyzer may determine if you are under the legal limit, but it cannot determine whether you are “under the influence.”

The only foolproof way to prevent a California DUI is to not drive after drink anything. However, if a personal breathalyzer can help prevent a DUI, I’m all for it.

Can a Drunk Driver Be Charged with Murder?

In a word, yes.

Some states have enacted statutes providing that murder in the second-degree is committed where a death is caused by a "wanton or reckless act" — the mental element of malice normally required for second-degree murder being inferred from the act of drunk driving.  A few states have even gone so far as to designate the offense as first-degree murder, although slightly different language such as "utter recklessness or wantonness" may be used.

The California Supreme Court, for example has affirmed a prosecutor’s right to charge an intoxicated driver involved in a fatal accident with second-degree murder – even though there is no such statutory law.  In People v. Watson, the Court held that the vehicular manslaughter statute was not intended to establish gross negligence as the ceiling for culpability in traffic fatality cases.  The required mental state, it held, can be implied from the facts where the driver "does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life".

Hmmmm.  The concept of "malice" seems pretty vague — and the Supreme Court’s definition does not seem to make the definition of the crime any less confusing.

Perhaps recognizing this, another California court later tried to explain what constitutes "malice" for purposes of "DUI murder".  In People v. Olivas, that court tried to distinguish the mental element of "malice" in a murder case from the mental element of "gross negligence" in a vehicular manslaughter case.  Second-degree murder ("malice") required a "conscious disregard for life", while manslaughter ("gross negligence") requires only a "conscious indifference to the consequences".  The court found the difference "subtle but nevertheless logical".

Any questions?

Drunk Driving Charges Following Drunk Flying Conviction

It’s not uncommon for a person to get caught driving under the influence after they’ve already been convicted of a California DUI. What is uncommon, however, is for a person to be caught driving under the influence after they’ve previously been convicted of operating some other type of vehicle while intoxicated like…say…an airplane.

Michael Ferrero, of Petaluma California, was arrested this past November for a California DUI after he drove his pickup truck into a ditch. According to the San Francisco Chronicle, the responding California Highway Patrol officer smelled alcohol and discovered an open bottle of vodka.

Sounds like a pretty standard California DUI. That is, until you hear about Ferrero’s previous alcohol-related conviction.

In 2012, California Highway Patrol plane piloted by CHP officer, Gary Wareham, was patrolling for speeding vehicles on the highways north of San Francisco when he spotted a plane flying approximately 50 feet above the road. At the time, the Press Democrat reported that Wareham followed the plane after witnessing it pitching and rolling through the air. Wareham followed the plane to a Petaluma, California airport

Ferrero later failed a breathalyzer. However Ferrero claimed that he had taken a shot of whiskey in the hangar after landing.

Ferrero ultimately pleaded no contest to flying under the influence, but not before saying, “Nobody needs to worry about me ever again.”

That proved to be an untrue statement with Ferrero’s current arrest.

I’ve covered the law for cycling under the influence, boating under the influence, and even riding a horse under the influence. What about the law for flying thousands of feet in the air (or in Ferrero’s case, 50 feet in the air) while intoxicated?

Crewmembers of civil aircrafts, including pilots, are governed by the Federal Aviation Administration (FAA). Title 14 of the Code of Federal Regulations section 91.17 states that, “no person may act or attempt to act as a crewmember of a civil aircraft within 8 hours after drinking alcohol, while under the influence of alcohol, while using any drug that affects the person’s faculties in any way contrary to safety, or while having an alcohol concentration [BAC] of 0.04 or greater in a blood or breath specimen.” Furthermore, the FAA requires random alcohol screenings of pilots and are subject to an implied consent law similar to California’s DUI implied consent law.

California Public Utility Code section 21407 is similar to the federal regulations in defining a FUI charge. California penalties for a first time FUI include a county jail sentence of 30 days to six months, and/or a fine of $250 to $1,000.  Federal penalties, on the other hand, are far more severe and can include up to 15 years in federal prison and up to $250,000.

The prosecution agency has discretion to charge under state or federal law.

The interesting question in Ferrero’s case is whether the prosecutor will treat the current charge as a second-time California DUI since, technically, this is Ferrero’s first time violating California’s Vehicle Code law for driving under the influence.