Monthly Archives: May 2015
I’ve posted repeatedly about "The DUI Exception to the Constitution". A particularly egregious example of this is the clear violation of the 4th Amendment represented by "DUI sobriety checkpoints" — the law enforcement practice of setting up locations on highways where they can stop motorists without "probable cause" to suspect a crime is being committed — in fact, for no reason at all.
So just how far is all of this going?
DUI Checkpoints Just the Tip of the Iceberg: Cops Now Going Directly Into Bars with Breathalyzers
Sacramento, CA. May 24 - Sacramento cops are rolling out a new program this Memorial Day to allegedly combat drunk drivers. While the reasoning for this new program may sound just, its implementation is anything but.
If you are out in a bar this weekend, be prepared to have multiple officers come in and ask the patrons in the bar to blow into a breathalyzer.
DUI roadblocks are apparently not invasive enough, so the Sacramento PD instituted a program to attack the source, the places where alcohol is consumed…
Police defend the new incursions into constitutional rights by saying that it is "voluntary" — that is, the bar patron can simply refuse. Of course, most of us realize that this will simply focus the attention of the officer on that individual; cops don’t like to have their authority flouted, and this individual will be asked to produce identification, etc., and possibly be followed once he leaves the bar. We’ve seen what happens when someone lawfully turns away from a checkpoint: a police car immediately follows and pulls him over (still without probable cause). Same thing with refusing a breathalyzer while sitting at a bar.
As the author of the article observed, "While the reasoning for this new program may sound just, its implementation is anything but".
(Thanks to Joe.)
Often those who have been arrested for a DUI believe that their case will simply be thrown out because officers did not recite their Miranda rights before incriminating statements are made or even at all. In fact, many of my own clients have expressed such with the exclamation, “But they didn’t read me my Miranda rights!”
Those clients have watched the movies and T.V. shows so they know that Miranda rights must be recited. And they might even be able to recite the Miranda rights themselves. Few, however, know when the law requires that officers give the Miranda rights.
Law enforcement is required to give the Miranda rights before a “custodial interrogation.” The idea is that, if a person does not know they have a right to remain silent, any confession they give while in custody cannot be voluntary.
This necessarily requires two things to trigger the Miranda warnings: 1.) custody, and 2.) an interrogation.
First, let’s talk about an interrogation. An interrogation for purposes of Miranda warnings occurs when officers do anything likely to elicit an incriminating response. Certainly this includes questions pretty standard in DUI stops; “Where are you coming from?” “How many drinks have you had today?” “When was your last drink?”
The question of when a custody occurs during a DUI stop, however, is not as straight forward.
A custody occurs when a suspect is under the physical control of an officer. However, a custody can also occur when a reasonable person would not feel free to leave the officer’s presence.
While someone suspected of a DUI cannot drive away from an officer after a DUI stop, the period following a DUI stop is deemed to be a “preliminary investigation,” not a custody. An arrest (ie. custody) cannot be made until an officer has probable cause to believe that the person is driving drunk. When an officer pulls someone over, they do not have probable cause to arrest someone. They get their probable cause through the statements that DUI suspects give during this preliminary investigation and inevitable failure of field sobriety tests.
Truth is that probable already likely exists before the questioning occurs when the officers observe driving that is indicative of intoxication, blood shot watery eyes, slurred speech, and notice the odor of alcohol. Few officers, however, will admit that they had probable cause before they began questioning the driver.
Consequently, most DUI suspects are placed in custody for purposes of Miranda and DUIs right before they are placed in the squad car and hauled off to jail.
Unfortunately, this means that, by the time officers are required to give the Miranda warnings during a DUI stop, the damage has already been done. Since most incriminating statements and responses to officer questioning are made before a DUI suspect is placed in custody, they are admissible as evidence in a DUI case.
God forbid, if you’re ever stopped and the officer begins asking questions about whether you’ve been drinking, do not give them any more ammo than they already have. Miranda does not yet apply and your statements will be used against you. Simply reply, “I respectfully decline to answer any questions under the 5th amendment. Am I under arrest or am I free to leave?”
As I’ve mentioned in past posts, law enforcement has a major problem in determining whether a driver is under the influence of, say, marijuana. Actually, there are two problems…
The usual procedure is to take a blood sample and have it analyzed for the presence of marijuana — or, more accurately, for the presence of the active ingredient, tetrahydrocannabinol, or THC, in the blood. However, this does not tell us whether the subject is under the influence to the extent that he is impaired — that is, "unable to safely operate a motor vehicle". The simple fact is that no reputable laboratory or governmental agency has been able to establish what the critical level of THC is that constitutes impairment. Unlike with alcohol, where there is a presumption of intoxication at a level of .10% percent alcohol in the blood, we simply don’t know what amount of marijuana causes what level of impairment.
Second problem: the presence of THC does not tell us when the marijuana was consumed — and whether it is still active in the system. The fact is that metabolites can remain in the blood — inert and thus not causing any impairment — for weeks after being initially taken. A driver could be stopped a week after smoking a joint and a blood test would show him positive for THC.
Despite this, governmental agencies and law enforcement continue to come up with new, quick and easy technology to "detect" levels of impairment in drivers. And politicians, in their desire to look "tough on drunk driving" to voters, continue to fall over themselves in passing laws enabling these new weapons in the "War of Drunk Driving"…the most recent being a new device which supposedly permits cops to pull a driver over, take a swab of saliva from his mouth, and have it instantly analyzed at the scene for marijuana and drugs.
California Looking at New Drug-Detecting DUI Technology
Sacramento, CA. May 11 – California lawmakers are considering a proposal that would give cops permission to use technology that identifies drivers under the influence of marijuana, cocaine and other drugs.
Assembly Bill 1356 changes California law to state that any person driving a motor vehicle has given their consent to chemical testing of his or her blood or oral fluids. Under the measure, law enforcement officers are then authorized to use a new device that can detect drugs in someone’s system using a swab of saliva.
The DDS 2 Mobile Test System was developed by Alere and is reported to have a 90 percent accuracy rate, according to the company. The device screens the saliva sample and determines in a matter of minutes whether the driver has taken amphetamines, cocaine, marijuana, methamphetamines or opiates…
Sounds great: A new gizmo that can quickly tell a cop if a driver is under the influence of, say, marijuana. For a more detailed discussion of the flaws in this new DDS2 Mobile Test System, see my post from April 27th, "California Proposes New Law to Allow Roadside Marijuana Test".
I have never seen a police report say that a California DUI suspect “passed” the field sobriety tests performed after a DUI stop. Does that mean that all of those suspects were intoxicated? No.
This necessarily means that people can fail field sobriety tests while sober. But how?
Field sobriety tests are notoriously unreliable. Yet law enforcement agencies continue to employ the Horizontal Gaze Nystagmus (HGN) Test, the Walk-and-Turn Test, and the One-Leg Stand Test to determine intoxication. These are the tests that the National Highway Traffic Safety Administration has designated as standard. Other tests include the Rhomberg Balance Test, the Finger-to-Nose Test, and the Finger Tap Test.
Field sobriety tests are used to gauge a person’s coordination, balance, and simple motor skills after they have consumed alcohol. And while they may, in fact, test coordination, there are a number of reasons why a sober person might fail a field sobriety test.
Needless to say, most people are both stressed and nervous when they are pulled over and asked to step out of their vehicle. The stress and nervousness inevitably make it difficult to concentrate. Yet officers regularly fail a person for having trouble following the field sobriety test instructions.
A person who is intoxicated may likely exhibit trouble with balance. Lack of balance is what officers look for when a suspected drunk driver performs field sobriety tests. However, balance can be affected by many things, one of which is inner ear problems. The inner ear contains a small organ called the labyrinth that helps us maintain balance. When the labyrinth is disrupted, so too is that person’s balance. Some of the things that can disrupt the labyrinth include infections and illness, head trauma, age, and tumors, to name a few.
Physical problems and disabilities can also affect a person’s performance on field sobriety tests. Physical problems such as knee pain or lower back pain may make it difficult to, say, walk heel to toe in a straight line or stand on one leg perfectly still for 30 seconds.
For the same reasons, people who are older or who are overweight may also have trouble performing field sobriety tests that require coordination and balance.
While it may be dangerous to drive while tired, it is not illegal like driving under the influence. However, lack of sleep can cause many of the same symptoms as intoxication. When people are tired they can experience poor balance, lack of coordination, and trouble with motor skills. What’s more, when someone is sleep deprived and tired, they exhibit bloodshot, watery eyes. Unfortunately, bloodshot, watery eyes are amongst law enforcement’s favorite indicators of intoxication.
Perhaps one of the most powerful factors affecting a person’s purported performance on field sobriety tests is the officer’s interpretation of that person’s performance. Law enforcement officers have already decided that a person is intoxicated even before the person performs the field sobriety test. As a result, the officers are going to see what they expect (or want) to see.
I could go on with many other reasons why sober drivers fail field sobriety tests, but that would make this post extremely lengthy. Suffice it to say, field sobriety tests are unreliable and sober people do fail them.
Having said that, drivers have a right not to and should not ever agree to perform field sobriety tests because they will fail whether they were intoxicated or not.
The first word in the acronym DUI is “drive,” yet many people believe that a person can get a California DUI even if they didn’t drive a vehicle. While that may be the case in other states, in California a prosecutor needs to prove that a person actually drove a vehicle while intoxicated.
California Vehicle Code section 23152 (a) and (b) reads, “It is unlawful for a person who is under the influence of any alcoholic beverage or who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”
So can a person be arrested and subsequently convicted if police find them drunk and passed out in a parked car?
In the 1991 case of Mercer v. Department of Motor Vehicles, the California Supreme Court held that the word “drive” for purposes of California’s DUI law required evidence of a defendant’s volitional movement of a vehicle. With his holding, the California Supreme Court upheld “decades of case law” on the issue.
In 1985, it was held in the case of People v. Wilson that “[w]ith regard to the offence of driving under the influence…a ‘slight movement’ of the vehicle in the officer’s presence has been a determinative factor in concluding whether or not a defendant was ‘driving’ in the presence of the officer.”
So does that mean that the officer must witness a “slight movement” of the vehicle? No.
The court in Wilson went on to say, “On the other hand, where the sufficiency of the evidence to support the judgement is in question, as contrasted with the validity of a defendant’s arrest, it is clear that the existence of evidence establishing a ‘slight movement’ of the vehicle does not present a problem. In the absence of such direct evidence of ‘driving’ the element of ‘driving’ may nonetheless be established at trial through circumstantial evidence…”
Simply put, a prosecutor needs to prove that a DUI suspect, at the very least, caused a vehicle to slightly move. The easiest way to prove that the DUI suspect was driving is if an officer observes a “slight movement” of the vehicle. However, if an officer does not observe a “slight movement,” a prosecutor can still prove that a person drove a vehicle with circumstantial evidence.
Circumstantial evidence that has been used to prove that a person drove for purposes of a California DUI include, but not limited to, officers finding the vehicle at or close to an accident site or finding the vehicle in the middle of the road.
California’s DUI law is different than several other states which only require “dominion and control” over a vehicle. In those states, DUI suspects can be charged and convicted if they are found intoxicated while having “dominion and control” over a vehicle with the potential to drive it.
So to answer our initial question of whether a person can arrested and subsequently convicted of a California DUI if they’re found drunk and passed out in a parked car, the answer is it depends. It depends on whether the prosecutor can prove that the person actually drove the vehicle.