Monthly Archives: March 2016
This week the California Supreme Court refused to hear the appeal of a man who was convicted of second degree murder and sentenced to 30 years in prison for a DUI accident that killed two men in Lancaster.
In 2009, Tommie Lee Cole was arrested and convicted for a California DUI. At the time of his conviction, Cole signed what is commonly referred to as the “Watson Advisement.” The advisement is a formal acknowledgement that the person convicted of a California DUI knows that it is dangerous to drive drunk and if they drive drunk again and, as a result, kill someone, they can be charged with murder.
In 2012, Cole was once again driving under the influence in Lancaster when he attempted to beat a yellow intersection light and his vehicle broadsided Beau Josh Owen Fluker, 26, and Jeffrey Daniel Gilstrap, 23, who were on their way home from work. The collision killed both Fluker and Gilstrap.
Cole was convicted in February 2014 for the second degree murder of Fluker and Gilstrap in addition to two counts of gross vehicular manslaughter while intoxicated and one count of driving under the influence and driving with a 0.08 percent blood alcohol content. The conviction landed Cole 30 years behind bars.
Cole appealed, but in January, a three-justice panel from California’s 2nd District Court of Appeal ruled against Cole holding that there was sufficient evidence to support Cole’s conviction.
“Defendant’s prior drunk driving offense, his blood-alcohol level and decision to drive while intoxicated, and his highly dangerous acts of speeding and attempting to ‘beat’ a yellow light are substantial evidence to support the jury’s conclusion that the subjective standard for implied malice was satisfied,” said the appellate court judges.
Cole once again appealed, this time to the California Supreme Court. On Wednesday, however, the California Supreme Court announced that it would not hear Cole’s appeal. In doing so, the California Court of Appeal’s decision stood.
The fact that Cole signed the Watson Advisement allowed the California Court of Appeal to conclude that implied malice was present, thus allowing the murder conviction to stand.
Prior to the land mark case of People v. Watson in 1981, a person had to intend to kill someone else to be charged and convicted of murder. However, the California Supreme Court in People v. Watson said that only implied malice needed to be present for someone to be charged and convicted of murder.
As a result of the California Supreme Court’s decision in People v. Watson, trial courts throughout California began expressly advising people convicted of DUIs on the dangers of driving drunk and that if a future DUI caused a death, the person would be charged with murder.
Of course Cole did not intend to kill Fluker and Gilstrap. However, he did engage in an act, the natural consequences of which was dangerous to life, and was deliberately performed by a Cole who knew that his conduct endangered the life of others and acted with conscious disregard for life. This is implied malice.
In other words, because Cole signed the Watson Advisement, he knew that it was dangerous to the lives of others to drive under the influence, yet he deliberately decided to drive under the influence again notwithstanding that knowledge.
The responsibilities associated with a California DUI conviction can be rather daunting. One the more feared tasks is the requirement of having to install the ignition interlock device. The ignition interlock device, however, is not required after all California DUI convictions. Whether a person will be required to install an ignition interlock device depends on several things.
Before we talk about when an ignition interlock device is required, let’s first talk about what the ignition interlock device is. In short, the ignition interlock device is a breathalyzer that is installed into the dash of a vehicle and connected to the ignition. The driver of the vehicle must provide a breath sample with a blood alcohol content reading under 0.08 percent before the device allows the vehicle to be started. Once the vehicle is started, the driver must provide breath samples at random times to while the vehicle is operational.
Following a California DUI conviction, there are a number of things that a judge may have a person do or complete as a condition of probation. I use the word “may” because some conditions are mandatory and some conditions are discretionary. One of the discretionary terms of probation that a judge may impose on a person following a California DUI conviction is the installation of an ignition interlock device.
As a discretionary term, judges sometimes require the ignition interlock device for a person convicted of a California DUI who has also suffered prior DUI convictions, someone who had a high blood alcohol content, or someone who refused a chemical test following the DUI arrest.
However, in January of 2010 Assembly Bill 91 became law and made the installation of an ignition interlock device mandatory in four counties as part of a new pilot program aimed at reducing drunk driving repeat offenses. The counties affected by the law were Los Angeles, Alameda, Tulare, and Sacramento.
The law requiring the ignition interlock device in the abovementioned counties, California Vehicle Code section 23700, in part reads:
"Before a driver’s license may be issued, reissued, or returned to a person after a suspension…of that person’s driving privilege that requires the installation of an ignition interlock device…"
The length of time that a person must have the ignition interlock device installed for depends on how many prior DUI convictions the person has had. A first time offense carries a 5-month installation period. A second time offense carries a 12-month installation period. A third time offense carries a 24-month installation period. A fourth time offense carries a 36-month installation period.
The law provides for an exception to the pilot program for those who do not own a car or otherwise have access to one. If that is the case, a person must complete and submit an “exemption form” to the California DMV. A person can then completely avoid the ignition interlock device by waiting out their suspension plus the period during which they would have had the ignition interlock device installed. If, however, the person obtains a vehicle in that time, they must have the ignition interlock device installed.
The pilot program was set to end as of January 1, 2016, at which time the California DMV was to report to the legislature on the effectiveness of the pilot program in reducing repeat drunk driving offenses in those counties. However, late last year Senate Bill 61 extended the pilot program until July 1, 2017.
Depending of the data collected as a result of the pilot program, it may not be long before we see the installation of ignition interlock devices as a mandatory condition of probation for all California DUI convictions.
In today’s news….
Police Officer Kills Tennessee Man Fleeing Arrest
Lenoir City, TN. Mar 14 – A Tennessee police officer shot and killed the driver of a pickup truck the officer was trying to arrest for suspected driving under the influence, authorities said on Monday.
Joshua Grubb, 30, of Clinton, Tennessee, was killed on Sunday morning at around 1 am ET after he tried to flee the scene in Lenoir City, Tennessee, the Tennessee Bureau of Investigation and the Lenoir City police said. Lenoir City is about 30 miles southwest of Knoxville.
The officer, Tyrel Lorenz, was sent to investigate a possible DUI after a 911 call and spotted the truck matching the description of the vehicle in question at a convenience store, the TBI and Lenoir City police said…
The officer made contact with the three occupants and had placed Brandon Taylor, one of the three in the truck, in handcuffs when Grubb began to drive away. The officer jumped then into the truck bed to try to prevent Grubb from fleeing, the TBI and police said.
The officer remained in the truck bed as the vehicle left the parking lot and pulled onto the road. The officer fired shots into the cab after ordering Grubb to stop, the TBI and police said. The driver was struck and killed, and the truck stopped at the side of the road….
The so-called "War on Drunk Driving" continues….
It’s no big secret that many people have come to distrust law enforcement. The public distrust peaked in recent times after the highly publicized, and criticized, officer-involved shootings of Kelly Thomas, Eric Garner, Michael Brown, and Freddy Gray, to name a few.
In response, several law enforcement agencies began to issue body cameras to their officers with the hopes that incidences like these stop or, at a minimum, provide unbiased, objective information on what actually occurred.
In fact, even President Barack Obama urged law enforcement agencies throughout the country to issue body cameras to officers and offered $20 million in federal funds towards obtaining them.
As of April this year, Davis Police will be the latest law enforcement agency to be equipped with body cameras to record interactions with the public.
“It’s a great evidence-gathering tool for us,” said Lt. Tom Waltz. “It’s also another level of transparency. In situations where there’s a dispute about what occurred, we have a recording of it.
Davis officers will not be allowed to delete or modify footage obtained from the body cameras. They will however, be allowed to view the footage before giving a statement or preparing a police report. The footage will be uploaded to a server following an officer’s shift, or the footage can be uploaded immediately in cases where it is necessary to view the footage immediately.
With the use of body cameras increasing amongst law enforcement agencies here in California, the questions arises, “what effect will body cameras have on DUI stops?”
Many law enforcement agencies currently use what are commonly known as “dash cams;” cameras mounted to the dash of police squad cars. The cameras capture the DUI stop and provide information on whether the officer had the probable cause to make the traffic stop. The camera, however, is limited in that it cannot capture what the officer regularly uses as a justification to begin investigating and ultimately making an arrest for a DUI; the up-close interaction with the person whom they’ve pulled over.
What’s more, when officers have a person perform field sobriety tests, they often take them out of the view of the dash cam. The officers then prepare a police report which indicates that the person failed the field sobriety test, sometimes without even explaining how or why they came to the conclusion that the person failed.
The job of police is to obtain information and evidence objectively. Unfortunately, this is often not the case. Officer testimony and police reports are regularly made for the purpose of securing a DUI conviction and, as such, are biased.
A body camera, however, would serve to provide first-hand evidence to support officer claims that a person was, in fact driving drunk. If an officer justifies a DUI arrest by claiming that an arrestee had slurred speech and bloodshot, watery eyes, the footage would verify the officer’s claims. If an officer determines that a person failed field sobriety tests, the footage from the body camera could support the officer’s interpretation of the person’s performance.
Lt. Waltz of the Davis Police Department used a word that I think captures what will hopefully become effect of using body cameras for law enforcement; transparency. The purpose of the body camera is not necessarily to find incriminating evidence, exculpatory evidence, or even evidence of police misconduct. The purpose of the body camera is to find the truth and if that’s what it provides, I’m on board.
Assembly Bill 2121, otherwise known as the “Responsible Interventions for Beverage Servers Training Act,” has been proposed as a means to reduce the number of drunk drivers in California, but not in the way typical DUI legislation hopes to reduce drunk driving.
The law, if passed, would require the servers of alcohol-serving establishments undergo a “responsible interventions for beverage servers” training. Bartenders and servers would be required to intervene when a patron has had too much to drink.
According to the law, servers would have three months to complete a four-hour class after having been hired and would be required to complete “refresher” courses every three years.
Other states currently have similar laws in place.
The law doesn’t contain any language on whether the alcohol-serving establishment can or will be held liable for an over-served patron who causes damage, injury or death as a result of drunk driving.
Many states currently have laws that hold establishments liable for damage caused by accidents, injuries, or deaths as a result of a customer’s drunk driving after they’ve left the establishment. These laws are known as “Dram Shop Laws.”
States who have enacted Dram Shop Laws, however, differ as to how much liability is imposed. Some states hold an establishment strictly liable if their drunk patron drives and causes damage, injury, or death. This means that the establishment’s service of the alcohol is deemed to be the proximate cause of any damage occurring after the intoxicated person leaves the establishment.
California no longer follows the strict liability standard.
California Civil Code section 1714 provides:
(b) It is the intent of the Legislature to . . . reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.
(c) Except as provided in subdivision (d), no social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.
(d) Nothing in subdivision (c) shall preclude a claim against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person under 21 years of age, in which case, notwithstanding subdivision (b), the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.
In other words, California considers the act of drunk driving and any damage, injury or death caused by that drunk driving the direct result of the person making the decision to drink and drive, not the result of the establishment who served the alcohol.
California law, however, is different if the person served is under the age of 21. An establishment who serves alcohol to a person under the age of 21 may be liable for any damage, injury or death that results from the drunk driving of that person under the age of 21.
Furthermore, while establishments may be shielded from civil liability, they may be held criminally responsible for overserving an already drunk customer. California Business and Professions Code section 25602(a) provides, ““Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.”
While AB 2121 may not currently rise to the level of a Dram Shop Law, if passed, it may not be much longer until California resorts to Dram Shop Laws to try and reduce drunk driving.