Monthly Archives: May 2016
California is a destination for many people, a destination which offers many locations and opportunities to imbibe some alcoholic refreshments. When an out-of-state driver does partake in enjoying some alcoholic drinks, they sometimes make the mistake of getting behind the wheel and are arrested for a California DUI. When that happens, often is the question: How will their out-of-state residency affect the outcome of the DUI case?
Although the person may have an out-of-state driver’s license, they will still be subject to the DMV’s administrative action to determine whether their driving privileges in California should be suspended. This is the same “admin per se” hearing that California drivers are subject to following a DUI arrest and will be conducted in much the same manner. A loss of the hearing or a conviction will trigger a suspension of that person’s California driving privileges. Whether the driver’s home state recognizes a suspension following a loss of the California admin per se hearing or a DUI conviction will depend on the state’s reciprocity with California under the Interstate Driver’s License Compact.
Fortunately for most misdemeanor DUI charges, the defendant does not need to be present at the pretrial hearings of a DUI case. If a person decides to take a plea deal, they may need to be present for the plea. Some judges, however, will allow the out-of-state driver to enter a plea without needing to be present as long as the person’s attorney reviews the documents with the driver, the driver signs the documents before a notary public, and the attorney provides the documents to the court.
If a person is convicted of a California DUI, many of the conditions of probation typically associated with a California DUI conviction require a person to be present in California. However, a skilled DUI attorney can negotiate a plea deal that does not require an out-of-state driver to come back to California to fulfill the conditions of probation.
The California Vehicle Code requires that a person convicted of a California DUI complete an approved DUI program, the length of which depends on the individual facts of the case; three-month program (AB 541), six-month program (AB762), nine-month program (AB 1353), and an 18-month program for a second-time DUI or more (Sb 38). These program are only approved and offered in California. For out-of-state drivers, the judge must allow either an out-of-state or online program equivalent to whatever program the driver would have to take if they were in California.
While the out-of-state driver will likely be allowed to participate in an out-of-state or online program, the California DMV will not recognize a non-approved program when reinstating a person’s driving privileges. The DMV requires the completion of an approved DUI class before it will reinstate a person’s driving privileges. However, following the suspension, the out-of-state driver can petition the California DMV for a “set-aside” of the suspension notwithstanding their inability to complete an approved DUI program.
Other conditions typically required following a California DUI conviction may or may not be offered in other states. Mothers Against Drunk Driving (MADD) Victim Impact Panels are offered in many states, however may be limited in where in the state they are offered.
Many states offer their version of California’s “Hospital and Morgue Program,” which is sometimes required following a California DUI conviction, although it may differ in form and length.
If it is impractical to require an out-of-state driver to complete either MADD’s Victim Impact Panel or the Hospital and Morgue Program, the prosecutor and judge may be willing to substitute a number of Alcoholics Anonymous (AA) meetings for the programs since AA meetings are offered in most municipalities across the United States.
Being an out-of-state driver does complicate the process, but it doesn’t mean that the driver’s rights are forfeited. It takes a skilled California DUI attorney to ensure that out-of-state drivers are treated fairly by the California court system.
In which state would you think your chances of being injured by a drunk driver is the highest? Which state has the highest incidence of DUI? Which has the highest percentage of DUI arrests? The highest fatality rate from drunk driving?
If you guessed California, you’d be wrong. New York? Wrong again. Ditto all the usual suspects — Texas, New Jersey, Florida, Michigan, Louisiana, etc.
According to a recent study based upon statistics from the National Highway Traffic Safety Administration, the Federal Bureau of Investigation and Mothers Against Drunk Driving, the winner (loser?) is….North Dakota.
Right. Sleepy, rural, midwest North Dakota! The state was tied (with Montana) for #1 in DUI arrests and #1 in DUI fatalities. Based upon these two statistics, as well as such others as DUI penalties, types of DUI laws and cost per fatality, the "Peace Garden State" was rated #1 overall.
The dubious "top 10" contains a few more surprises:
1. North Dakota
5. South Carolina
6. South Dakota
8. New Mexico
9. Rhode Island
Beware the scenic and peaceful byways and highways of Vermont!
Many of my clients, especially those who have been arrested at a DUI checkpoint, often ask whether entrapment can be a defense to a California drunk driving charge. Another scenario where the defense of entrapment is inquired about is when an officer parks his vehicle outside of some alcohol-serving establishment and waits for an unsuspecting patron to hop behind the wheel after having one too many drinks.
Unfortunately in both scenarios entrapment cannot be used as a defense.
According to People v. West, (1956) 139 Cal.App.2d Supp. 923, 924, “Entrapment is the conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Persuasion or allurement must be used to entrap.”
People v. Barraza, (1979) 23 Cal.3d 675, 689, simplified the definition of entrapment when it concluded, “[T]he proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense?”
In other words, for purposes of a California DUI charge, law enforcement must compel a person to drink and/or compel them to drive when that person would not have otherwise done either.
An example of this would be when an officer finds an intoxicated person in a vehicle who does not plan on driving and the officer then forces them to drive. Since the person would not have driven but for the officer’s demand, an entrapment has occurred. Although unlikely, it has happened.
While DUI checkpoints may be viewed upon as a “trap,” it does not fall within the definition set forth above. People who drive drunk are already driving drunk when they happen upon a DUI checkpoint. Law enforcement is not compelling the drunk driver to drink nor drive.
Furthermore, DUI checkpoints time and time again have been held by numerous courts to be constitutional. In fact, in California, one of the requirements a DUI checkpoint must adhere to in order to be constitutional is that drivers must be allowed to lawfully turn away from the checkpoint. Yes, that’s right. Drivers cannot be forced to go through a DUI checkpoint.
Often times, officers will park themselves outside of a bar or other alcohol-serving establishment and wait until they see a patron drive away. This is when the officer pulls the person over.
If the person voluntarily drives away from the establishment drunk, the officer has not forced the person to neither drink nor drive. The officer is merely observing the illegal acts of a person from a public place where he or she has a right to be.
Now, the officer must have probable cause to believe that a person is driving drunk before an arrest can be made. The mere leaving a bar does not give the officer probable cause that a person is driving drunk, although the officer may suspect the person is driving drunk. If, however, an officer observes a person commit a traffic violation after leaving a bar, they can be pulled over. The traffic violation stop can be used as a pretext to investigate for a DUI.
Unfortunately, while both California DUI checkpoints and law enforcement bar stakeouts are intended to “trap” drunk drivers, neither give rise to the entrapment defense.
We live in a digital era where everything, literally everything, can get posted for the world to see. Social media outlets like Facebook, Snapchat, and Twitter can let anyone know where you live and work, who you’re associated with, and what you’re doing at any given moment. There are, however, somethings that we don’t want the world to know about and that we deliberately withhold from social media, like a DUI conviction.
Although criminal convictions are public record, one would not expect anyone in the world to have access to that information without taking the trouble to actually find it. And why would they?
Well now in New Mexico, they won’t have to. Thanks to the ever hyper-vigilant organization, Mothers Against Drunk Driving (MADD), information on a person’s DUI conviction, sentence, and judges whom they believe are too lenient on the DUI offenders will be posted on the social media website Twitter for all of the world to see.
New Mexico Governor, Susana Martinez announced earlier this month that the state will pay MADD staffers to attend DUI hearings and publicize the information in tweets. How much money, you might ask. MADD was granted a whopping $800,000 contract for this program of public shaming.
“Too many lives have been shattered by drunk drivers, and too often our justice system fails our families by going easy on the criminals,” Martinez said at a news conference in Albuquerque.
The number of people killed in drunk driving related accidents last year in New Mexico decreased by 28 percent, marking a 36-year low in a state that has long struggled with high DUI rates, officials said last month.
New Mexico follows several municipalities that have taken to social media to shame DUI offenders. In March, I wrote a post on the Chesterfield Sheriff’s Office in Chesterfield, Virginia, who took to posting the mugshots of people who had been arrested for driving under the influence.
If you ask me, there are a number of very serious problems with this.
The first issue I have is what many have express about this program. Couldn’t New Mexico’s money be better spent elsewhere?
Second, there is the possibility that a program such as this could violate the privacy rights of those whose information is being posted. I can’t say one way or another without doing more legal research into the issue. Sure seems like an invasion of privacy though.
What’s more, it’s not out of the realm of possibility that posting this information will lead to retaliation by the public. It goes without saying that people have very strong feelings about people who have been convicted of DUI. Those feelings, if you ask me, have led to a disproportionate villainization and stigmatization of those who have been convicted of drunk driving. New Mexico could possibly be putting these people at risk of harm with this program.
Lastly, this program is likely to place political pressure on judges to give harsher punishments for DUI convictions when the facts of the case may not warrant it. It is within the judge’s authority to determine the punishment for a DUI conviction. It’s their job.
Democratic state Representative Antionio “Moe” Maestas correctly made the comparison that “[b]laming a judge for not enough conviction rates is like blaming [a baseball] umpire for not enough strikeouts.”