Monthly Archives: June 2016

Supreme Court Says Warrantless Blood Test Illegal, but not Warrantless Breath Tests

In December of last year, both Lawrence Taylor and I wrote about the United States Supreme Court’s announcement that it would review the criminalization of chemical test refusals following a DUI stop. On June 23rd, that decision was announced.

In a split decision, the Court held that states can punish a person for refusing a chemical breath tests following a DUI stop absent a warrant. States, on the other hand, cannot punish a person for refusing a chemical blood test absent a warrant.

In late 2015, the Hawaii Supreme Court issued a decision that decriminalized chemical test refusals in DUI cases. Prior to the decision, it was a petty misdemeanor to refuse a chemical test after a DUI arrest punishable by up to 30 days in jail and/or a $1,000 fine.

The Hawaii Supreme Court reasoned that criminalizing a chemical test refusal violated the 4th Amendment because we have the right against warrantless searches by law enforcement and the government cannot punish us for essentially invoking our 4th Amendment right. Furthermore, any consent to search (which is what a chemical test is; a search for alcohol in your breath or blood) cannot be voluntary if our only options are giving up a constitutional right or be punished.

Similar cases to that of Hawaii’s coming from North Dakota and Minnesota prompted the United States Supreme Court to take up the issue.

The decision affects thirteen states which make it a crime or increases penalties for to refusing to take a chemical test. Amongst those states is California where a prosecutor can allege that a person refused the chemical test in addition to the DUI charge in the criminal complaint. If the refusal is found to be true, a person can face additional penalties through the court case and a longer suspension of driving privileges through the DMV.

Writing for the majority, Justice Samuel Alito said that breath tests do not implicate “significant privacy concerns.” Alito went on to say that breath tests are different than blood tests which require the piercing of skin and leaves a biological sample in the government’s possession. Breath tests, on the other hand, only require a person to blow into machine.

Justices Sonia Sotomayor and Ruth Bader Ginsburg said they would have gone further and required search warrants for both breath and blood alcohol tests. Justice Clarence Thomas dissented, saying he would have found both tests constitutional.

So what does this mean for California?

Well, we’ll just have to wait and see exactly how this plays out. However, based on the Court’s decision, California courts and the California DMV can still punish people for refusing a chemical test after a DUI arrest, but only if the chemical test is a breath test. If the only chemical test that is available is a blood test after a DUI arrest, officers must obtain a warrant before forcing a person to submit to the blood test and a person cannot be punished for refusing that blood test absent that warrant.

This decision, unfortunately, is yet one more example of the erosion of our constitutional rights. The 4th Amendment and the warrant requirement was written to ensure that searches are not arbitrary capricious. Warrants ensure that searches are reasonable so as to protect the privacy of citizens. There mere arrest of a person does not make a search, be it a breath test or otherwise, per se reasonable.

Chisel, chip, and off falls our 4th Amendment right against unreasonable searches and seizures.

Supreme Court Continues Carving Away at the Constitution

I’ve written repeatedly over past years on the continuing destruction of our constitutional rights — particularly in DUI cases.  See "The DUI Exception to the Constitution".

Yesterday, in the case of Utah vs. Strieff, the United States Supreme Court dealt yet another blow to what few rights still remain, even in non-DUI cases.  From the New York Times:

Supreme Court Says Police May Use Evidence Found After Illegal Stops

Washington, DC.  June 20 – The Supreme Court ruled on Monday that evidence found by police officers after illegal stops may be used in court if the officers conducted their searches after learning that the defendants had outstanding arrest warrants.

Justice Clarence Thomas, writing for the majority in the 5-to-3 decision, said such searches do not violate the Fourth Amendment when the warrant is valid and unconnected to the conduct that prompted the stop…

The case, Utah v. Strieff, No. 14-1373, arose from police surveillance of a house in South Salt Lake based on an anonymous tip of “narcotics activity” there. A police officer, Douglas Fackrell, stopped Edward Strieff after he had left the house based on what the state later conceded were insufficient grounds, making the stop unlawful.

Officer Fackrell then ran a check and discovered a warrant for a minor traffic violation. He arrested Mr. Strieff, searched him and found a baggie containing methamphetamines and drug paraphernalia. The question for the justices was whether the drugs must be suppressed given the unlawful stop or whether they could be used as evidence given the arrest warrant.

“Officer Fackrell was at most negligent,” Justice Thomas wrote, adding that “there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.”…

In a dissent…Justice Sotomayor said the court had vastly expanded police power.

“The court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights,” she wrote. “Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification and check it for outstanding traffic warrants — even if you are doing nothing wrong.

“If the officer discovers a warrant for a fine you forgot to pay,” she continued, “courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.”…

So an admittedly illegal stop by police — a clear violation of the Fourth Amendment — is ok if it was not "flagrantly unlawful"?  When did the Constitution only apply to "flagrant" violations?  What constitutes "flagrant"?

What little remains of our Constitution lays in tatters on the steps of the Supreme Court — the third branch of the government intended by the Founders to protect those rights.

Increased Penalties for a High BAC

When a person pleads guilty to a first-time California DUI, the statutory minimum of a sentence that they’re facing is three years of summary probation, $390 plus penalties and assessments, and a three month DUI program called AB 541. However, when the person’s blood alcohol content at the time they were driving was particularly high, typically higher than a 0.14, the prosecutor and/or court might seek additional penalties.

The first of the additional penalties is a DUI program longer than the AB 541 three month program.  AB 762 is a six month program and AB 1353 is a nine month program and both can be offered as part of plea deal for an elevated blood alcohol content. There is an 18 month program called SB 38, but it is reserved for people who have been convicted of a California DUI within 10 years after having been convicted of a previous DUI.  

Another additional penalty that a person faces after a California DUI conviction is the Mothers Against Drunk Driving Victim Impact Panel. According to Mother Against Drunk Driving (MADD), one of their main goals is to prevent recidivism of DUI offenses. In an attempt to accomplish this, MADD provides one-day presentations where convicted DUI offenders listen to the stories of people whose lives have been negatively affected by drunk driving. The speakers are usually victims of DUI-related collisions or relatives of those who were killed as the result of DUI-related collisions.

While panels are conducted different in each county, they are generally offered at different times and locations throughout any given month. Registration is usually required at least a month in advance and generally costs about $25 to $35. Cash or money order is usually required at the time of attendance. The silver lining, if there was one to having to do the Victim Impact Panel, is that unlike other increased penalties, it is only a few hours on only one day.

The prosecutor might also offer a Hospital and Morgue program. The name is exactly what the program entails. The person convicted of the California DUI must visit with doctors at a hospital who address the dangers of driving drunk and experience the health consequences of driving drunk. Following the hospital visit, the person must visit a morgue where they view the bodies that are stored there and are confronted with the ultimate consequence of driving drunk and other risky behavior. After both the hospital and morgue components are completed, the person must write an essay reflecting on their experience, the lessons learned, and behavior moving forward.

Alcoholics Anonymous (AA) meetings might also be offered as an additional penalty when a BAC is particularly high. According to its own website,, “AA is an international fellowship of men and women who have a drinking problem…Membership is open to anyone who wants to do something about his or her drinking problem.” AA meetings are relatively easy to locate and are offered throughout the week at varying times. Since the meetings only typically last one hour to 90 minutes, the court usually requires at least 10 meetings. For extremely high BAC readings, a person may have to a significant amount of AA meetings.

Lastly, a person may have to serve jail time. Whether a court and/or a prosecutor will want jail for an elevated BAC depends other aggravating factors surrounding the DUI, the county in which the DUI took place, and the courthouse itself. Although it is the most severe of the increased penalties and unlikely to be offered, it is possible.

A person with an elevated BAC may face one, all, or a combination of any of the abovementioned increased penalties. Since these penalties are not mandatory, it is important to hire a California DUI attorney to possibly eliminate them as part of a DUI sentence.


Man Gets Life for 9th DUI

A Houston man was sentence to life in prison this past week following his ninth, yes, ninth DUI conviction.

In May of 2015, Donald Middleton, 56, hit a 16-year-old driver head on and subsequently fled to a nearby gas station to hide. The 16-year-old happened to be the son of a Montgomery County Precinct Constable. Middleton was subsequently caught and found to be under the influence of alcohol. Fortunately the teen was not severely harmed as a result of the accident.

During the sentencing hearing, Middleton took the stand and told the court that his drinking problem developed when he was just a freshman in high school after years of being teased and bullied by classmates.

“To me there was no question that we needed to do everything that we could to ensure he wouldn’t be on the roads driving with our friends, our families, our kids on the road putting everyone at risk,” said Montgomery County Assistant District Attorney Justin Fowles.

According to court records, Middleton’s first DUI conviction occurred in 1980 when he was only 20 years old. For that conviction, Middleton was sentenced to a $200 fine and 60 days in jail. Since then, Middleton faced DUI charges in 1983, 1992, 1993, twice in 1997, 1999, and 2008. He also faced a possession of crack cocaine charge in 1993.

Notwithstanding Middleton’s prior criminal history, he maintained a valid Texas driver’s license.

The United States Supreme Court has consistently held that to be constitutional a punishment must be proportionate to the crime. Although the definition of proportionality isn’t always clear, when punishments and crimes are compared, some gaping discrepancies become apparent.

In most states, a life sentence is reserved for people who intend to commit egregious and violent offenses; murder, robbery, rape, etc.

There is no question that when a person drinks and drives, there is a risk of death or harm to bystanders. But the vast majority of people who drink and drive do not intend death or harm to anyone and most of the time no one is hurt or killed. People commit other traffic offenses every day that could also lead to death or harm and they too don’t intend on harming or killing anyone, yet they aren’t villainized or punished like DUI offenders. Are we to send a person for life if they have nine tickets for texting and driving?

If we’re punishing DUI offenders for committing non-violent offenses because of the mere possibility that they could harm someone, then there is a very apparent problem with consistency in our sentencing of non-violent crimes.

Texas’s allowance of life sentences for multiple DUI offenders speaks to a larger, and often publically denied, problem of lack of treatment for alcoholism. Whether the public wants to believe it or not, alcoholism is a disease.

Throwing a person in prison for life means giving up on that person. Although that may be an appropriate punishment for some offenses, it seems particularly cruel to me to give life to someone who made a mistake, who did not intend harm, who has a disease, and because their conduct could cause harm.

Law Requiring Ignition Interlock Devices for California DUI Passes Senate

On Tuesday of last week, the California Senate passed a new bill that would require all people convicted of a California DUI to have an ignition interlock device installed on their vehicle. Senate Bill 1046 will now be sent to the California Assembly for consideration.

Under a current pilot program here in California, only four counties require the installation of an ignition interlock device following a DUI conviction; Alameda, Los Angeles, Tulare, and Sacramento. A first-time DUI requires installation for five months upon eligibility to drive either with a restricted license or a full reinstatement of driving privileges. The pilot program also requires an IID for 12 months for a second-time DUI, 24 months for a third DUI, and 36 months for a fourth or subsequent DUI.

If you don’t already know, an ignition interlock device is a breathalyzer that is installed into the dashboard of a person’s vehicle. The device must be blown into before the engine can be started, but only if the breathalyzer does not detect alcohol on the breath sample. Once the vehicle is started, the breathalyzer must be blown into at random times throughout the drive.

The proposed law was introduced by Senator Jeremy Hill and, not surprisingly was overwhelmingly praised by Mothers Against Drunk Driving (MADD).

“MADD is grateful to the Senate for moving this life-saving bill forward," said MADD’s National President, Colleen Sheehey-Church. "In the coming weeks, MADD will be visiting Assembly members and calling on them to quickly pass SB 1046 to protect residents and visitors from this 100 percent preventable crime."

MADD released its “Ignition Interlock Report” compiled from data collected during the pilot program which has been running since 2010. According to the report, ignition interlock devices have prevented more than one million drunk driving attempts in California with about 125, 000 of those attempts involving a blood alcohol content of 0.08 percent or more.

However, the California DMV is also compiling a report on the effectiveness the ignition interlock devices have had on preventing drunk driving.

In fact, the California DMV previously found that such a law would not prevent people without ignition interlock devices from driving drunk. Additionally, there are ways to circumvent the requirement of providing a clean breath sample before starting a vehicle.

The cost of the interlock device can run approximately $75 to $100 for installation, about $75 per month, and often additional fees for maintenance and calibration. This is on top of the cost already associated with a California DUI conviction which can run upwards of $10,000.

If passed, first time offenders would be required to install the devices for six months, a year for a second offense, two years for a third offense and three years for a fourth or subsequent offenses.

The will be heard by several Assembly committees, including the Committee on Public Safety, and must be approved by the Assembly before it can be considered by California Governor Jerry Brown.