Monthly Archives: October 2017
This story is disturbing to me not just because it occurred in my hometown of Long Beach, but because it exemplifies the partiality with which prosecutors and police treat DUI’s of those whom they have a working relationship with versus everyday citizens.
Prosecutors have decided not to prosecute Long Beach Councilwoman, Jeannine Pearce with domestic violence nor driving under the influence in a June 3rd incident involving her former chief of staff, Devin Cotter.
District attorney declines to charge Long Beach Councilwoman with drunk driving, domestic violence
October 26, 2017, Los Angeles Times – Prosecutors have decided not to charge Long Beach Councilwoman Jeannine Pearce with domestic violence or driving under the influence in connection with a June clash with her former chief of staff.
But a district attorney’s memo detailing the decision also raises questions about the Long Beach Police Department’s response to the June 3 incident involving the councilwoman and Devin Cotter.
In its initial statement, the Police Department said it received a call for assistance from the California Highway Patrol about a possible drunk driving incident on the shoulder of the 710 Freeway in Long Beach at 2:40 a.m.
The city’s officers smelled alcohol on Pearce, who admitted to drinking that night, according to the district attorney’s memo. A field sobriety test conducted about 4 a.m. showed she was mildly impaired.
But the memo said a test of the councilwoman’s blood alcohol level was not conducted until 4:20 a.m., nearly two hours after the CHP called. At that point, the test showed Pearce had a blood alcohol level of 0.06%, under the legal limit of 0.08%, the memo said.
The testing device used on Pearce was unreliable, the prosecutor’s memo said. A department toxicologist had recommended it not be used a month before the incident. Additional tests were not performed, according to the district attorney’s memo.
A police spokesman said in a statement that officers initially investigated whether domestic violence had occurred when they arrived, interviewing Cotter and Pearce before realizing that the councilwoman had been drinking. At that point, the officers called for a colleague who is a certified drug recognition expert to investigate, Sgt. Brad Johnson said in the statement.
He said the testing device had been “tagged to be replaced but was not removed from its storage cabinet. The officer who retrieved the device did not realize … and unfortunately used it during the DUI investigation.”
Police at the scene saw Cotter with swelling, redness and a cut to his head and cuts to his hand, according to the district attorney’s memo. Pearce at one point had shoved Cotter, causing him to fall to the ground, the memo said.
Prosecutors ultimately decided that Pearce, who was first elected to the City Council in 2016, could argue she was defending herself when she shoved Cotter.
Pearce said she could not immediately comment. Cotter could not be reached for comment.
I can tell you that, had this been an average Joe Schmoe driver, it would not have ended up in a refusal to file DUI or domestic violence charges.
Many DUI cases are filed everyday where the blood alcohol content is below the legal limit or a breathalyzer is faulty. While it may have been true that Pearce was under the limit at the time of the test and that the breathalyzer was inaccurate, had it been a regular member of the public, charges for driving under the influence would still have been filed and prosecutors would have left it to the defendant their attorney to dispute the results.
The same thing can likely be said for the refusal to file domestic violence charges. If prosecutors declined to prosecute domestic violence charges when anybody “could argue [they were] defending [themselves],” then they’d never prosecute anyone. And believe me, in the many domestic violence cases I’ve handled, not once has a prosecutor dropped a case because a person “could argue that they were defending themselves.”
So now let me ask you: Is this a coincidence?
Let’s imagine a common DUI scenario.
A person is stopped on suspicion of a California DUI. The person stopped has read my many posts telling readers that the field sobriety tests are optional and should not be submitted to. So they politely decline the field sobriety tests. Then the officer requests an on-scene breathalyzer known as the “preliminary alcohol screening” test or PAS test. In addition to my posts reminding readers that this too is option, the officer also informs the driver that the PAS test is optional. So this too is politely declined by the driver. Lastly, the officer advises the driver that they are under arrest on suspicion of a California DUI and that, by law, they must submit to a chemical test which can either be a breath or a blood test.
Which test should the driver choose? Breath or blood?
The DUI blood test is much more accurate than the DUI breath test. The blood test is far less likely than a DUI breath test to produce a false reading. Another benefit of a DUI blood test is that the law requires that a sample of the blood is saved for future testing by the DUI suspect’s defense attorney. The defense attorney can have the sample tested by its own blood analyst to contradict the results of the prosecutor’s analyst. This is called a “blood split” and it is commonly used in DUI defense.
The blood test, however, is not infallible. See my previous post:
Since the blood test is more accurate, if a person knows that they have not had much to drink and they are fairly certain that they are under the legal limit of 0.08 percent, then a blood test might be the better option. On the other hand, the blood test might not be the best for someone who is clearly over the legal limit because it will be more difficult to dispute the test results.
Unlike the blood test, the breath test is rather unreliable. Breath tests can provide false readings for several reasons. See Lawrence Taylor’s post:
Although California DUI attorneys cannot dispute the reliability of breathalyzers as a whole during a DUI trial, they can provide evidence that the particular breathalyzer used in an individual case was inaccurate.
Unlike the blood test, the breath test may be a better option for someone who knows they are likely over the legal limit because it will be easier for a California DUI attorney to refute the results. However, many people who are actually under the legal limit may still test over the legal limit because of the same inaccuracies.
Simply put, if you are fairly confident that your blood alcohol content will below the legal limit of 0.08 percent, you’re probably better off opting for the blood test because it will accurately show that you were, in fact, under the legal limit. However, if you think there is a chance that you could be above the legal limit, you might be better off opting for a breath test so that your attorney can challenge the results if you test above the legal limit.
Driverless cars are so close to becoming a reality that just this past week, California published new draft rules that provide a clearer picture of how the driverless car industry will be regulated in the state.
Amongst the many proposed regulations that were drafted, which can be found on California’s DMV website here, is that driverless cars must comply with state and local driving laws. Companies which sell the driverless vehicles to customers must make software updates available to comply with changes in traffic laws.
While the proposed regulations apply primarily to the manufacturers of the driverless vehicles and not necessarily on the owner of the driverless vehicle, it remains unclear how driverless cars will affect another state law that does apply to the owner and, dare I say it, driver of the driverless vehicle; the California DUI.
As is, the California Vehicle Code’s DUI law makes it “unlawful for a person who is under the influence of any alcoholic beverage…[or] who has 0.08 percent or more…of alcohol in his or her blood to drive a vehicle.”
If driverless cars take to the streets of California in the next year, or possibly even months, the question becomes whether the word “drive” under California’s DUI law still applies. In other words, can a person still be charged, arrested, and convicted of a California DUI while using a driverless car?
At least one country says no.
Australia’s National Transport Comission (NTC) has released a report suggesting that applying drunk driving laws to driverless cars could discourage the use of driverless cars in general and when trying to get home safely after drinking:
Driving Drunk or on Drugs in a Driverless Car Should Be Legal, Expert Body Says
October 6, 2017, CNBC – People under the influence of drugs and alcohol should be able to use driverless cars without falling foul of the law, a regulatory body in Australia has suggested.
The National Transport Commission (NTC), an independent advisory body, said current laws could reduce the uptake of automated vehicles. One of those potential barriers could be any law that requires occupants of self-driving cars to comply with drink-driving laws.
"This would create a barrier to using a vehicle to safely drive home after drinking. Enabling people to use an automated vehicle to drive them home despite having consumed alcohol has the potential to improve road safety outcomes by reducing the incidence of drink-driving," the NTC said in a discussion paper released earlier this week.
"Legislative amendments could be made to exempt people who set a vehicle with high or full automation in motion from the drink- and drug-driving provisions."
The NTC does acknowledge a risk that could involve a person under the influence of drink or drugs choosing to take over the car. If that occurred, the body suggests that drink and drug driving offences would apply. But ultimately, a drunk person in a driverless car is similar to them being in a taxi, the NTC concludes.
"The application of an exemption is clear-cut for dedicated automated vehicles, which are not designed for a human driver. The occupants will always be passengers. The situation is analogous to a person instructing a taxi driver where to go," the paper said.
In many countries drugs are illegal and drink-driving laws differ between jurisdictions.
Australia has been pushing forward legislation to facilitate driverless cars over the past two years. In 2015, the first public self-driving car trials took place in South Australia, after laws were passed there to allow tests.
The NTC also recently released guidelines on driverless car tests across the entire country.
Analysts have forecast that automated vehicles could actually be a boon for the alcohol industry.
"Shared and autonomous vehicles could expand the total addressable market of alcoholic beverages while reducing the incidence of traffic fatalities and accidents," Morgan Stanley analyst Adam Jonas saidin a report last month.
Governments across the world are looking into the implications that driverless cars will have on the law and the insurance industry.
I’ve said it before and I’ll say it again. Anything that helps prevent drunk driving, I’m in favor of. If a driverless car can get people home safely after a night of drinking, then why wouldn’t we use them? But to apply DUI laws to those using driverless cars defeats the purpose of DUI laws in the first place, namely to punish and deter drunk driving. In fact, it may actually discourage people from choosing this new method from traveling, as the NTC’s report suggests.
Danny Lee Bettcher of New York Mills, Minnesota, has been arrested for driving under the influence for the 28th time. Yes, that’s correct, 28th time.
This past week, an off-duty police officer spotted Bettcher drinking at a local Veterans of Foreign Wars (VFW) post. The off-duty officer notified authorities after he saw Bettcher leave the VFW post in his vehicle.
Authorities caught up with Bettcher and pulled him over after he ignored a stop sign and drove onto the highway at 10 mph while swerving. According to officers, Bettcher had bloodshot eyes and a beer can was located behind the passenger’s seat.
“I am way over. Take me to jail,” Bettcher told police after refusing to take a sobriety test, according to the criminal complaint.
According to Assistant County Attorney, Jacob Thomason, Bettcher could be sentenced up to seven years in prison.
Although Bettcher’s license was valid at the time of the arrest, it included “a restriction that any use of alcohol or drugs invalidates the license,” state Department of Public Safety spokeswoman Megan Leonard told the Star Tribune.
As of last week, a revocation of Bettcher’s license was pending.
Bettcher, who attributes his alcoholism to post-traumatic stress disorder following his military service, has already served four years behind bars for other DUI convictions and has been ordered to go to treatment at least 12 times.
So what would it have taken for Bettcher to have his license permanently revoked had he been in California?
The California license suspension can be rather complicated. Suffice it to say, on a first time DUI, a person faces a six-month suspension assuming the driver was over the age of 21, there was no refusal of the chemical test, and there were no injuries as a result of the DUI. You can read my previous posts about the nuances of a first-time DUI license suspension.
If, however, a person suffers a DUI and they have previously been convicted of a DUI within the past 10 years, then the suspension increases significantly.
A second DUI will trigger a two-year suspension and a third DUI will trigger a three-year suspension. If a driver suffers a fourth DUI within 10 years, they are facing a four-year suspension, but they may also be deemed a “habitual traffic offender” and can have their license revoked permanently.
Although Bettcher’s 27th DUI arrest occurred in 2010, it’s unclear whether any of his previous DUI’s occurred within a 10-year window.
I’m no mathematician, but at 64-years-old, as Bettcher was, I can’t imagine that the convictions could have been spaced out such that he would have been able to avoid the habitual traffic offender status and permanent revocation here in California.