Monthly Archives: June 2018
The most widely known California DUI law is Vehicle Code section 23152(b) which makes it illegal to drive with a blood alcohol content of 0.08 percent or higher. Some people realize that if a person is arrested for a DUI, they will likely also be charged with Vehicle Code section 23152(a) which makes it illegal to drive “under the influence,” meaning that the driver cannot drive as a reasonable sober person would. Very few people, however, are aware of one of California’s more obscure DUI laws; driving while addicted.
Under California Vehicle Code section 23152(c), “[i]t is unlawful for any person who is addicted to the use of any drug to drive a vehicle.”
The purpose of DUI law is to protect the public from drivers who, at the time of driving, are under the influence. So you may be asking yourself the same question that I asked myself the first time I learned of this law: If an addict is not under the influence at the time of driving, how can they still be prosecuted for a DUI? Shouldn’t the law only punish drivers who actually pose a risk to the roads because of current intoxication?
In the 1965 case of People v. O’Neil, the California Supreme Court upheld the law and explained that it, like the other, better-known DUI laws, also protects the public.
In looking at the legislative intent in drafting the law, the court concluded, “when an individual has reached the point that his body reacts physically to the termination of drug administration, he has become ‘addicted’ within the meaning and purpose of [23152(c)]. Although physical dependency or the abstinence syndrome is but one of the characteristics of addiction, it is of crucial import in light of the purpose of [23152(c)] since it renders the individual a potential danger on the highway.”
In other words, the court concluded that a person who is an addict and going through withdrawals can be a danger to the roads. This conclusion presumes that all addicts at all times go through withdrawals and can still be arrested, charged, and convicted of a California DUI. While this presumption is false because not all addicts are always suffering from withdrawals, the California Supreme Court went on to say prosecutors, however, do not need to prove that the driver was suffering from withdrawals at the time of arrest.
“The prosecution need not prove that the individual was actually in a state of withdrawal while driving the vehicle. The prosecution’s burden is to show (1) that the defendant has become ‘emotionally dependent’ on the drug in the sense that he experiences a compulsive need to continue its use, (2) that he has developed a ‘tolerance’ to its effects and hence requires larger and more potent doses, and (3) that he has become ‘physically dependent’ so as to suffer withdrawal symptoms if he is deprived of his dosage.”
If you ask me, the California Supreme Court is contradicting itself. In essence, it is saying that the purpose of the law is to protect the public from addicts who are suffering from withdrawal symptoms while driving, yet it doesn’t require that the addict be suffering from the withdrawal symptoms at the time of driving.
Although this section of the vehicle code is rarely enforced, law enforcement and prosecutors can continue to punish drivers who are addicted to a drug even though they may not be, at the time of driving, under the influence of a drug.
So, again I ask, “Shouldn’t DUI law punish people who actually pose a risk to the public?” Apparently, according to the California Supreme Court, the answer is no.
No longer are the days where it was the cop’s word against the driver’s word about what exactly happened when the cop pulled the driver over on suspicion of driving under the influence. Fortunately, video evidence is becoming increasingly available in California DUI cases to confirm or refute the facts of the case.
Mobile video and audio recording systems (“MVARS”), often referred to as “dash cams,” were first used by law enforcement in the late 1980’s in Texas to keep law enforcement safe in remote rural areas. Back then, the camera was mounted on a tripod and the footage was recorded on a VHS cassette. Remember those? This necessarily meant that they were big, bulky and expensive. As a result, law enforcement agencies did not begin using dash cams regularly until the technological efficiency of dash cams increased, and price decreased in the late 2000’s. This is not to say that all agencies use them, because some still do not.
If, however, a patrol car has one, it may help officers gather evidence that a driver was driving under the influence as well evidence that a driver may not have been driving under the influence.
Dash cam footage is objective. An officer’s perception and recollection of the event unfortunately are not. Unlike a police report which is written hours after the DUI stop occurred (and well after an officer’s memory begins to fade), a dash cam records the events as they occur.
Law enforcement needs probable cause of a traffic violation to initiate a traffic stop, which is usually the first step in the DUI investigation process. Absent probable cause, a driver cannot be pulled over. Unfortunately, many officers fabricate the probable cause for stop, claiming that a driver never used a blinker, or they were swerving, or they ran a stop sign, so on, so forth. The dash cam, however, can show that there was no probable cause for the stop. It can show that the blinker was used, there was no swerving, and the driver did stop at the stop sign.
Even in agencies that use dash cams, some officers are finding their own ways to circumvent the transparency that the dash cam provides.
More often than not, at least in my experience, officers will take the driver out of the camera’s view to perform field sobriety tests. The officer will then write up their police report claiming that the driver “failed” the field sobriety tests providing little or no explanation as to why they failed.
Hopefully, this will soon be a thing of the past as more law enforcement agencies are beginning to use body cameras rather than or in addition to dash cams.
A body camera 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.
What if a patrol car doesn’t have a dash cam and the officer doesn’t have a body cam? Can you or someone else record officers during a DUI stop?
I don’t know anyone who doesn’t have a smartphone with a camera on it. If you, a passenger, or some other third party have a camera, such as a smartphone camera, readily available, you can record law enforcement performing their duties in public. The First Amendment protects the right to discuss the government, the right to free press, and the right to public access of information. And the courts are fairly unanimous that citizen journalists are protected just as much as members of the press. This includes the right of citizens to record officers performing their duties in public as long as the citizen isn’t recording officers surreptitiously, doesn’t interfere with the officer, or doesn’t break the law while recording.
Whether it comes from a dash cam, a body cam, or a smart phone, video evidence provides transparency during DUI stops. Transparency means finding the truth, which is what should be at the heart of every DUI case. Unlike officers, video footage can’t lie.
A man riding his horse during the Colusa County Fair Parade in Colusa, California, last Friday was arrested on suspicion of felony California DUI after his horse trampled a boy.
Armando Martinez Ruiz, a participant in the parade, was thrown from his horse after the horse bucked. As the horse ran away and through a group of spectators lining the parade route, it trampled an eight-year-old boy breaking his leg.
Officers found the horse and Ruiz was arrested on suspicion of felony DUI.
“In California, the same laws apply when riding horses as driving cars,” the Colusa Police Department said on its Facebook page.
This incident comes only a few months after a man was caught riding his horse on the 91 freeway in my hometown of Long Beach.
In that case, California Highway Patrol responded to a report that a man, later identified as Luis Alfredo Perez, had ridden his horse eastbound onto the 91 freeway. Officers found Perez after he exited the freeway in Bellflower.
It was later determined that the Perez’s blood alcohol content was 0.21/0.19 percent, more than double the legal limit, and he was arrested on suspicion of DUI.
Following Perez’s arrest, CHP took to Twitter saying, “No, you may not ride your horse on the freeway, and certainly not while intoxicated.” It included a picture of horse whose name was Guera and who was later released to Perez’s mother.
The Colusa Police Department was not wrong when it said that the same laws apply to horse riders as they do with drivers of motor vehicles.
According to California Vehicle Code section 21050, “Every person riding or driving an animal upon a highway has all of the rights and is subject to all of the duties applicable to the driver of a vehicle by this division…”
Since California DUI laws apply to the rider of a horse on a road, Perez was charged with a run-of-the-mill DUI. He faced fines between $390 and $1,000, three to five years of summary probation, a DUI program of up to nine months, and up to six months in county jail.
Ruiz, on the other hand, is facing felony DUI charges because someone was injured. Depending on the severity of the injury, someone can be charged with either a misdemeanor or a felony when their impaired driving injures someone other than the driver. And because Ruiz is being accused of felony DUI, he faces up to four years in prison, an additional (and consecutive) three to six years because broken bones can be considered “great bodily injury,” a “strike” under California’s Three Strikes Law, a fine between $1,015 and $5,000, and an 18 or 30 month DUI program.
I’ll leave you with a poem written by a dissenting Pennsylvania Supreme Court judge in a Pennsylvania case which held that a horse is not a vehicle for purposes of driving under the influence.
“A horse is a horse, of course, of course, but the Vehicle Code does not divorce its application from, perforce, a steed as my colleagues said. ‘It’s not vague,’ I’ll say until I’m hoarse, and whether a car, a truck or horse, this law applies with equal force, and I’d reverse instead.”
Memorial Day just past and summer is around the corner. Summer months mean beach trips, vacations, barbeques, 4th of July, and this year, my personal favorite, the World Cup. Where there is fun to be had, law enforcement expects drunk and impaired driving. Many of the summer activities I just mentioned do, often, involve indulging in the alcoholic beverage, possibly even a little of the Mary Jane now that’s it’s legal here in California. One of law enforcement’s favorite weapons in their battle against impaired driving is the sobriety checkpoint.
The 4th Amendment of the United States Constitution requires that officers have probable cause and a warrant before they can seize and/or search a person. Well, what is a checkpoint? It is certainly a seizure since the police are stopping people on the roads when they would otherwise be free to drive without interruption. It may be also a search if the law enforcement has drivers take a breathalyzer. So how can law enforcement do this without having a warrant?
In the 1987 case of Ingersoll v. Palmer, the California Supreme Court set forth guidelines to ensure the constitutionality of checkpoints in California. Those guidelines are as follows:
- The decision to conduct checkpoint must be at the supervisory level.
- There must be limits on the discretion of field officers.
- Checkpoints must be maintained safely for both the officers and the motorists.
- Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
- The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
- The checkpoint must show indicia of official nature of the roadblock.
- Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.
- Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.
Three years later in the case of Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop. In doing so, the court held that sobriety checkpoints were constitutional even though officers were technically violating the 4th Amendment.
Now that we’ve determined that sobriety checkpoints are constitutional, I would be remiss if I did not tell you what your rights and obligations are, as the driver, should you happen to find yourself stopped at a sobriety checkpoint.
Based on the last of the Ingersoll v. Palmer requirements, checkpoints must be highly visible. As a result, drivers are often aware of the checkpoint before they drive up to it. Believe it or not, drivers are allowed to turn around so as to avoid the checkpoint. They, however, must do so without breaking any traffic laws such as making an illegal U-turn.
If you do not turn away, but rather pull up to the checkpoint, the officer might first ask you some questions such as: Where are you coming from? Where are you going? Have you had anything to drink?
The 5th Amendment to the Constitution gives you the right not to say anything to law enforcement ever. And don’t! Invoke your right to remain silent by telling the officer, “I would like invoke my 5th Amendment right and respectfully decline to answer any of your questions.” Now keep you mouth shut until given the opportunity to call your attorney.
Surely this is not going to sit well with the officer. They may, at that point, have the driver exit the car and request that they perform field sobriety tests. Drivers should absolutely decline to perform the field sobriety tests. They are an inaccurate indicator of intoxication, but fortunately they are optional. I and many other people would have trouble doing them sober.
At this point, the officer is likely fuming, but who cares? You are exercising your constitutional rights.
As a last-ditch effort, they may request that you take a roadside breathalyzer commonly referred to as a “PAS” (preliminary alcohol screening) test. Under California’s implied consent rule, as a driver, you must submit to a chemical test after you have been arrested on suspicion of a DUI. The key word is “after.” Therefore, when you happen upon a checkpoint and the officer requests that you to take the PAS test, you can legally refuse. If, however, the officer has arrested you on suspicion of DUI you must submit to either a blood test or a breath test.
This summer season be on the lookout for sobriety checkpoints. But should you find yourself about to drive through a checkpoint with no way to legally turn around, know your rights and use them. That’s what they’re there for.
A Sonoma man was found unconscious in his parked, running car by Petaluma police. Officers arrested the man, who had recently been convicted of a DUI, on suspicion of another DUI.
Joel Barrera, 34, was found asleep in his vehicle on May 22nd by Petaluma police officers. Although the car was parked in the parking lot of a local park, the engine was running. After waking Barrera, officers determined that he was under the influence of alcohol with a blood alcohol content of almost twice the legal limit of 0.08 percent.
What’s more, officers found a semi-automatic handgun and a loaded magazine in his car and discovered that Barrera was already on probation for a DUI conviction out of Marin County for which his license was currently suspended.
Barrera was arrested on suspicion of driving under the influence, carrying a concealed gun in a vehicle, driving on a suspended license, and violating probation.
We’ll have to wait and see what happens to Barrera. But until then, you might be wondering how it is that someone can even be arrested on suspicion of driving under the influence if they weren’t even driving.
If a person is found sleeping in their car, as was the case with Barrera, it is likely that any arresting officer did not see the person drive. Therefore, there may not be any direct evidence for a prosecutor to prove that a person drove.
Just because law enforcement does not actually see a person drive under the influence doesn’t mean they can’t be found guilty of driving under the influence. A prosecutor can use circumstantial evidence to prove that a person drove to where they were found while under the influence and then fell asleep in their car.
For example, if an intoxicated person is sleeping in their vehicle in the middle of the road or at the scene of a collision (believe me, it happens more often than you would think), then the prosecutor can raise those facts to create the inference that the person had driven to those locations. In other words, the prosecutor may argue that, based on the surrounding circumstances, it is reasonable to infer that the defendant drove to the location where they were found even though there is no direct evidence that they drove there.
On the other hand, if those facts do not exist that would create the inference that the defendant drove then the prosecutor is going to have difficult time proving that the person actually drove the vehicle while being under the influence. This scenario presents itself from time to time as well. But the person may still be charged with another crime such as drunk in public.
In the 1966 case of People v. Belanger, officers found the intoxicated defendant asleep in his vehicle which was located in a parking lot. Although the facts in that case were not enough to create the inference that the defendant had driven to the location while under the influence because he could have driven there sober, drank, and then fell asleep, the officers did arrest the defendant for drunk in public.
The Court concluded that, in order to prevent the defendant from waking up and then drive away drunk, they needed to arrest him on suspicion of being drunk in public.
Needless to say, no person should be in a vehicle when they’re intoxicated whether they’ve driven or not. A prosecutor may still be able to successfully argue the person drove when, in fact, they didn’t. Furthermore, if a prosecutor cannot prove that the person drove, they may still be able to secure a conviction for some other crime such as drunk in public.