Monthly Archives: September 2018
I’m sure you’ve seen them around town. First it was the rentable bicycles on sidewalks throughout Southern California. Now it’s electric scooters as an alternative to walking around town for pedestrians in urban areas like downtown Los Angeles or my neck of the woods, Long Beach.
How do they work? Well, like many things today, there’s an app for it. Download the app onto your smartphone for one the scooter companies that offer their services in your area; Bird, Lime, Skip, Scoot, or Spin. Once downloaded, you can access a map that tells you where the nearest scooter is. Find the nearest scooter, enter your credit card number into the app, and scan the bar code on the scooter with your smartphone to unlock the scooter. Ride.
This week, Los Angeles City Attorney Mike Feuer said that his office secured the conviction of Nicholas Kauffroath, 28, for driving a rentable scooter under the influence.
Kauffroath was riding a rentable Bird scooter in West Los Angeles when he collided with a pedestrian and scooted away without rendering help or providing information.
Law enforcement found Kauffroath at a nearby apartment building where they were able to test his blood alcohol content, which registered at 0.279 percent; more than three times the legal limit.
Kauffroath subsequently pleaded no contest to one count of misdemeanor operating a motorized under the influence and one count of misdemeanor hit and run. He was sentenced to three years of informal probation, a $550 fine, a three-month DUI program, and was ordered to stay off scooters while drinking.
“Drinking while operating a vehicle, a bike – or a scooter – is not only illegal, but can lead to serious injury or worse,” Feuer said in a statement. “This conviction demonstrates our office’s continued effort to enforce our drunk driving laws and make our streets and sidewalks safer.”
While the Los Angeles City Attorney’s office treated Kauffroath’s case as though it was a standard DUI with a vehicle based on the sentence he received, the law regarding DUI’s on scooters is not necessarily the same as a DUI with a vehicle.
California Vehicle Code section 21221 states in pertinent part, “Every person operating a motorized scooter upon a highway…is subject to all…provisions concerning driving under the influence of alcoholic beverages or drugs.” Under this section, it seems as though Kauffroath’s sentence was not wholly inconsistent with vehicle DUI laws regarding punishment.
However, section 21221.5 states in pertinent part, “[I]t is unlawful for any person to operate a motorized scooter upon a highway while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug…A conviction of a violation of this section shall be punishable by a fine of not more than two hundred and fifty dollars ($250).”
The conundrum here is that in the latter section, the penalty for a DUI on a scooter cannot, under the law, be more than $250. This necessarily means that a DUI on an electric scooter cannot be charged as anything more than an infraction with a penalty of nothing more than the $250 fine.
Of course, I don’t know exactly what discussions and/or negotiations occurred between Kauffroath’s defense attorney and the City Attorney’s office regarding his plea deal. I can say that I recently had one of these cases, which was originally charged as a misdemeanor. If convicted as a misdemeanor, my client was looking at three to five years of probation, an 18-month DUI course, fines and fees, and a probation violation for a previous DUI conviction, which could have very well led to jail time. However, after arguing that the language of the law only allowed for a fine of no more than a $250 fine, the case was dropped to an infraction with that $250 fine.
It should be noted that, before scooter renters are allowed to rent and ride the scooters, they are required to confirm that they will not ride while under the influence of alcohol or drugs.
Prosecutors in the state of Massachusetts have agreed to stop using breathalyzer results dating back to 2011 as a result of improper calibration of the breathalyzers when the machines were first purchased by the state. What’s more, state officials later attempted to hide the machines’ flaw from both defense attorneys as well as prosecutors.
The agreement will be presented this week to Judge Robert Brennan, who has been overseeing the proceedings challenging the reliability of the Draeger 9510 since 2015.
Although prosecutors in Massachusetts had already agreed to stop using results from June 1, 2011 to June 14, 2014, defense attorneys learned that state officials in the Office of Alcohol Testing, which is part of the Massachusetts State Police Crime Lab, had withheld hundreds of documents that a judge had ordered them to overturn. Those documents showed a higher calibration failure rate than state officials had previously reported.
According to defense attorney, about 36,500 test results have been affected by the calibration flaw. This includes nearly every breathalyzer result obtained since 2011.
People who were convicted of a DUI where the breathalyzers results were obtained from within that timeframe can seek a new trial if their conviction was based solely on the breathalyzer results. People convicted of a DUI cannot, however, seek a new trial if their conviction was at least partly based on other evidence of intoxication such as observed poor driving by witnesses or police, video, or field sobriety tests.
According to Jake Wark, a spokesman for the Suffolk County District Attorney’s office, the actual number of affected cases will be “significantly lower” than 36,500 because it will not include cases where a breathalyzer was given to a person before being put into protective custody or where someone was given a breathalyzer to show them how the machine works.
Contrary to the usual adversarial rapport between defense attorneys and prosecutors, defense attorneys are maintaining that prosecutors and law enforcement are not to blame for the monumental blunder.
“It was not the assistant district attorneys who were withholding the material, said Joseph Bernard, an attorney leading the litigation over the machines. “They had nothing to do with this and when they found out, they rose up.”
Prosecutors are, however, still arguing to use the results in DUI cases involving death or severe injury, or in fifth or subsequent DUI cases. Additionally, prosecutors are proposing a cutoff date of August 31, 2017, after which they can begin using the breathalyzer results again.
Defense attorneys are arguing that the use of the breathalyzer results should continue to be halted until the state lab obtains accreditation by a national standards group, ANSI-ASQ National Accreditation Board, which likely wouldn’t happen until 2020.
It shouldn’t come as a surprise to anyone where I fall on this. If the results are faulty, they should not be used in any DUI case, including those that involved death or serious injury and fifth or subsequent DUI’s. The seriousness of the offense does not justify the use of tainted evidence.
Furthermore, those convicted of a DUI should not be barred from re-trial simply because other evidence existed. Just because other evidence exists that tends to show intoxication doesn’t mean that that evidence alone and without the breathalyzer result would have produced the same result.
We’ll have to wait and see how this, as I referred to it earlier, monumental blunder plays out in Massachusetts.
Could it be that sometime in the future drunk drivers can be arrested by robotic law enforcement? If you’re anything like me, a product of the 80’s, you might be envisioning something like the Terminator, or Robocop. While we may be closer to automated law enforcement than some might think, it’s not as cool as what my imagination envisions.
Motorola has patented an autonomous car that may actually replace law enforcement in the fight against drunk driving.
Called the “Mobile law enforcement communication system and method,” the vehicle as described in Patent 10049419 is a “communication system, comprising: a self-driving vehicle within which to detain a detainee by law enforcement” that has the ability to make an arrest of a drunk driver, reads the drunk driver their Miranda Rights, determines who the driver’s attorney is, calls the driver’s attorney, communicates with a court regarding bail, and allows the drunk driver to swipe a credit card to post that bail.
Don’t believe me? See Patent 10049419 for yourself.
According to the developers, a self-driving vehicle will respond to a DUI stop where “the detained or arrested individual is placed into the self-driving vehicle for initial processing. Depending on the type of incident or alleged infraction, the individual may or may not remain handcuffed within the vehicle, but is detained within at least a portion of the vehicle throughout the process, such as a backseat area. [P]redetermined law enforcement processes and proceedings take place…using the autonomous vehicle’s communication system.
“Depending on the severity of the incident or alleged infraction, the processes and proceedings taking place within the self-driving vehicle may take the form of one or more of testing, booking, arraignment, and even full adjudication, if applicable. For example, the mobile communication system can be used as a mobile test hub for determining alcohol levels, drugs, and/or weapons. Sensors and scanners plugged in within the self-driving vehicle provide preliminary in-vehicle screening tools to help law enforcement officers assess a driver suspected of being drunk, carrying a dangerous or weapon, and predetermined drugs. As air sensors and scanners continue to evolve, the detained individual may simply remain within the vehicle while the tests are processed, analyzed, and results communicated to one or more appropriate recipients. Depending on the status of the detainee’s confinement, results may be communicated, over one or more wireless communications networks, to law enforcement, a remote attorney, and/or an on-call judge which may be contacted by the communication as part of the mobile processes and proceedings.”
Should this ever come to fruition in my lifetime, I’m not sure how I feel about it considering I still use a pin-on-the-wall calendar to keep track of my upcoming events rather than my smartphone. I can say, however, that it may be better than the subjective and often bias determinations made by the human law enforcement officers we deal with today.
Few people know that they have a right not to say anything to an officer who has pulled them over on suspicion of driving under the influence. Sometimes a person knows that they don’t need to speak to the officer but do so anyways because they think that cooperation will help their cause. Sometimes a person just gets so nervous that they don’t even think about it and start answering the officer’s questions.
What kind of questions?
Some questions an officer might ask, and almost always do, include: “Where are you going?” “Where are you coming from?” “Have you had anything to drink?”
The driver is doing him or herself no favors if they answer with, “I’m going home from the bar and I’ve only had one or two drinks.” All the driver has done is given the police more reason to arrest them and given the prosecutor more evidence to convict them.
Maybe the driver wouldn’t have answered the officer’s questions had they been read their Miranda Rights. Why didn’t the officer read the driver their Miranda Rights before the officer started asking questions? When does the officer have to read the driver their Miranda Rights, if at all?
Before we get into when an officer must give Miranda Warnings to a DUI suspect, it makes sense to address why officers give Miranda Warnings in any case.
All statements given to law enforcement must be voluntarily given, even those given during a DUI stop. The United States Supreme Court in the landmark case of Arizona v. Miranda said that a statement cannot be voluntarily given if a person doesn’t know they have a right not to say anything under the 5th Amendment. Therefore, in order for a statement to be voluntarily given, a person must be made aware that they have a right to remain silent.
Whether it is a DUI stop of an arrest for murder, the Court held that an officer must read a person their Miranda Warnings before a “custodial interrogation.” This means after an arrest and before an interrogation.
When a person is stopped on suspicion of a DUI or even a traffic violation that leads to a DUI investigation, the person is not arrested even though they may be temporarily detained. And inevitably the officer is going to ask questions after stopping the person.
Now, the person has the right not to speak to the officers or answer their questions. But the officer’s duty to advise the driver of the Miranda Warnings has not yet been triggered because the person is not yet under arrest.
Questions asked during this time are considered merely preliminary in nature. And yes, any answers given by the driver during this time are fair game for officers and prosecutors to use in a DUI case against the driver.
It would be a different story if, after the DUI stop, the driver is arrested, but not given Miranda Warnings. If the officer then proceeds to ask the driver questions and the driver answers, those answers would be in violation of Miranda and thus in violation of the 5th Amendment.
So whether it’s before a driver is arrested or after with Miranda Warnings given, a person never has to talk to officers or answer questions. The 5th Amendment right to remain silent exists whether the Miranda Warnings are given or not. Use it! When stopped on suspicion of a California DUI, simply respond to any questions with, “I respectfully decline to answer any questions under the 5th Amendment. Am I under arrest or am I free to leave?”