Author Archives: Jon Ibanez
If you have read this blog in the past, you might be familiar with what are known as “dram shop” laws. For those who are not familiar, dram shop laws allow the victims of drunk drivers to civilly sue the establishment that served the drunk driver with alcohol prior to the victim’s injury. Although dram shop laws specifically refer to the suing of restaurants and bars, the question of whether liability, be it civil or criminal, can be placed on any third parties who contribute to a driver’s driving drunk leading to injury has been the center of much debate.
There may, however, not be much of a debate, at least in Georgia. The Georgia Supreme Court issued a ruling this week that allows a victim to sue a third party, non-drunk driver, in a DUI collision as an “active tortfeasor.”
In September of 2016, Lakenin Morris was asked by his cousin, Keith Stroud, to drive his car. Morris agreed, Stroud handed him the keys, and they were off. Both had been drinking. Morris later collided with 18-year-old Alonzo Reid, who was hospitalized. Reid sued both Morris, the driver, and Stroud, who provided the keys to Morris. Reid was awarded $23,000 in compensatory damages, to be split equally between Morris and Stroud, and $50,000 from Morris in punitive damages. The trial court, however, decline to award the $100,000 in punitive damages that Reid was asking from Stroud. The trial court concluded that punitive damages were limited to “active tortfeasors,” or, in this case, the actual drunk driver, Morris.
The Georgia Supreme Court, however, reversed the trial court’s decision by adopting a broad interpretation of the word “active tortfeasor.”
“[Georgia law] does not define the term ‘active tortfeasor,’ but from the beginning…has made a distinction between tort defendants who ‘acted’ and those who ‘failed to act.’ The text thus suggests that an ‘active tortfeasor’ is a defendant who engaged in an affirmative act of negligence or other tortious conduct, as opposed to a defendant whose negligence consist of an omission to act when he is under a legal duty to act,” wrote Justice Michael Boggs in discussing the history of Georgia’s punitive damages laws. Justice Boggs went on to say that it does not matter whether the defendant was the drunk driver, but rather whether Morris’s conduct, at least in part, caused the injury.
In other words, the Georgia Supreme Court concluded that by drinking and giving his keys to Morris, whom he knew was drunk, Stroud was an active tortfeasor who could be subject to punitive damages just as Morris, the actual drunk driver, was.
While some states, like Georgia, continue to expand the reach of their dram shop laws, some states like California remain in their determination that only the person who drove drunk can be held liable for injuries resulting from a DUI.
The California Civil Code specifically states, “It is the intent of the Legislature to…reinstate the prior judicial interpretation…that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person…[N]o social host who furnishes alcohol beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.”
Although this code section does not specifically address the situation that led to Reid’s injury, you can see California’s view on the matter. This is not to say that California affords full protection to third parties. California still holds establishments civilly liable for injuries resulting from a DUI when the establishment knowingly served alcohol to an underage drinker who drives and causes injury. Additionally, although rarely enforced, establishments can face misdemeanor charges for serving alcohol to “any habitual or common drunkard or to any obviously intoxicated person.”
Pennsylvania, which has legalized medical marijuana, has introduced a bill that would exempt medical marijuana users from the state’s arbitrary per se marijuana DUI law.
Although Pennsylvania legalized medical marijuana in 2016, with dispensaries opening up in the state in 2018, laws still remain on the books that would arbitrarily punish medical marijuana users merely for having THC in their system, even though they are no longer “high.” The new bill aims to close that loophole.
Prior to Pennsylvania’s legalization of marijuana for medical purposes, it was illegal to have any THC in a driver’s system while driving. At the time, the law did not conflict with itself because it was illegal to have any THC in the system because marijuana use, as a whole, was illegal. Thus, it did not matter whether a driver was still high or not; if they had THC in their system, it was illegal because all marijuana use was illegal.
Since the state has now legalized medical marijuana, at a minimum, those laws cannot remain on the books. Otherwise, it is possible for a legal medical marijuana to be arrested, charged, and convicted of a DUI in the state even though they haven’t smoked in days, possibly even weeks, and are perfectly sober when pulled over for that DUI.
Unlike alcohol, the intoxicating chemical of marijuana, tetrahydrocannabinol or “THC,” can possibly stay in a person’s system for weeks. Also, unlike alcohol, THC levels do not necessarily correspond to how intoxicated or high a person is. Science suggests that when a person has a blood alcohol content of 0.08 percent, they typically are at a level of intoxication that would make it unsafe to drive. This is why it is illegal to drive while under the influence and with a 0.08 percent (0.05 in Utah). It is dangerous to society when people drive when they are under the influence, or when their blood alcohol content suggests that they are “under the influence.” No such scientific correlation exists between THC and degree of intoxication from marijuana use.
Therefore, when Pennsylvania legalized medical marijuana, it put every single user of medical marijuana at risk of an arbitrary DUI by not also updating its DUI laws. It was possible for a cancer patient to smoke marijuana on Monday, become sober by Tuesday, remain sober for the rest of the week, and then get arrested for a DUI on Sunday simply because they still had THC in their system (as a result of taking prescribed medicine for cancer!).
Pennsylvania’s new law would require police and prosecutors to prove that a medical marijuana user was actually impaired while driving rather than merely proving that the person had used marijuana sometime in the past.
“We need to ensure that the legal use of this medicine does not give rise to a criminal conviction,” state Sen. Camera Bartolotta (R), who introduced the legislation, said in a statement about her bill. “Patients fought tooth and nail for years to see the use of medical cannabis legalized to treat a variety of terrible health conditions. They should have the peace of mind to know that they will not be punished later for using their prescriptions responsibly.”
Although some states still have per se limit laws for THC, like they do with alcohol (0.08% BAC in all states except Utah where it is 0.05%), a 2019 study, published in the journal Addiction by a team of Canadian researchers, found that drivers who had 2-5 nanograms of THC per milliliter of blood (the level of some states’ per se laws) were no more likely to cause a crash than people who had not consumed marijuana.
“Given the very serious consequences of a DUI conviction, my legislation will provide critical protections for medical cannabis patients by ensuring responsible use of their legal medicine does not give rise to a criminal conviction,” said Bartolotta.
My response: It’s about time. Until states can figure out a way link THC levels (or any other quantifiable measure) with intoxication, per se laws DUI laws for marijuana usage in states that have legalized it are unconstitutional.
While some states are beginning to transition out of quarantine, other states’ lockdown orders remain intact. Regardless, some areas saw incidents of drunk driving rise precipitously during the COVID-19 lockdown. Whether it was people trying to calm their pandemic fears with some drinks or the lifted restrictions on obtaining alcohol, or perhaps a combination of both, law enforcement from across the country have reported spikes in DUI’s across the country.
Notwithstanding the impact of other socio-political current events, police are still out and looking for drunk drivers. Similarly, despite the temporary closure of courthouses, DUI prosecutions are still rolling forward, even if a little delayed.
As mentioned, restrictions have been lifted in obtaining alcohol since the closure of restaurants and bars. Establishments have been allowed to sell alcohol for pick-up, or even delivery, to their customers through phone orders or through smart phone apps like Grubhub. One would think that having more options to obtain and drink alcohol at home, would reduce the number of DUI’s. Apparently not so.
If drivers do happen to venture out, they should remember a few things.
Should a driver get pulled over on suspicion of a DUI, first and foremost, remember the 5th Amendment exists for a reason. Drivers have the right not to say anything to law enforcement ever. 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 your mouth shut until given the opportunity to call your attorney.
At this point, it is likely that law enforcement will have the driver exit their vehicle 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.
In a last-ditch effort to obtain the evidence they need to make a DUI arrest, they’ll ask the driver to 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, which can be either a breath or a blood test, after you have been arrested on suspicion of a DUI. The key word is “after.” Decline the optional roadside breathalyzer. Why give the officers the evidence they need to arrest you? However, if arrested, you must submit to either a breath or a blood test.
Should the stop occur at a DUI checkpoint, most of the same rules still apply. Invoke your right to remain silent. Decline to perform the field sobriety tests. Only perform the post-arrest breath or blood test, not the pre-arrest breathalyzer. This is all if a driver is not able to pull away from the checkpoint prior to arriving at it without breaking any other traffic laws, which they are legally allowed to do.
While the punishment if convicted on a first-time DUI might vary widely depending on the circumstances of each individual case, at a minimum a driver faces three to five years of probation, fines and fees in the thousands, a minimum three-month DUI course, and up to six months in jail. As part of a plea deal or a sentence if convicted, drivers can additionally face AA meetings, a longer DUI course, a MADD Victim Impact Panel, a Hospital and Morgue Program, more in fines and fees, community service, and community labor. The collateral consequences are a license suspension by the DMV and a stain on your criminal record. While most people don’t see jail time on a first-time DUI with no other aggravating factors, it is certainly a possibility. Those rather severe consequences being said, I’ll move on to my last bit of advice should a driver be pulled over on suspicion of a DUI during COVID-19.
Never forget to obtain an attorney. With so much at stake in the middle of one of the most complex processes in society, why wouldn’t a person seek the help and advice of a trained DUI attorney? If you needed a medical operation, you certainly wouldn’t perform the surgery yourself.
Even though times might be changing, taking precautions to keep the street safe as well as protecting our rights remain the same.
In 2013, the United State Supreme Court in Missouri v. McNeely held that a blood withdrawal was, in fact, a search which is protected under 4th Amendment of the Constitution. And since it is a search of the thing that we hold to be most private, the court held, officers must first obtain a warrant supported by probable cause to be able to forcibly withdraw blood from a DUI suspect. Prior to McNeely, a forcible blood withdrawal fell within one of several exceptions to the warrant requirement. The “exigent circumstances” exception allowed officers to forcibly withdraw blood from a DUI suspect without having to first obtain a warrant because of the risk of losing their blood alcohol content through dissipation in the body.
Since McNeely, the United States Supreme Court has declined to hear several similar cases by prosecutors hoping to overturn the decision. In doing so, the United States Supreme Court has essentially affirmed that our body is, in fact, the most private thing we own. Before law enforcement can forcibly withdraw blood, they must get a warrant.
But how much time does it take to get a warrant? Might someone sober up by the time it takes officers to obtain a warrant from a judge?
Some police agencies in Hawaii are working to address these concerns.
E-warrants cut down on DUI blood draw delays
February 29, 2020. The Maui News – When traffic officers begin using electronic search warrants to draw blood from suspected impaired drivers this weekend, police expect to more quickly obtain key evidence in DUI crashes and arrests.
“When you’re dealing with a DUI crash or DUI arrest, time is of the essence because the alcohol dissipates in the blood,” said Lt. William Hankins, commander of the police Traffic Section. “Four or six hours later can make a significant difference.”
Rather than having officers meet a judge to have a paper search warrant reviewed and signed before it’s executed, the electronic warrants are sent by secure email for a judge to review and return, Hankins said.
“Nothing has changed with the way the warrant looks and acts,” he said. “The only thing that’s changed is the method by which it’s being delivered.
“We’re just exchanging emails back and forth, as opposed to spending 30, 40 minutes, an hour and a half, meeting a judge, then driving all the way back to the hospital” to execute the warrant.
An officer won’t have to leave his vehicle to apply for an electronic warrant, Hankins said.
“We’re saving tons of time and getting a much more true and accurate reading of what someone’s blood-alcohol content is at the time of an arrest or a crash,” he said.
Police are using an $8,600 federal Department of Transportation grant to pay for training, consultation and other costs to implement electronic search warrants under a state law that took effect Jan. 1. The cost is expected to drop by half next year.
“Electronic warrants will enable law enforcement to investigate crimes in a timely and efficient manner,” said Maui County Prosecuting Attorney Don Guzman, who has assigned two deputy prosecutors to handle and review the warrants. “In particular, we need effective strategies to combat impaired driving, which are time-sensitive investigations due to the fast metabolization of alcohol and drugs in a person’s body.
“Electronic warrants will streamline this process, reduce the amount of time lost in gathering vital evidence, and provide police officers and prosecutors an effective system to help keep our community and roadways safe, while ensuring appropriate judicial review and compliance with constitutional rights.”
Police worked with the Judiciary and judges to implement the program, which allows for up to 1,000 electronic warrants this year.
While only traffic officers will be using electronic warrants for now, eventually officers in other divisions also could begin using e-warrants, Hankins said.
In the past, police would use forcible extraction to draw blood from suspected impaired drivers, he said.
But the Supreme Court ruled it was unconstitutional to do so without a warrant.
“It’s made it a little bit more difficult for us to get these blood draws, to get a true and accurate reading of blood-alcohol content,” Hankins said.
For warrants obtained by telephone, officers have to record the conversation with a judge and transcribe it by the next day.
That takes hours that an officer otherwise could spend on the road looking for other impaired drivers, said DUI Task Force Sgt. Nick Krau.
With electronic search warrants, “it’ll literally cut the time it takes us to get a warrant in more than half,” Krau said.
“Maui County has an extremely skilled, hardworking, dedicated DUI Task Force,” he said. “But you can only enforce the laws and use the tools made available to us by our elected officials and the community.
“When the Legislature passed the e-warrant law, it was a huge win for public safety and the safety on our roadways. It is definitely a game changer for what we do.”
Sgt. Kenneth Kihata, who heads the Vehicle Homicide Unit that investigates fatal and near-fatal crashes, said electronic warrants could be returned within a few minutes, compared to three or four hours for paper warrants.
“Basically, it’s making the process more efficient,” Kihata said. “All these fatalities are preventable senseless deaths.”
Last year, traffic officers applied for about a dozen warrants to draw blood from suspected impaired drivers.
Some cases involved fatal crashes and others involved habitual DUI offenders, who have at least two prior DUI convictions within 10 years, and refuse to give blood or breath samples, Hankins said.
“Those are the most dangerous,” he said. “To be able to get blood and get people convicted, it’s all going to save lives in the end.”
He said the use of electronic warrants is another tool for police, who have been working with Mothers Against Drunk Driving and the community to try to prevent an “epidemic” of drunken driving by raising awareness about its dangers.
As of Thursday, police had made 115 impaired driving arrests this year.
This year, police began enforcing a county law allowing police to tow vehicles of drivers arrested for impaired driving. Since enforcement began Jan. 17, about 40 vehicles have been towed, with the registered owners responsible for towing and storage fees generally ranging from $400 to $600.
Hankins said one arrested driver, who had thousands of dollars in tools in his truck, thanked officers for towing the vehicle so it would be safe.
“The people who are getting arrested now know their behavior is wrong,” Hankins said. “The public generally acknowledges that DUI is unacceptable behavior. The hard part is changing the behavior.
“We want to do everything we can to stop impaired driving, to save lives.”
While Maui’s approach may be a novel way to address the issue with the time it takes to obtain a warrant and the natural dissipation of alcohol in a person’s system, let’s just hope that expediency doesn’t affect the quality of warrant or information needed to obtain it.
The expansion of legalized marijuana use and the changing marijuana laws are wreaking havoc on what law enforcement consider probable cause and the justification for certain searches.
The Fourth Amendment of the United States Constitution states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”
Simply put, if you expect it to be private, cops must get a warrant to search it. And in order to get the warrant, they need reasonable and trustworthy facts that they’re going to find illegal.
Though there are exceptions to the need for a warrant, one of which includes the “automobile exception.” If an officer has probable cause to believe that a vehicle contains illegal or is engaged in illegal activity, they need not get a warrant to search it.
For years, officers claimed, and as became the standard, that the distinct smell of marijuana is what provided the officers the probable cause needed to search a vehicle without a warrant.
But what about when a perfectly sober person drives a passenger who smells like marijuana because they use it for, say, medical purposes? In other words, if it now commonplace that passengers, or even drivers, can smell like marijuana (since it is legal), can we continue to allow cops to use it as justification to search without a warrant?
In one Pennsylvania court case, a judge made the correct ruling that the state troopers lacked probable cause to search the car of the defendant. The defendant had been sitting in the passenger seat while his wife had been driving the vehicle. When she failed to properly stop at a railroad overpass, officers pulled them over and then was able to “smell the odor of both burnt and raw marijuana through the open window of the vehicle.” The defendant was a medical marijuana card holder and showed it to the police. Despite this, the officers claimed that they still had the right to search the vehicle.
However, the court judge ruled that the troopers did not have further cause to search his vehicle because he produced his card at the time of the stop. Thus, she determined the subsequent search of his vehicle to be unlawful and that all evidence collected from the vehicle search should be suppressed. You can read more about the case through this link: https://assets.documentcloud.org/documents/6246965/Commonwealth-of-PA-vs-Timothy-O-Barr.pdf
In another case, a Maryland officers searched a vehicle based on the smell of marijuana. They found a joint containing less than 10 grams of marijuana, a civil offense. The officers then arrested the defendant at the scene and searched his person, which resulted in the discovery of cocaine in his pocket. Although the vehicle search was permitted, the judge decided that there was no further reasonable cause for the officers to arrest and search his person. According to the Maryland Court of Appeals, “this is based on the heightened expectation of privacy one enjoys in his or her person as compared to the diminished expectation of privacy one has in an automobile.”
Alongside marijuana, in 2018 the United States government passed the Farm Bill which federally legalized hemp production, raising further concerns regarding this issue. The smell of marijuana and hemp and nearly identical.
In some states, such as Florida, prosecutors are pushing for a new “odor-plus” standard where the smell of marijuana may still be used as cause, but only as one factor out of many in determining probable cause.
The judicial system’s acknowledgement that times are changing is promising. However, let’s hope that the wheels of justice don’t spin so slow, as they unfortunately often do, that it can’t keep up with what we know to be correct approach to marijuana.