Author Archives: Jon Ibanez

DUI Blood Withdrawals and the Emergence of E-Warrants

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.

Marijuana Smell and the 4th Amendment

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.

 

Law Requiring Impound of Drunk Drivers’ Vehicles Struck Down

At least some courts are getting it right.

Late last year, the Washington State Supreme Court struck down 2011 state legislation that required the mandatory impound of vehicles when their owners were arrested on suspicion of driving under the influence, otherwise known as “Hailey’s Law.”

Back in 2009, a woman was stopped in a parking lot for a minor traffic infraction. When the Washington State Trooper approached her vehicle, he found that she was driving without a valid license, had previous DUI offenses, did not have a required ignition interlock device, and appeared to be impaired. The trooper arrested her and took her in to the Whatcom county jail.

Since there was no third part available at the scene to drive the vehicle and wait for the woman, the officer chose to lock the car and leave. This is typical if the car is in a safe location and not impeding traffic.

At the county jail, the woman took a breath test and that determined her blood alcohol content to be above the legal limit. For unknown reasons, she was not booked into the jail, and the trooper drove the woman back to her residence, gave her back her keys with a warning to not drive again until she was sober. Common practice was to drive suspected DUI drivers to a public place like a restaurant or store to let them sober up. Unfortunately, the officer made a mistake.

After the trooper left, the intoxicated woman called a cab and returned to her car’s location. She attempted to drive her car home but crossed the centerline and crashed into another vehicle. The victim, Hailey Huntley, would spend over a month in the hospital as a result of multiple injuries, including a collapsed lung, dislocated hip, and a fractured right leg. Later, the DUI driver was found to have had a blood alcohol concentration higher than what she had earlier at the jail.

Following the accident, multiple rules changed. Administrators at Whatcom county quickly made it mandatory for DUI arrestees to be jailed, and other steps were set in motion to create laws that would prevent similar accidents from happening in the future.

As a result, Washington’s Mandatory Impound Law went into effect two years after the crash. It reads, “In order to protect public safety and to enforce the state’s laws, it is reasonable and necessary to mandatorily impound the vehicle operated by a person who has been arrested for driving or controlling a vehicle while under the influence of alcohol or drugs.”

The state legislature expressly stated the purpose of Hailey’s law was to shift the primary purpose for impounding the vehicle of drunk drivers from avoidance of traffic obstructions to the safety of the public. Additionally, it stated that the law was meant to remove the arresting officer’s discretion as to whether the vehicle should be left of impounded.

A 2018 DUI arrest, and subsequent vehicle impound cast doubt on the constitutionality of Hailey’s Law.

Joel Villela was pulled over for speeding, and when asked to take a breathalyzer test after the officer smelled alcohol on his breath. When he refused the test, he was arrested on suspicion of DUI. Although there were other passengers at the time of the arrest, Villela’s vehicle was impounded in accordance with Hailey’s Law. When the car was searched after the impoundment, law enforcement found sandwich bags, digital scales, pipes, and other paraphernalia related to potential drug dealing. Upon a search of his person, the police found cocaine in Villela’s possession. A charge of possession with intent to deliver controlled substances was added to his list of charges.

Villela’s attorney argued that the seizure of Villela’s car was unconstitutional because Hailey’s Law was the only basis for the search of Villela’s vehicle, when the Constitution required a warrant based on probable cause. As a result, he requested that the contents of the search be suppressed as evidence. The trial court agreed, and eventually the State Supreme Court agreed as well.

“The trial court below found that [Hailey’s Law] violates our constitution because it requires what the constitution allows only under limited circumstances. We agree,” the Court stated in its opinion. “Our constitution cannot be amended by statute, and while the legislature can give more protection to constitutional rights through legislation, it cannot use legislation to take that protection away.”

The Constitution, both state and federal, exist to protect individual rights, including the right to be free from unreasonable searches and seizures, and Hailey’s law allowed officers to engage in unreasonable searches and seizures. Although it might seem like the easy and “right” thing to do when someone has driven drunk, individual rights can never and should never be ignored in the name of “justice.”

 

Breathalyzers in Michigan Called into Question Amid Suspicions of Fraud

We’ve been saying it for years: breathalyzers are inaccurate for a multitude of reasons. Recall just a few months ago The New York Times confirmed exactly this stating that after interviewing “more than 100 attorneys, scientists, executives and police officers and [reviewing] ten of thousands of pages of court records, corporate filings, confidential emails and contracts,” it revealed “the depth of a nationwide [breathalyzer] problem that has attracted only sporadic attention.”

In January of last year, a Massachusetts judge threw out the breathalyzer results of over 400 DUI cases as the result of inaccurate results.

In late 2018, New Jersey’s highest court ruled that 20,667 breathalyzer results were faulty and therefore inadmissible in the DUI cases where the defendant’s blood alcohol content was used to secure the defendant’s conviction.

As if breathalyzer accuracy wasn’t unreliable enough already, now state police in Michigan are looking into the alleged fraudulent certification of breathalyzers used throughout that state.

Accuracy of breathalyzers thrown into question amid Michigan State Police investigation

January 14, 2020. Detroit Metro Times –  Michigan State Police are investigating three contract employees who ensure the accuracy of breathalyzers used during traffic stops after authorities discovered “performance-related issues” and possible fraud.

State police notified law enforcement officers across the state to stop using more than 200 breathalyzers from longtime vendor Intoximeters.

The investigation focuses on three Intoximeters contract employees, who were responsible for certifying and calibrating Datamaster DMT breathalyzers to ensure they are accurate.

Investigators said they suspect fraud after finding discrepancies in paperwork.

Stopping the use of the breathalyzers “is an absolutely necessary move to safeguard the integrity of the criminal justice process,” Michigan State Police Director Col. Joseph Gasper said in a news release.

“Upon learning of additional and more egregious discrepancies, I am no longer comfortable having police agencies using these instruments until we can be confident they are certified, calibrated and serviced according to state law and industry standard,” Gasper says.

In a letter to law enforcement officers across the state, state police said prosecutors have been alerted to the suspected fraudulent activity.

“Prosecutors with cases impacted by the contractor errors identified by the MSP have already been notified,” Michigan State Police Maj. Greg Zarotney wrote to law enforcement officials. “However, out of an abundance of caution, we are examining all available data to determine if any additional tests are impacted by the contractor errors.”

The following law enforcement agencies were using breathalyzers with “possible discrepancies”: Alpena County Sheriff’s Department, Beverly Hills Police Department, Detroit Detention Center, Montcalm County Sheriff’s Department, Niles Police Department, Pittsfield Township Police Department, Tecumseh Police Department, and Van Buren County Sheriff’s Department.

In California courts, a person cannot challenge the accuracy of breathalyzers in general. If, however, an individual breathalyzer was inaccurate during a DUI stop, that person may challenge the accuracy of the individual breathalyzer used on them during the stop.

Why risk the uncertainty of a breathalyzer result when so much is on the line?

If an officer requests that a driver submit to a pre-arrest breathalyzer, that breathalyzer is optional. Although the officer may make it seem as though it is mandatory, the law does not require that the driver submit to a pre-arrest breathalyzer.

What is required, however, is that a driver submit to a chemical test, which can either be breath test or a blood test, but only after that driver is lawfully arrested on suspicion of a DUI. Until then, don’t do it.

 

The Costs of a California DUI

Often the new year brings with it the need to re-assess finances, including money that might be stashed away for an unexpected “rainy day,” and I thought it might be worth discussing the unexpected expense of a California DUI arrest.

For some, the prospect of jail isn’t as scary as the costs that might be associated with a California DUI. Personal preference aside, the costs are by no means trivial. For many, the monetary costs of a DUI are just as much of a deterrent as the threat of jail itself. So, let’s break it down, but before I do, let me begin by saying the following is general information about basic first-time California DUI cases without injuries or other aggravating circumstances. It goes without saying that California DUI cases are unique with unique circumstances and, as such, the costs associated with different aspects of a DUI case will vary.

First of all, if you can afford an attorney, hire one. Doing so will help your chances at the best possible outcome for the case. However, admittedly, attorneys are not cheap. If you cannot afford one, request the public defender at the first court appearance. Almost all private DUI attorneys charge on a flat fee basis. Usually the flat fee is for pre-trial, and only once a plea deal cannot be reached does a case go to trial. Then the attorney can charge a separate fee for trial should a case make it to trial. Some attorneys do not bifurcate these fees.

Pre-trial is the phase of the court proceedings where the attorney obtains the evidence, makes motions (if applicable), and negotiates a plea deal with the prosecutor. For this stage, attorneys can range between $1,000 and $7,500 depending on the complexity of the case, the experience of the attorney, and the size of their office. There’s no right or wrong number. Pay what you can afford and, generally, with quality comes price. Having said that, do your homework. Make sure that you actually consult with the attorney first and that you’re comfortable with them. Make sure that they specialize in DUI defense. Often, the lower-cost attorneys are the ones who don’t have much experience defending DUI cases.

During pre-trial, it may be recommended that a blood re-test be conducted. You, not the attorney, bears the responsibility of paying for this expense and it’ll run several hundred dollars, depending on what the blood is being tested for. You attorney may also recommend hiring an expert to consult regarding the blood re-test results. This too can cost several hundred dollars.

Most cases settle with a plea deal of some fashion, which means that very few cases actually make it to trial (which is why most DUI attorneys charge separately for pre-trial and trial). For those who wish to push their case to a trial, they can expect anywhere from $5,000 to $15,000 to conduct the trial. Since most DUI’s don’t ever make it to trial, I won’t say anything more about trial costs.

Let’s stop here and reflect on what the cost will be to either prevent a DUI conviction or do damage control and take a plea deal. I do this because the costs following a DUI conviction are just as intimidating as the costs to try and prevent the conviction.

The fine for a DUI is a minimum of $390 up to a maximum of $1,000. Having practiced DUI defense now for close to 10 years, I can say that the fine for most DUI’s ends up being $390 to $500. This number, however, does not include the “penalties and assessments” that get added to the base fine mentioned above. Think of these as “court taxes.” The amount varies from courthouse to courthouse and many judges don’t even know how the court calculates the penalties and assessments. However, as a rule of thumb, I tell people to expect about $2,000 give or take a couple hundred of dollars.

The sentence for a first-time DUI will almost inevitably result in the driver having to take a DUI class, if not for the court, quite possibly to get their license back from the DMV. For a first-time DUI, a person is looking at either a three, six, or nine-month DUI course, depending on the severity of the case. Although the costs vary depending on the length of the course and the program that you take the course from, people should expect to pay between $600 and $1,800 for the DUI course.

Sometimes, a driver convicted of a California DUI will have to pay the arresting agency a booking fee. This ranges between $200 and $400.

When the driver is eligible to have their license reinstated, the reinstatement fee to the DMV is $125. (You can read previous posts about the license suspension following a DUI)

Lastly, a person must consider the ancillary costs of the increase in car insurance. Most people forget to include this figure in their estimations of total DUI costs because it’s not directly related to the courts. The estimate cost of car insurance over 10 years is approximately $10,000.

DUIs can be avoided. Going into 2020, do not let a California DUI be the thing that uses up your rainy day fund this year.