Author Archives: Lawrence Taylor
I’ve posted in the past about people being arrested for driving a bicycle under the influence. In these cases, the courts have often decided that a bicycle qualifies as a "vehicle" and so riding one triggers all of the usual drunk driving laws and penalties. See, for example, Drunk Biking, DUI Roadblock: 240 Sober Drivers, 1 DUI Bicyclist and DUIs on Bicycles.
These posts have often been met with disbelief. Many of this blog’s readers cannot imagine that law enforcement would waste their limited resources on something so trivial — or even that it is possible to be arrested and convicted of drunk driving on a bike.
For those reacting with this understandable incredulity, I would refer them to the following YouTube video, published a couple of weeks ago: LAPD Arrests Man Walking Bike for DUI.
The video, taken by a bicyclist watching another bicyclist pulled over by a Los Angeles Police Department motorcycle cop, shows the man given field sobriety tests by the officer — 3 times (which he appears to perform well). He is then also given a field breath test – two separate batteries of testing. (Note: As riding a bicycle does not require a driver’s license, there is no "implied consent" authorizing a breath test.) During the questioning and testing, another LAPD motorcycle cop arrives, presumably as backup — followed a few minutes later by yet another officer in a police car. The bicycle rider is then arrested for drunk driving, handcuffed and driven away.
Another victory in MADD’s "War on Drunk Driving".
(Thanks to "Joe".)
I’ve written repeatedly over past years on the continuing destruction of our constitutional rights — particularly in DUI cases. See "The DUI Exception to the Constitution".
Yesterday, in the case of Utah vs. Strieff, the United States Supreme Court dealt yet another blow to what few rights still remain, even in non-DUI cases. From the New York Times:
Supreme Court Says Police May Use Evidence Found After Illegal Stops
Washington, DC. June 20 – The Supreme Court ruled on Monday that evidence found by police officers after illegal stops may be used in court if the officers conducted their searches after learning that the defendants had outstanding arrest warrants.
Justice Clarence Thomas, writing for the majority in the 5-to-3 decision, said such searches do not violate the Fourth Amendment when the warrant is valid and unconnected to the conduct that prompted the stop…
The case, Utah v. Strieff, No. 14-1373, arose from police surveillance of a house in South Salt Lake based on an anonymous tip of “narcotics activity” there. A police officer, Douglas Fackrell, stopped Edward Strieff after he had left the house based on what the state later conceded were insufficient grounds, making the stop unlawful.
Officer Fackrell then ran a check and discovered a warrant for a minor traffic violation. He arrested Mr. Strieff, searched him and found a baggie containing methamphetamines and drug paraphernalia. The question for the justices was whether the drugs must be suppressed given the unlawful stop or whether they could be used as evidence given the arrest warrant.
“Officer Fackrell was at most negligent,” Justice Thomas wrote, adding that “there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.”…
In a dissent…Justice Sotomayor said the court had vastly expanded police power.
“The court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights,” she wrote. “Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification and check it for outstanding traffic warrants — even if you are doing nothing wrong.
“If the officer discovers a warrant for a fine you forgot to pay,” she continued, “courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.”…
So an admittedly illegal stop by police — a clear violation of the Fourth Amendment — is ok if it was not "flagrantly unlawful"? When did the Constitution only apply to "flagrant" violations? What constitutes "flagrant"?
What little remains of our Constitution lays in tatters on the steps of the Supreme Court — the third branch of the government intended by the Founders to protect those rights.
In which state would you think your chances of being injured by a drunk driver is the highest? Which state has the highest incidence of DUI? Which has the highest percentage of DUI arrests? The highest fatality rate from drunk driving?
If you guessed California, you’d be wrong. New York? Wrong again. Ditto all the usual suspects — Texas, New Jersey, Florida, Michigan, Louisiana, etc.
According to a recent study based upon statistics from the National Highway Traffic Safety Administration, the Federal Bureau of Investigation and Mothers Against Drunk Driving, the winner (loser?) is….North Dakota.
Right. Sleepy, rural, midwest North Dakota! The state was tied (with Montana) for #1 in DUI arrests and #1 in DUI fatalities. Based upon these two statistics, as well as such others as DUI penalties, types of DUI laws and cost per fatality, the "Peace Garden State" was rated #1 overall.
The dubious "top 10" contains a few more surprises:
1. North Dakota
5. South Carolina
6. South Dakota
8. New Mexico
9. Rhode Island
Beware the scenic and peaceful byways and highways of Vermont!
Hours before the U.S. Supreme Court began hearing arguments as to whether refusing to submit to blood-alcohol testing could be criminally prosecuted (see my post yesterday, Supreme Court Dubious of Making Refusal to Give Blood Sample a Crime), the Idaho Supreme Court handed down the following decision:
Idaho Supreme Court Scales Back DUI Law
Boise, ID. April 20 – The Idaho Supreme Court earlier this month rejected the police practice of forcibly drawing blood from motorists suspected of driving under the influence of alcohol (DUI). In a 4 to 1 decision, the justices agreed that a local sheriff’s deputy should not have forced a blood test on Brant Lee Eversole after his April 16, 2011 arrest….
Eversole was convicted, but he appealed, winning last year before the state Court of Appeals. Then it was the prosecutors who appealed, asking the high court justices to re-instate the ability of police to draw blood from motorists by force. They cited Idaho’s implied consent law, which states that all motorists agree to be tested in the event that they are pulled over and accused of drunk driving.
The high court refused to accept this interpretation, insisting that the Fourth Amendment requires the use of a warrant for such a search…
Another state court rejecting forced blood draws and/or criminalizing refusal to consent. Is our justice system finally beginning to back off of "The DUI Exception to the Constitution"?
(Thanks to Joe.)
Is it a crime to refuse to submit to having your blood drawn without a search warrant if you are suspected of drunk driving? In some states, yes. But should it be?
The Hawaiian Supreme Court has held that a blood test was invalid in a DUI case where the defendant had consented because it was coerced: his consent consent was obtained by his fear that he would be criminally prosecuted if he did not consent. See State Supreme Court: Punishing Refusal to Submit to Blood Test Voids Consent. Two weeks earlier, a Minnesota Appellate Court had decided that a citizen cannot be convicted of refusing to consent to blood-alcohol testing absent a search warrant. See Is It a Crime to Refuse to Give Blood in a DUI Arrest?.
Confronted with the conflict among various states as to whether a DUI suspect could be criminally punished for refusing to incriminate himself with breath or blood testing, the United States Supreme Court recently decided to review the issue. See U.S. Supreme Court to Decide: Can Refusing a Breath/Blood Test Be a Crime?
Yesterday, the Supreme Court heard arguments on the issue. As the following excerpted article from The Washington Post indicates, the justices were dubious about this latest "DUI Exception to the Constitution":
High Court Expresses Doubts About Drunken Driving Laws
Wash., D.C. April 20 — The Supreme Court is expressing doubts about laws in at least a dozen states that make it a crime for people suspected of drunken driving to refuse to take alcohol tests.
The justices heard arguments Wednesday in three cases challenging North Dakota and Minnesota laws that criminalize a refusal to test for alcohol in a driver’s blood, breath or urine if police have not first obtained a search warrant.
Drivers prosecuted under those laws claim they violate the Constitution’s ban on unreasonable searches and seizures. State supreme courts in Minnesota and North Dakota upheld the laws.
The justices pressed lawyers representing the states on why they can’t simply require police to get a warrant every time police want a driver to take an alcohol test. Justice Stephen Breyer pointed to statistics showing that it takes an average of only five minutes to get a warrant over the phone in Wyoming and 15 minutes to get one in Montana.
Thomas McCarthy, the lawyer representing North Dakota, said the state “strikes a bargain” with drivers by making consent to alcohol tests a condition for the privilege of driving on state roads.
But Justice Anthony Kennedy said the states are asking for “an extraordinary exception” by making it a crime for people to assert their constitutional rights. He expressed frustration when McCarthy refused to answer repeated questions about why expedited warrants wouldn’t serve the state just as well….
Although it will undoubtedly be some time before a decision is rendered, it appears that the Court may finally be willing to abandon the "DUI exception" in this situation and recognize that criminally punishing a citizen for refusing to submit to testing — or to submit to testing in the face of criminal punishment — is a violation of the Constitution. Although I believe it is likely the Court will uphold criminalization for refusing to take a breath test, I’m hopeful they will see that punishing for refusing a blood draw without a warrant is a basic violation of a citizen’s constitutional right.