Archive for the 'DUI Law' Category

DUI DMV Hearing: Where’s the Due Process?

Wednesday, April 16th, 2014

I often tell my students that when they hear the phrase “due process” they should think of fairness. When it comes to criminal actions in a court of law, due process (at least in theory) is the cornerstone to the proceedings. Unfortunately, the same can’t be said for DMV hearings (Admin Per Se hearings) following a DUI arrest.

When a person is arrested on suspicion of a California DUI their license will be suspended by the California DMV if one of two things will happen:  1.) law enforcement takes a blood or breath test which indicates that the driver’s blood alcohol concentration level is 0.08 percent or more, or 2.) the driver refuses to complete either a blood or breath test. Due process provides that a driver has the right to request an administrative hearing to challenge the DMV’s evidence.

However, just because a driver is provided the right to a hearing does not mean that due process will be present at the hearing.

Imagine a criminal court case in which the defendant attends the hearing at the prosecutor’s office. During the hearing, prosecutor argues for a conviction. Immediately following the argument, the prosecutor throws on a robe, steps up to the judge’s bench, and rules on his own argument. Doesn’t sound fair, does it? It’ not, but that’s essentially what happens at a DMV Admin Per Se hearing.

The DMV, the same agency which is trying to sustain the suspension, is the agency which conducts the hearing. What’s more, the DMV hearing officer, who, believe it or not, is a DMV employee, conducts the hearing. (Starting to see a pattern?) The hearing officer can object to the driver’s evidence. The hearing officer can rule on his own objection. Finally, the hearing officer decides if he or she wins. They almost always do.

Forget about impartiality. Surely, the hearing officer must be someone versed in the law, perhaps a lawyer or someone holding a law degree. Think again. In fact, according to the DMV’s employment eligibility requirements, a hearing officer need not have a college degree!

Winning a DMV hearing is difficult for lawyers (although not impossible). Since the hearing is considered civil, there is no right to an attorney. What about those drivers who have to conduct the hearing themselves because they can’t afford an attorney? How difficult must it be for them to prevail in a hearing where the cards are already stacked against them?

Speaking of the hearing being civil, there’s much lower standard of proof that the hearing officer must meet before they can suspend your license. In a criminal court case, the prosecutor must prove beyond a reasonable doubt that a driver was driving with a BAC level of 0.08 percent or above. At the DMV hearing, the hearing officer only needs to prove more likely than not the driver had a BAC of 0.08 percent or more.

It is much easier for a hearing officer to meet this lower standard when they’re allowed to introduce hearsay police reports. Hearsay statements are generally excluded from court cases because the person making the statement cannot be cross examined. Not the case in DMV hearings. Most of the time, arresting officers are absent from DMV hearings. If a driver wishes to cross examine the arresting officer who wrote the report, he or she must subpoena the officer at his own cost. This includes paying for the officer’s salary for the time that they attend the hearing.

Loss of a driver’s license can have devastating consequences. One would think that with so much at stake, people would be afforded safeguards that would ensure fairness.  But where’s the fairness in any of this? Where’s the due process? 

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Legislators Continue to Crack Down on Drunk Driving….but Exempt Themselves

Monday, April 14th, 2014

I've posted in the past about the disturbing — but not surprising — phenomenon of legislators, in their never-ending efforts to get reelected, stumbling over themselves to loudly trumpet the passage of ever-tougher drunk driving laws.  See Whatever Happened to "Drunk Driving"?.   Not so loudly, however, in many states laws sit quietly on the books that give these same politicians immunity from being prosecuted for DUI.  See my post Legislators Vote Themselves Exempt from DUI Arrest

As an example, in yesterday's news….


Are Lawmakers Getting a Special Exemption from Drunk Driving?

Minnesota, April 13 —  Written into Minnesota’s constitution is a 19th century provision that exempts state lawmakers from arrest for certain violations, like drunk driving. Lawmakers receive a physical card that grants them “privilege from arrest,” except for treason, felony, and breach of the peace,” that lasts for an active legislative session. Critics from the Mothers Against Drunk Driving, the House and Senate, and Concordia University say it amounts a “get-out-of-jail-free” card.

Minnesota is not alone: In 2012, a Colorado Republican invoked her legislative privilege during a DUI stop with a police officer. Some 43 states have versions of legislative immunity.

After a group of Concordia University political science students raised the issue, Minnesota has become a kind of bellwether on the issue. Wednesday night, the Minnesota House of Representatives passed a bill to remove legislative immunity, clarifying that any “breach of the peace” would include drunk driving. It passed on a 115 to 13 vote. However, a similar bill in the Senate has faced a dead-end in committee due to surprising resistance in the Senate Judiciary Committee. The debate is over whether existing law adequately removes DWI immunity or if the confusion warrants a new law.

According to House bill sponsor Rep. Ryan Winkler (D), Minnesota’s immunity law as written creates confusion for both legislators and law enforcement over what to do if a representative or senator is caught driving drunk.

“The concern is that by not passing this law there is a big chilling effect on police officers to enforce the law,” Winkler told ThinkProgress. He thinks it is worth addressing so that representatives do not appear to be above the law. “Public perception is something we should be concerned about.” Mothers Against Drunk Driving cites the bill as one way the state can improve its poor rating on drunk driving.

Bill opponents generally agree with the principle that legislators should not have special treatment, but contend that a U.S. Supreme Court decision in 1908, Williamson v. United States, already allows for prosecution.

Sen. Scott Newman (R) opposed the bill in the Senate Judiciary Committee, moving to table it and killing its chances for a floor vote. While he did not return ThinkProgress’ request for comment, he has previously claimed a new law is redundant and unnecessary. “As we’ve heard from the Minnesota Sheriffs’ Association, it doesn’t matter who you are, if you fail an impaired driving test you will be arrested,” Newman said in a statement Friday. “I have faith in our law enforcement to handle these situations properly. If there is evidence of abuse of power that would be curbed by passing this bill, I will gladly move to reconsider.”

The Senate’s bill sponsor Sen. Kathy Sheran (D) told ThinkProgress that legislators are now asking the Attorney General for clarification on whose interpretation is the right one. In the meantime, she is looking for other avenues to pass it in the Senate, including attaching it as an amendment to a related bill.

Does the immunity card cause legislators to think differently about violating the law? It is difficult to answer, because no one has offered a verified story about a drunk driving incident. But anecdotally, one advocate for the bill says she has heard legislators say, “‘I would rather have them drive drunk than miss a vote.’”

Strange…how difficult it is for politicians to do something as simple as making DUI a crime for themselves just as it is for common citizens…
 

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California Assemblyman Proposes Marijuana Zero-Tolerance DUI Standard

Friday, April 11th, 2014

We recently referred you to an American Bar Association Journal article in which Lawrence Taylor was interviewed about the difficulties of correlating traces of marijuana in the blood and intoxication. We also mentioned the use of zero-tolerance laws for marijuana by some states as a way to address issue. It seems that one California assemblyman looks to include California in that list of zero-tolerance states.

Currently, for a person to be convicted of a California marijuana DUI, it must be proven that they were “under the influence.” A person is under the influence when his or her physical or mental abilities are impaired to such a degree that he or she no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.

Assemblyman Jim Frazier recently introduced AB 2500. The bill, if passed, would change California’s current DUI law making it unlawful for a person to drive with any detectable amount of marijuana in the system. The law also seeks to make it illegal to drive with any trace of any other controlled substance in the system.

The proposed language of the law would read:

“It is unlawful for a person to drive a vehicle if his or her blood contains any detectable amount of delta-9-tetrahydrocannabinol of marijuana or any other drug classified in Schedule I, II, III, or IV under the California Uniform Substances Act (Division 10 (commencing with Section 11000) of the Health and Safety Code).”

The legislature rejected a similar bill introduced last year by Senator Lou Correa. Rightly so. Let’s hope they do the same to AB 2500.

Delta-9-tetrahydrocannabinol (THC) can remain in a person’s blood for up to weeks and longer after marijuana use, and well beyond the point at which a person cannot safely operate a vehicle. That doesn’t matter to those who support the proposed law. It seems they would be okay with punishing perfectly sober drivers simply because they ingested marijuana at some point in the last several weeks.

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When Are the Peak Periods for DUI Arrests?

Monday, April 7th, 2014

Interesting how incidents of drunk driving — and related law enforcement — increase at different times around the country.  Holidays are important, of course, but so is the weather…


Police Step Up DUI Saturation Patrols

Kansas City, Mo.  April 5 – Law enforcement agencies across the metro area will be cracking down on drunk drivers.

A sobriety checkpoint in Kansas City Friday netted 20 people on suspicion of driving under the influence.  With the Royals in town, the nice weather, and several parties and proms this weekend, authorities said people are getting out and having a few drinks.

"This is the time of year when we all start doing saturation patrols and DUI check lanes because, as we know, this is the time of year when people tend to do a little more partying on the weekends," said Master Deputy Tom Erickson, of the Johnson County Sheriff’s Office.

Police urge residents that if they do plan on drinking this weekend to designate a driver, call a cab or find another way home other than driving.

Here in sunny Southern California, however, the peak dates for drunk driving and DUI-related arrests would be holiday-related:  New Year's Eve, 4th of July, St. Patrick's Day and Cinco de Mayo.  But perhaps surprisingly, based upon my own DUI defense law firm's influx of new client calls over the years, the winner for #1 peak time of the year is….Super Bowl Sunday.
 

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Supreme Court: Cop’s Version Trumps Filmed Proof

Wednesday, April 2nd, 2014

When it comes to drunk driving cases, judges and prosecutors are very sensitive to political realities:  if you want to get re-elected, don't go against cops and don't look "soft on drunk drivers" — even if it means having to occasionally ignore the facts….


Officer Testimony Overrules Video Evidence

The Newspaper, April 2 — Videotape evidence can be overruled by the testimony and after-the-fact interpretation of a police officer, the Indiana Supreme Court ruled last week. In a 6 to 1 decision, justices overruled the state Court of Appeals which reviewed dashcam footage of Joanna S. Robinson driving her Chrysler PT Cruiser at around 1am on October 15, 2011 in Elkhart County and found no evidence of a crime. 

Sheriff's Deputy Casey Claeys followed Robinson on County Road 4, and he testified that he saw her "drive off the right side, which was the south side of the road, twice." He conducted a traffic stop which led to her being busted for driving under the influence of alcohol (DUI) after her breathalyzer reading was 0.01 over the legal limit. She also was carrying a small amount of marijuana. The justices, however, only concerned themselves with whether the initial traffic stop was justified. Elkhart Superior Court Judge Charles Carter Wicks concluded that the stop was justified when the case came to trial.

"I reviewed the video on approximately ten occasions and cannot conclude from the video that the defendant's vehicle actually left the roadway," Judge Wicks found. "But it does show the vehicle veering on two occasions onto the white fog line."

The trial judge found the deputy's experience was more accurate than the videotape, but the appeals court reversed, saying the video showed what appeared to be no more than a driver momentarily distracted. The state Supreme Court concluded the trial judge had it right the first time.

"Deputy Claeys, as he drove down County Road 4 on that October night, was observing Robinson's vehicle through the lens of his experience and expertise," Justice Mark S. Massa wrote for the majority. "And when Deputy Claeys testified at the suppression hearing, the trial judge heard his testimony — along with the other witness testimony and evidence, including the video — through the lens of his experience and expertise. Ultimately, that experience and expertise led the trial judge to weigh Deputy Claeys's testimony more heavily than the video evidence, and we decline Robinson's invitation to substitute our own judgment for that of the trial court and rebalance the scales in her favor."…
 

(Thanks to Joe.)
 

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