Category Archives: DUI Law
Low-carb diets -such as the Atkins diet or the Ketogenic diet- have been around for decades. Nonetheless, this type of diet can cause problems for California drivers. It may cause a breath test provided by a California driver who was pulled over or arrested on suspicion of a DUI to falsely show the presence of alcohol – even if the driver had not consumed any alcohol that day.
Here’s how: A low-carb diet deprives the body of glucose, an important source of fuel for the body. In the absence of this source of fuel, the body turns to its fat for fuel. The process of turning fat into fuel produces ketones. When the body produces ketones and uses them for fuel, the body is in a state of ketosis. When the body is in a state of ketosis, ketones can be detected in that person’s breath. (This explains the bad breath that some report while on a low-carb diet). These ketones have a chemical composition similar to isopropyl alcohol. Many breathalyzer testing devices cannot distinguish between isopropyl alcohol molecules and ethyl alcohol molecules. As such, a breath testing machine used in a DUI investigation may falsely detect the presence of alcohol simply because the suspect is on a low-carb diet.
It is doubtful that the amount of ketones in anyone’s breath could be sufficient to result in a breath test result showing a blood alcohol concentration at or greater than the .08% legal limit without the person having had consumed some alcohol. However, a person who would have otherwise been below the .08% legal limit may end up with a breath test result at or greater than the legal limit if that person is in ketosis. For example, someone who is in ketosis and has a true blood alcohol concentration of .06% could potentially register at 0.08% or more.
California Vehicle Code 23612(a)(2)(A) allows drivers arrested for suspicion of a DUI to choose between submitting to a breath test or a blood test. Unless the chosen test is not available, the officer must perform the test selected by the driver. Drivers on a low-carb diet may want to avoid submitting to the breath test to avoid being stuck with a false positive result.
Any driver arrested for a DUI should immediately hire an attorney. If you are on a low-carb diet, it is crucial that you tell your attorney.
On July 5th of this year, Juan Francisco Moreno Herrera, 43 of Salida, California, was arrested on suspicion of murder after a collision between Herrera’s boat and a jet ski carrying a couple of teenagers. It was alleged that Herrera was operating his boat under the influence and, as a result, collided Vanessa Zamora, 14, of Watsonville, California, killing her and causing injuries to her 15-year-old cousin. Prosecutors also charged Herrera with two felony counts of driving a boat under the influence of alcohol.
Initially, according to prosecutors, Herrera caused the injuries to the girls because he was driving “his boat around in circles and did not attempt” to help either injured girl in the water following the collision.
Under California Law, a DUI resulting in death will be charged as manslaughter if the driver has not suffered any prior DUI-related convictions. If, however, the driver has suffered a prior DUI-related conviction, they will likely be charged with second degree murder under California’s “Watson Murder Rule.” Under Watson, the California Supreme allowed murder to be charged in a subsequent DUI resulting in death because the driver was made aware of the dangers of drunk driving after having been sentenced on the prior DUI. It is almost as if the court is saying, “We warned you, you did it anyways, and now look at what happened.”
Herrera had been convicted of a DUI in the past, which allowed prosecutors to charge murder. As a result, Herrera had been in jail since his arrest, unable to afford the $2 million bail bond.
Kirk McAllister, Herrera’s attorney, however, believed the allegations to be false and his law firm conducted its own investigation into the collision.
Following McAllister’s investigation, it was learned that the girls had, in fact, collided into Herrera, not the other way around. What’s more, Herrera did, in fact, jump into the water to help Vanessa’s cousin stay afloat.
McAllister’s findings directly contradicted an affidavit filed by the Sheriff’s department alleging that “two independent witnesses” said that Herrera was driving his boat in circles and did not render aid. The affidavit, however, failed to identify the witnesses, and the sheriff’s department has refused to answer questions about the accuracy of the affidavit.
“What our investigation showed was that in fact they ran into him. In boating terms, he had the right of way. They hit him on the port side, or the left side. … He did the right thing, he powered down (the boat),” said McAllister to the Modesto Bee. “He had a terrible choice to make: One girl was not moving, the other girl was flailing in the water. He chose the one who was flailing because she was showing signs of life, obviously. He kept her afloat until another boat came.”
McAllister’s findings were submitted to the Stanislaus County District Attorney, and last month, the prosecution dropped the felony DUI charges and murder charge. Michael Scheid, the prosecutor assigned to the case, filed an amended complaint against Herrera alleging only misdemeanor boating under the influence charges.
Although the result might not sit well with some readers, the law requires it.
As the District Attorney’s Office itself recognizes, “[i]t is not enough to prove that someone who drank alcohol and was piloting a boat got involved in a collision where someone died,” said John Goold, a spokesman for the District Attorney’s Office.
By law the prosecution must prove every element of a crime beyond a reasonable doubt, and one element to the crime of second degree murder via DUI (or BUI) is that Herrera “did an act or neglected any duty imposed by law…which act or neglect proximately caused the bodily injury.” Based on McAllister’s investigation, Herrera simply did not.
“In this case, ongoing investigation led us to the inescapable conclusion that we could not prove all the elements beyond a reasonable doubt, which led to the filing of the amended complaint,” said Goold rightly so.
Following the amended complaint and dropping of charges, Herrera was released from custody on his own recognizance.
“I was in hell; that’s hell in there,” Herrera said following his release, recalling his time in jail awaiting prosecution. “Just thinking about my family. What was going to become of my kids and myself? Being in there for something that I didn’t do.”
Go ahead and ask Juan Francisco Moreno Herrera whether it’s a good idea to hire a criminal defense attorney when facing California DUI charges. In his case, it was the difference between a misdemeanor DUI and a murder.
Herrera still faces those misdemeanor DUI charges and expected in court this month.
The holiday season is fast approaching and before you know it, law enforcement will be ramping up its efforts to catch drunk drivers. Their efforts will inevitably include saturation patrols and DUI checkpoints, but they might also include, as they’ve done in the past, an ad campaign encouraging motorists on the road to contact law enforcement if they suspect that another driver is under the influence.
If an anonymous caller tips off police that someone might be driving drunk, the officer has no personal knowledge of facts that would lead them to believe that someone is driving drunk. The officer is only going off of what the tip had said. The tip could be accurate, it could be a lie, or it could just be mistakenly inaccurate. An officer must have probable cause to stop a driver on suspicion of a DUI, and probable cause means that the officer has reasonable and trustworthy facts that the driver is drunk.
The question becomes: Can an anonymous tip give an officer the required probable cause to stop a driver on suspicion of driving under the influence?
The United States Supreme Court in 2014 concluded in the case of Navarette v. California that an officer can use an anonymous tip as the basis for a DUI stop.
In Navarette v California, a motorist was pulled over by California Highway Patrol after an anonymous tip. The anonymous tipster told the dispatcher that they had been run off of Highway 1 near Fort Bragg by someone driving a pickup truck and provided the pickup’s license plate number. As the CHP officer approached the pickup, they smelled marijuana and discovered four bags of it inside the bed of the truck.
Officers identified the occupants of the truck as brothers Lorenzo Prado Navarette and Jose Prado Navarette.
At trial, the brothers filed a motion to suppress evidence claiming that the officers lacked the reasonable suspicion needed to stop them, thus violating the Fourth Amendment of the United States Constitution. The judge, however, denied the motion. The brothers then pleaded guilty to transporting marijuana and were sentenced to 90 days in jail, but appealed.
At the appellate level, the court ruled against the brothers saying, “The report that the [Navarettes’] vehicle had run someone off the road sufficiently demonstrated an ongoing danger to other motorists to justify the stop without direct corroboration of the vehicle’s illegal activity.”
The brothers appealed again, this time to the United States Supreme Court. Once again, the court concluded that an anonymous tip alone can give law enforcement the justification to pull someone over on suspicion of driving under the influence.
In quoting the previous case of Alabama v. White, the Supreme Court said, “[U]nder appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.’”
In finding that the anonymous tip was reliably, the court relied on the fact that the caller claimed eyewitness knowledge of dangerous driving, the fact that the tip was made contemporaneously with the eyewitness knowledge of the dangerous driving, and the fact that the caller used 911 to make the tip (knowing that the call could be traced).
According to the Court, if the tip bears “sufficient indicia of reliability,” officers need not observe driving which would give rise to suspicion that a person was driving under the influence or even that the driver committed a traffic violation. They only need the unverified and unsupported anonymous tip.
Does anyone else see the problem here?
Justice Scalia did and he voiced his concern in his dissent to the majority opinion in Navarette v. California.
“Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road…are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.”
Anonymous tipsters are not necessarily reporting on drunk drivers (they don’t know if who they’re reporting on is even drunk). Rather, they are reporting driving errors, any of which can be interpreted as drunk driving. Everybody makes mistakes while driving. In fact, it might be fair to say that no driving trip is perfect and that all driving trips, no matter how short or simple, contain some mistakes. This necessarily means that everyone on the road is a target of anonymous tipsters and anyone can be stopped on suspicion of DUI simply because someone else reported their mere driving mistake (even if they are not drunk).
Many people often ask whether a DUI checkpoint is entrapment. Some ask whether it is entrapment when an officer who parks his or her patrol vehicle outside of a bar or another alcohol-serving establishment and catches a drunk driver.
Unfortunately, the answer is no in both cases, and the misconception lies in the common use of the word “trap” and the mistaken belief that it applies to the legal definition of entrapment.
In the case of People v. West, the court defined entrapment as “the conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Persuasion or allurement must be used to entrap.”
Like many things in law, this rather confusing definition was later refined by the court in People v. Barraza when it said, “[T]he proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense?”
Simply put, entrapment is a defense when the officer forces someone to do something when that person would not have otherwise done so.
With a DUI, entrapment would occur if the police forced the driver to drink when they would not have done so or force the driver to drive when they would not have done so.
Neither is the case with DUI checkpoints or when an officer parks their patrol vehicle outside of an alcohol-serving establishment.
Although many people consider checkpoints to be “traps,” they do not fit within the legal definition of entrapment. If a drunk driver is stopped at a checkpoint, the officer has neither forced them to drink nor drive. If a drunk driver is stopped and arrested at a checkpoint, it’s because they chose on their own to drink and drive before the encounter with the officer. Similarly, if an officer spots a driver coming out of a bar, follows them out onto the streets, then pulls them over for a DUI, the officer has neither forced them to drink nor drive.
Additionally, in both cases, the officers had the legal right to be at the location where they were. DUI checkpoints time and time again have been held by numerous courts to be constitutional. In fact, in California, one of the requirements a DUI checkpoint must adhere to in order to be constitutional is that drivers must be allowed to lawfully turn away from the checkpoint (Yes, that’s right, drivers cannot be forced to go through a DUI checkpoint). When an officer parks outside of a bar, typically they are in a public space, such as a parking lot, where they have a right to be.
Having said that, just because a person is driving through a checkpoint or observed leaving a bar does not mean that the officer has a right to arrest them on suspicion of a DUI. The officer must have probable cause (the amount of evidence needed for an officer to make an arrest) to believe that a person is driving drunk before an arrest can be made.
At a checkpoint, the officer obtains the evidence (i.e. probable cause) needed to make an arrest by asking passing drivers whether they’ve had anything to drink, observing symptoms of intoxication, and, of course, breathalyzing drivers. Without additional evidence that a person is driving drunk, an officer cannot make an arrest.
Similarly, the mere leaving a bar does not give the officer probable cause that a person is driving drunk, although the officer may suspect the person is driving drunk. If, however, an officer observes a person commit a traffic violation after leaving a bar, they can be pulled over. The traffic violation stop can be used as a pretext to investigate for a DUI.
Can entrapment ever be used as a defense for a DUI? Consider the following.
A person goes to a bar to have a drink. Thinking that they might be over the legal limit of 0.08 percent blood alcohol content, they lawfully sit on a bench outside of the bar. A few minutes later, a police officer approaches the person and demands that they drive out of the parking lot. The person obliges, gets in their car, and drives away. As the person drives away, the officer stops and arrests the driver for driving under the influence.
Because the driver drove as a result of the officer’s demand when they would not have otherwise done so, entrapment may be a defense for the driver.
While this scenario is uncommon, it has happened. However, in the vast majority of California DUI cases, unfortunately the defense of entrapment cannot be used.
Law enforcement agencies throughout Southern California will increase their efforts to thwart would-be drunk drivers this month and on into the Labor Day weekend. One tool I know they plan on using during this time is the DUI checkpoint.
According to the National Highway Traffic Safety Administration (NHTSA), Labor Day weekend is one of the deadliest holidays of the year when it comes alcohol-related collisions. In 2017, there was 376 deadly crashes nationwide for the Labor Day holiday period which ran from September 1st to September 5th. Of those 376 deadly collisions, more than one-third (36%) involved drunk drivers.
Last year, California saw two deaths and 31 injuries on Labor Day.
Since there is an increased chance of getting stopped at checkpoint in the next couple of weeks, it makes sense to remind our readers what their rights are when it comes to a California DUI checkpoint.
The 4th Amendment of the United States Constitution requires that officers have probable cause and a warrant before they can seize and/or search a person. Well, what is a checkpoint? It is certainly a seizure since the police are stopping people on the roads when they would otherwise be free to drive without interruption. It may be also a search if the law enforcement has drivers take a breathalyzer since by doing so they are looking for evidence of drunk driving.
So, checkpoints can involve both searches and seizures, yet police don’t have warrants to stop and breathalyze drivers. How?
In the 1987 case of Ingersoll v. Palmer, the California Supreme Court set forth guidelines to ensure the constitutionality of checkpoints in California such that law enforcement doesn’t need a warrant. Those guidelines are:
- The decision to conduct checkpoint must be at the supervisory level.
- There must be limits on the discretion of field officers.
- Checkpoints must be maintained safely for both the officers and the motorists.
- Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
- The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
- The checkpoint must show indicia of official nature of the roadblock.
- Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.
- Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.
Three years later in the case of Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop. In doing so, the court held that sobriety checkpoints were constitutional even though officers were technically violating the 4th Amendment (because they don’t have a warrant when they seize and search motorists at DUI checkpoints).
Now that we’ve determined that sobriety checkpoints are constitutional, I would be remiss if I did not tell you what your rights and obligations are, as the driver, should you happen to find yourself stopped at a sobriety checkpoint.
Based on the last of the Ingersoll v. Palmer requirements, checkpoints must be highly visible. As a result, drivers are often aware of the checkpoint before they drive up to it. Believe it or not, drivers are allowed to turn around so as to avoid the checkpoint. They, however, must do so without breaking any traffic laws such as making an illegal U-turn.
If you do not turn away, but rather pull up to the checkpoint, the officer might first ask you some questions such as: Where are you coming from? Where are you going? Have you had anything to drink?
The 5th Amendment to the Constitution gives you the right not to say anything to law enforcement ever. And don’t! 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.
Surely this is not going to sit well with the officer. They may, at that point, have the driver exit the car 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.
At this point, the officer is likely fuming, but who cares? You are exercising your constitutional rights.
As a last-ditch effort, they may request that you 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 after you have been arrested on suspicion of a DUI. The key word is “after.” Therefore, when you happen upon a checkpoint and the officer requests that you to take the PAS test, you can legally refuse. If, however, the officer has arrested you on suspicion of DUI you must submit to either a blood test or a breath test.
This Labor Day be on the lookout for sobriety checkpoints. But should you find yourself about to drive through one with no way to legally turn around, know your rights and use them. That’s what they’re there for.