Category Archives: DUI Law
In a widely-criticized 5-4 decision, the United States Supreme Court in Michigan vs Sitz decided some years ago that DUI sobriety checkpoints (aka “DUI roadblocks) did not violate the search-and-seizure provisions of the Fourth Amendment of the U.S. Constitution. See my post Are DUI Roadblocks Constitutional?.
However, it is not illegal to detect and avoid DUI sobriety checkpoints. And, in fact, the court in Sitz indicated that there were restraints on law enforcement in planning, setting up and administering these sobriety checkpoints. These restraints were left up to the individual states to determine, but most have adopted guidelines similar to those recommended by the California Supreme Court in Ingersoll vs Palmer. Among these are that the checkpoints must be publicized to minimize intrusiveness.
A further requirement, the Court in Ingersoll said, is that “A sign announcing the checkpoint was posted sufficiently in advance of the checkpoint location to permit motorists to turn aside, and under the operational guidelines no motorist was to be stopped merely for choosing to avoid the checkpoint.” See Turning Away from a California DUI Sobriety Checkpoint. Of course, the police will be suspicious of anyone attempting to avoid a DUI sobriety checkpoint — and will commonly try to find some justification for stopping them, such as the driver making an illegal U-turn or having defective brake lights.
The best course of action: since the sobriety checkpoints must be previously publicized, find out where and when any DUI checkpoints in your area are going to be set up — and avoid them. Unfortunately, the police usually choose to “publicize” them in a tiny notice in the back pages of a minor newspaper.
So how can you locate planned DUI sobriety checkpoints in your area?
Simple: Visit the sobriety checkpoint page on my DUI defense law firm’s website: Sobriety Checkpoints: Laws and Locations. Understandably, the focus is on sobriety checkpoints located in California, but there is also information on access to the locations of checkpoints nationwide.
With the amount of law enforcement and checkpoints out on the streets this past weekend, it was inevitable that I would be asked questions at the party I attended for the 4th of July. Over the years, I’ve gotten used to being the go-to person for legal questions even on my days off. In discussing checkpoints with another guest of the party, they were surprised to learn that they were legally allowed to turn away from a checkpoint. They reacted like most do when learning that it is, in fact, completely legal to turn away from DUI checkpoints.
The United States Supreme Court, in the landmark case of Michigan Department of State Police vs. Sitz, held that, unlike a normal “seizure” which requires probable cause, checkpoints need not have such probable cause. The Court reasoned that the slight intrusion into the motorist’s privacy rights was outweighed by the government’s interest in keeping drunk drivers off the road.
The California Supreme Court held in Ingersoll v. Palmer that random sobriety checkpoints are “administrative procedures” rather than “criminal investigations” and, as such, are akin to agricultural checkpoints and airport screenings. The Court went on to say that there are factors which must be weighed to help determine the constitutionality of the checkpoint:
1.) The location of the checkpoint should be made at the supervisory level.
2.) The selection of vehicles stopped should be based on a neutral mathematical formula (such as every third car) rather than officer discretion.
3.) The checkpoint must be safe with proper lighting and signs.
4.) The checkpoint must be visible to oncoming motorists.
5.) The location of the checkpoint must be reasonable and in area most likely to yield DUI arrests.
6.) The time and duration of the checkpoint should minimize intrusiveness and maximize effectiveness.
7.) The length of the detention of motorists should be no longer than necessary to determine if a person is driving drunk.
8.) Law enforcement should publicize the checkpoint to minimize intrusiveness and maximize the deterrent effect of the checkpoint. In 1993, the California Supreme Court, in People v. Banks, stated that although publicity is not a requirement of checkpoints, it helps.
In addition to these factors, the Court stated that motorists who seek to avoid the checkpoint must be allowed to do so. Most checkpoints have officers waiting in idle patrol cars ready to chase after motorists who attempt to leave. It goes without saying that if an officer sees a motorize attempt to avoid a checkpoint, they’re automatically suspicious that the person is driving drunk.
But here’s the catch: They cannot pull someone over unless they have probable cause to believe the motorist committed a crime or a traffic violation.
Merely avoiding a checkpoint does not give them that probable cause.
Making an illegal U-turn does. Driving improperly does. A malfunctioning break light does. And it doesn’t matter that the officer has the ulterior motive of investigating for a DUI as long as the officer has the probable cause to pull someone over independent of the motorist’s avoidance of the checkpoint. But you can be sure that if the officer does pull someone over, they’ll be looking for the telltale signs of a drunk driver: bloodshot eyes, smell of alcohol, slurred speech, etc.
In fact the Court in Ingersoll said, “A sign announcing the checkpoint was posted sufficiently in advance of the checkpoint location to permit motorists to turn aside, and under the operational guidelines no motorist was to be stopped merely for choosing to avoid the checkpoint.”
So if you decide to avoid a DUI checkpoint, make sure that you do so legally and know that even if you do, law enforcement will be watching you and waiting for you to slip up.
In the wake of the tragic shootings last weekend at UC Santa Barbara, two Democrats in California’s State Assembly have announced their plans to introduce a new gun control measure which could prohibit those who have been convicted of a DUI from owning and carrying a gun.
The “gun violence restraining order,” proposed by Nancy Skinner (D-Berkeley) and Das Williams (D-Santa Barbara), would create a system where a legal gun owner can have their guns confiscated if a family member believes they have a mental health problem that the state is not aware of. The “restraining order” could be issued upon gun owners who have passed NICS background checks, registered their firearms with the state, and have not broken any laws.
The idea for the “gun violence restraining order” is part of a recommendation from the Consortium for Risk-Based Firearm Policy which also suggests firearm prohibitions for other “risk factors” including “drug or alcohol use (linked to DUI convictions or misdemeanors involving a controlled substance).”
I won’t comment on the “restraining order” as it applies to those who have been identified by family members as having mental health problems, although I do have my opinions.
However, when it comes to prohibiting those who have suffered from a DUI conviction from owning a gun, I have an issue that I will express.
This isn’t the first time that legislators have attempted to place gun ownership restrictions on DUI offenders.
Last year, Democratic Sen. Lois Wolk of Davis introduced SB 755, a bill which would have prevented some DUI offenders from having guns for a period of 10 years. Fortunately, California Governor Jerry Brown vetoed the bill saying, “I am not persuaded that it is necessary to prohibit gun ownership on the basis of crimes that are non-felonies, non-violent and do not involve misuse of a firearm.”
Also last year, Connecticut Governor Dannel P. Malloy proposed a law that would ban DUI offenders from owning a firearm. Supported by Connecticut democratic senator Martin Looney, the proposed law was intended to prohibit possession of firearms by people who have demonstrated “irresponsible behavior” and a “willingness to break the law.”
I’ve never been the biggest advocate for gun rights, but the suggestion that a DUI offense is a “risk factor” which should prevent someone from owning a gun is absurd.
The Consortium’s recommendation for a prohibition on gun ownership targets groups at heightened risk of violence. According to the Consortium, that includes individuals convicted of two or more DUIs in a five-year period. What is it about a DUI that’s violent? Taking into account DUIs which involve injuries or death, the “violence” involved unintended violence which has nothing to do with the propensity to misuse a gun.
Currently, certain convictions can prevent individuals from possessing a firearm. However, those convictions at least have a causal link to potential future gun violence. Driving under the influence, however, does not.
Believe it or not, it is a crime in California to drive while being addicted to drugs or alcohol.
Lesser known California Vehicle Code section 23152(c) provides: “It is unlawful for any person who is addicted to the use of any drug to drive a vehicle.”
You may be asking yourself the same thing I did when I first read it. Huh?
The “huh?” was the reactionary expression of two other questions: What’s the purpose? And who is an addict?
In the 1965 case of People v. O’Neil, the California Supreme Court addressed both of these issues by looking at the legislative intent of 23152(c). The court determined that “when an individual has reached the point that his body reacts physically to the termination of drug administration, he has become ‘addicted’ within the meaning and purpose of [23152(c)]. Although physical dependency or the abstinence syndrome is but one of the characteristics of addiction, it is of crucial import in light of the purpose of [23152(c)] since it renders the individual a potential danger on the highway.”
While the court focused on the theory that an addict going through withdrawals can pose a risk to the roads, it said that a person need not be going through withdrawals to be arrested, charged, and convicted of California’s driving while addicted law.
“The prosecution need not prove that the individual was actually in a state of withdrawal while driving the vehicle. The prosecution’s burden is to show (1) that the defendant has become ‘emotionally dependent’ on the drug in the sense that he experiences a compulsive need to continue its use, (2) that he has developed a ‘tolerance’ to its effects and hence requires larger and more potent doses, and (3) that he has become ‘physically dependent’ so as to suffer withdrawal symptoms if he is deprived of his dosage.”
So let’s get this straight. You can be charged with a crime if you’re addicted to drugs or alcohol even if you’re not intoxicated or you’re not going through withdrawals. So then that begs the question: What’s the point?
Unfortunately, the California Supreme Court has yet to answer that question.
Fortunately, however, the law does not apply to those who are participating in a narcotic treatment program.
Well it’s nice to know that the law only protects those who are receiving treatment for their disease, but not those who aren’t.
“What’s the difference between lawyers and vultures?”
Let’s face it, we attorneys do not have a good rap. But obviously not all attorneys are bad. And when people have been arrested for DUI and are at their most vulnerable, they must rely on attorneys to navigate their case through the maze that is the law. So how do you choose the right DUI attorney — and what will a DUI lawyer cost?
First off, you’re going to have to do some research. With so much on the line, why would you not? Ask people you know for referrals. Check the ratings of attorneys on websites like avvo.com and yelp.com. Check to see if the attorney you’re considering has had any disciplinary action against them from the California Bar Association. You can check this at calbar.org.
When attorneys become licensed to practice law, they can practice any area of law. Does that necessarily mean that they are qualified to practice every area of law? No. There are many attorneys that are “general practitioners.” This means that they take cases ranging from probate law to real estate law to DUI defense. Personally, if I have a probate case, I’m going to go to a probate lawyer. Understanding the nuances of DUI law and the science involved is crucial in defending a DUI case. If you get arrested for a DUI, wouldn’t you want an attorney who only practices DUI defense or even criminal law?
Be wary of the attorney who calls your case a “slam dunk.” No case is a “slam dunk” and very few things in law are that black and white. The By law, attorneys cannot guarantee an outcome. In fact, most of the time, DUI attorneys don’t know the facts of the case until the first court date, which is when they obtain a copy of police report. Sure, you can tell the attorney your version of the story during the consultation, but that, very often, varies wildly from what the police say.
Expensive doesn’t necessarily mean good. Having said that, you also shouldn’t shop for the cheapest quote on the market. Find out what attorneys are charging for the services you’re looking for. Again, you’re going to have to do some research. I can tell you right now, most DUI attorneys charge a flat fee for DUI defense rather than an hourly fee. And that flat fee can range from below $1,000 all the way up to $10,000. Make sure that you’re comfortable with the price, the payment arrangements, and the services that you’re receiving for them.
Attorneys are not cheap. Don’t drop your hard earned dollars unless you are absolutely completely comfortable with the attorney and the relationship. After all, you are entrusting this person with representing you in a court of law.
The punchline to the joke is “wings.” Don’t get stuck with a vulture.