Category Archives: DUI Law

California DWI – Driving While Addicted

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.

How Do I Choose the Right DUI Attorney?

“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.

Sheriff: “We Have Complete Power Over You”

I've commented repeatedly in the past about the growing power of law enforcement in this country — the ability and willingness of police to abuse their authority, ignore contutitional protections and use excessive force.  This, of course, has not been limited to the DUI field, but has been a widespread phenomenon.  The rate of shooting deaths by police has skyrocketed, for example, and the spread of SWAT teams and the adoption of military and paramilitary equipment and tactics has spread across the country.  Due to the prevalence of cell phone cameras, more and more of these senseless killings by police have been clearly documented.

Is this due to an increasingly lawless citizenry — or to an increasingly authoritarian mentality among police agencies?

The following is a highlighted quote from a full-page Jacksonville, North Carolina, newspaper ad from a sheriff seeking re-election for a fourth term:
 

Those in the law enforcement profession have complete power and authority over you, your life, you family, your loved ones, your rights, your freedom, your future, and everything precious to life.


The following is a letter to the editor in reply:
 

I read Sheriff Ed Brown's full-page ad in the paper Feb. 2 edition of The Daily News. All freedom-loving Americans should be scared of what it says.

In the ad, Brown states, “Those in the law enforcement profession have complete power and authority over you, your life, your family, your loved ones, your rights, your freedom, your future and everything precious to life.”

Ed Brown must want us to live in a total-domination police state.

It is our Constitution and Bill of Rights that guarantee our freedoms. Any politician who believes in Ed Brown’s statement is not worthy of any public office.

I totally reject Ed Brown’s claim that law enforcement has complete power and authority over me. As an American, I trust in the guarantees of our Constitution and believe in our democratic way of life; and I will fight against those who would want to impose their tyranny over us


Well said.  But let's hope the writer of this letter is never stopped by a local deputy sheriff…
 

Anonymous “Tips” Now Enough to Stop Drivers for DUI

The U.S. Supreme Court has done it again.

Yesterday, in a typical 5-4 decision, the Court held that an anonymous tip — an unidentified call with absolutely no indication of truth or reliability — was sufficient to justify police stopping a driver on the road and detaining him on suspicion of drunk driving.  Navarette v. California

Amazing.

The Fourth Amendment of our Constitution clearly states that "The right of the people to be secure in their persons…against unreasonable searches and seizures, shall not be violated…but upon probable cause".   In other words, a cop can't just stop a driver on suspicion of drunk driving unless he has "probable cause" — a reasonable belief — that he is intoxicated. 

So, the issue is:  Does a telephone tip from an unidentified source constitute a reasonable suspicion of guilt — even where the responding cop sees no indication of drunk driving?  Or, for example, can an anonymous phone call from a spiteful former wife or a disgruntled neighbor be enough to get you pulled over by the police and subjected to a DUI investigation?

As I've said so many times on this blog, there exists a DUI Exception to the Constitution — and there is no better example of this than the Supreme Court holding in Navarette.  But it's easy for some to ignore these destructions of our constitutional rights, since they only apply to those "drunk drivers", right?  The problem is, as I've also repeatedly written, we are a nation of legal precedent : a loss of constitutional protections in a DUI case will be used as a precedent in any other criminal case.  See my post, Who Cares About the Rights of Those Accused of DUI?.  


Clarence Thomas vs. Antonin Scalia on 4th Amendment and 'Reasonable Suspicion'

Washington, DC.  April 22 - The U.S. Supreme Court handed down a major ruling today with profound implications for the Fourth Amendment rights of all persons who drive or ride in automobiles on public roads. At issue in Navarette v. California was a traffic stop prompted by an anonymous call to 911 claiming that a truck had driven the caller off the road. Going by the information supplied in that call alone, the police located a matching truck in the vicinity of the alleged incident and pulled it over on suspicion of drunk driving. That stop led to the discovery of 30 pounds of marijuana stashed in the truck.

The question before the Supreme Court was whether that single anonymous tip to 911 provided the police with reasonable suspicion to stop the truck. Writing for the majority, Justice Clarence Thomas ruled that the "the stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated." While this is a "close case," Thomas acknowledged, it still passes constitutional muster. Joining Thomas in that judgment was Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, and Samuel Alito.

Writing in dissent, Justice Antonin Scalia came out swinging against Thomas. "The Court's opinion serves up a freedom-destroying cocktail," Scalia declared, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. It elevates an anonymous and uncorroborated tip above the bedrock guarantee of the Fourth Amendment. "All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police." That state of affairs, Scalia declared, "is not my concept, and I am sure it would not be the Framers', of a people secure from unreasonable searches and seizures."

So even if such a telephone call were reliable — and there is now no longer requirement that it has to be — you can be stopped for suspicion of drunk driving if the caller says that you were…speeding.  Even if  the responding cop sees no evidence that you are intoxicated.

In his dissent, Justice Antonio Scalia wrote further:

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, and not just drug dealers, 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. I respectfully dissent.

…and they continue to chip away at our Constitutional freedoms.
 

DUI DMV Hearing: Where’s the Due Process?

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?