Category Archives: Duiblog
Cops, like all employees, can be good, bad, or somewhere in the middle. However, it would be difficult to argue that there are many employment positions out there that require the same degree of care, competency and honesty as law enforcement. Sometimes an arresting officer is just a good person who made a bad judgement call. Other times, the officer abused their position. There are serious consequences when a police officer’s misconduct affects a DUI case. Police misconduct in DUI cases is very much real and happens more often than enforcement departments admit or that the public is aware of. In early 2019, amidst public call for police accountability, California enacted a transparency law, which essentially makes police misconduct records available to the public.
After the law was enacted, the Modesto Bee dove into newly released records and found numerous accounts of police misconduct. The documents detailed a lot of dishonesty. Of the records that the outlet uncovered, what it found as probably the most egregious misconduct, was that of an officer who had previously received commendations and public praise for his DUI enforcement efforts. Unfortunately, his elevated DUI numbers were the product of misconduct.
Footage did not match his written reports, which included that he observed signs of intoxication when none were present on the footage and relying on an “odor of alcohol” when the suspect’s BAC turned out to 0.00 percent. The officer “stopped drivers without reasonable suspicion, based on nothing more than the fact they were leaving the parking lot of a bar. He mocked the drivers he pulled over, … recorded evidence of impairment that did not objectively exist and arrested them without probable cause.” Additionally, an internal affairs review of his record concluded that the officer’s conduct was “often rude, belittling, abrupt and arrogant.”
All too often, this type of misconduct is chalked up to as an overzealous pursuit of justice on the officers’ part. Sometimes misconduct isn’t so egregious as what the Modesto Bee’s uncovered but can just be incompetently handling cases. The Modesto Bee’s efforts are only a small glimpse into misconduct in DUI Cases. Unfortunately, misconduct is not an anomaly and virtually every department struggles to address police misconduct within. Because of transparency laws like those in California and other states, law enforcement is coming to grips with the fact that they can’t keep turning a blind eye to bad policing.
Some examples of police misconduct, include:
- Invalid Investigatory Stop: A police officer must have reasonable suspicion that a crime occurred to stop your vehicle. This means that the officer must be able to show he or she had a supported reason for stopping you other than mere suspicion. Generally speaking, traffic violations and equipment failures (i.e., a blown-out taillight), are examples of proper reasons for a stop. However, it is misconduct for an officer to stop without any reason, or, since many officers know this, to fabricate the reason for the stop in their police report.
- Invalid Arrest: Likewise, a police officer must have probable cause that a driver was DUI before they can be arrested. Probable cause means that the officer has reasonable and trustworthy facts that the driver is DUI. It is misconduct for an officer to arrest without probable cause, or, since many officers also know this, to fabricate the reasons for the arrest.
- Out-Of-Uniform, Unmarked Vehicle Stop: In some states, off-duty police officers who are neither in uniform nor in a marked vehicle cannot conduct traffic stops. In those states that prohibit out-of-uniform, unmarked police vehicle stops, doing so is misconduct and evidence obtained from such a stop can be suppressed.
- Improper Administration and Recording of Field Sobriety Tests: There are several standardized field sobriety tests that an arresting officer can use to determine the sobriety of a driver. That officer must understand and properly administer the test, as well as, properly evaluate the results in order for his conclusion regarding intoxication or impairment to be supported. Improper administration of the field sobriety test may invalidate the test and cast reasonable doubt. It should go without saying that intentional or negligent misrepresentation of the driver’s performance is also misconduct.
- Improper Administration of Breathalyzers and Blood Test: Most states require that an officer strictly follow an approved methodof administering breathalyzers and blood tests. Whether a driver is submitting to the optional pre-arrest breathalyzer test, or the required post-arrest chemical tests (that can be either a breath test or a blood test), intentional deviations or mistakes made during this process are considered misconduct and can result in suppression of the results.
- Hostile Attitude: Though certainly not always the case, some officers struggle to be civil to suspects, defendants and attorneys. Often, video footage, like those required in the type of transparency laws that California has enacted, expose the hostile attitude often taken by officers against drivers suspected of drunk driving. Often the hostile attitude is the result of the officer’s preconceived notion that the driver is drunk even though the officer has nothing to base their opinion on.
- Failure to Document: Speaking of transparency laws, there is absolutely no excuse for the lack of a video footage or other documentation of police interactions with drivers in those departments who employ it. Logic would dictate that documentation and video footage would only assist and corroborate an officer’s observation. So why is it that the footage is often left out? Sometimes, video footage that is supposed to be available isn’t because it has gone missing, exists as a corrupted digital file, or the equipment wasn’t working. Would it have corroborated what the officer wrote in his or her report, or would it have shown something else, perhaps misconduct?
Fighting for your rights does not, in and of itself, mean that you are fighting against the officer. However, if an officer fails to follow normal department protocols, whether intentionally or not, your attorney should expose the misconduct and possibly get the a DUI dismissed or at the least to persuade the prosecutor to reduce the charges or penalties.
Facing a DUI charge can be a life-changing, stressful, and especially confusing experience. Fortunately, with a good defense strategy, your defense attorney might be able to persuade the prosecution to drop or reduce the charges, keep your driver’s license, or even win at trial. A DUI charge does not have to be the end of the world, and in fact, there are a number of strategies to challenge the evidence being used against you. The following list, though not exhaustive, illustrates some of the issues that can be attacked in order to defend a DUI charge.
Lack of Cause to Stop:
The Constitution requires that law enforcement have a certain amount of information that a person committed a crime before that person can, at a minimum, be stopped by law enforcement. If an officer believes that a driver is under the influence, the officer cannot just stop the driver based on that hunch. There must be some facts that would lead an officer to reasonably believe that the driver is under the influence, such as poor driving patterns. Or, in most instances, an officer will observe a driver commit some other traffic violation, such as speeding or running a red light, as the basis for the stop. In any event, an officer cannot merely stop a driver based on a hunch.
Lack of Probable Cause to Arrest:
If you are arrested for a DUI, one of the first places to start is to question whether the officer had probable cause to make arrest. Having probable cause means that the officer had reasonable and trustworthy facts that the driver was intoxicated. The probable cause for a DUI arrest usually comes from the officer’s observations after the initial traffic stop (sometimes before if poor driving patterns were observed prior to the stop). Probable cause can, but not always, be satisfied by a showing of pre-arrest blood alcohol results, officer testimony about the driver’s symptoms of intoxication (blood shot eyes, slurred speech, smell on breath), poor driving patterns, and poor performance on field sobriety tests. Both forms of evidence can be difficult to challenge, but not impossible. If the officer did not obtain reasonable and trustworthy facts that the driver was intoxicated after having stopped them, then the officer cannot arrest a person for a DUI.
Reasonable Doubt at Trial:
While bad driving gives a cop enough cause to pull a driver over, absent any other indications that a driver was under the influence, i.e., BAC results or physical indications such as red eyes or slurred speech, poor driving alone is unlikely to satisfy the probable cause requirement for an actual arrest. However, if an officer observes poor driving and observes other indications of intoxication such as red eyes or slurred speech, they’ll probably have the reasonable suspicion to stop a driver and even may have the probable cause to arrest a driver. However, if a person is stopped and arrested on suspicion of a DUI, it does not mean that they committed a DUI nor does it mean that they will be convicted of a DUI. At trial, the prosecutor must prove beyond a reasonable doubt that a driver was above a 0.08 BAC (0.05 in Utah) or that a driver was under the influence while driving.
One way to create reasonable doubt that a person was under the influence is to emphasize facts that would indicate that the driver was sober, such as good driving habits. Some DUI defense attorneys might ask the officer whether the driver engaged in good driving habits. If available, a passenger can testify as a witness that the driver was operating their vehicle as a sober person would have. Because prosecutors will use poor driving patterns as one consideration in trying to prove that the driver was intoxicated, DUI defense attorneys can raise reasonable doubt by showing that even sober drivers make the same or similar mistakes.
Similarly, officers, as stated, sometimes rely on physical tells such as red eyes, slurred speech, unsteadiness, a flushed face, as well as countless others. There are many reasons, apart from alcohol or drug consumption, that can explain why a person might have these physical symptoms. For example, allergies or other irritants can sometimes cause bloodshot or watery eyes and a flushed face. Additionally, fatigue and physical disabilities can lead to poor field sobriety test performance. Other explanations could include a cold, fatigue, and eyestrain or irritation. Reasonable doubt can exist if the driver can demonstrate reasons, other than intoxication, for the physical symptoms.
It should be emphasized that driving patterns and physical symptoms are only a few things a prosecutor can introduce to try to prove beyond a reasonable doubt that a driver was intoxicated. Facts which might give rise to a reasonable doubt should be evaluated on a case-by-case basis by a skilled DUI defense attorney.
Unreliable Field Sobriety Tests:
Field Sobriety Tests have faced criticism for their accuracy. If an officer conducts a field sobriety test and uses it as the basis for determining that the driver was intoxicated, there are many ways to overcome the test results. For instance, one of the main things that officers evaluate during a field sobriety test is the driver’s coordination. Several things can affect a driver’s balance and coordination, including shoes, natural athletic ability, clothing, fatigue, and nervousness. Many people, even when sober, can become extremely anxious when subjected to a field sobriety test. Anxiety can make it very difficult to perform the test well. See Failing the Field Sobriety Tests Without being Drunk for a further discussion on field sobriety tests.
Incorrect Administration and Inaccurate Results of the Breathalyzer or Blood Tests:
One of the most useful pieces of evidence that an officer can use to make an arrest or that a prosecutor can use to try an prove a DUI beyond a reasonable doubt is the blood alcohol content of the driver. A driver’s BAC reading can be obtained through a pre-arrest breathalyzer, a post-arrest breathalyzer, or a post-arrest blood test. There are, however, a number of reasons why these tests might be less than accurate.
If an attorney can prove that the officer or test administrator did not comply with test requirements, that the breathalyzer machine was faulty, or that the phlebotomy technician was not competent, it is possible to get the test results thrown out. In some jurisdictions, like California, a specified period of time must pass before administering a breath test to make sure the driver hasn’t ingested or regurgitated anything which might affect the results.
Breathalyzer machines require strict and frequent calibration. Attorneys can generally request the calibration records for the machine that was used during your breath test to challenge the breathalyzer results. If the machine was not calibrated properly, the reading may not be admitted against you.
Sometimes, medical conditions like hypoglycemia, low-carb diets like paleo or Atkins, and diabetes can even inflate a blood alcohol content reading.
As you can see, we are only just scratching the surface of the possible DUI defenses that can be raised. More importantly, as you can see, those few defenses mentioned here should be enough for you to realize that trying to defense a DUI on your own is never a good idea. If you happen to find yourself in the unfortunate position of having to defend a DUI, contact a skilled DUI defense attorney to explore all possible defenses.
Consider this: It is a nice spring Thursday evening and you decide to meet friends for dinner. After visiting for a few hours, you decide it is time to drive home. On your way, you happen to go slightly over the speed limit and a police officer pulls you over. Upon his arrival to your driver side window, the police officer notices you have an ignition interlock device installed and immediately asks you to step outside the vehicle and starts to conduct a DUI investigation. Despite the fact that you have not had a single drop of alcohol, you are now being subjected to the humiliating process of a field sobriety test. Does the officer have the right to stop your vehicle and conduct a DUI investigation based solely off the fact that your vehicle was equipped with an ignition interlock device?
What is an Interlock device?
An Ignition Interlock Device (IID) is about the size of a cell phone, connects to a vehicle’s ignition, and is capable of determining a person’s blood alcohol content. Once installed, a driver must provide an alcohol-free breath sample before the engine will start. If the IID detects alcohol on the driver’s breath, the engine will not start. Drivers are periodically required to provide new breath samples en route. The International Council on Alcohol, Drugs and Traffic Safety claims that IIDs can result in a 40–95 percent reduction in the rate of repeat drunk driving offenses.
Interlock Laws in California
Pursuant to a relatively new California state law, the Department of Motor Vehicles (DMV) is conducting a Statewide Ignition Interlock Device (IID) Pilot Program that requires all repeat and all injury-involved driving under the influence (DUI) offenders to install an IID. A first-time DUI without injury will not require installation of an ignition interlock device (at least through the DMV) unless the driver is in one of five pilot counties, which require installation for a first-time offense.
Notwithstanding what the DMV might require, in California, the court, at its discretion, may require that a person convicted of a first DUI offense install an IID their vehicle or vehicles.
IID as a Pretext for a DUI Stop
Under the United States Constitution, law enforcement must have justification before it can initiate a traffic stop or arrest anyone. In the context of a DUI, the level of justification is usually expressed as “reasonable suspicion” for a DUI traffic stop, and “probable cause” for a DUI arrest. In other words, a law enforcement officer must have “reasonable suspicion” that a traffic violation is or was taking place before they can stop a vehicle. “Reasonable suspicion” means that the officer was suspicious that a traffic violation occurred (not necessarily a DUI, because the officers don’t yet have enough facts to stop based on DUI alone) and they can articulate why their suspicion was reasonable.
Most of the time, officers have more than reasonable suspicion to stop a vehicle for a traffic violation because the officer actually witnesses a traffic violation occur, such as speeding or running a red light. However, once a stop is made, the officer must have probable cause to arrest a driver for a DUI. Probable cause means that the officer has reasonable and trustworthy facts that the driver is driving under the influence.
An officer should able to determine if a person has a DMV-required IID installed in their vehicle by scanning a license plate. But that, by itself, doesn’t even warrant the reasonable suspicion that the person has done anything wrong. Remember, that officers need, at a minimum, reasonable and articulable suspicion that a person is driving drunk. Merely knowing that a driver has an IID in his or her car doesn’t mean that the driver is currently drunk (in fact, quite the opposite), and therefore can’t be the officer’s reasonable suspicion needed to make the stop.
From the point the stop is initiated, the law enforcement officer is trying to obtain the requisite probable cause so that they can arrest the driver at the end of the stop on suspicion of DUI. Some of the ways that the officer obtains that probable cause is through observing the signs of intoxication through the driver’s eyes, breath, and speech, observing poor performance on field sobriety tests, and obtaining a BAC reading which would indicate that the driver had alcohol in their system (recall that the pre-arrest roadside breathalyzer is optional).
It goes without saying that if an officer is aware a driver has an IID in their car, the police are going to want to pull that driver over. While courts have held that police can have an ulterior motive for pulling someone over (such as a DUI), the officer must still have the reasonable suspicion that a crime occurred, beyond merely knowing that an IID is in the driver’s car.
As boating season nears us, it is important that boaters remember marine traffic laws in order to avoid accidents and injuries. Law enforcement officials routinely patrol waterways with the hopes of stopping and arresting people for boating while intoxicated the same as they could if they were driving a vehicle on a traditional road.
Every state has a set of driving under the influence (DUI) laws to help keep drivers, passengers, and the community safe. Many people, however, don’t realize that DUI laws apply to more than cars and trucks. In fact, today, every state and the federal government have laws against Boating Under the Influence (‘BUI’). These boating under the influence laws allow officers to stop boats and other watercraft to make sure that the operators and their passengers are sober and safe enough to be allowed on the water.
A stark rise in alcohol and drug-related boating injuries and fatalities prompted state legislatures to enact BUI laws. More than half of all boating accidents involve some level of alcohol or drug consumption, and alcohol is the leading contributing factor in fatal boating accidents, according to the Insurance Information Institute and the U.S. Guard.
The Basics of a BUI
For the same reasons that the legislature enacted driving under the influence laws, BUI regulations exist to hopefully minimize the possibility that a person will operate a boat or watercraft while drunk or under the influence of narcotics. The U.S. Coast Guard warns that “alcohol is more hazardous on water than on land.” Perhaps they’re correct. There are no lanes, few signs, and just open water.
Law enforcement authorities can pull a boater over, just like a driver on the road, if they are suspected of a BUI. Law enforcement officials are also permitted to set up BUI checkpoints on the water, similar to roadside DUI checkpoints, to question boat operators for boating under the influence.
Additionally, boaters face other factors (sometimes referred to as “boater’s fatigue”) that car drivers don’t need to worry, which include heat, sun, noise, wind, and the general effects of being on the water for a long period of time. When alcohol and drugs are also involved, the ability to operate a vessel on the water can be severely affected and become very dangerous.
As you can see, the basics of a BUI are very much like a DUI, possibly even more dangerous.
BUI: Elements of the Offense
Most state laws define crimes of drunk boating as follows: operating a watercraft on a body of water while under the influence of alcohol or drugs. Some state laws also provide a per se BUI offense when a BAC is over a certain amount. Other water related laws apply as well—for instance, in California, people younger than 21 years-old with BAC levels of at least .01 percent cannot even use water skis.
More specifically, California’s BUI law makes it a crime to operate a water “vessel” or a “similar device” while under the influence of alcohol, or drugs, or both, or with a blood alcohol content of 0.08 percent or more.
The Harbors and Navigations Code also provides a zero tolerance for aquaplanes and water skis.
Consequences of a BUI Conviction
Convictions for boating under the influence can have severe consequences. These consequences are due in part to the rise in boating injuries and fatalities. In addition to a possible criminal conviction, boat operators can have their boating licenses suspended or revoked. It is also common for your driver’s license to be affected by a BUI conviction. Aggravating circumstances, such as repeat offenses or boating with minors on board, could face higher consequences. However, a standard BUI in California are similar to those for a California DUI; up to six months in jail, up to $1,000 in fines and fees, and a California DUI program.
Boating Safety Tips
To avoid situations that could affect not only your own rights and safety, but that of friends, family, and others on the water, boaters should be cognizant of the following:
- Exercise increased caution during major holiday weekends: Holiday weekends are usually considered the deadliest weekends for accidents involving alcohol, both on the water and on the road.
- Know your local boating regulations: If you travel to another state, understand what the local regulations say about both open containers and BUI laws.
- Make sure that you and all passengers on the boat wear life vests: Life vests, in general are always a good idea. Many boating deaths and accidents could have been avoided operators and their passengers had worn their life vests.
Additional tips to avoiding a BUI include:
- Take along a variety of non-alcoholic drinks. Having no alcohol while aboard is the safest way to enjoy the water;
- Bring food and snacks;
- Stay cool and hydrated;
- Plan to limit your trip to a reasonable time to avoid fatigue.
- If you dock somewhere and drink alcohol, wait a reasonable time before operating your boat.
Of course, the only failsafe way to avoid a BUI is to avoid alcohol altogether before and while operating a boat, or any vessel for that matter.
Many people would be surprised to find out that a person can get a DUI as they pull into their own driveway. One might wonder, after happening to miss all the checkpoints and managing not to get pulled over by law enforcement en route, how it’s possible to get arrested at the destination; home, sweet home. The fact of the matter is this: if a person drove drunk, even if all they did was pull into the driveway, and the prosecution can prove it, they can still get arrested, charged, and convicted of a DUI.
But what if a person doesn’t even drive the vehicle? What if they don’t even turn the vehicle on?
Imagine a scenario where a person is drinking at home and they step outside to get something from the inside their car. If an officer happened to be driving by and noticed them stumble into their car, would that be sufficient evidence to warrant a DUI?
In most states, a driver can be charged with a DUI for being in “actual physical control” of a vehicle while under the influence. In other words, actual driving is sufficient but not required to be convicted. What determines whether a person had “actual physical control” of a vehicle? The answer is not always simple. Courts often look at a totality of the circumstances to determine whether the driver’s current or anticipated control of the vehicle presented a danger to himself or others at the time.
Many states list “actual physical control” as an element for the crime of DUI but often don’t fully describe what the phrase actually means. In Arizona, for example, a person can get a DUI they are 1.) under the influence while in actual physical control of a vehicle, or 2.) have a BAC of 0.08 percent within two hours of having actual physical control of a vehicle (consumption must have occurred during or prior to being in actual control of the vehicle).
The statute goes on to explain other aspects of Arizona’s DUI laws but does not clearly define “actual physical control.” While a jury must eventually decide whether a person is in actual physical control of a vehicle, they usually take into considerations such as:
- Whether the engine was running
- The location of the key
- The location of the driver at the time he or she was found in the vehicle
- Whether the person was awake or asleep
- The location of the vehicle
- Whether the headlights were on or off
- Whether the heat or air conditioner was running
- The time of day
In practice, actual physical control is meant to apply to situations where an inebriated person is found in a parked vehicle that, without too much difficulty, might become a danger to him or herself, others, or property.
Unlike Arizona and other “actual physical control” states, being in actual physical control isn’t enough in California. In California, a prosecutor must prove that a person actually drove their vehicle for there to be a conviction. While California does not necessarily deal with the intricacies of the “actual physical control” determination, there are some small nuances to existing California DUI laws.
Under California law, a driver must cause the vehicle to actually move, even if the distance is slight. Interestingly, in California, the car engine does not have to be on in order for the movement element of DUI to be satisfied. Even a person sitting in a car in neutral can be charged with DUI if that car rolls forward.
As you can see, the distinction between “slight movement” and “actual physical control” might seem trivial. However, the difference between them may be the difference between a person getting a DUI and not, depending on what state you’re in. Nonetheless, if you’ve been drinking, whether it’s in Arizona or California, just stay away from your vehicle altogether. Why leave it to the cops, prosecutors, and jury to determine whether you “slightly moved your car” or were in “actual physical control” of it?