Category Archives: Duiblog
Throughout the years, we’ve discussed the different things that a person can do to prevent themselves or others from driving drunk. Amongst them, you’ve heard me mention personal breathalyzers that a person can purchase to help them gauge whether they or someone else should be getting behind the wheel. More convenient and affordable than an actual breathalyzer for the average consumer might be a breathalyzer attachment to a smartphone, which are becoming increasingly popular.
Well, smartphones may no longer even need the breathalyzer attachment to tell someone that they’re too drunk to drive using the accelerometer that is embedded in most smartphones.
According to a study published on August 18th in the Journal of Alcohol and Drugs, smartphones may help predict when a person is too drunk to drive by measuring changes in walking patterns.
Researchers from the University of Pittsburg provided enough alcohol to volunteer participants to raise their blood alcohol content levels to approximately 0.20 percent, and asked them to drink it in an hour or less.
In addition to being well over the legal limit of 0.08 percent in all states but Utah (where the legal limit is 0.05 percent), most individuals would be experiencing the telltale signs of intoxication; disorientation, loss of coordination, dizziness, and trouble walking or standing.
The researchers then monitored the volunteers over the next seven hours to take measurements of their respective blood alcohol content levels every half hour, and have them walk 10 steps in a line then turn around every hour. During this time, smartphones were affixed to the participants’ lower back to measure specific bodily movements.
Based on the measurements recorded on the cellphone, the researchers were able to predict, with 90 percent accuracy, when the blood alcohol concentration for a participant was over the legal limit of 0.08 percent.
Lead researcher Brian Suffoletto, now at Stanford University, acknowledged that the next step is to determine if it is still possible to make the same predictions when participants’ phones are in their hand or in their pocket, the places people most often keep their phones, not lower back.
“Despite these limitations, this proof-of-concept study provides a foundation for future research on using smartphones to remotely detect alcohol-related impairments,” said Suffoleto.
“I lost a close friend to a drinking and driving crash in college,” said Suffoletto in a press release. “And as an emergency physician, I have taken care of scores of adults with injuries related to acute alcohol intoxication. Because of this, I have dedicated the past 10 years to testing digital interventions to prevent deaths and injury related to excessive alcohol consumption.”
One could see the possibilities in drunk driving prevention. With further research and development of apps that are based on what this study is suggesting, it may be possible to soon have an app that, quite literally, will tell you that you are too drunk to drive.
From a prosecutor’s perspective, presenting a successful DUI case is a bit like putting together a puzzle. The prosecutor must bring together different “pieces” of evidence – breath or blood test results, the driver’s performance during field sobriety tests, and statements made by the driver during the investigation – in order to secure a conviction. If someone were to take away some or all of these pieces of evidence, the prosecutor’s job becomes much more difficult – if not impossible.
The way in which a person charged with DUI removes these puzzle pieces from the prosecutor’s case is through a motion to suppress evidence. This is a legal motion that asks the court to keep illegally-obtained evidence from being used in court against the person charged with DUI. Filing, presenting, and successfully using these motions may have a significant impact on the outcome of a California DUI case.
What is the Motion to Suppress Evidence?
Motions to suppress evidence in DUI cases are permitted by California Penal Code 1538.5. This section says, “A defendant may move … to suppress as evidence any tangible or intangible thing obtained as the result of a search or seizure.” “Tangible” things would include evidence such as alcohol containers, photographs, or receipts from bars, and the printouts or results of alcohol tests. “Intangible” evidence would include statements made by the accused driver or the statements of police officers or witnesses.
California Penal Code 1538.5 permits defendants to file motions to suppress where law enforcement officers obtain tangible or intangible evidence through illegal searches and seizures. Examples of illegally-obtained evidence in DUI cases can include:
- Statements from the driver obtained in violation of Miranda
- A driver’s field sobriety tests or evidence found in their car if the officer had no reasonable suspicion to stop the driver’s car
- Breath or blood test results from samples that were illegally collected or obtained following an unlawful arrest
- Searches or seizures based upon a defective warrant
One motion to suppress may cover only one specific piece of evidence, such as the driver’s blood test results. Alternatively, one motion may encompass many items of evidence, like “all evidence obtained after and stemming from” the driver’s illegal arrest.
Motions to suppress evidence are designed to discourage unlawful, unconstitutional, and unconscionable behavior by law enforcement officers during investigations. Thus, a motion to suppress may be successful, for example, even if law enforcement had a valid warrant to search or seize evidence but acted unlawfully in collecting that evidence.
What is the Process to File a Motion to Suppress Evidence in California?
While someone could move to suppress evidence in the midst of their trial when the prosecutor tries to present the evidence to the judge or jury, the better practice is to seek to suppress evidence earlier, ahead of trial. The person accused of DUI will file their motion with the court hearing their case. The motion will need to describe the evidence the person wants suppressed and the factual and legal reasons why such evidence should be suppressed.
Once filed, the motion will be set for a hearing with the court, meaning the judge on the case, the prosecutor, and the defense attorney. At this hearing, if any evidence was obtained without a warrant, it is the prosecutor’s responsibility to show the court that the evidence complained about in the motion was lawfully obtained. The driver who filed the motion to suppress is not required to prove that the evidence was unlawfully obtained, unless a warrant was used to obtain the evidence.
The judge will rule on the motion rather quickly; most times, the judge will announce their ruling at the conclusion of the hearing while both the prosecutor and the accused (and their defense attorney) are still in court. If the motion is granted, the evidence described in the motion will be suppressed, and the prosecutor will not be able to discuss or introduce the suppressed evidence at any future hearing or at trial
How can a Motion to Suppress Lead to Acquittal?
What happens next depends on how important the suppressed evidence is to the prosecutor’s case. A suppressed incriminating statement (a driver’s statement that they “drank six beers about an hour ago”) or suppressed alcohol test results, may make it impossible for the prosecutor to prove the driver was driving while impaired. As a result, the prosecutor may need to change the DUI charge to a less serious offense or dismiss the DUI charge altogether. Remember that puzzle that the prosecutor is trying to put together? It’s going to be that much more difficult to put the puzzle together while missing such big pieces.
What Happens if the Court Denies a Motion to Suppress?
If a person’s motion to suppress evidence is denied, then that means that the prosecutor can discuss and admit the evidence in question. While the person may request the court reconsider their motion to suppress, the court will not likely change its mind absent new, binding law or significant and newly-discovered facts.
If the person is eventually convicted of DUI, they may appeal their conviction to an appellate court. There, they can argue that the trial court was incorrect in denying the motion to suppress. If the trial court should have granted the motion and suppressed the evidence, the appellate court may send the case back to the trial court with appropriate instructions.
Some Final Thoughts
As can be seen, a motion to suppress evidence can be a powerful tool in defending oneself against DUI charges in California. Knowing what evidence should be suppressed in a DUI case takes legal knowledge and experience. While a driver with no legal background could learn how to write and file a motion to suppress evidence, they would likely fail to identify evidence that could be suppressed or would miss legal precedents that would help their case. Bottom line: An experienced California DUI lawyer can help drivers facing charges protect themselves and their rights from overzealous police officers and prosecutors.
Back in 2012, Louie Robert Villa, of Santa Ana pleaded guilty to a California DUI. When Villa was sentenced on the DUI he was told by the judge, “You are hereby advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence or alcohol or drugs, or both. If you continue to drive while under the influence of alcohol or drugs, or both, and, as a result of that driving, someone is killed, you can be charged with murder.”
The advisement, known as the Watson advisement, is routinely read to people who are pleading guilty to a California DUI by the judge in their case.
Prior to the landmark case of People v. Watson in 1981, a DUI suspect could only be charged with manslaughter if their drunk driving led to the death of someone. To be charged with murder, a person had to intend to kill someone else to be charged and convicted of murder. However, the California Supreme Court said that only “implied malice” needed to be present for someone to be charged and convicted of murder in the context of a DUI. This meant that a person need not have actual intent to kill, but that they acted with reckless disregard for human life.
The practical effect of the Watson case was that the advisement became a part of sentencing for convicted drunk driving defendants. This allowed prosecutors to find implied malice, or that the defendant acted with reckless disregard for human life, and thus charge second degree murder, should the defendant drive drunk again and kill someone. Although common sense tells us that it is dangerous to drive drunk, when a drunk driver kills someone and they haven’t suffered any prior DUI convictions, they will still be charged with manslaughter unless the prosecutor can prove that they actually knew it was dangerous to human life to drive drunk.
Last week, Villa, now 29 years old, was street racing with 24-year-old Ricardo Tolento, in Santa Ana when his BMW collided with a pickup truck which was making a left turn. The driver of the pickup truck was Orange County Register editor Eugene Harbrecht. The impact of the collision caused Harbrecht’s truck to land on its side 50 feet way and catch fire. Although good Samaritans pulled Harbrecht out of the vehicle, he was pronounced dead at the hospital.
Villa was injured and taken to the hospital. Tolento fled the scene but was apprehended a short time later.
“An illegal street race and a repeat drunk driver who had been warned about the dangers of driving under the influence collided in the middle of the day on a Santa Ana street, resulting in a tragedy that didn’t have to happen,” O.C. District Attorney Todd Spitzer said in a statement. “Because of the selfish actions of two strangers, a wife will never see her husband again and many more lost a treasured friend and colleague.”
Tolento faces up to 11 years in prison if convicted on all charges, none of which include murder. Why? Likely, this was Tolento’s first DUI, which means he was never expressly advised that it is dangerous to drive drunk, making it difficult for prosecutors to prove implied malice.
Villa, on the other hand, was charged with second degree murder. Why? He was read the Watson advisement back in 2012 and was made expressly aware that it was dangerous to drive drunk, giving prosecutors the implied malice they needed to charge murder. In addition to the murder charge, he was charged with one felony count each of driving under the influence of alcohol causing great bodily injury while street racing and driving under the influence of alcohol with a blood alcohol level of greater than 0.08 percent, misdemeanor street racing, and misdemeanor driving on a revoked or suspended license.
When a person is convicted of a DUI, they face at a minimum of three years of probation, fines and fees of several thousand dollars, and a DUI class. Beyond that, depending on the severity of the DUI, a person can also face jail, rehab, a Mothers Against Drunk Driving Victim Impact Panel, a Hospital and Morgue Program, or an exorbitant amount of AA meetings (to name just a few of the consequences). However, for some, none of these penalties is as concerning for them as having the DUI on their criminal record.
Naturally, their first question is, “Can I remove the DUI conviction from my record?”
Unfortunately, when a person is arrested and convicted of a California DUI, both the arrest and the conviction will stay on their record forever. However, an arrest alone cannot be used against a person if they were never convicted. Remember, everyone is innocent until proven guilty and if a conviction never occurred, then the person is still innocent. Simply put, an arrest means nothing without a conviction and employers cannot inquire about an arrest that did not lead to a conviction nor can they use an arrest as a reason not to hire someone.
A conviction, on the other hand, does mean that a person was guilty, and a conviction can be used against them by employers.
Let’s return to the question, “Can I remove the DUI conviction from my record?” While the answer might be, “no,” there’s a very large “but” right behind it. “No, but a person can get an expungement.”
California Penal Code section 1203.4 provides, “In any case in which a defendant has fulfilled the conditions of probation…or in any case in which a court, in its discretion and the interest of justice, determines that a defendant should be granted relief under this section, the defendant shall…be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; of, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and…he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted…”
Simply put, if a person convicted of a DUI successfully completes probation, they can petition to withdraw their guilty plea, no contest plea, or guilty verdict following a trial and the court retroactively dismisses the case.
The word “expungement” is somewhat of a misnomer in that, while many people believe that the DUI will be “expunged” or erased, it does not. It will, however, appear as having been “dismissed” by the court. Dismissed cases do not result in convictions. Thus, if a DUI is dismissed (i.e. “expunged”) through California Penal Code section 1203.4, a person will no longer need to disclose the DUI conviction to most potential employers.
Although a person does not need to disclose a DUI that was dismissed/expunged to most employers, there are exceptions. The conviction must still be disclosed when applying for a government position, a state license, public office, or for contracting with the state lottery. If this is the case, however, a person can then say that the conviction was dismissed under Penal Code section 1203.4 after they have disclosed it.
A DUI conviction should not hold someone back forever, and expungement laws exist so that they don’t. If you, or someone you know, has suffered a DUI conviction, were successful at completing probation, and are ready to move on, contact a California DUI attorney about expunging the DUI.
After having a few drinks with friends following work, a driver heads home. While on their way, they don’t make a full stop at a stop sign and are pulled over law enforcement. After telling the driver why they were pulled over, the officer begins asking questions. “Where are you going? Where are you coming from? Have you had anything to drink?” Without thinking about it, the driver says, “I had a couple of drinks with co-workers and I’m on my way home.” The next thing that driver knows is that they are in the back of the squad car and heading to the station on suspicion of driving under the influence.
The driver is released the following day having been charged with a DUI. They contact a DUI attorney and ask, “Can my case be dismissed because I was never given my Miranda Rights and I told the officer too much?”
The question is a common one since very few drivers actually invoke their right to remain silent during a DUI stop. This is true for a number or reasons; a driver might think that cooperation will help their cause, a driver might not know they had a right to remain silent, or a driver might just get too nervous to think about whether they should talk to the officer or not.
Unfortunately, in the scenario above, the case will not be dismissed and the officer legally did not need to give Miranda Warnings.
The United States Supreme Court in Miranda v. Arizona held that, since only voluntary confessions are admissible as evidence, a confession cannot be voluntary (thus admissible as evidence) unless a person knows that they have the right not to say anything. In other words, a person who does not know they have a right to remain silent and is not advised of such might mistakenly believe that they must talk to officers, thus making their confession involuntary. A confession is only voluntary if a person knows they have a right not to say anything and proceed to choose to speak to law enforcement. As such, the United States Supreme Court held that law enforcement cannot engage in a “custodial interrogation” until a person has been advised of their rights, including the right to remain silent under the 5th Amendment.
This means that officers must give the Miranda Warnings after a person has been arrested, but before an interrogation. Unfortunately, questioning by officers during a DUI stop in most instances, is not a custodial interrogation.
When the driver in the above scenario was stopped because they made a “California stop,” they were not “arrested” or “in custody.” When a person is stopped on suspicion of a DUI, or even a traffic violation that leads to a DUI investigation, the person is not arrested even though they may be temporarily detained. During the stop, the officer can ask questions without giving the Miranda Warnings because the driver was not yet arrested.
During that time, the driver still has the right to remain silent, but officer need not inform the driver of that right. These pre-arrest questions are only considered preliminary in nature, and any answers by the driver in response are fair game for prosecutors in a DUI case against the driver.
If, on the other hand, the driver engages in a “California stop” and is arrested (not merely stopped) after the officer suspects that the driver is under the influence, the officer cannot ask questions without first giving the Miranda Warnings. Any answers to post-arrest questions about the DUI are inadmissible if the officer did not provide the Miranda Warnings.
Having said all of this, the 5th Amendment right to remain silent exists whether Miranda Warnings are given or not! A person always has a right to remain silent. During a DUI stop, drivers should unequivocally, but respectfully invoke their right to remain silent, then do so.