Category Archives: Duiblog
Undoubtedly, the primary purpose of DUI laws is to keep the public safe from intoxicated or otherwise impaired individuals from driving their motor vehicles on roads. When most of us envision a DUI stop take place, we envision someone getting pulled over in a sedan, or an SUV, or perhaps a minivan. But there are less obvious, some even absurd, ways of being cited for a DUI that don’t even involve driving an actual vehicle. While this might seem strange, the purpose of DUI laws – to keep the public safe – doesn’t change whether a person is on a golf cart, a Zamboni, or a horse.
One unusual way to get a DUI is by driving a golf cart under the influence. Many golf carts are battery-powered. Accordingly, there is an argument that they should be treated differently than standard motor vehicles for DUI purposes. However, the State of California disregards this argument. It applies DUI laws to any form of vehicle that can be propelled on a highway, except vehicles which are exclusively human powered. Therefore, under California’s definition, DUI laws apply to golf carts. Importantly, it does not matter if a golf cart driver is oblivious to the fact that it is possible to get a DUI while driving a golf cart. This is problematic because golf custom leads golfers to believe that operating a golf cart after drinking a few beers is normal. Although enforcement is less prevalent on golf courses, impaired golf cart drivers should understand that the possibility of a DUI exists.
Ice hockey fans are familiar with a “vehicle” commonly known as the Zamboni. For those unfamiliar, a Zamboni is used to resurface the ice floor at hockey games. Only a select few individuals have the pleasure of operating a Zamboni. They too should be cautious that operating this “vehicle” under the influence could result in a DUI. In 2015, a Fargo, North Dakota Zamboni driver was arrested on suspicion of driving a Zamboni while intoxicated. The full story can be found at: http://www.cbssports.com/nhl/news/fargo-zamboni-driver-arrested-on-suspicion-of-dui Even though the Zamboni driver was not driving on a public street, North Dakota’s broad DUI laws still applied.
The two scenarios above make at least some sense considering that golf carts and Zambonis are, at a minimum, vehicles with mechanical motors. Nobody wants to be run over by a golf cart in the middle of their backswing, and nobody wants their child to witness a Zamboni driver running into the wall of an ice hockey rink. But, what if your transportation method does not involve a motor vehicle at all, can you still be cited for DUI? In some states, the answer is yes.
In places like Texas, where riding horses is commonplace, people can be arrested, charged, and convicted of a DUI for riding a horse while under the influence. For instance, two Texans were arrested in 2011 for riding a horse and a mule down a street while intoxicated. They were charged with DUI, although the charges were subsequently reduced to public intoxication. Regardless, the possibility still exists that riding a horse or mule in Texas (and in other states) while intoxicated can result in a DUI.
In 2017, a 53-year-old Florida woman was charged with drunk driving for riding a horse down a highway with a 0.16 BAC. Clearly, she was putting herself, the horse, and others on the highway in danger by riding a horse in such an intoxicated state.
In South Carolina, a 25-year-old woman was driving a Power Wheels electric toy truck at a whopping five miles per hour while intoxicated. A video of the incident can be seen at www.usatoday.com/story/news/nation/2019/06/20/megan-holman-driving-toy-truck-drunk-arrested-south-carolina/1519018001. The woman told law enforcement officers that she was driving the toy truck as part of a scavenger hunt. She miraculously avoided a DUI conviction even though the toy truck had a battery in it (similar to a golf cart). But, she was eventually charged with public intoxication. Nonetheless, this incident demonstrates that, while charges may eventually get dropped or dismissed, police can and will still arrest someone for a DUI even on something like a Power Wheels toy truck.
Individuals must remember that law enforcement officers can arrest on suspicion of a DUI for unexpected reasons like driving a golf cart under the influence, or Zamboni under the influence, or even riding a Power Wheels under the influence. While it might not necessarily seem fair to some that law enforcement officers can issue DUI tickets for all these seemingly harmless actions, individuals must still be aware that there are, in fact, risks associated with performing these uncommon methods of transportation while intoxicated. However, when individuals are engaged in particularly risky behavior like riding a horse down a highway while intoxicated, law enforcement officers are less inclined to look the other way. In fact, officers can be more likely to take notice and be forced to take action against the person.
It might be hard for parents to imagine they can be charged with a crime if they let their fifteen-year-old with a driver’s permit drive home after a dinner where they had one too many glasses of wine. Some might even argue that it is safer for the teenager to drive than it would be for the parents who consumed alcohol. In some states, the law (or lack thereof) may reflect that logic. In others, supervising drivers of permitted drivers must be sober. The purpose of the “supervising-driver-during-permit requirement” is to have the supervisor present to take control of the vehicle if need be, give learning drivers the benefit of the supervisor’s experience, and generally speaking, help them become safe and responsible drivers. Does all of that go out the window if the supervisor would not be able to drive themselves as the result of alcohol or drugs?
In 2011, the New York state Senate passed “Abbagail’s Law,” enabling punishment of drunk adults who act as the supervisory driver for someone with only a learner’s permit.
“The bill was named for Abbagail Buzard, an 8-year-old girl who was killed in a rollover crash with her underage cousin at the wheel. He only had a Learner’s Permit, and Abbagail’s father, who told police he was too drunk to drive himself, was in the passenger seat, acting as the ‘supervising driver,’” NCNews wrote of the law and the incident that led to it in January of 2012. “Abbagail’s father was drinking at a family event when he decided to recruit the underage cousin to drive to the store for more alcohol. He placed four children including Abbagail in the back seat and climbed in the car, which crashed a short time later, crushing the little girl. Abbigail’s father spent six months in jail for criminal negligence but couldn’t be charged with more serious crimes.”
“Abbagail’s Law” has passed the New York Senate every year since but has surprisingly failed in the New York Assembly every time.
Notwithstanding New York’s inability to pass Abbagail’s Law, due to the potentially dangerous consequences associated with allowing an inexperienced driver to get behind the wheel with an intoxicated supervisor, many states have started to create their own laws mandating that supervising drivers be sober. For instance, in Illinois, learner’s permit holders must accumulate 50 hours of supervised driving, supervised by a parent or an adult age 21 or older with a valid driver’s license, who must be sitting in the front passenger seat and may not be intoxicated.
In North Carolina, if a person merely supervises a driver with a learner’s permit while under the influence of drugs or alcohol, that supervisory adult may be charged with an offense similar to a DUI and may face the very same penalties as if they had personally operated the vehicle under the influence.
Even other countries have recognized the importance of properly supervising learner drivers. In the UK, the law states that somebody supervising a learner driver is “effectively in control of the car.” A survey of the UK showed that nearly a quarter of all drivers did not know that it was illegal to use their cell-phone will acting as the supervisor of a learner driver. Many drivers didn’t know it was also illegal to fall asleep while in a supervisor driver role. In some cases, the supervisor driver faced jail time and civil fines if their learner driver injured another driver on the road.
Under California law, people with learning permits must be supervised by a licensed parent, guardian, spouse or other adult over the age of 25. California, like several other states, however, has not yet addressed whether the “licensed parent, guardian, spouse or other adult over the age of 25” needs to be sober.
On the surface, it seems that the spirit of the current law in ensuring the safety of the minor driver and other drivers on the road could be extended by interpreting the law to mean “sober” supervisors. On the other hand, one possible reason for delays in places like California and New York is that legislators are reluctant to punish people for attempting to avoid driving drunk themselves. However, with the current availability of alternative transportation methods home, other than letting your permitted teenager drive, that reason becomes less likely than it already is as time goes on.
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.