Should Every Step of the DUI Arrest be Recorded?

Thursday, August 30th, 2018

A report about a South Carolina law has raised the question, “Should every step of the DUI arrest be recorded?” If you’ve my previous posts, you know my answer is a vehement, “yes.”

A South Carolina law requires that the entirety of a DUI stop and arrest must be recorded otherwise the driver’s charges could get dismissed. And a new report suggests that DUI conviction rates have decreased significantly as a result of the law.

Many drunken drivers walk free in SC because of strict law, report says

August 29, 2018. The Post and Courier – In South Carolina, a police dash camera pointed the wrong way could be considered cause for a judge to throw out a drunken driving case, even when deputies say a motorist was clearly impaired.

State law, which critics describe as one of the strictest in the country, requires videotaping virtually every step of a DUI arrest. If the suspect is out of the shot of a dashcam or body camera or the video does not work, courts could dismiss the charges.

Greenville-area prosecutors who handle nearly 1,000 DUI cases a year say that loophole in state law, along with others, hurts conviction rates that have been criticized by Mothers Against Drunk Driving in a report released this week.

The report examined the outcome of hundreds of DUI cases in the Greenville and Columbia areas and found less than half resulted in drunken driving convictions.

An assistant solicitor handling a pending DUI case said she’s preparing arguments for why the judge should accept video into evidence because part of an arrest wasn’t captured on screen. Another Greenville prosecutor said a judge dismissed a case this year because a suspect couldn’t be seen being given Miranda rights, even though a dashcam captured the audio.

“It’s just a really odd and unreasonable requirement,” said Jennifer Tessitore, assistant solicitor for the 13th Circuit.

Technical glitches often spur prosecutors to offer suspects plea deals for lesser crimes, such as reckless driving, she said.

The issue is highlighted in a new report from the South Carolina chapter of Mothers Against Drunk Driving that calls on S.C. leaders to bring down the state’s more than 330 drunk driving deaths a year, which ranks sixth in the nation.

A majority of misdemeanor DUI cases in the Greenville area, or roughly 49 percent, are pleaded down to a lesser charge, while roughly 45 percent result in convictions, according to the 13th Circuit’s analysis of more than 1,200 cases between 2016-17 that was released Tuesday.

That conviction rate is much lower than other major crimes, 13th Circuit Solicitor Walt Wilkins told reporters Tuesday. He pointed to the state requirements on video evidence as a key hurdle.

“Our ability to (prosecute) is hindered by this current statute,” Wilkins said. “It makes it more difficult than it could, or that is allowed by other states.”

For the Columbia area, the conviction rate was 48 percent and another 48 percent of cases were pleaded down, according to MADD’s own analysis of 160 cases between 2016-17.

Defense lawyers who have handled drunken driving cases said the video requirement is no excuse for a poor conviction rate.

“They say it’s a burdensome technicality, but there’s nothing technical about a fair process,” said Joe McCulloch, a Columbia lawyer who handles dozens of DUI cases a year.

Then-state Rep. Ted Vick had a DUI charge thrown out in 2014 because officers failed to videotape the lawmaker being read his Miranda rights. The state has required some form of video evidence in DUI cases since 1998, said Sen. Brad Hutto, a Democratic Orangeburg attorney who worked on the legislation.

Requiring officers to record their interactions has actually strengthened evidence in DUI cases for juries to consider, Hutto said.

“If you have two people there, it’s your word against mine,” he said. “Who are you supposed to believe? If you have a video tape, you can see who’s actually right.”

More than $220,000 in grants from the S.C. Department of Public Safety funded the MADD study. Another $72,000 grant is funding a similar study of the Charleston area, which is expected to be published next year.

Fresh concerns about impaired driving in Charleston were raised in July when a motorist careened onto a sidewalk, fatally striking an 11-year-old girl. Though the driver had no alcohol in his system, police suspected that he had used drugs before the crash.

In June, police said a woman with a blood-alcohol content nearly twice the legal limit swerved into the wrong lane, causing a head-on collision with congressional candidate Katie Arrington, who was traveling on the Savannah Highway in Charleston County.

 

Guess what, critics of the law? You have it because we can no longer trust the arresting officer’s word that the stop was lawful, that procedures were done properly, and that the driver was actually drunk! If prosecutors want a higher conviction rate, how about training officers better or making sure that the equipment is functioning properly?

I’ve been doing DUI defense long enough to know that police lie in DUI police reports more often than I’d like to admit.

In a recent case of mine, a driver told the officer who stopped him that he had one glass of wine with dinner. This prompted the officer to have the driver perform field sobriety tests. Although there was sufficient space in front of the officer’s vehicle and within view the dashcam to perform the tests, the officer took the driver out of the camera’s view. Lo and behold, the officer’s report indicated that the driver failed all of the tests. However, after the driver was arrested and submitted to a chemical test, it was revealed that he had a blood alcohol content of only 0.02 percent, a mere ¼ the legal limit of 0.08. Either the driver failed the field sobriety tests while being sober, which is a problem in and of itself, or the officer lied in his report. I tend to believe the latter.

This shouldn’t be about giving the prosecutors more convictions. It must be about truth, fairness, and transparency with officers who make DUI stops. I applaud South Carolina, and every state should have similar laws.   

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Drunk Driver Arrested with Three Times the Legal Limit and Five Children in the Car

Thursday, July 12th, 2018

A woman was arrested this week after she was caught driving with a blood alcohol content over three times the legal limit and with five children in the car.

Rhode Island State Police were notified by a staff member of the Lincoln Woods State Park about a woman who appeared to be drunk and preparing to drive away in a minivan with five children, ages ranging from seven months to ten years old.

When officers confronted Leah Beatriz Duran, 41, of Woonsocket, Rhode Island, she backed into one of the officer’s vehicles in an attempt to flee, according to police.

Once officers were able to stop Duran, they determined that her blood alcohol content was 0.279 and 0.277.

Duran was charged with drunk driving with a child under the age of 13, driving with a suspended or revoked license, driving without insurance, failure to carry a license, and failure to maintain reasonable and prudent speeds.

The children were turned over to relatives and Duran is due in court later this month where she will be facing up to a year in jail based on a new law passed by the Rhode Island legislature.

“Drunken or drugged driving becomes something much worse when a child is in the car,” said Rhode Island Senate Majority Whip Maryellen Goodwin, who sponsored the bill which increased penalties for DUI when children are in the vehicle. “Besides threatening his or her own safety and that of everyone else on the road, that driver is risking the life of a child for whom he or she is supposed to be responsible — a child who has no choice or control over their presence in that car. That’s a more serious crime that warrants stiffer penalties. Tougher sentences will send a strong message that makes people think twice about endangering kids in this way.”

While not the same as Rhode Island, California also treats DUI with children in the car very seriously. Not only is a person looking at the punishment under California’s DUI law, they are also looking at additional penalties under California Vehicle Code section 23572, also known as California’s DUI child endangerment enhancements.

Under California Vehicle Code section 23572, a first time DUI conviction where a minor under the age of 14 is in the car will bring an additional 48 hours in a county jail on top of any jail time the underlying DUI sentence might carry. A second time DUI conviction will bring an additional 10 days in jail. A third time will bring an additional 30 days in jail. A fourth will bring an additional 90 days. Furthermore, these penalties are to be served consecutively, not concurrently with the underlying DUI penalties.

The prosecutor need only prove that you were driving under the influence and that there was a minor child under the age of 14 in the car while you drove.

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Wisconsin Supreme Court Rules Warrantless Blood Draw in DUI Cases Allowed

Thursday, July 5th, 2018

In 2016, the United States Supreme Court held that law enforcement must obtain a warrant before forcibly withdrawing blood from a suspected drunk driver.

Writing for the majority, Justice Samuel Alito said, “It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.”

Notwithstanding the precedent, the Wisconsin Supreme Court seems to think that it can continue to issue decisions that allow that law enforcement to withdraw an unconscious DUI suspect’s blood without a warrant in violation of both the Constitution and the United States Supreme Court. It did so again this week in the case of Gerald Mitchell.

“Nothing in the opinion indicates the Supreme Court considered how its analytical structure would apply in the context of an unconscious suspect arrested for OWI, and it would be too much like reading tea leaves to give any substantive weight to a statement that simply gives the Court’s reasons for not addressing the question we are deciding,” Wisconsin Justice Daniel Kelly wrote.

Mitchell was arrested back in 2013 on suspicion of driving under the influence, or “operating while intoxicated” as Wisconsin calls it. Mitchell passed out after he was arrested, but before he could give consent for officers to withdraw blood. While unconscious, an officer told Mitchell that he could refuse. Not surprisingly, Mitchell didn’t respond. The officer then directed hospital staff to withdraw Mitchell’s blood.

The blood sample indicated that Mitchell’s blood alcohol content was 0.22 percent, well above the legal limit of 0.08 percent.

Based on that information, Mitchell was convicted of driving under the influence.

Mitchell appealed arguing that the blood withdrawal was a violation of his right to be free from unreasonable searches and seizures. An appellate court sent the case to Wisconsin Supreme Court for clarification because the Wisconsin Supreme Court had previously decided that warrantless blood withdrawals were allowed in urgent situations where delay in obtaining consent could lead to the loss of evidence, namely the dissipation of alcohol in the driver’s blood.

The Wisconsin Supreme Court in Mitchell’s case justified the holding by citing Wisconsin’s Implied Consent law stating that drivers automatically consent to blood withdrawals when they have a driver’s license.

Writing for the majority, Chief Justice Patience Roggensack said, “Through drinking to the point of unconsciousness, Mitchell forfeited all opportunity…to withdraw his consent previously given.”

Justice Roggensack went on to cite the legislature’s efforts at stamping out drunk driving to justify the court’s position.

“Just as Wisconsin drivers consent to the above-listed obligations by their conduct of driving on Wisconsin’s roads, in the context of significant, well-publicized laws designed to curb drunken driving, they also consent to an evidentiary drawing of blood upon a showing of probable cause to believe that they operated vehicles while intoxicated,” she wrote.

However, this rationale goes against exactly what the United States Supreme Court said in 2016.

“It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quire another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit,” Supreme Court Justice Samuel Alito wrote. “There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.”

Wisconsin Supreme Court Justice Ann Walsh Bradley dissented from Justice Roggensack arguing exactly what Supreme Court Justice Alito had enunciated two years ago.

“This language compels a single conclusion: law enforcement needed a warrant here,” she said.

Bradley said the majority was merely using Wisconsin’s implied consent law to overrule the guarantees of the Constitution.

“Under the lead opinion’s analysis, however, the opportunity to refuse an unconstitutional search is merely a matter of legislative grace. If the ability to withdraw consent is merely statutory, could the legislature remove the ability to withdraw consent entirely? For the Fourth Amendment to have any meaning, such a result cannot stand,” she wrote.

What’s the point of precedent if states continue to refuse following case law set by the highest court in this country, and refusing to follow it at the expense of constitutionally guaranteed rights?

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Man Arrested for DUI after Horse he was Riding Tramples Boy

Thursday, June 14th, 2018

A man riding his horse during the Colusa County Fair Parade in Colusa, California, last Friday was arrested on suspicion of felony California DUI after his horse trampled a boy.

Armando Martinez Ruiz, a participant in the parade, was thrown from his horse after the horse bucked. As the horse ran away and through a group of spectators lining the parade route, it trampled an eight-year-old boy breaking his leg.

Officers found the horse and Ruiz was arrested on suspicion of felony DUI.

“In California, the same laws apply when riding horses as driving cars,” the Colusa Police Department said on its Facebook page.

This incident comes only a few months after a man was caught riding his horse on the 91 freeway in my hometown of Long Beach.

In that case, California Highway Patrol responded to a report that a man, later identified as Luis Alfredo Perez, had ridden his horse eastbound onto the 91 freeway. Officers found Perez after he exited the freeway in Bellflower.

It was later determined that the Perez’s blood alcohol content was 0.21/0.19 percent, more than double the legal limit, and he was arrested on suspicion of DUI.

Following Perez’s arrest, CHP took to Twitter saying, “No, you may not ride your horse on the freeway, and certainly not while intoxicated.” It included a picture of horse whose name was Guera and who was later released to Perez’s mother.

The Colusa Police Department was not wrong when it said that the same laws apply to horse riders as they do with drivers of motor vehicles.

According to California Vehicle Code section 21050, “Every person riding or driving an animal upon a highway has all of the rights and is subject to all of the duties applicable to the driver of a vehicle by this division…”

Since California DUI laws apply to the rider of a horse on a road, Perez was charged with a run-of-the-mill DUI. He faced fines between $390 and $1,000, three to five years of summary probation, a DUI program of up to nine months, and up to six months in county jail.

Ruiz, on the other hand, is facing felony DUI charges because someone was injured. Depending on the severity of the injury, someone can be charged with either a misdemeanor or a felony when their impaired driving injures someone other than the driver. And because Ruiz is being accused of felony DUI, he faces up to four years in prison, an additional (and consecutive) three to six years because broken bones can be considered “great bodily injury,” a “strike” under California’s Three Strikes Law, a fine between $1,015 and $5,000, and an 18 or 30 month DUI program.

I’ll leave you with a poem written by a dissenting Pennsylvania Supreme Court judge in a Pennsylvania case which held that a horse is not a vehicle for purposes of driving under the influence.

“A horse is a horse, of course, of course, but the Vehicle Code does not divorce its application from, perforce, a steed as my colleagues said. ‘It’s not vague,’ I’ll say until I’m hoarse, and whether a car, a truck or horse, this law applies with equal force, and I’d reverse instead.”

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What Happens When a Person Under the Age of 21 Gets a DUI?

Friday, May 25th, 2018

I am currently in the midst of a California DUI case where my client was under the age of 21 at the time of their arrest. At the beginning of their case, my client asked me what could happen to him. Unfortunately, it’s a common question as many people who are not legally allowed to drink are caught driving with alcohol in their systems.

As most of us know, the age at which someone is legally allowed to have alcohol is 21-years-old. Although the age of majority is 18, for purposes of this article, I’ll refer to a person under the age of 21 as a “minor.”

Under California Vehicle Code section 23136, otherwise known as California’s “Zero Tolerance” law, it is illegal for a minor to drive with a blood alcohol content of 0.01 percent or more in their system. It does not matter whether the alcohol in the minor’s system came from an alcoholic beverage or some other source like medicine. Nor does it matter whether the minor was “under the influence.” The minor cannot have any alcohol in their system while driving. Fortunately, however, a violation of Vehicle Code 23136 is non-criminal and only results in a one-year suspension of driving privileges through the California Department of Motor Vehicles.

Although not a criminal matter, a minor facing a suspension under California Vehicle Code section 23136 may still want to hire an attorney to fight the DMV suspension. In the event that a suspension cannot be avoided, the attorney can assist the minor obtain a “restricted license” to allow them to go to and from essential locations such as work, school, and the doctor’s office.

If, however, a minor is caught driving with a blood alcohol content of 0.05 percent or higher, they can be charged with an infraction under Vehicle Code section 23140. The penalty if someone is convicted of a violation of section 23140 is a one-year suspension of driving privileges, a fine of $100, and, if the person is over the age of 18, a mandatory alcohol education program of three months of more.

In addition to fighting the license suspension, as was the case with a violation of California’s Zero Tolerance law, a lawyer can help the minor fight the infraction under section 23140 using the same arguments commonly used in an adult DUI case.

If the minor is either under the influence of alcohol or caught driving with a 0.08 percent blood alcohol content or more in their system, a prosecutor can charge the minor with the standard DUI charges under California Vehicle Code sections 23152(a) and 23152(b) – misdemeanor driving under the influence and misdemeanor driving with a BAC of 0.08 percent, respectively.

A person, including a minor, is under the influence of alcohol if their physical or mental abilities are impaired to such a degree that they no longer have the ability to drive with the caution characteristics of a sober person of ordinary prudence under the same or similar circumstances.

In addition to being charged with driving while under the influence, a minor can also be charged with driving with a blood alcohol content of 0.08 percent or more.

The penalties for either standard DUI offenses under sections 23152(a) or 23152(b) include a criminal misdemeanor conviction (which remains on a person’s criminal record), suspension of driving privileges, three to five years of summary (informal) probation, a fine between $390 and $1,000, an alcohol education program of three, six, or nine months, up to six months in jail. The penalties can also include non-mandatory conditions such as a Mothers Against Drunk Driving Victim Impact Panel, a hospital and morgue program, or AA meetings.

It shouldn’t take me to tell you that if anyone, including a minor, is charged with the standard DUI offenses under Vehicle Codes 23152(a) and 23152(b), they should seek the assistance of a skilled California DUI attorney. There is too much as stake not to.

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