Should You Take a Breathalyzer During a California DUI Stop?

Thursday, October 4th, 2018

There are many misconceptions about what a person should and shouldn’t do during a DUI stop, not the least of which is whether a person should submit to the breathalyzer test. Unfortunately, the answer, like many things in law, is much more complicated than simply “yes” or “no.”

There are actually two breathalyzer tests that can be taken during a California DUI stop. The first is the roadside breathalyzer, often called a preliminary screening alcohol test or “PAS” test, and the second is the “chemical breath test.”

Under California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”

Like the other field sobriety tests that officers hope will give them reason to believe that the driver is intoxicated, the roadside breath test is optional. Having said that, many people don’t even know that the other field sobriety tests are optional. These tests include the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. All field sobriety tests, including the roadside breathalyzer, are optional. Although the officer might threaten to arrest you, stand your ground and politely refuse all field sobriety tests. They are only meant to give the officer the evidence they need to arrest you.

In fact, the officer must advise the driver that the roadside breath test is optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”

Whether the driver has submitted to the roadside breathalyzer or not, the officer must determine if the person is intoxicated and thus should be arrested.

If the officer has the required probable cause to make an arrest for a DUI, whether through the field sobriety tests, the PAS test, or any other information, California’s Implied Consent Law kicks in. Herein lies the difference between a roadside breath test and a chemical test.

Under California’s Implied Consent law, which is codified in California Vehicle Code section 23612(a)(1)(A), “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”

Simply put, if you have a license and you drive in California, you have impliedly consented to submit to the chemical test after you have lawfully been arrested for a DUI, which can either be a breath test or a blood test. If the driver is like me and hates giving blood, then they must provide a breath test. Conversely, if a person opts against the breath test, they must submit to the blood test.

So, to answer the question that is the title of this article, you do not have to (nor do I recommend) submitting to the pre-arrest roadside breath test. However, after someone is arrested, they must do either a breath test or a blood test.

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Electric Scooter DUI

Thursday, September 27th, 2018

I’m sure you’ve seen them around town. First it was the rentable bicycles on sidewalks throughout Southern California. Now it’s electric scooters as an alternative to walking around town for pedestrians in urban areas like downtown Los Angeles or my neck of the woods, Long Beach.

How do they work? Well, like many things today, there’s an app for it. Download the app onto your smartphone for one the scooter companies that offer their services in your area; Bird, Lime, Skip, Scoot, or Spin. Once downloaded, you can access a map that tells you where the nearest scooter is. Find the nearest scooter, enter your credit card number into the app, and scan the bar code on the scooter with your smartphone to unlock the scooter. Ride.

This week, Los Angeles City Attorney Mike Feuer said that his office secured the conviction of Nicholas Kauffroath, 28, for driving a rentable scooter under the influence.

Kauffroath was riding a rentable Bird scooter in West Los Angeles when he collided with a pedestrian and scooted away without rendering help or providing information.

Law enforcement found Kauffroath at a nearby apartment building where they were able to test his blood alcohol content, which registered at 0.279 percent; more than three times the legal limit.

Kauffroath subsequently pleaded no contest to one count of misdemeanor operating a motorized under the influence and one count of misdemeanor hit and run. He was sentenced to three years of informal probation, a $550 fine, a three-month DUI program, and was ordered to stay off scooters while drinking.

“Drinking while operating a vehicle, a bike – or a scooter – is not only illegal, but can lead to serious injury or worse,” Feuer said in a statement. “This conviction demonstrates our office’s continued effort to enforce our drunk driving laws and make our streets and sidewalks safer.”

While the Los Angeles City Attorney’s office treated Kauffroath’s case as though it was a standard DUI with a vehicle based on the sentence he received, the law regarding DUI’s on scooters is not necessarily the same as a DUI with a vehicle.

California Vehicle Code section 21221 states in pertinent part, “Every person operating a motorized scooter upon a highway…is subject to all…provisions concerning driving under the influence of alcoholic beverages or drugs.” Under this section, it seems as though Kauffroath’s sentence was not wholly inconsistent with vehicle DUI laws regarding punishment.

However, section 21221.5 states in pertinent part, “[I]t is unlawful for any person to operate a motorized scooter upon a highway while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug…A conviction of a violation of this section shall be punishable by a fine of not more than two hundred and fifty dollars ($250).”

The conundrum here is that in the latter section, the penalty for a DUI on a scooter cannot, under the law, be more than $250. This necessarily means that a DUI on an electric scooter cannot be charged as anything more than an infraction with a penalty of nothing more than the $250 fine.

Of course, I don’t know exactly what discussions and/or negotiations occurred between Kauffroath’s defense attorney and the City Attorney’s office regarding his plea deal. I can say that I recently had one of these cases, which was originally charged as a misdemeanor. If convicted as a misdemeanor, my client was looking at three to five years of probation, an 18-month DUI course, fines and fees, and a probation violation for a previous DUI conviction, which could have very well led to jail time. However, after arguing that the language of the law only allowed for a fine of no more than a $250 fine, the case was dropped to an infraction with that $250 fine.

It should be noted that, before scooter renters are allowed to rent and ride the scooters, they are required to confirm that they will not ride while under the influence of alcohol or drugs.

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The Right to Remain Silent During a DUI Stop

Friday, September 7th, 2018

Few people know that they have a right not to say anything to an officer who has pulled them over on suspicion of driving under the influence. Sometimes a person knows that they don’t need to speak to the officer but do so anyways because they think that cooperation will help their cause. Sometimes a person just gets so nervous that they don’t even think about it and start answering the officer’s questions.

What kind of questions?

Some questions an officer might ask, and almost always do, include: “Where are you going?” “Where are you coming from?” “Have you had anything to drink?”

The driver is doing him or herself no favors if they answer with, “I’m going home from the bar and I’ve only had one or two drinks.” All the driver has done is given the police more reason to arrest them and given the prosecutor more evidence to convict them.

Maybe the driver wouldn’t have answered the officer’s questions had they been read their Miranda Rights. Why didn’t the officer read the driver their Miranda Rights before the officer started asking questions? When does the officer have to read the driver their Miranda Rights, if at all?

Before we get into when an officer must give Miranda Warnings to a DUI suspect, it makes sense to address why officers give Miranda Warnings in any case.

All statements given to law enforcement must be voluntarily given, even those given during a DUI stop. The United States Supreme Court in the landmark case of Arizona v. Miranda said that a statement cannot be voluntarily given if a person doesn’t know they have a right not to say anything under the 5th Amendment. Therefore, in order for a statement to be voluntarily given, a person must be made aware that they have a right to remain silent.

Whether it is a DUI stop of an arrest for murder, the Court held that an officer must read a person their Miranda Warnings before a “custodial interrogation.” This means after an arrest and before an interrogation.

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. And inevitably the officer is going to ask questions after stopping the person.

Now, the person has the right not to speak to the officers or answer their questions. But the officer’s duty to advise the driver of the Miranda Warnings has not yet been triggered because the person is not yet under arrest.

Questions asked during this time are considered merely preliminary in nature. And yes, any answers given by the driver during this time are fair game for officers and prosecutors to use in a DUI case against the driver.

It would be a different story if, after the DUI stop, the driver is arrested, but not given Miranda Warnings. If the officer then proceeds to ask the driver questions and the driver answers, those answers would be in violation of Miranda and thus in violation of the 5th Amendment.

So whether it’s before a driver is arrested or after with Miranda Warnings given, a person never has to talk to officers or answer questions. The 5th Amendment right to remain silent exists whether the Miranda Warnings are given or not. Use it! When stopped on suspicion of a California DUI, simply respond to any questions with, “I respectfully decline to answer any questions under the 5th Amendment. Am I under arrest or am I free to leave?”

 

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Probation for “One of the Worst DUI Offenders in US”

Thursday, August 23rd, 2018

A Minnesota woman, who has been dubbed by police as “one of the worst DUI offenders in the United States” was sentenced on her seventh DUI conviction to 24 months of probation.

Tasha Lynn Schleicher, 41, or New Hope, Minnesota was arrested in April of this year after police responded to a report of a woman passed out behind the wheel of her vehicle at a gas station in Riverside, Illinois.

Upon finding Schleicher, law enforcement said they found her alert and conscious with keys in the vehicle’s ignition and the engine running. Law enforcement also said that it appeared that Schleicher had mistakenly attempted to fill her vehicle’s gas tank with kerosene instead of gasoline while at the kerosene pump.

Law enforcement also noticed that Schleicher appeared to be highly intoxicated and had an open bottle of Crown Royal Canadian whiskey in her front passenger seat.

When law enforcement requested that Schleicher step out of her vehicle so that she could perform field sobriety tests, she was “in total disarray, not wearing shoes, and her clothes were literally falling off her.”

Schleicher proceeded to tell the arresting officers that she had 11 children who she could not find. Witnesses said that Schleicher appeared to be the only one in the vehicle and, after a search of the area, officers found no children nearby.

After refusing the field sobriety tests, Schleicher was arrested on suspicion of driving under the influence.

After the arrest, officers learned that Schleicher’s 11 children had been taken away from her for reasons all related to her alcohol and drunk driving incidences.

The Minnesota mother told law enforcement that she was in Illinois to drop off her 15-year-old son – the only child still in her legal custody – to “party” for spring break. She also told law enforcement that she was pregnant, bleeding, and having a miscarriage. Schleicher was then transported to the hospital where it was confirmed that she was, in fact, not pregnant.

“She’s lied about her name, date of birth, Social Security number and even that she was pregnant, leaving officers no choice but to take her to the emergency room for treatment for something completely fictitious. I believe her trip to the hospital was really an attempt by her to escape custody,” Riverside Police Chief Thomas Weitzel said.

After he arrest, law enforcement determined that Schleicher had outstanding warrants in three states and six prior DUI arrests in Kentucky, Wisconsin, Indiana, California, Oregon, and Minnesota.

“Schleicher’s history of six prior DUI’s in six states, with three outstanding warrants from various states speaks to her transient nature. When she was arrested in a state, she would just not show up in court unless she was held in custody. That’s one of the reasons for so many outstanding warrants. In Minnesota she was arrested with children in the car, and alleged to have been breastfeeding one child while driving intoxicated,” Weitzel said.

Although Schleicher was indicted by a grand jury on seven felony counts of aggravated drunk driving, driving with a revoke license, driving without insurance, and transporting open alcohol, all charges were dropped except for a single DUI charge as part of a plea deal.

On Monday, Schleicher pleaded guilty to that single DUI charge and was sentenced to 24 months of probation.

“A sentence of 24 months of probation for Ms. Schleicher is, simply put, disappointing,” Weitzel said in an emailed statement Tuesday. “This continues to demonstrate that as a nation that drunk driving and drugged driving are not treated as a serious criminal offenses. Society’s views need to change and habitual DUI offenders need to be held accountable for their actions.”

You can form your own opinions about whether two years of probation is appropriate or not. What is not up for opinion is the fact that that alcoholism is a legitimate disease and one that cannot be cured with punishment as evidenced by Schleicher.

 

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Can you be Stopped for a DUI after an Anonymous Tip?

Friday, August 17th, 2018

I’ve seen them and I’m sure you have too; road signs or billboards that encourage drivers to call the police if they spot a suspected drunk driver on the road. I can tell you that drivers often do, in fact, anonymously call police to report other drivers whom they suspect are driving drunk. If the callers are anonymous, how do the police know whether they are telling the truth about what they saw or whether they are even accurate? Police don’t know and, unfortunately, they don’t need to know. According to the law, an anonymous tip is enough for law enforcement to stop someone on suspicion of driving under the influence.

In 2014, the United States Supreme Court decided the case of Navarette v. California, which concluded that law enforcement can go off of an anonymous tip to stop a suspected drunk driver.

The case stemmed from a 2008 stop where a motorist was pulled over by California Highway Patrol after an anonymous tip. The anonymous tipster told the dispatcher that they had been run off of Highway 1 near Fort Bragg by someone driving a pickup truck and provided the pickup’s license plate number. As the CHP officer approached the pickup, they smelled marijuana and discovered four bags of it inside the bed of the truck.

Following the stop, the occupants of the truck were identified as brothers Lorenzo Prado Navarette and Jose Prado Navarette.

At the trial level, the brothers filed a motion to suppress evidence claiming that the officers lacked the reasonable suspicion needed to stop them, thus violating the Fourth Amendment of the United States Constitution. The judge, however, denied the motion. The brothers then pleaded guilty to transporting marijuana and were sentenced to 90 days in jail.

The brother appealed. However, the appellate court in a 3-0 ruling said, “The report that the [Navarettes’] vehicle had run someone off the road sufficiently demonstrated an ongoing danger to other motorists to justify the stop without direct corroboration of the vehicle’s illegal activity.”

The appellate court relied on the 2006 California Supreme Court case of People v. Wells, which stated, “the grave risks posed by an intoxicated highway driver” justifies a brief investigatory stop. It found that there are certain dangers alleged in anonymous tips that are so great, such as a person carrying a bomb, which would justify a search even without a showing of reliability. The court went on to say that a “drunk driver is not at all unlike a bomb, and a mobile one at that.”

The case was appealed once again to the United States Supreme Court. And, once again, the Court ruled that an anonymous tip can give law enforcement the reasonable suspicion to pull someone over on suspicion of driving under the influence.

The Supreme Court stated that ““under appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop,’” quoting the 1990 case of Alabama v. White.

In finding “sufficient indicia of reliability,” the court relied on 1.) the fact that the caller claimed eyewitness knowledge of dangerous driving, 2.) the fact that the tip was made contemporaneously with the incident, and 3.) the fact that the caller used 911 to make the tip likely knowing that the call could be traced.

According to the Court, if the tip bears “sufficient indicia of reliability,” officers need not observe driving which would give rise to suspicion that a person was driving under the influence or even that the driver committed a traffic violation. They only need the unverified and unsupported anonymous tip. 

The problem with this ruling is that people are not anonymously reporting drunk drivers. Rather, they are reporting driving errors, any of which can be interpreted as drunk driving. Everybody makes mistakes while driving. In fact, it might be fair to say that no driving excursion is flawless. This necessarily means that everyone on the road is a target of anonymous tipsters and anyone can be arrested on suspicion of DUI simply because someone else reported their mere driving mistake.

In his dissent, Justice Scalia voiced the same concerns:

“Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road…are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.”

 

 

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