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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Utah Braces for New BAC Limit of 0.05 Percent

Tuesday, July 24th, 2018

In March of last year, I wrote about how Utah had passed a law which would lower its blood alcohol content limit from 0.08 percent to 0.05 percent. Well, the law is set to take effect in a mere five months for Utah and the state is getting ready for the change.

Using studies that indicate impairment begins to take effect with a blood alcohol content of 0.04 percent to support its position, the National Transportation Safety Board has supported a 0.05 percent blood alcohol content limit for all states.

Utah, however, is the first of any state to drop its blood alcohol content from 0.08 percent to 0.05 percent.

“We’ve put together a task force on how we are going to usher this in,” said Utah Highway Patrol Captain Steve Winward to state lawmakers this week.

According to Winward, Utah Highway Patrol officers will get four hours of training that will include a review of Utah policy on breathalyzers and other indicators of intoxication. Other police agencies as well as prosecutors from the state will also receive training.

“We really don’t want to change the way we do business,” Winward told members of the Law Enforcement and Criminal Justice Interim Committee. “We want to ensure that we are arresting those that are DUI. We want to educate troopers to focus on impairment and not the number 0.05.”

Winward said the department soon will launch a public relations campaign “to let the public know that it’s coming” and to correct misinformation that has been circulating.

“People think that you can only have one drink and you are over the 0.05,” Winward said. “We want to dispel those myths.”

According to the National Highway Traffic Safety Administration, a male weighing 140 pounds would be at, or close to, a 0.08 percent blood alcohol content having had three drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.08 percent blood alcohol content having had just two drinks within an hour. Regardless of gender, your blood alcohol content will not be as high if you weigh more. Conversely, your blood alcohol content will be higher if you weigh less.

On the other hand, male weighing 140 pounds would be at, or close to, 0.05 percent blood alcohol content having had two drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.04 percent blood alcohol content having had just one drink within an hour.

Of course, these figures are approximate and depend on several factors which include, but are not limited to, whether the person ate, what they ate, what they drank, and how fast they drank it. But based on these approximate numbers, we can see that for both males and females, the difference between a 0.08 and a 0.05 percent blood alcohol content is about one less drink in an hour.

According to Winward, the Utah Highway Patrol will use software to track DUI arrests under the new legal limit.

You can be sure I’ll be keeping track of the law’s “success,” but until then, I’ll make a bold prediction: DUI arrests will increase significantly, but whether drivers are actually under the influence will remain as much of a question mark as it always has been.

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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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California’s Least Known DUI Law: Driving While Addicted

Friday, June 29th, 2018

The most widely known California DUI law is Vehicle Code section 23152(b) which makes it illegal to drive with a blood alcohol content of 0.08 percent or higher. Some people realize that if a person is arrested for a DUI, they will likely also be charged with Vehicle Code section 23152(a) which makes it illegal to drive “under the influence,” meaning that the driver cannot drive as a reasonable sober person would. Very few people, however, are aware of one of California’s more obscure DUI laws; driving while addicted.

Under California Vehicle Code section 23152(c), “[i]t is unlawful for any person who is addicted to the use of any drug to drive a vehicle.”

The purpose of DUI law is to protect the public from drivers who, at the time of driving, are under the influence. So you may be asking yourself the same question that I asked myself the first time I learned of this law: If an addict is not under the influence at the time of driving, how can they still be prosecuted for a DUI? Shouldn’t the law only punish drivers who actually pose a risk to the roads because of current intoxication?

In the 1965 case of People v. O’Neil, the California Supreme Court upheld the law and explained that it, like the other, better-known DUI laws, also protects the public.

In looking at the legislative intent in drafting the law, the court concluded, “when an individual has reached the point that his body reacts physically to the termination of drug administration, he has become ‘addicted’ within the meaning and purpose of [23152(c)]. Although physical dependency or the abstinence syndrome is but one of the characteristics of addiction, it is of crucial import in light of the purpose of [23152(c)] since it renders the individual a potential danger on the highway.”

In other words, the court concluded that a person who is an addict and going through withdrawals can be a danger to the roads. This conclusion presumes that all addicts at all times go through withdrawals and can still be arrested, charged, and convicted of a California DUI. While this presumption is false because not all addicts are always suffering from withdrawals, the California Supreme Court went on to say prosecutors, however, do not need to prove that the driver was suffering from withdrawals at the time of arrest.

“The prosecution need not prove that the individual was actually in a state of withdrawal while driving the vehicle. The prosecution’s burden is to show (1) that the defendant has become ‘emotionally dependent’ on the drug in the sense that he experiences a compulsive need to continue its use, (2) that he has developed a ‘tolerance’ to its effects and hence requires larger and more potent doses, and (3) that he has become ‘physically dependent’ so as to suffer withdrawal symptoms if he is deprived of his dosage.”

If you ask me, the California Supreme Court is contradicting itself. In essence, it is saying that the purpose of the law is to protect the public from addicts who are suffering from withdrawal symptoms while driving, yet it doesn’t require that the addict be suffering from the withdrawal symptoms at the time of driving.

Although this section of the vehicle code is rarely enforced, law enforcement and prosecutors can continue to punish drivers who are addicted to a drug even though they may not be, at the time of driving, under the influence of a drug.

So, again I ask, “Shouldn’t DUI law punish people who actually pose a risk to the public?” Apparently, according to the California Supreme Court, the answer is no.

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Video Evidence in a California DUI Case

Thursday, June 21st, 2018

No longer are the days where it was the cop’s word against the driver’s word about what exactly happened when the cop pulled the driver over on suspicion of driving under the influence. Fortunately, video evidence is becoming increasingly available in California DUI cases to confirm or refute the facts of the case.

Mobile video and audio recording systems (“MVARS”), often referred to as “dash cams,” were first used by law enforcement in the late 1980’s in Texas to keep law enforcement safe in remote rural areas. Back then, the camera was mounted on a tripod and the footage was recorded on a VHS cassette. Remember those? This necessarily meant that they were big, bulky and expensive. As a result, law enforcement agencies did not begin using dash cams regularly until the technological efficiency of dash cams increased, and price decreased in the late 2000’s. This is not to say that all agencies use them, because some still do not.

If, however, a patrol car has one, it may help officers gather evidence that a driver was driving under the influence as well evidence that a driver may not have been driving under the influence.

Dash cam footage is objective. An officer’s perception and recollection of the event unfortunately are not. Unlike a police report which is written hours after the DUI stop occurred (and well after an officer’s memory begins to fade), a dash cam records the events as they occur.

Law enforcement needs probable cause of a traffic violation to initiate a traffic stop, which is usually the first step in the DUI investigation process. Absent probable cause, a driver cannot be pulled over. Unfortunately, many officers fabricate the probable cause for stop, claiming that a driver never used a blinker, or they were swerving, or they ran a stop sign, so on, so forth. The dash cam, however, can show that there was no probable cause for the stop. It can show that the blinker was used, there was no swerving, and the driver did stop at the stop sign.

Even in agencies that use dash cams, some officers are finding their own ways to circumvent the transparency that the dash cam provides.

More often than not, at least in my experience, officers will take the driver out of the camera’s view to perform field sobriety tests. The officer will then write up their police report claiming that the driver “failed” the field sobriety tests providing little or no explanation as to why they failed.

Hopefully, this will soon be a thing of the past as more law enforcement agencies are beginning to use body cameras rather than or in addition to dash cams.

A body camera would serve to provide first-hand evidence to support officer claims that a person was, in fact, driving drunk. If an officer justifies a DUI arrest by claiming that an arrestee had slurred speech and bloodshot, watery eyes, the footage would verify the officer’s claims. If an officer determines that a person failed field sobriety tests, the footage from the body camera could support the officer’s interpretation of the person’s performance.

What if a patrol car doesn’t have a dash cam and the officer doesn’t have a body cam? Can you or someone else record officers during a DUI stop?

I don’t know anyone who doesn’t have a smartphone with a camera on it. If you, a passenger, or some other third party have a camera, such as a smartphone camera, readily available, you can record law enforcement performing their duties in public. The First Amendment protects the right to discuss the government, the right to free press, and the right to public access of information. And the courts are fairly unanimous that citizen journalists are protected just as much as members of the press. This includes the right of citizens to record officers performing their duties in public as long as the citizen isn’t recording officers surreptitiously, doesn’t interfere with the officer, or doesn’t break the law while recording.

Whether it comes from a dash cam, a body cam, or a smart phone, video evidence provides transparency during DUI stops. Transparency means finding the truth, which is what should be at the heart of every DUI case. Unlike officers, video footage can’t lie.

 

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