“Heroic” Daughter Records and Calls 911 on Drunk Driving Mom

Thursday, September 12th, 2019

A 10-year-old girl is being hailed as a hero by both law enforcement and her mother for recording and calling 911 on, get this, her mother who was driving drunk.

Stephanie Davis, 31, was stopped shortly after 4pm on Saturday in Glendale, Arizona after police received a 911 call from Davis’s daughter that Davis was driving drunk. According to Maricopa County court records, when police arrived, Davis was found stumbling around outside her car, exhibiting slurred speech and bloodshot eyes.

“When she walked, she had to be supported by officers, and when she tried to exit the patrol vehicle, she fell down and had to be caught by officers,” according to court documents.

Police also found Davis’s three children in the car, one of which had recorded Davis’s drunk driving and had called 911. The 10-year-old provided police with the video of the incident and, according to court records, the children could be heard in the background yelling at Davis to pull over so that she wouldn’t crash the vehicle.

Davis later confessed to drinking wine while watching the Lion King with her daughter and 4-year-old nieces. She also later failed field sobriety test and was served a warrant for a blood test.

“This is the most embarrassing thing to happen in my life…the most failed moment of being a mother,” Davis told KTVK of Phoenix.

As Davis prepares to go to court on September 23rd, she has praised her “heroic” daughter for “absolutely [doing] the right thing.”

As a first-time DUI offender in Arizona, Davis faces a minimum of 24 hours in jail (the law provides for 10 days minimum with nine days suspended) up to six months, up to $2,500 in fines and fees, a license suspension between 90 and 360 days, installation of an ignition interlock device, possible probation for three years, possible community service, and possible alcohol assessment coupled with an alcohol education class.

While not exactly the same had Davis’s DUI been in California, she’d be facing similar consequences. In California, Davis would have faced three years of informal probation, up to six months in jail, between $390 and $1,000 in fines (not including “penalties and assessments” which increase the fine by about three to four times), a minimum three-month DUI course, possible jail, possible community service and/or labor, possible installation of an ignition interlock device, possible MADD Victim Impact Panel, possible Hospital and Morgue Program,  and a license suspension.

California also treats DUI with children in the car very seriously. Not only would Davis be looking at the punishment under California’s DUI law above, she would also be 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. 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.

Davis’s words of advice to parents: “Save the wine for at home.”

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Does Entrapment Apply to DUI Stops?

Friday, September 6th, 2019

Many people often ask whether a DUI checkpoint is entrapment. Some ask whether it is entrapment when an officer who parks his or her patrol vehicle outside of a bar or another alcohol-serving establishment and catches a drunk driver.

Unfortunately, the answer is no in both cases, and the misconception lies in the common use of the word “trap” and the mistaken belief that it applies to the legal definition of entrapment.

In the case of People v. West, the court defined entrapment as “the conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Persuasion or allurement must be used to entrap.”

Like many things in law, this rather confusing definition was later refined by the court in People v. Barraza when it said, “[T]he proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense?”

Simply put, entrapment is a defense when the officer forces someone to do something when that person would not have otherwise done so.

With a DUI, entrapment would occur if the police forced the driver to drink when they would not have done so or force the driver to drive when they would not have done so.

Neither is the case with DUI checkpoints or when an officer parks their patrol vehicle outside of an alcohol-serving establishment.

Although many people consider checkpoints to be “traps,” they do not fit within the legal definition of entrapment. If a drunk driver is stopped at a checkpoint, the officer has neither forced them to drink nor drive. If a drunk driver is stopped and arrested at a checkpoint, it’s because they chose on their own to drink and drive before the encounter with the officer. Similarly, if an officer spots a driver coming out of a bar, follows them out onto the streets, then pulls them over for a DUI, the officer has neither forced them to drink nor drive.

Additionally, in both cases, the officers had the legal right to be at the location where they were. DUI checkpoints time and time again have been held by numerous courts to be constitutional. In fact, in California, one of the requirements a DUI checkpoint must adhere to in order to be constitutional is that drivers must be allowed to lawfully turn away from the checkpoint (Yes, that’s right, drivers cannot be forced to go through a DUI checkpoint). When an officer parks outside of a bar, typically they are in a public space, such as a parking lot, where they have a right to be.

Having said that, just because a person is driving through a checkpoint or observed leaving a bar does not mean that the officer has a right to arrest them on suspicion of a DUI. The officer must have probable cause (the amount of evidence needed for an officer to make an arrest) to believe that a person is driving drunk before an arrest can be made.

At a checkpoint, the officer obtains the evidence (i.e. probable cause) needed to make an arrest by asking passing drivers whether they’ve had anything to drink, observing symptoms of intoxication, and, of course, breathalyzing drivers. Without additional evidence that a person is driving drunk, an officer cannot make an arrest.

Similarly, the mere leaving a bar does not give the officer probable cause that a person is driving drunk, although the officer may suspect the person is driving drunk. If, however, an officer observes a person commit a traffic violation after leaving a bar, they can be pulled over. The traffic violation stop can be used as a pretext to investigate for a DUI.

Can entrapment ever be used as a defense for a DUI? Consider the following.

A person goes to a bar to have a drink. Thinking that they might be over the legal limit of 0.08 percent blood alcohol content, they lawfully sit on a bench outside of the bar. A few minutes later, a police officer approaches the person and demands that they drive out of the parking lot. The person obliges, gets in their car, and drives away.  As the person drives away, the officer stops and arrests the driver for driving under the influence.

Because the driver drove as a result of the officer’s demand when they would not have otherwise done so, entrapment may be a defense for the driver.

While this scenario is uncommon, it has happened. However, in the vast majority of California DUI cases, unfortunately the defense of entrapment cannot be used.

 

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Marijuana Breath Detector

Thursday, August 29th, 2019

According to the California Highway Patrol, the number of arrests for driving under the influence of marijuana has increased since recreational marijuana in California became legal in 2018. Yet, determining when someone is under the influence of marijuana to a degree that makes them incapable of safely operating a motor vehicle remains as difficult as it always has been…or has it?

California Vehicle Code section 23152(f) makes it “unlawful for a person who is under the influence of any drug to drive a vehicle.”

Quite clearly, marijuana is a drug even if it is recreational. Whether a transportation device qualifies as a “vehicle” for purposes of this law is a different subject for a different day. The bigger question, however, is whether someone is “under the influence” after having smoke marijuana.

To be “under the influence” as the result of consuming marijuana, a person must have his or her mental or physical abilities so impaired that he or she is unable to drive a vehicle with the same caution of a sober person, using ordinary care, under similar circumstances.

While this definition might sound nice, it is still difficult to determine how much marijuana an individual must consume before they are so “high” that they are unable to drive a vehicle with the same caution of a sober person, using ordinary care, under similar circumstances.

Unlike alcohol, there is little correlation between the amount of marijuana someone has consumed and how impaired a person is.

Alcohol is water soluble, which means that it enters and leaves the bloodstream fairly quickly. Additionally, a person’s blood alcohol content, which can be determined rather quickly and accurately, has scientifically been shown to correlate with how drunk (i.e. impaired) someone is. Every state, with the exception of Utah, has a blood alcohol content limit of 0.08 percent because, generally speaking, that is the point at which alcohol begins to affect a person’s motor skills, thus making them “under the influence” for purposes of a DUI with alcohol.

THC (tetrahydrocannabinol), the psychoactive component to marijuana, on the other hand, is fat soluble. Therefore, unlike alcohol, it can stay in a person’s system for much longer than alcohol. In fact, regular users of marijuana can still have THC in their systems weeks after having consumed marijuana and certainly long after being high, which necessarily means that it cannot and should not be used to determine how high someone is, and whether they are “under the influence.” Yet, current blood tests only detect the amount of THC in a person’s system, but there is no way to determine how “high” someone is.

Oakland based Hound Labs is trying to change this by creating the first breathalyzer to measure “recent” marijuana and alcohol use on the breath.

“When you can you find THC in breath, and that can require some incredibly sensitive tools, but when you can find it, then you know that the person used very, very recently,” said Dr. Mike Lynn, emergency room physician, reserve deputy sheriff, and founder of Hound Labs.

Working in conjunction with UCSF, Hound Labs determined that THC can be found on a person’s breath.

“We found THC in all twenty test subjects, and what was really interesting, is that the THC peaked at about 15 minutes, and then it went out of the breath within 2 to 3 hours,” said Dr. Lynn.

According to Dr. Lynn and Hound Labs, if THC is found on the breath, it means that a person had smoked within the last few hours. They also determined that the first two to three hours following marijuana consumption is when a driver is at the greatest risk for being impaired.

Hound Labs were granted $30 million in funding to continue to develop and manufacture the marijuana breath test to be used by law enforcement by the end of the year.

While it may be a step in the right direction in finding the elusive answer to the question, “When is someone too high to drive?” issues remain. When Hound Lab’s device detects that someone consumed marijuana “recently,” how recent is it? Does “recent use” account for even negligible amounts of marijuana consumption? Will “recent use” change the way we draft our DUI of marijuana laws?

Bottom line is that, before we get too carried away, we need to make sure that whatever safeguard and/or preventative measures we put in place to stop high drivers do not infringe on the rights of people who consume marijuana safely and lawfully.

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Labor Day Checkpoints and Knowing What to Do

Thursday, August 22nd, 2019

Law enforcement agencies throughout Southern California will increase their efforts to thwart would-be drunk drivers this month and on into the Labor Day weekend. One tool I know they plan on using during this time is the DUI checkpoint.

According to the National Highway Traffic Safety Administration (NHTSA), Labor Day weekend is one of the deadliest holidays of the year when it comes alcohol-related collisions. In 2017, there was 376 deadly crashes nationwide for the Labor Day holiday period which ran from September 1st to September 5th. Of those 376 deadly collisions, more than one-third (36%) involved drunk drivers.

Last year, California saw two deaths and 31 injuries on Labor Day.

Since there is an increased chance of getting stopped at checkpoint in the next couple of weeks, it makes sense to remind our readers what their rights are when it comes to a California DUI checkpoint.

The 4th Amendment of the United States Constitution requires that officers have probable cause and a warrant before they can seize and/or search a person. Well, what is a checkpoint? It is certainly a seizure since the police are stopping people on the roads when they would otherwise be free to drive without interruption. It may be also a search if the law enforcement has drivers take a breathalyzer since by doing so they are looking for evidence of drunk driving.

So, checkpoints can involve both searches and seizures, yet police don’t have warrants to stop and breathalyze drivers. How?

In the 1987 case of Ingersoll v. Palmer, the California Supreme Court set forth guidelines to ensure the constitutionality of checkpoints in California such that law enforcement doesn’t need a warrant. Those guidelines are:

  1. The decision to conduct checkpoint must be at the supervisory level.
  2. There must be limits on the discretion of field officers.
  3. Checkpoints must be maintained safely for both the officers and the motorists.
  4. Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
  5. The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
  6. The checkpoint must show indicia of official nature of the roadblock.
  7. Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.
  8. Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.

Three years later in the case of Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop. In doing so, the court held that sobriety checkpoints were constitutional even though officers were technically violating the 4th Amendment (because they don’t have a warrant when they seize and search motorists at DUI checkpoints).

Now that we’ve determined that sobriety checkpoints are constitutional, I would be remiss if I did not tell you what your rights and obligations are, as the driver, should you happen to find yourself stopped at a sobriety checkpoint.

Based on the last of the Ingersoll v. Palmer requirements, checkpoints must be highly visible. As a result, drivers are often aware of the checkpoint before they drive up to it. Believe it or not, drivers are allowed to turn around so as to avoid the checkpoint. They, however, must do so without breaking any traffic laws such as making an illegal U-turn.

If you do not turn away, but rather pull up to the checkpoint, the officer might first ask you some questions such as: Where are you coming from? Where are you going? Have you had anything to drink?

The 5th Amendment to the Constitution gives you the right not to say anything to law enforcement ever. And don’t! Invoke your right to remain silent by telling the officer, “I would like invoke my 5th Amendment right and respectfully decline to answer any of your questions.” Now keep your mouth shut until given the opportunity to call your attorney.

Surely this is not going to sit well with the officer. They may, at that point, have the driver exit the car and request that they perform field sobriety tests. Drivers should absolutely decline to perform the field sobriety tests. They are an inaccurate indicator of intoxication, but fortunately they are optional. I and many other people would have trouble doing them sober.

At this point, the officer is likely fuming, but who cares? You are exercising your constitutional rights.

As a last-ditch effort, they may request that you take a roadside breathalyzer commonly referred to as a “PAS” (preliminary alcohol screening) test. Under California’s implied consent rule, as a driver, you must submit to a chemical test after you have been arrested on suspicion of a DUI. The key word is “after.” Therefore, when you happen upon a checkpoint and the officer requests that you to take the PAS test, you can legally refuse. If, however, the officer has arrested you on suspicion of DUI you must submit to either a blood test or a breath test.

This Labor Day be on the lookout for sobriety checkpoints. But should you find yourself about to drive through one with no way to legally turn around, know your rights and use them. That’s what they’re there for.

 

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DUIs Are Not Just for Alcohol

Thursday, July 18th, 2019

Last month, Illinois became the 11th state to legalize marijuana and since just a few weeks ago, we reminded our readers about The Basics of a California DUI, this may be a good time to also remind our readers that a DUI is not just about alcohol.

We tend to think about drunk driving only in terms of alcohol, primarily because it is the more dominant of legal substances that leads to a DUI. However, marijuana is also becoming more widespread and legal in recreational applications.

While marijuana may still be used by many for its medical properties, there has definitely been an increase in recreational use here in California, thus making DUI of marijuana more prevalent than it has been in the past.

California Vehicle Code section 23152 (f) states, “It is unlawful for a person who is under the influence of any drug to drive a vehicle.” “Any drug” includes those that are legal. The important factor here is “under the influence.” Although, prescription drugs and other legal drugs fall within this purview of “any drug,” a person must also have his or her mental or physical abilities impaired to such a degree that

he or she is unable to drive a vehicle with the caution of a sober person to be “under the influence.”

A recent survey by the AAA revealed that many Americans don’t believe that they will get caught when driving high on marijuana. An estimated 14.8 million Americans admitted to driving within one hour of using marijuana.

We have previously covered topics that have dealt with the insufficient methods of determining impairment, especially when it comes to the effects of THC and other drugs. This may add to the public’s belief that they may not get caught.

However, according to Executive Director of the AAA Foundation for Traffic Safety, Dr. David Yang, “Marijuana can significantly alter reaction times and impair a driver’s judgement. Yet, many drivers don’t consider marijuana-impaired driving as risky as other behaviors like driving drunk or talking on the phone while driving.”

While it is true that no research has proven an exact correlation between impairment and specific levels of THC, unlike how we can calculate a correlation between heightened BAC levels, law enforcement is taking measures to train their officers to better detect impaired drivers. It is only a matter of time before a more consistent method of determining marijuana-impairment will be developed. There are already scientists and researchers hard at work in attempting to create a breathalyzer-type test for determining THC levels and even impairment.

Even current alcohol-testing breathalyzers (used for both the roadside test and for the mandatory “chemical test”), which have been around for quite some time, are by no means perfect. Depending on the officers administering them, how they are administered, and how they’re maintained, breathalyzer results can be challenged by competent DUI attorneys.

While probable cause may seem harder to prove with marijuana, or other drugs, when compared to alcohol, it does not mean that you are not actually impaired. The AAA website summed it up nicely, “AAA recommends all motorists avoid driving while impaired by marijuana or any other drug (including alcohol) to avoid arrest and keep the roads safe. Just because a drug is legal does not mean it is safe to use while operating a motor vehicle. Drivers who get behind the wheel while impaired put themselves and others at risk.”

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