Should Waze be Allowed to Post DUI Checkpoint Locations?

Monday, February 11th, 2019

I’m sure most of you have heard of Waze, possibly even use it yourself. On the off chance that you haven’t heard of it, Waze is a smartphone app developed by Google that provides real-time traffic information for drivers. Users simply plug in their destination address or location and Waze provides the quickest possible route using GPS and real-time user input while en route. While driving, not only are users directed to the fast route, but they are also made aware of upcoming traffic, obstacles in the road, street closures, and yes, police presence, including the location of DUI checkpoints.

The New York Police Department is not happy about it and is seeking to stop it.

The NYPD has sent a letter to Google demanding that it stops allowing users to post the location of DUI checkpoints claiming that the app is “encouraging reckless driving.”

“Individuals who post the locations of DWI checkpoints may be engaging in criminal conduct since such actions could be intentional attempts to prevent and/or impair the administration of the DWI laws and other relevant criminal and traffic laws. The posting of such information for public consumption is irresponsible since it only serves to aid impaired and intoxicated drivers to evade checkpoints and encourage reckless driving,” NYPD acting Deputy Commissioner Ann Prunty said in the letter to Google dated February 2.

Although Waze does not have a feature that specifically alerts drivers about upcoming DUI checkpoints, it does notify drivers of upcoming police presence.

“We believe highlighting police presence promotes road safety because drivers tend to drive more carefully and obey traffic laws when they are aware of nearby police. We’ve also seen police encourage such reporting as it serves as both a warning to drivers, as well as a way to highlight police work that keeps roadways safe,” a Waze spokesperson said in a statement to CNN last week. “There is no separate functionality for reporting police speed traps and DUI/DWI checkpoints — the Waze police icon represents general police presence.”

However, in Waze’s feature that displays upcoming police presence, users can report the presence of a DUI checkpoint as a comment about what they have observed including whether the police presence is a DUI checkpoint.

Law enforcement complaints on the posting of DUI checkpoint locations is nothing new. In July of 2016, the National Sheriff’s Association released a statement which said, “Evidence on social media shows that people who drink and drive use Waze’s police locator feature to avoid law enforcement. …The facts are clear. It is just a matter of time before we start seeing the dangers that lurk within the Waze app’s police locator feature.”

The California Supreme Court in the 1987 case of Ingersoll v. Palmer held that, for DUI checkpoints to be constitutional, they must meet the following criteria:

  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.Having said all of that, nothing prevents a driver, nor should it, from letting others know when and where a DUI checkpoint is. Waze has not provided a feature that specifically points out DUI checkpoints. Rather, users can advise of DUI checkpoint locations in comments. How is this any different than speaking about police activity with friends and family in person, or in a text, or in an email? How is it any different that speaking about police activity on Facebook, Twitter, or Instagram? It isn’t any different, and to allow law enforcement to prevent such speech would be a violation of the 1st Amendment. Doing so would also open the door to allow law enforcement to dictate what we can or can’t say on our social media sites. That is not acceptable.

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UBER Fined $750,000 for Failing to Enforce Zero-Tolerance Policy

Thursday, December 20th, 2018

Ridesharing apps such as Uber and Lyft have introduced to the public a cheap and “right at your fingertips” method for calling a ride home after a night of drinking. These apps have given the public the comfort of being able to arrive at a destination without worrying about finding parking, or as is often the case at night, worrying about drinking and driving.

Back in June of 2016, BuzzFeed News posted an article entitled “Here’s What Happens When Your UBER Driver Gets A DUI.” The article focused on an interview with a passenger who suspected her Uber driver of driving under the influence, the subsequent customer service the passenger received, and the steps that the company took in handling the situation with the driver. BuzzFeed also reported that this was not the first incident where an Uber driver was arrested for driving under the influence. The driver associated with this particular drive was deactivated fairly quickly. However, that was not the case for all of Uber’s drivers who received complaints of drunk driving.

According to the Uber homepage, they have a zero-tolerance policy with regard to driving under the influence. Specifically, it states, “Uber does not tolerate the use of alcohol or drugs by drivers using the Uber app.” Yet, the Los Angeles Times recently released an article that highlighted an investigation by the California Public Utilities Commission (CPUC) that resulted in Uber being fined a total of $750,000 for failing to follow its own “zero tolerance policy.

The zero-tolerance policy is a requirement that was included by the CPUC within the regulations for smartphone-enabled ride share companies. The regulations, approved in 2013, were placed in an attempt to placate the angry licensed taxi companies and their drivers whose service was disrupted by the spread of these private drivers through the smartphone and online applications. The regulations called for the ride-sharing companies to institute a zero-tolerance intoxicating substance policy for all of its drivers and to suspend the driver to allow for an investigation as soon as a zero-tolerance complaint is filed.

Uber’s violation of the policy was discovered in an investigation of the customer complaints associated with driving under the influence from August 2014 to August 2015. An administrative law judge had recommended a fine of $7,500 per violation, which, with the number of violations found in the investigation, would have resulted in a total of $1,132,500.

However, a settlement was made between the CPUC and Raiser-CA, an Uber owned company, and the final amount of $750,000 was reached Thursday, November 8th. According to the Los Angeles Times, “In addition to the fine, Uber agreed to implement an education program on zero-tolerance regulations and file a motion to expand existing regulations and develop stronger standards for the ride-hailing industry.”

AB 2687, a bill that passed in 2016 and has been in effect since July 1, 2018, lowers the blood alcohol level of drivers with passengers for hire in their vehicles to 0.04 percent or more to be considered under the influence. How this new bill affects how Uber handles their education program and renews their standards will be an interesting development.

Hopefully, Uber will be able to remedy the issue in a timely manner. One of the main reasons that many people utilize ride sharing services like Uber is to prevent drunk driving. If hired drivers continue to create an issue of driving under the influence, we are essentially replacing one drunk driver with another, resulting in a public safety issue that we had wanted to avoid in the first place.

 

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California DUI Law 101

Wednesday, December 12th, 2018

The law surrounding California DUI’s is so expansive and complicated that sometimes it’s worth wild to take a step back and just talk about the basics of a California DUI.

In California, it is illegal to drive with a blood alcohol content of 0.08 percent or higher. It is also illegal to drive while under the influence. While every person is different, with a different metabolism and different tolerances, a mere two drinks in an hour can certainly get a driver to a 0.08 percent. Additionally, person is “under the influence” if they cannot operate a vehicle as a reasonable and sober person would have under similar circumstances.

Now, let’s be very clear. A person does not have to be above a blood alcohol content of 0.08 percent or more to be charged with a California DUI if they were under the influence. Similarly, a person does not have to be under the influence to be charged with a California DUI if they have a blood alcohol content of 0.08 percent or more. Having said that, most people who are caught driving with a blood alcohol content of 0.08 percent or higher will be charged with both under California Vehicle Code section 23152(a) and section 23152(b) respectively. Yes, you read that correct. Most people who get a DUI are actually looking at two separate charges.

For example, John is heavy in weight and is an alcoholic. If John drinks four beers in an hour, he may likely have a blood alcohol content of above a 0.08 percent, but he’ll probably not be “under the influence” because he can function as though he were sober. He will still be arrested, charged, and may be convicted of driving with a blood alcohol content of 0.08 percent or more under Vehicle Code section 23152(b).

On the other hand, for example, Jane is underweight and very rarely drinks. If she were to have one glass of wine, she may not be above a blood alcohol content of 0.08 percent or more, but she may certainly not be able to function as a sober person would. As such, while she cannot be charged with having a blood alcohol content of 0.08 percent or higher, she may very well be arrested and charged with driving under the influence under Vehicle Code section 23152(a).

Whether a person is a 0.08 percent or higher, or if they are under the influence, officers have no knowledge of either when they decide to pull someone over. They might suspect that a person is under the influence based on observed driving patterns, but that alone is not enough to arrest a person. An officer must have probable cause to arrest a driver for a DUI. An officer has probable cause when they have trustworthy facts that would lead a reasonable person to believe that the driver was either a 0.08 percent or higher, or that they were driving under the influence.

The key is that the officer must have facts that the driver is DUI before they can make the arrest. The officer can obtain the facts to meet the probable cause standard through observation of driving patterns, statements made by the drive (ex. “I had a few beers with dinner”), smell of alcohol on the driver’s breath, bloodshot and watery eyes, slurred speech, poor performance on field sobriety tests, and failure of a roadside breathalyzer.

Just because these may be what an officer uses to justify a DUI arrest, there are things that drivers can do to limit the amount of “facts” that they give the officer.

Drivers do not need to talk to the officers, nor should they. The 5th Amendment exists for a reason. Use it. Rather than potentially providing incriminating statements and allowing the officer to smell the driver’s breath, the driver should simply invoke his or her 5th Amendment right to remain silent, request their attorney, and then keep their mouth shut.

Drivers do not need to perform the field sobriety tests, nor should they. The officer might threaten arrest if the driver does not perform them, but the driver has that right. Chances are that the officer has already made up his or her mind to arrest the driver. However, by not performing the field sobriety tests, the driver has prevented the officer from obtaining any facts that the driver is impaired.

Lastly, drivers do not need to perform the roadside breathalyzer, nor should they. This test, referred to as a preliminary alcohol screening test or “PAS” test, is optional. That is not to say that a driver will not have to perform any test.

Once a person has been lawfully arrested for a DUI, meaning the officer does have the requisite probable cause to make the arrest, the driver must submit to either a breath test or a blood test under California law. Not doing so can lead to increased penalties with both the court as well as the California DMV.

Speaking of the California DMV, when a person is caught driving with a blood alcohol content of 0.08 percent or more, it triggers an action by the DMV to determine whether the driver’s license should be suspended. The driver or their attorney must contact the DMV within 10 days to request a hearing and stop the automatic suspension of the driver’s license. If the hearing is lost, then the person’s license will be suspended, the time of which will be dependent upon prior DUI’s and whether the driver refused the required breath or blood test. If the hearing is won, albeit unlikely, the driver’s driving privileges are saved…for now.

After the arrest, the driver must challenge the DUI in court. If convicted, the driver faces some serious consequences. For a first time DUI, the driver is facing a minimum of $390 in fines, which will increase to about $2,000 after court fees are included, three years of informal probation, a three-month DUI course, additional license suspension time, and a DUI on their criminal record. Now, these are minimums. A driver could face a whole host of other penalties including jail of up to six months.

Since this post is about the basics, I won’t get into the penalties for a second or more DUI, or other penalties for various DUI scenarios.  

Needless to say, even the basics are extremely complicated. A driver absolutely should not try to tackle a DUI case on their own. They should hire an experienced California DUI attorney who has studied California DUI law and who practices it day in and day out. Simply put, having a California DUI attorney can be the difference between going to jail and not.

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Man Arrested for DUI for Falling Asleep while Tesla in Autopilot Mode

Thursday, December 6th, 2018

Last week, California Highway Patrol arrested a driver for DUI after he had fallen asleep in his Model S Tesla while it drove down Highway 101 in autopilot mode.

A CHP officer spotted a grey Tesla going about 70 miles per hour on Highway 101 near Redwood City. As the officer approached the vehicle, he also noticed that it appeared the driver of the Tesla was asleep behind the wheel. CHP then closed traffic on the highway and proceeded to slow the Tesla by pulling a patrol vehicle in front of it and slowing down, thus causing the Tesla to slow down.

The driver of the vehicle eventually awoke to the CHP stopping his vehicle. Once stopped, responding officers suspected that the driver was under the influence and had the driver perform field sobriety tests, which he allegedly failed.

“It’s great that we have this technology; however, we need to remind people that…even though this technology is available, they need to make sure they know they are responsible for maintaining control of the vehicle,” CHP spokesman Art Montiel said.

In January of this year, CHP arrested a driver who was found passed out behind the wheel of a Tesla on San Francisco’s Bay Bridge. According to CHP, the driver’s blood alcohol content was more that double the legal limit. The man claimed he wasn’t responsible because the vehicle was in autopilot.

While fully autonomous vehicles may be in the offing, no major car manufacturer has yet to develop a fully autonomous vehicle for public consumption. In fact, Tesla warns that its autopilot features are not fully autonomous. “Autopilot is intended for use only with a fully attentive driver,” a Tesla spokes person told the Washington Post earlier this year. Rather, auto pilot systems are designed to detect obstructions in the road and, if necessary, bring the vehicle to a halt if the driver does not respond in time.

In fact, a goal of Elon Musk is to have fully autonomous vehicles in the near future.

“We aimed for a very simple, clean design, because in the future – really, the future begins now – the cars will be increasingly autonomous,” Musk said in July of last year. “So, you won’t really need to look at an instrument panel all that often. You’ll be able to do whatever you want: You’ll be able to watch a movie, talk to friends, go to sleep.”

This, however, raises an interesting legal dilemma.

California law requires that a drunk driver be in physical control of the vehicle and must cause the vehicle to move in the slightest amount. Are drunk drivers who are in autopilot really in physical control of the vehicle and cause it to move if the car is in autopilot? At least right now, the answer is a likely yes.

Drivers still need to operate a vehicle in autopilot to a certain degree. As Tesla’s spokesperson pointed out, Tesla’s autopilot feature still requires a fully attentive vehicle to take control of the vehicle to engage in maneuvers that are not available in autopilot. Just because a vehicle has autopilot mode does not mean that it is autonomous.

The question will become even trickier when fully autonomous vehicles are introduced to the public. If a vehicle is fully autonomous, then there is no need for a driver to be in any kind of control of the vehicle. On the other hand, a driver (now a passenger of a fully autonomous vehicle) will still need to input coordinates and tell the vehicle where to go, which can raise the argument that the passenger is, in fact, in control of the vehicle.

You can see how this technology can raise interesting legal questions. I suppose we’ll just have to 1.) wait for fully autonomous vehicles, and 2.) see what the legislature and/or courts do to define what it means to be “in control” of a fully autonomous vehicle.

Until then, drinking and getting behind the wheel of a vehicle while in autopilot mode will still land you a DUI in California.

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New Study Finds DUI’s Up 60 Percent Since 2014 Among Veterans

Thursday, November 29th, 2018

According to a new study by the American Addiction Centers, drunk driving among the veteran population is up 60% since 2014.

According to the study’s authors, “Since 2014, the percentage of U.S. vets identified as driving while drunk increased from 1.6 percent to 2.5 percent,” almost a 60 percent hike. The study, after having identified the veteran community as already at risk for excessive drinking, went on to say, “there’s no denying that American veterans contribute to the nationwide epidemic of drunk driving.”

The study further found that drunk driving among veterans occurred most often in California, Kentucky, and Washington D.C., whereas prevalence rates were lowest in Virginia, Alaska, and Utah.

The authors of the study suggest that a cause in the increased drinking habits and prevalence rates of DUI’s amongst the veteran community are from dealing with post-traumatic stress disorder (PTSD) and depression following trauma suffered during active duty.

“The percentage of depressed veterans who at some point have been involved in an episode of binge drinking has increased substantially between 2014 and 2016,” said the study. Over 25 percent of “American veterans who self-identified as depressed” were linked to binge drinking. What’s more, the veterans suffering from depression “are more than twice as likely to be linked with drunk driving” than those veterans without mental health issues.

In addition to the mental health concerns as a contributing factor for the spike in DUI’s amongst the veteran community, a recent survey by the Department of Defense Health Related Behaviors found that one in three active duty military members met the characteristics for hazardous drinking and alcohol used disorder.

Recognizing active military and veterans as a vulnerable portion of the population to alcohol abuse and driving under the influence, the legislature recently amended California Penal Code section 1001.80 to allow military members to participate in a pre-trial diversion program to avoid a DUI conviction.

What is a pre-trial diversion program?

Pre-trial diversion is the process by which a court postpones criminal prosecution to allow a defendant to participate in a program that addresses the underlying root cause of the criminal conduct. If the program is successfully completed, the criminal proceedings halt and the case is dismissed.

Although pre-trial diversion exists for a number of other offenses, they don’t generally apply to DUI’s.

Pre-trial diversion which has been offered to a military member, veteran or active, who has been arrested and charged with a California DUI will involve, at a minimum, a substance abuse course as part of the program. If the program is successful, the military member will avoid a DUI conviction and all of the consequences that come with a DUI conviction.

However, if the court determines that the military member is unsuccessful in the program, criminal proceedings will continue and, if they are convicted, they will be subject to the same consequences as anyone else caught driving under the influence.

Not all veterans are eligible for pre-trial diversion. The Penal Code specifically states that only veterans that may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or any other mental health issues as a result of having served in the military.

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