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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BUI Blamed for Boater Death

Thursday, August 8th, 2019

The body of a New Jersey man was recovered from Lake Hopatcong in New Jersey this week. The driver of the pontoon boat that he was a passenger on has since been charged with boating under the influence.

This past weekend, 24-year-old Jason Gill of Mr. Arlington was a passenger on a pontoon boat operated by Nicholas Zarantonello, also 24-years-old and from Lake Hopatcong, the lake from which Gill’s body was recovered from. According to state police, Gill fell into the state’s largest fresh-water lake this past Saturday. Although a search started that evening, it was suspended due to poor visibility and lighting in the area.

Search operations continued on Sunday using a helicopter, side-scan SONAR sub-surface detection equipment, the State Police TEAMS Unit, and rescue boats from a nearby fire department. Gill’s body, however, was not recovered until Monday.

Zarantonello, the boat’s operator, has since been arrested, charged with boating under the influence, and has since been released from custody with a future court date.

The drowning took place in an area of the lake that had been under an advisory to avoid swimming because of high levels of harmful algae bloom. Boating, however, was not affected by the advisory.

It goes without saying that DUI laws exist to protect us and others on the road from drivers whose judgment and motor skills have been impaired as the result of alcohol and other intoxicants. The same logic can be applied to laws that prohibit operating a boat while under the influence; namely to protect ourselves and others on the water from boat operators whose judgment and motor skills have been impaired.

Don’t think that because it’s a boat out on the open water that drunk driving laws don’t apply to you.

Boating under the influence is treated in very much the same way as a DUI is treated here in California.

California Harbors and Navigation Code section 655 states in pertinent part: 

(b) No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.

(c) No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood.

The Harbors and Navigation Code also provides a zero tolerance for aquaplanes and water skis.

What’s more, the penalties for boating under the influence in California are similar to those for a California DUI; up to six months in jail, up to $1,000 in fines and fees, and a California DUI school.

Unlike a California DUI, however, any prior boating under the influence or driving under the influence conviction will only enhance a future boating under the influence charge if the prior conviction occurred within seven years. If you are charged with a California DUI, any California DUI or BUI that occurred in the last 10 years will increase the penalties of the current DUI.

Also, while the passengers of vehicles cannot drink alcohol within the vehicle under California open container laws, passengers of boats can legally drink alcohol on the boat.

In addition to running the risk of getting arrested, charged and convicted, boaters need to also realize the danger to themselves and others when boating under the influence. There are no lanes, no rules of the road, just open water.

 

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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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Supreme Court Rules Cops Can Withdraw Blood from an Unconscious Driver

Monday, July 1st, 2019

Yes, you read that title correctly. The United States Supreme Court just ruled that police can withdraw blood from an unconscious person suspected of driving under the influence.

Six years ago, police found Gerald Mitchell on a beach in Wisconsin and suspected he was intoxicated after a neighbor reported that he was drunk and suicidal. After being arrested, Mitchell was transported to a hospital. However, by the time he arrived at the hospital, he was unresponsive and law enforcement ordered hospital staff to draw his blood, which revealed a blood alcohol content of 0.22 percent.

Although Mitchell tried to exclude his blood alcohol content from evidence, he was denied and ultimately convicted of driving under the influence. After losing in the Wisconsin state courts, he appealed to the United States Supreme Court arguing that the withdrawal of his blood while he was unconscious without a warrant violated his 4th Amendment right against unreasonable searches and seizures.

Justice Samuel Alito, writing for the majority which included Chief Justice John Roberts, Justice Stephen Breyer, Justice Brett Kavanaugh, and himself, concluded that the 4th Amendment, generally, does require a warrant to conduct a search. However, he went on to say that there are exceptions to the warrant requirement including “exigent circumstances” where, as here, a warrantless blood withdraw was necessary to “prevent the imminent destruction of evidence.” Alito continued that the alcohol in a person’s system is “literally disappearing,” which justifies the need to obtain the evidence before taking the time for law enforcement to obtain a warrant.

“Indeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk,” Alito wrote. “It would be perverse if the more wanton behavior were rewarded — if the more harrowing threat were harder to punish.”

Alito also noted that the condition of a driver who is unconscious creates additional burdens on law enforcement since the driver will likely be taken to a hospital rather than the police station where a breath test can be administered.

“It would force them to choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value and all the compelling interest served by BAC limits,” he wrote. “This is just the kind of scenario for which the exigency rule was born – just the kind of grim dilemma it lives to dissolve.”

Justice Clarence Thomas concurred with the result, but not Alito’s rationale. Thomas maintained that since alcohol automatically leaves a person’s blood within a certain amount of time, police should be able to forcibly withdraw blood whether the driver is conscious or not.

Justice Sonia Sotomayor wrote a dissenting opinion that was joined by Justice Ruth Bader Ginsburg and Justice Elena Kagan. Sotomayor argued that Alito’s rationale had missed the point. Sotomayor emphasized that, in this case, law enforcement admitted that there was time to obtain a warrant for Mitchell’s blood, but that they didn’t because of “implied consent.” Implied consent, which exists here in California, is a law that a driver has impliedly agreed to a chemical test by mere virtue of having a driver’s license.

“Wisconsin has not once, in any of its briefing before this Court or the state courts, argued that exigent circumstances were present here,” Sotomayor wrote. “In fact, in the state proceedings, Wisconsin ‘conceded’ that the exigency exception does not justify the warrantless blood draw in this case.”

She went on to say, correctly so in my opinion, that, while “drunk driving poses significant dangers that Wisconsin and other States must be able to curb…the answer is clear: If there is time, get a warrant.”

Justice Neil Gorsuch dissented separately also taking issue with the fact that the case had been decided on grounds that were not the basis for the appeal; whether implied consent laws violate the 4th Amendment.

“We took this case to decide whether Wisconsin drivers impliedly consent to blood alcohol tests thanks to a state statute,” Gorsuch wrote. “That law says that anyone driving in Wisconsin agrees — by the very act of driving — to testing under certain circumstances. But the Court today declines to answer the question presented. Instead, it upholds Wisconsin’s law on an entirely different ground—citing the exigent circumstances doctrine.”

Take a second to ask yourself what place you expect to be more private than any other place, including your home. I expect that the most prevalent answer is “our bodies.” Yet, for the place that we consider to be the most private, law enforcement does not need a warrant to intrude into it as long as we have a driver’s license.

Sound like a loophole for law enforcement? It is!

I am not saying that we shouldn’t be testing the blood of suspected drunk drivers. But the Constitution protects all of us, suspected drunk drivers included. And if the Constitution requires a warrant to search, especially the thing most of hold to be the most private, then law enforcement should have to get one.

It’s not like law enforcement is sending the warrant application by raven! How long (or difficult) would it really take to obtain a warrant? A few minutes if done digitally? Alito and the majority don’t seem to care as they continue to make it easier for law enforcement to violate constitutional rights.

Justice Sotomayor said it best. If there is time, get a warrant.

 

 

 

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The Basics of a California DUI

Thursday, June 27th, 2019

We often spend so much time talking about unique DUI-related topics, many of which discuss the complicated intricacies of DUI’s and DUI law, that we forget to go back and just remind our readers about the basics of a California DUI. Therefore, every so once in a while, I like to go back and just discuss the basics of a California DUI. Before I go any further, I’ll preface this post by saying that the below information is not for DUI’s where aggravating circumstances were present such as prior DUI convictions, collisions, injuries to third parties, an unusually high BAC, a refusal of a chemical test, and so on.

In order to be stopped and arrested on suspicion of a California DUI, officers need probable cause to believe that a person is driving under the influence. For an officer to have probable cause, they need to have reasonable and trustworthy facts that a person is driving under the influence. Officers obtain the probable cause needed to make a DUI arrest by observing poor driving patterns, observing signs of intoxication (slurred speech, smell of alcohol, bloodshot eyes), poor performance on field sobriety tests, and/or failure of a pre-arrest breathalyzer known as a “preliminary screening alcohol test” (PAS test).

A driver can limit the probable cause that the officers are looking for by taking steps to enforce their rights. If pulled over on suspicion of driving under the influence, the driver should not say anything to police except to invoke their 5th Amendment right to remain silent and request an attorney. The field sobriety tests are optional and should not be performed. See any of our numerous articles on the inaccuracies of field sobriety tests. Lastly, the PAS test is also optional and also should not be taken. By limiting the probable cause, the driver will give their defense attorney the ability to argue that the arrest was illegal because the officer did not have the required probable cause to make the DUI arrest.

I should note that a driver will likely still be arrested whether they take measures to protect their rights or not. Again, the purpose of protecting your rights is to help with the DUI defense in court, not to prevent an arrest. I repeat, the officers will almost always still make the arrest.

Once arrested, the driver will be required to submit to a chemical test which can either be a breath or a blood test. Do not confuse this test with the roadside breathalyzer (PAS) test. The PAS test is optional. The chemical test is required, but is only required after a driver is lawfully arrested.

After the driver is arrested, they will be held until they sober up and released with a court date. In the time between the arrest and the court date, the law enforcement agency will send its police report to the appropriate prosecuting agency to make the decision about whether to file charges.

If a DUI is charged, it will typically be under California Vehicle Code section 23152(a) and/or 23512(b). Simply put, Vehicle Code 23152(a) makes it illegal to drive while under the influence of alcohol and Vehicle Code 23152(b) makes it illegal to drive with a blood alcohol content of 0.08 percent or higher. If a person is arrested having been suspected of driving while under the influence of an intoxicant other than alcohol, they will likely be charged with California Vehicle Code section 23152(e).

The filing of charges triggers a criminal case in the appropriate courthouse. The court will schedule a hearing called an arraignment. At arraignment, the DUI suspect, who is now a DUI defendant, will enter a plea, be advised of their rights, and the charges pending against them.

Following the arraignment, there may be several or no pretrial hearings to allow the prosecutor and any defense attorney, either private or a public defender, to assess the merits of the case and negotiate a plea deal. A plea deal may include a reduction in charges to a “wet reckless,” “dry reckless,” or some other lesser charge. It may also include a reduction in sentence.

If no deal can be reached, the case proceeds to a trial where the prosecutor will have to prove to a jury beyond a reasonable doubt that the DUI defendant drove a vehicle either under the influence of alcohol, under the influence of a drug, or with a blood alcohol content of 0.08 percent or higher.

If the jury finds the person not guilty, the DUI defendant will suffer no legal penalties. However, if the finds the person guilty, they face a minimum of three years of summary probation, a fine between $390 and $1,000 plus penalties and assessments, and a three-month drunk driving program known as AB-541, and up to six-month in county jail. Other penalties that a defendant might face are a longer DUI program, a longer probationary period, a hospital and morgue program, a Mothers Against Drunk Driving Victim Impact Panel, AA meetings, and a SCRAM device (alcohol detecting anklet).

I’ve only scratched the surface of the basics of a California DUI, and I haven’t even mentioned the DMV consequences of a DUI arrest and/or conviction, which, by itself, could take up several stand-alone articles. See any number of previous posts about the DMV consequences of a DUI.

Needless to say, just the basics of a DUI are extremely complicated. Factor in other intricacies not mentioned here and it goes without saying that a person who has been stopped, arrested, and charged with a DUI should absolutely not try to take on the system by themselves. Hire a qualified and experienced DUI attorney who knows the process inside and out, and who will give you the best chance at a favorable outcome.

 

 

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