Tag Archives: Driving under the influence

Murder Charge Dropped for DUI Boater

On July 5th of this year, Juan Francisco Moreno Herrera, 43 of Salida, California, was arrested on suspicion of murder after a collision between Herrera’s boat and a jet ski carrying a couple of teenagers. It was alleged that Herrera was operating his boat under the influence and, as a result, collided Vanessa Zamora, 14, of Watsonville, California, killing her and causing injuries to her 15-year-old cousin. Prosecutors also charged Herrera with two felony counts of driving a boat under the influence of alcohol.

Initially, according to prosecutors, Herrera caused the injuries to the girls because he was driving “his boat around in circles and did not attempt” to help either injured girl in the water following the collision.  

Under California Law, a DUI resulting in death will be charged as manslaughter if the driver has not suffered any prior DUI-related convictions. If, however, the driver has suffered a prior DUI-related conviction, they will likely be charged with second degree murder under California’s “Watson Murder Rule.” Under Watson, the California Supreme allowed murder to be charged in a subsequent DUI resulting in death because the driver was made aware of the dangers of drunk driving after having been sentenced on the prior DUI. It is almost as if the court is saying, “We warned you, you did it anyways, and now look at what happened.”

Herrera had been convicted of a DUI in the past, which allowed prosecutors to charge murder. As a result, Herrera had been in jail since his arrest, unable to afford the $2 million bail bond.

Kirk McAllister, Herrera’s attorney, however, believed the allegations to be false and his law firm conducted its own investigation into the collision.

Following McAllister’s investigation, it was learned that the girls had, in fact, collided into Herrera, not the other way around. What’s more, Herrera did, in fact, jump into the water to help Vanessa’s cousin stay afloat.

McAllister’s findings directly contradicted an affidavit filed by the Sheriff’s department alleging that “two independent witnesses” said that Herrera was driving his boat in circles and did not render aid. The affidavit, however, failed to identify the witnesses, and the sheriff’s department has refused to answer questions about the accuracy of the affidavit.

“What our investigation showed was that in fact they ran into him. In boating terms, he had the right of way. They hit him on the port side, or the left side. … He did the right thing, he powered down (the boat),” said McAllister to the Modesto Bee. “He had a terrible choice to make: One girl was not moving, the other girl was flailing in the water. He chose the one who was flailing because she was showing signs of life, obviously. He kept her afloat until another boat came.”

McAllister’s findings were submitted to the Stanislaus County District Attorney, and last month, the prosecution dropped the felony DUI charges and murder charge. Michael Scheid, the prosecutor assigned to the case, filed an amended complaint against Herrera alleging only misdemeanor boating under the influence charges.

Although the result might not sit well with some readers, the law requires it.

As the District Attorney’s Office itself recognizes, “[i]t is not enough to prove that someone who drank alcohol and was piloting a boat got involved in a collision where someone died,” said John Goold, a spokesman for the District Attorney’s Office.

By law the prosecution must prove every element of a crime beyond a reasonable doubt, and one element to the crime of second degree murder via DUI (or BUI) is that Herrera “did an act or neglected any duty imposed by law…which act or neglect proximately caused the bodily injury.” Based on McAllister’s investigation, Herrera simply did not.

“In this case, ongoing investigation led us to the inescapable conclusion that we could not prove all the elements beyond a reasonable doubt, which led to the filing of the amended complaint,” said Goold rightly so.

Following the amended complaint and dropping of charges, Herrera was released from custody on his own recognizance.

“I was in hell; that’s hell in there,” Herrera said following his release, recalling his time in jail awaiting prosecution. “Just thinking about my family. What was going to become of my kids and myself? Being in there for something that I didn’t do.”

Go ahead and ask Juan Francisco Moreno Herrera whether it’s a good idea to hire a criminal defense attorney when facing California DUI charges. In his case, it was the difference between a misdemeanor DUI and a murder.

Herrera still faces those misdemeanor DUI charges and expected in court this month.

 

 

 

Prescription Drug DUI

In late August, a Montebello police lieutenant was taken into custody in San Bernardino County on suspicion of driving under the influence of drugs. He had previously been arrested on suspicion of driving under the influence of prescription drugs, although charges were never filed. The arrest serves as a reminder that someone can be arrested for a California DUI with drugs, both illegal and legal.

On August 21st, Montebello Police Lt. Christopher Cervantes, 47, was arrested after police believe he rear-ended another car in the city of Montclair.

Neither Cervantes nor the other driver were injured in the collision, Cervantes was booked on suspicion of DUI at the San Bernardino County Jail, and he was subsequently placed on paid administrative leave.

In 2015, Cervantes was arrested following a collision with a tree in Diamond Bar. Although he tested positive for a combination of pain-relieving prescription drugs acetaminophen, butalbital, codeine, and morphine, the Los Angeles County District Attorney’s Office declined to file charges citing a lack of evidence.

In 2011, Cervantes was detained after resisting arrest at a San Diego hotel party where he falsely claimed to police that he was a federal agent. Charges were never filed for this arrest either.

“I’m aware of everything in his personnel file and as I was the one who promoted him, I was confident that he was a great candidate for promotion to lieutenant,” said Montebello Police Chief Brad Keller. Cervantes was promoted by Keller after

 Cervantes’s 2015 arrest.

As a high-ranking police officer, Cervantes should have been acutely aware that a person can still be arrested for driving under the influence of drugs, including prescription drugs. Many people, on the other hand, often believe that a DUI can only occur if a driver has alcohol in their system. Some people believe that a DUI can occur with only alcohol or illegal drugs, and because a drug might be legal, whether prescription or over-the-counter, a driver cannot get a DUI if they have legal drugs in their system.

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 illegal as well as legal, both prescription and over the counter.

The important consideration here is the phrase “under the influence.” Although, prescription drugs and other legal drugs fall within the definition 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.”

What kinds of medications can cause you to be under the influence? Tranquilizers, narcotic pain pills, sleep aids, antidepressants, cough medicines, antihistamines, and decongestants to name a few. And how might they cause you to be under the influence? Drowsiness, dizziness, nausea and vomiting, blurred vision, and confusion, to name a few. Kind of sounds like being drunk, doesn’t it?

A few years back, the AAA Foundation for Traffic Safety found that almost half of people 70 years old and above take up to five medications per day. Additionally, a survey from the foundation found that 72% of people 55 and over, the demographic most likely to take medications for chronic conditions, had no idea that their driving performance could be affected by their prescription medications.

Remember, a DUI does not just mean driving under the influence of alcohol, or even illegal drugs, but all drugs including prescription and over-the-counter drugs. If it is capable of affecting a person’s driving ability, then it’s best to wait until after a driving excursion is over.

 

NJ Man Busted for DUI on E-Scooter

A New Jersey man was stopped for a DUI in Hoboken, New Jersey after police found him intoxicated riding an “e-scooter;” the public scooters scattered across many cities that can be rented through a smartphone app.

Nicholas Cutrone, 26, was arrested this past weekend for DWI (the New Jersey equivalent of California’s “DUI”) for riding a e-scooter. According to police Cutrone was found “unsteady and staggering” when he unlocked the scooter and rode away.

“[Cutrone] was driving unsteady as he swayed back and forth appearing as if he was going to lose control at any moment,” said Detective Sgt. Jonathan Mecka.

Police say that Cutrone’s arrest marks the second drunk driving scooter arrest since the service was launched in spring.

As is the case with many cities here in Southern California, Lime e-scooters now sit on the corner of many busy intersections available to be rented to anyone with a credit card and a smartphone.

In August, a 45-year-old man because the first to be arrested for drunkenly operating an e-scooter in Hoboken after crashing, according to police.

Jeffrey English suffered multiple fractures to his face and mouth when he crashed his e-scooter between two cars. English “admitted to drinking a substantial amount of alcohol” before jumping off the scooter.

As I mentioned, e-scooters are already here in California, and I’m sure you’ve seen them around town. 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.

But can you ride after having a few drinks here in California?

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.”

Based on this language, it seems as though the California Legislature intended to treat e-scooter riders the same as traditional vehicle drivers the same, even when it comes to driving/riding under the influence.

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. Additionally, California Penal Code section 19.8 states that “any violation which is an infraction is punishable by a fine not exceeding two hundred fifty dollars ($250). This necessarily means that a DUI on an electric scooter in California cannot be charged as anything more than an infraction with a penalty of nothing more than the $250 fine. In other words, a DUI on a scooter in California cannot be treated like a misdemeanor DUI. It cannot carry the same penalties as a DUI and, as an infraction, it will not appear on the rider’s criminal record.

Unfortunately, police and prosecutors in California have been only considering the first law mentioned above and treating DUIs on e-scooters the same as a DUI in a regular vehicle. For this reason, it is imperative to hire an experienced and knowledgeable California DUI attorney to argue the difference in laws between scooters and vehicles.

I recently had one of these cases. My client, the scooter rider, was originally charged with a misdemeanor DUI as though he had been driving a traditional vehicle. If convicted as a misdemeanor, my client was looking at three to five years of probation, an 18-month DUI course (because he had a prior conviction), 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.

DUI Stop After an Anonymous Tip

The holiday season is fast approaching and before you know it, law enforcement will be ramping up its efforts to catch drunk drivers. Their efforts will inevitably include saturation patrols and DUI checkpoints, but they might also include, as they’ve done in the past, an ad campaign encouraging motorists on the road to contact law enforcement if they suspect that another driver is under the influence.

If an anonymous caller tips off police that someone might be driving drunk, the officer has no personal knowledge of facts that would lead them to believe that someone is driving drunk. The officer is only going off of what the tip had said. The tip could be accurate, it could be a lie, or it could just be mistakenly inaccurate. An officer must have probable cause to stop a driver on suspicion of a DUI, and probable cause means that the officer has reasonable and trustworthy facts that the driver is drunk.

The question becomes: Can an anonymous tip give an officer the required probable cause to stop a driver on suspicion of driving under the influence?

The United States Supreme Court in 2014 concluded in the case of Navarette v. California that an officer can use an anonymous tip as the basis for a DUI stop.

In Navarette v California, 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.

Officers identified the occupants of the truck as brothers Lorenzo Prado Navarette and Jose Prado Navarette.

At trial, 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, but appealed.

At the appellate level, the court ruled against the brothers saying, “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 brothers appealed again, this time to the United States Supreme Court. Once again, the court concluded that an anonymous tip alone can give law enforcement the justification to pull someone over on suspicion of driving under the influence.

In quoting the previous case of Alabama v. White, the Supreme Court said, “[U]nder appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.’”

In finding that the anonymous tip was reliably, the court relied on the fact that the caller claimed eyewitness knowledge of dangerous driving, the fact that the tip was made contemporaneously with the eyewitness knowledge of the dangerous driving, and the fact that the caller used 911 to make the tip (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. 

Does anyone else see the problem here?

Justice Scalia did and he voiced his concern in his dissent to the majority opinion in Navarette v. California.

 “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.”

Anonymous tipsters are not necessarily reporting on drunk drivers (they don’t know if who they’re reporting on is even drunk). 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 trip is perfect and that all driving trips, no matter how short or simple, contain some mistakes. This necessarily means that everyone on the road is a target of anonymous tipsters and anyone can be stopped on suspicion of DUI simply because someone else reported their mere driving mistake (even if they are not drunk).

 

Different DUI Standard for Police?

Anyone who has known someone that has been convicted of a DUI, or who has themselves had the unfortunate experience of suffering the consequences of a DUI, might know that there is the possibility of a obtaining a restricted license during the period of time where driving privileges are suspended. While driving privileges might be restricted during this time, a driver can still drive to and from work with a restricted license.

If a law enforcement officer happens to get caught for a DUI, wouldn’t we expect to hold the officer to the same standard as the rest of us drivers, possibly even a higher standard?

I bring this up because a police officer from Melbourne, Florida is now back behind the wheel of her police cruiser after having been charged with DUI while off duty back in September.

Audrey Poole of the Melbourne Police Department was pulled over for driving 20mph above the speed limit in Palm Bay. Her arrest affidavit as well as a statement from the arresting officer indicates that her eyes were bloodshot, and she smelled of alcohol even before she attempted field sobriety tests. She allegedly failed multiple field sobriety tests and refused to submit to a breathalyzer test, which led to her arrest. The interaction was even caught on dashboard camera footage.

Poole had been working in dispatch since 2012 and was hired as an officer in March 2018. After the arrest, she was suspended for a week without pay, then was placed on administrative leave with pay until Nov. 12th and was assigned desk duty. Under Florida law, she automatically lost her license for one year for refusing a chemical test. A month after the arrest, the state attorney’s office dismissed the DUI charge. According to Assistant State Attorney Leo Domenick, “Although there is sufficient evidence of probable cause for the arrest, based on the lack of a breath (Blood Alcohol Concentration) test, combined with the defendant’s performance on the field sobriety exercises, there is no reasonable likelihood of success at a jury trial.” After two months, Poole was reinstated and allowed to drive a Melbourne police cruiser under a “business purpose only” license which allows her to drive during her on duty hours.

Following the dismissal of charges, she was disciplined for multiple department violations, including conduct unbecoming of an officer, non-compliance with the law, and unlawful consumption of alcohol. In addition, she was also required to complete an alcohol education course and had her probationary status as a new officer extended.

According to some local DUI lawyers, a complete dismissal is unusual for Poole’s case. “It’s pretty rare that you see cases completely dropped, but every case is different. They might get knocked down to a reckless driving or a careless driving sometimes, but with more refusals they won’t negotiate… a dismissal,” says Melbourne-based DUI lawyer Mark Germain.

However, despite earlier reports that Poole failed multiple field sobriety tests, State Attorney spokesperson Todd Brown explained that the lack of a breath test and Poole’s actual performance on the field sobriety tests were sufficient enough to make the burden of proof for trial difficult to meet. Since prosecutors also have an obligation to drop charges that do not meet the burden of proof, it was decided that they would drop the charges. He believes that a member of the public charged in the same circumstances would have resulted in the same conclusion.

Let’s put aside the question that we have regarding the dropped charges for a moment. As an officer of the law, who is supposed to be enforcing the very laws that she disregarded, she was allowed to apply for and was approved for a “business only” license during her license suspension period.

There are multiple factors that can be considered to reach the conclusion that was reached. Poole was off duty, so the charge should have no bearing towards the responsibility she holds during her on duty hours. No chemical test seemed to have taken place, even after her arrest, so there is no factual evidence that she was over the legal limit. Because the charges were dropped, there is no conviction on her record. These are all arguments to allow her to continue to drive for work purposes. Would the same treatment have been given to a non-police officer?

When it comes to the actual charges, at least here in California, Poole would have been charged with a DUI. Prosecutors here in California have actually said that they would rather go to trial and lose a DUI case for lack of evidence than to dismiss it for lack of evidence.  As the local DUI attorneys have pointed out, it’s extremely rare for a prosecutor to dismiss a DUI case give the facts of Poole’s case. In fact, drivers have been charged with a DUI with much less evidence than in Poole’s case.

Again, questions remain: Had Poole been anyone other than an officer, would she have been treated differently? Probably. Would she have been approved for the “business only” driving license? Probably not. Are police held to a different standard when it comes to DUI prosecutions than the rest of us? Although I’d like to answer in the negative, Poole’s case has me thinking otherwise.