Tag Archives: drunk driving law

Ignition Interlock Devices and Unlawful DUI Stops

Consider this: It is a nice spring Thursday evening and you decide to meet friends for dinner. After visiting for a few hours, you decide it is time to drive home. On your way, you happen to go slightly over the speed limit and a police officer pulls you over. Upon his arrival to your driver side window, the police officer notices you have an ignition interlock device installed and immediately asks you to step outside the vehicle and starts to conduct a DUI investigation. Despite the fact that you have not had a single drop of alcohol, you are now being subjected to the humiliating process of a field sobriety test. Does the officer have the right to stop your vehicle and conduct a DUI investigation based solely off the fact that your vehicle was equipped with an ignition interlock device?

What is an Interlock device?

An Ignition Interlock Device (IID) is about the size of a cell phone, connects to a vehicle’s ignition, and is capable of determining a person’s blood alcohol content. Once installed, a driver must provide an alcohol-free breath sample before the engine will start. If the IID detects alcohol on the driver’s breath, the engine will not start. Drivers are periodically required to provide new breath samples en route. The International Council on Alcohol, Drugs and Traffic Safety claims that IIDs can result in a 40–95 percent reduction in the rate of repeat drunk driving offenses.

Interlock Laws in California

Pursuant to a relatively new California state law, the Department of Motor Vehicles (DMV) is conducting a Statewide Ignition Interlock Device (IID) Pilot Program that requires all repeat and all injury-involved driving under the influence (DUI) offenders to install an IID. A first-time DUI without injury will not require installation of an ignition interlock device (at least through the DMV) unless the driver is in one of five pilot counties, which require installation for a first-time offense.

Notwithstanding what the DMV might require, in California, the court, at its discretion, may require that a person convicted of a first DUI offense install an IID their vehicle or vehicles.

IID as a Pretext for a DUI Stop

Under the United States Constitution, law enforcement must have justification before it can initiate a traffic stop or arrest anyone. In the context of a DUI, the level of justification is usually expressed as “reasonable suspicion” for a DUI traffic stop, and “probable cause” for a DUI arrest. In other words, a law enforcement officer must have “reasonable suspicion” that a traffic violation is or was taking place before they can stop a vehicle. “Reasonable suspicion” means that the officer was suspicious that a traffic violation occurred (not necessarily a DUI, because the officers don’t yet have enough facts to stop based on DUI alone) and they can articulate why their suspicion was reasonable.

Most of the time, officers have more than reasonable suspicion to stop a vehicle for a traffic violation because the officer actually witnesses a traffic violation occur, such as speeding or running a red light. However, once a stop is made, the officer must have probable cause to arrest a driver for a DUI. Probable cause means that the officer has reasonable and trustworthy facts that the driver is driving under the influence.

An officer should able to determine if a person has a DMV-required IID installed in their vehicle by scanning a license plate. But that, by itself, doesn’t even warrant the reasonable suspicion that the person has done anything wrong. Remember, that officers need, at a minimum, reasonable and articulable suspicion that a person is driving drunk. Merely knowing that a driver has an IID in his or her car doesn’t mean that the driver is currently drunk (in fact, quite the opposite), and therefore can’t be the officer’s reasonable suspicion needed to make the stop.

From the point the stop is initiated, the law enforcement officer is trying to obtain the requisite probable cause so that they can arrest the driver at the end of the stop on suspicion of DUI. Some of the ways that the officer obtains that probable cause is through observing the signs of intoxication through the driver’s eyes, breath, and speech, observing poor performance on field sobriety tests, and obtaining a BAC reading which would indicate that the driver had alcohol in their system (recall that the pre-arrest roadside breathalyzer is optional).

It goes without saying that if an officer is aware a driver has an IID in their car, the police are going to want to pull that driver over. While courts have held that police can have an ulterior motive for pulling someone over (such as a DUI), the officer must still have the reasonable suspicion that a crime occurred, beyond merely knowing that an IID is in the driver’s car.

 

Is Utah Going Too Far?

We have kept an eye out on Utah ever since they first began talking about lowering the legal BAC level to 0.05% and when they, if fact, enacted the lower BAC limit in 2019. We had hoped that the restrictions would end there, not just with Utah, but across the country, all the while watching as more and more states, including California, started to consider lowering their legal blood alcohol limits to 0.05%.

Well, it looks like Utah legislature has struck again.

House Bill 325 seeks to create an “Alcohol-Restricted Individual Program,” which would essentially allow the government to monitor and restrict a person’s right to purchase alcohol. According to The Salt Lake Tribune, “Under HB325, the Utah Department of Alcoholic Beverage Control would create the program, which would ‘prohibit a state store from selling, offering for sale, or furnishing liquor to an individual enrolled in the program.’”

The bill allows for individuals to join and be removed from the list voluntarily.

However, in addition to voluntary enrollment, any first-time conviction for driving under the influence could carry with it a sentence requiring a person participate in the Alcohol-Restricted Individual Program

This new requirement would be in addition to the mandatory penalties the court would hand down which includes up to 6 months in jail, fines up to $1,000 plus court costs, an alcohol assessment and attendance at a state-approved alcohol and drug educational program, and a license suspension.

State-run liquor stores would be required to scan a person’s driver license to determine whether a person is participating in the program in order to approve or deny the purchase.

A DUI conviction could potentially lead to mandatory enrolled a program that would limit, if not outright restrict a person’s right to purchase and consume alcohol.

According to Fox 13, “all alcoholic products (except beer) are sold through DABC stores. Even bars and restaurants must purchase their liquor through the state.” However, it remains unclear as to whether other alcohol-serving establishments, such as restaurants, would also be subject to the law.

Forget about restaurants, what about the many other ways that a person can get alcohol? A person convicted of a DUI could have a friend or family member purchase the alcohol for them. A person convicted of a DUI can go to a social gathering where alcohol is served, either commercially or personally.

Is it just me or does this seem like a futile attempt at the government telling us what we can and can’t consume? It certainly seems so given the many glaring issues with mandatory participation in the program.

Having said that, it’s nice to know that the legislature took at least some time to protect its citizens from governmental overreach. The bill goes on to require that “The department may not: disclose any information related to an individual currently or previously enrolled in the program, or retain any information related to an individual previously enrolled in the program.”

California School Bus Driver DUI on the Job

Last week, a school bus driver from Paradise, California was arrested on suspicion of driving under the influence of alcohol after several students riding on her bus, as well as parents of children on that bus, reported that she may have been drunk.

Students and their parents called 911 to report that the school bus driver, Desiree Ann Abrams, was speaking loudly, interacting inappropriately with the students, and smelled as though she had been drinking.

“When we got on the bus that day, she was kind of slurring her words. I thought she was just having a really good day but when I sat down she was stopping people and asking them questions what’s your middle name, how old are you, you’re looking pretty good today,” Dustin Jones, an eighth-grader at Paradise High School, told local news outlet KRCR.

When CHP officers arrived, they observed signs commonly associated with being intoxicated and determined that Abrams was driving under the influence.

According to law enforcement, no students were on board of the bus at the time of the DUI stop because they had already been dropped off at their regular stops.

“I thought she was just joking around until I saw she got arrested then I believed it,” said Phenix Rye, a junior at Paradise High School.

Paradise Unified School District confirmed the incident.

“A Paradise Unified School District bus driver was arrested on 11-15-19. District Administration was present at the scene and confirmed that students were safe and secure. We are grateful for the prompt response of both the Butte County Sheriff’s Office and the California Highway Patrol as well as the courageous actions of students and families. As always, student safety remains our top priority. Resources will be made available for students that may need additional support. Thank you for your understanding and support in this ongoing process.”

Abrams is out on bond and facing DUI charges and child endangerment.

Not only is Abrams looking at the punishment under California’s DUI law, she is also looking at additional penalties because of the danger that she placed the student in.

Under California Vehicle Code section 23572, California’s child endangerment DUI enhancement law, 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 the driver was driving under the influence and that there was a minor child under the age of 14 in the car when that person drove.

The students being transported by Abrams, however, were high school students whose ages generally range from 14 to 18. If so, how can Abrams be charged with child endangerment for a DUI if the enhancement only applies to children under the age of 14?

Often times, prosecutors will charge child endangerment as a separate and whole charge against a person under the Penal Code, not as a mere enhancement to a DUI under the Vehicle Code.

California Penal Code section 273(a) makes it illegal for an adult to 1.) cause or permit a minor to suffer unjustifiable physical pain or mental suffering, 2.) cause or permit a minor to be injured, or 3.) cause or permit a child to be placed in a dangerous situation.

The crime of child endangerment, if a misdemeanor, carries up to one year in county jail and up to a $1,000 fine. However, if the risk to the child or children included death or “great bodily injury,” a felony child endangerment conviction carries two, four, or six years in a California state prison, and a fine of up to $1,000.

It should be noted that a person arrested for a DUI with a child in the car cannot be punished under both the Vehicle Code’s enhancement law and the Penal Code’s child endangerment law. Thus, if Abrams is found guilty, she’ll be punished for the DUI, and either the child endangerment enhancement or a separate child endangerment conviction.

 

Big Surprise: Breathalyzers are Inaccurate

I’ve been saying and writing about it for years; breathalyzers are inaccurate. Now, The New York Times, in a bombshell report confirmed exactly that.

According to the report, “The Times interviewed more than 100 lawyers, scientists, executives and police officers and reviewed tens of thousands of pages of court records, corporate filings, confidential emails and contracts. Together, they reveal the depth of a nationwide problem that has attracted only sporadic attention.”

With so much at stake, including jail, you’d think that there would be more than mere “sporadic attention.”

Yet, the report found numerous inconsistencies with maintenance procedures of breathalyzer machines, inconsistencies within the machines themselves, and an over reliance on inaccurate data produced by breathalyzers.

In Colorado, for example, police had continued using a chemical solution that had long been expired when prepping the machines. The expired solutions caused inaccurate results. In another example, a former manager created his own chemical solution inconsistent with the standard chemicals used in the solution.  In some instances, there were no standards on how to prepare and operate the machines.

The report also found that the manufacturing process of the breathalyzer machines also create inaccuracies. For example, testing revealed that some machines produced a result even though the software programed into the machine occurred. Some tests revealed that accuracy of reading was affected by external factors such as the temperature of a person’s breath, whether they’ve consumed breath mints, or whether they’ve recently brushed their teeth, to name a few.

Despite the known inaccuracies, breathalyzer machines continue to often be the deciding factor in a DUI conviction.

In 2013, the California Supreme Court held that, although breathalyzers are generally inaccurate, scientific evidence challenging the accuracy of breathalyzers in California is not admissible as evidence in DUI trials.

The holding comes from the 2007 DUI stop of Terry Vangelder. Vangelder was stopped for speeding in San Diego. Although having admitted to consuming some alcohol, Vangelder passed field sobriety tests. Vangelder then agreed to a preliminary screening alcohol test (an optional roadside breathalyzer) which indicated that Vangelder’s blood alcohol content was 0.086 percent. Based on that, Vangelder was arrested and transported to the police station where he submitted to a chemical breath test (a required post-arrest breathalyzer). This breath test showed a blood alcohol content of 0.08 percent. Vangelder then submitted to a blood test which indicated that his blood alcohol content of 0.087 percent.

At trial, Vangelder called Dr. Michael Hlastala, a leading authority on the inaccuracies of breathalyzers.

“They are (inaccurate),” Dr. Hlastala testified before the trial judge. “And primarily because the basic assumption that all of the manufacturers have used is that the breath that [is] measured is directly related to water in the lungs, which is directly related to what’s in the blood. And in recent years, we’ve learned that, in fact, that’s not the case.”

The judge however, did not allow the testimony and Vangelder was found guilty. Vangelder appealed and the appellate court reversed the decision in 2011. San Diego City Attorney, Jan Goldsmith, then appealed the appellate court decision arguing that such testimony would undermine California’s a per se law making it illegal to drive 0.08 percent blood alcohol content or higher.

Unfortunately, the California Supreme Court sided with Goldsmith.

“[T]he 1990 amendment of the per se offense was specifically designed to obviate the need for conversion of breath results into blood results — and it rendered irrelevant and inadmissible defense expert testimony regarding partition ratio variability among different individuals or at different times for the same individual,” Chief Justice Tani Gorre Cantil-Sakauye wrote for the court. “Whether or not that part of expired breath accurately reflects the alcohol that is present only in the alveolar region of the lungs, the statutorily proscribed amount of alcohol in expired breath corresponds to the statutorily proscribed amount of alcohol in blood, as established by the per se statute.”

The Court went on to say that, “Although Dr. Hlastala may hold scientifically based reservations concerning these legislative conclusions, we must defer to and honor the legislature’s reasonable determinations made in the course of its efforts to protect the safety and welfare of the public.”

Simply put, the California Supreme Court is willfully ignoring scientific evidence simply because the legislature was well-intentioned.

Although drivers can no longer challenge the accuracy of breathalyzers in general, a driver who has been arrested for a California DUI can still challenge the accuracy of the specific breathalyzer machine used on them.

 

Can Technology End Drunk Driving?

If you’re anything like me, the speed with which technology is advancing is almost too much to keep up with. No doubt, while some technology is proving to be a detriment to society, like the diminishment of person-to-person interaction, other technology serves to benefit technology, like the various ways lives can be saved as a result of technology. Two law makers are hoping that new technology can stop drunk driving and save lives in the process.

Recall the post Can Alcohol Sensors in All Cars Eliminate Drunk Driving? where I discussed the prospect of introducing alcohol sensing technology into all new vehicles available for purchase.

Since then, as expected, alcohol sensing technology has advanced and Tom Udall, a democratic senator from New Mexico, and Rick Scott, a republican senator from Florida, have said in a recent interview with Reuters that they plan on introducing bi-partisan legislation making the technology a requirement for all new vehicles off the lot.

“This issue has a real urgency to it,” Udall said in an interview with Reuters. “The industry is often resistant to new mandates. We want their support but we need to do this whether or not we have it – lives are at stake.”

According to the National Highway Traffic Safety Administration (NHTSA), almost 30 people die in the United States as a result of drunk driving. In 2017, that amounted to 10,847 fatalities involving drunk driving.

The technology that Udall and Scott are referring to are devices implanted within a steering wheel or a push-button ignition that can detect the blood alcohol content of a driver through infrared lights shined through the driver’s finger tips. They are also looking at sensors that monitor a driver’s eye movement and breath. Whatever the method, should the technology detect a blood alcohol content higher than the legal limit, the driver will not be able to start their vehicle.

A similar bill has been introduced in the U.S. House of Representatives by Debbie Dingell, a Democrat, that would require setting rules for advanced vehicle alcohol detection devices by 2024.

The NHTSA has invested over $50 million spanning 10 years in similar technology to what Udall and Scott are seeking to implement. The technology is already undergoing limited field testing in Maryland and Virginia, according to Udall.

Earlier this year, Volvo announced plans to install cameras and sensors in its vehicles by the early 2020’s to monitor the driver for distractions, errors, and even drunk driving. And should the technology detect anything that could result in a collision, the vehicles internal system would limit the vehicle’s speed, alert the “Volvo on Call” assistance service, or slow down and parking the car.

Udall and Scott’s Reduce Impaired Driving for Everyone Act, or RIDE Act, can be read here.