New Mexico and MADD take to Shaming Drunk Drivers on Twitter

Monday, May 2nd, 2016

We live in a digital era where everything, literally everything, can get posted for the world to see. Social media outlets like Facebook, Snapchat, and Twitter can let anyone know where you live and work, who you’re associated with, and what you’re doing at any given moment. There are, however, somethings that we don’t want the world to know about and that we deliberately withhold from social media, like a DUI conviction.

Although criminal convictions are public record, one would not expect anyone in the world to have access to that information without taking the trouble to actually find it. And why would they?

Well now in New Mexico, they won’t have to. Thanks to the ever hyper-vigilant organization, Mothers Against Drunk Driving (MADD), information on a person’s DUI conviction, sentence, and judges whom they believe are too lenient on the DUI offenders will be posted on the social media website Twitter for all of the world to see.

New Mexico Governor, Susana Martinez announced earlier this month that the state will pay MADD staffers to attend DUI hearings and publicize the information in tweets. How much money, you might ask. MADD was granted a whopping $800,000 contract for this program of public shaming.

“Too many lives have been shattered by drunk drivers, and too often our justice system fails our families by going easy on the criminals,” Martinez said at a news conference in Albuquerque.

The number of people killed in drunk driving related accidents last year in New Mexico decreased by 28 percent, marking a 36-year low in a state that has long struggled with high DUI rates, officials said last month.

New Mexico follows several municipalities that have taken to social media to shame DUI offenders. In March, I wrote a post on the Chesterfield Sheriff’s Office in Chesterfield, Virginia, who took to posting the mugshots of people who had been arrested for driving under the influence.

If you ask me, there are a number of very serious problems with this.

The first issue I have is what many have express about this program. Couldn’t New Mexico’s money be better spent elsewhere?

Second, there is the possibility that a program such as this could violate the privacy rights of those whose information is being posted. I can’t say one way or another without doing more legal research into the issue. Sure seems like an invasion of privacy though.

What’s more, it’s not out of the realm of possibility that posting this information will lead to retaliation by the public. It goes without saying that people have very strong feelings about people who have been convicted of DUI. Those feelings, if you ask me, have led to a disproportionate villainization and stigmatization of those who have been convicted of drunk driving. New Mexico could possibly be putting these people at risk of harm with this program.

Lastly, this program is likely to place political pressure on judges to give harsher punishments for DUI convictions when the facts of the case may not warrant it. It is within the judge’s authority to determine the punishment for a DUI conviction. It’s their job.

Democratic state Representative Antionio “Moe” Maestas correctly made the comparison that “[b]laming a judge for not enough conviction rates is like blaming [a baseball] umpire for not enough strikeouts.”

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Proposed California Law Aims to Reduce Drunk Driving

Monday, March 7th, 2016

Assembly Bill 2121, otherwise known as the “Responsible Interventions for Beverage Servers Training Act,” has been proposed as a means to reduce the number of drunk drivers in California, but not in the way typical DUI legislation hopes to reduce drunk driving.

The law, if passed, would require the servers of alcohol-serving establishments undergo a “responsible interventions for beverage servers” training. Bartenders and servers would be required to intervene when a patron has had too much to drink.

According to the law, servers would have three months to complete a four-hour class after having been hired and would be required to complete “refresher” courses every three years.

Other states currently have similar laws in place.

The law doesn’t contain any language on whether the alcohol-serving establishment can or will be held liable for an over-served patron who causes damage, injury or death as a result of drunk driving.

Many states currently have laws that hold establishments liable for damage caused by accidents, injuries, or deaths as a result of a customer’s drunk driving after they’ve left the establishment.  These laws are known as “Dram Shop Laws.”

States who have enacted Dram Shop Laws, however, differ as to how much liability is imposed. Some states hold an establishment strictly liable if their drunk patron drives and causes damage, injury, or death. This means that the establishment’s service of the alcohol is deemed to be the proximate cause of any damage occurring after the intoxicated person leaves the establishment.

California no longer follows the strict liability standard.

California Civil Code section 1714 provides:

(b) It is the intent of the Legislature to . . . reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.

(c) Except as provided in subdivision (d), no social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.

(d) Nothing in subdivision (c) shall preclude a claim against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person under 21 years of age, in which case, notwithstanding subdivision (b), the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.

In other words, California considers the act of drunk driving and any damage, injury or death caused by that drunk driving the direct result of the person making the decision to drink and drive, not the result of the establishment who served the alcohol.

California law, however, is different if the person served is under the age of 21. An establishment who serves alcohol to a person under the age of 21 may be liable for any damage, injury or death that results from the drunk driving of that person under the age of 21.

Furthermore, while establishments may be shielded from civil liability, they may be held criminally responsible for overserving an already drunk customer. California Business and Professions Code section 25602(a) provides, ““Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.”

While AB 2121 may not currently rise to the level of a Dram Shop Law, if passed, it may not be much longer until California resorts to Dram Shop Laws to try and reduce drunk driving.

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Can You Get a California DUI on Private Property?

Monday, February 8th, 2016

It is not uncommon for a person to be arrested on suspicion of DUI after having been only observed and stopped by law enforcement in a private parking lot. And the question arises, “can you get convicted of a California DUI if the officer never observes you driving on a public road and you are stopped on private property?”

There is a misconception that the California Vehicle Code only sets forth the rules of the road for public roadways.

Division 11 of the California Vehicle Code sets forth the “rules of the road,” if you will, which includes California’s laws against driving with a 0.08 blood alcohol content or higher and driving while under the influence. California Vehicle Code section 21001 states, “The provisions of [Division 11] refer exclusively to the operation of vehicles upon the highways, unless a different place is specifically referred to.” The Code then goes on to state, “[t]he provisions of this chapter apply to vehicles upon the highways and elsewhere throughout the State unless expressly provided otherwise.”

The language of the Vehicle Code is admittedly vague. Ronald Dean Arnold Malvitz challenged the language of the Vehicle Code in the 1992 case of People v. Malvitz.

Malvitz was arrested for California DUI in a privately locked storage facility. Malvitz argued that since the DUI arrest occurred on private property and not on a public highway, California’s DUI law (section 23152 of the Vehicle Code) did not apply to him.

The California Court of Appeals though it necessary to clarify whether the language of the Vehicle Code was meant to include private property.

Prior to 1982 the vehicle code made it illegal to drive drunk “upon a highway or upon other than a highway areas in which are open to the general public.” However, in 1982, the legislature deleted the language referring to the locations upon which a person could be arrested and ultimately convicted of drunk driving.

The Court in People v. Malvitz relied on the earlier version of the California Vehicle Code to help clarify the issue. The Court concluded that the “statute that prohibited driving under the influence of alcohol and/or any drug has emerged unencumbered with any language restricting its reach.”

In other words, the Court concluded that it was the intent of the legislature that, in deleting the portion of the statute which referred to location, the law which prohibits drunk driving should extend to anywhere in California where drunk drivers pose a threat included public highways as well private property.

Furthermore, California Vehicle Code section 23215 states, “[law enforcement] may, but shall not be required to, provide patrol or enforce the provisions of [California’s DUI law] for offenses which occur other than upon a highway.”

Even though law enforcement not required to patrol or enforce California’s DUI laws on private property, I can tell you that they most certain will and do all the time.

 

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The Rights of People, Not Necessarily Drunk Drivers

Monday, December 21st, 2015

On December 16, 2015, the Los Angeles Times published an editorial entitled “Sobriety tests and the Constitution.” The article can be found here:

http://www.latimes.com/opinion/editorials/la-ed-1216-drunk-driving-20151216-story.html

The editorial was partly in response to the United States Supreme Court’s decision to decide whether people can be criminally punished for refusing a post-DUI arrest chemical test absent a warrant.

The author’s stance is clear when they say, “It seems clear that it’s wrong to criminalize the refusal to submit to a test for which police haven’t obtained a warrant. Not only do such laws punish suspects for asserting their rights under the 4th Amendment; they also effectively provide an end run around the court’s 2013 decision [to require law enforcement to obtain a warrant prior to a forcible blood withdrawal].”

I wholeheartedly agree.

On December 18, 2015, the Los Angeles Times published responses to the December 16th editorial in a section entitled “Readers React – The risk of giving more rights to drunk driving suspects.”  The responses can be found here:

http://www.latimes.com/opinion/readersreact/la-le-1218-friday-dui-checkpoints-20151218-story.html

In the first of two responses, a retired deputy district attorney for Santa Barbara County wrote, “Let drunk-driving suspects refuse a mandatory biological sample (such as the option of breath or blood in California) without consequences, and watch alcohol-related roadway deaths spiral upward. Why? Without the objective and usually conclusive evidence of a breath or blood sample available for trial, prosecutors will be left with largely subjective evidence. That enables defense attorneys to endlessly second-guess officers’ observations. This will leave legions of drivers undeterred by the perceived legal consequences of alcohol-impaired driving.”

Another response, in part, says, “Your defense of individual rights as they relate to prosecuting suspected drunk drivers goes too far. Police personnel have to do their job, and a drunk driver endangering people’s lives on a road needs to be punished, end of story.”

Plain and simple, the 4th Amendment was included in the Bill of Rights to protect the people from unreasonable and warrantless governmental searches and seizures of places and things where there existed a reasonable expectation of privacy.

Nowhere do we have a higher expectation of privacy than with our bodies. Consequently, nowhere does the 4th Amendment become as important as it does when it comes to searches of our bodies.

Just as the 5th Amendment requires that people cannot be punished for asserting their right to remain silent, so too can they not be punished for asserting their right against a search of their body without a warrant.

Requiring law enforcement to obtain a warrant prior to subjecting a person to a chemical test, which is a search for 4th Amendment purposes, will not leave prosecutors without “objective and usually conclusive evidence of a breath or blood sample” nor will “prosecutor be left with largely subjective evidence,” as the first response asserts. All it is doing is requiring that law enforcement play by the rules before getting what they want. Play by the rules (i.e. the Constitution), and get the evidence needed to legally prosecute drunk drivers. Stop looking for shortcuts and prosecute drunk drivers within the parameters of the Constitution.

Yes, police personnel “have to do their jobs,” but, again, they must do it lawfully. And the law requires that they obtain a warrant before searching.

I agree with the notion that “A drunk driver endangering people’s lives on a road needs to be punished.” But this statement has nothing to do with refusing a warrantless chemical test.  A person cannot be punished before they are found guilty beyond a reasonable doubt of drunk driving. At the time a person submits to a chemical test, they have not been found guilty of anything.

Furthermore, they most certainly cannot be punished for doing something that the Constitution of the United States absolutely gives them a right to do.

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Not All Drunk Drivers are Alcoholics

Monday, November 23rd, 2015

For as much education (…and a rigorous one at that) as lawyers have to go through to practice law, it sometimes amazes me that some attorneys still lack some very basic and common sense. A recent interaction with a high ranking prosecutor reminded me of this and prompted me to write this blog

Not all drunk drivers are alcoholics.

The case that prompted said interaction with the prosecutor involved a drunk driver who caused a collision. The driver’s blood alcohol content was admittedly high at a 0.20 percent. After discussing the matter with the prosecutor, her reaction was "Well, his blood alcohol content was a 0.20 and he caused this crash, so he clearly has a drinking problem."

As lawyers, we are trained to think logically. In fact, the Law School Admission Test (commonly referred to as "LSAT") devotes one third of the exam to specifically test the logic of would-be law students. This portion of the exam was suitably called "Logic Games." This is exactly why it was such a shock to hear that conclusion come from an attorney with so much authority behind their position.

And this was such an obvious logical flaw; the "False Cause Logical Fallacy" to be specific. The name might not sound familiar, but how the fallacy works certainly will.

A causes B when there is no causal relationship exists or when there is merely a correlation between A and B.

The drunk driver in my case was not a heavy drinker nor was he a regular drinker. He drank occasionally when he was out to dinner or with friends. It can hardly be said that he had a drinking problem. He merely made the poor decision to drive after one of his infrequent drinking occasions.

In 2008, a study was published in the journal Alcoholism: Clinical & Experimental Research which suggested that almost half of who drove while intoxicated were only occasional drinkers.

Medical epidemiologist at the U.S. Centers for Disease Control and Prevention, Dr. Nicole T. Flowers along with her colleagues analyzed data from a 2006 survey where more than 350,000 adults were questioned about behavioral risks such as drinking and drunk driving. They found that 84 percent of drunk drivers had been binge drinking. "Binge drinking" was defined as four or more drinks in one sitting for women and five or more drinks in one sitting for men.

The researchers, however, also identified "heavy drinkers" as women who consumed more than one drink a day and men who consumed more than two drinks a day. And after categorizing the two groups, they found that binge drinkers who were not heavy drinkers made up 49 percent of those who drove while under the influence.

While I’ve devoted my career to defending drunk drivers, I understand that drunk driving is a problem and I would never condone it. But I also understand that people are people who will always make mistakes.

So here’s my plea to anyone finding themselves agreeing with the prosecutor’s conclusion: Please don’t let your social distain for drunk driving affect your ability to think logically and make judgments about a person without knowing the individual circumstances of that person or their case.

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