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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Drunk Driver Thanks Police for “Saving Her Kid from Her”

Thursday, November 22nd, 2018

A drunk driver told police that she had a reason to be thankful this Thanksgiving right after she was arrested for a DUI.

A drunk Crystal Elaine McMillan, of Indiana, apparently flew into a fit of rage after she discovered that her friend would not be cooking a turkey for Thanksgiving this year. That friend was the passenger in McMillan’s truck. Between them sat McMillan’s 6-year-old son.

As McMillan approached an intersection, swerving from lane to lane, her passenger told her to “slow down.” McMillan, still mad at her friend, said, “I’ll show you” and proceeded to speed up. By the time she reached the intersection the light had turned red. McMillan collided with a vehicle turning left in the intersection.

McMillan fled, but was apprehended after a man called police saying a drunk woman was on his property. McMillan reportedly told police that she was too drunk to attempt field sobriety test. She admitted to drinking before the crash. She also, however, admitted to drinking after the collision because she “knew she was going to jail.”

Following her arrest, McMillan thanked the arresting officer for “saving her kid from her.”

McMillan was charged with three counts of felony reckless endangerment and DUI, amongst a host of other charges.

While I can’t tell you what McMillan is looking at in Indiana, what I can say is that a DUI with a child in the car in California is no walk in the park.

Not only is a person looking at the punishment under California’s DUI law, which can carry up to 6 months in jail and a fine of up to $1,000 for a first time DUI, they are also looking at additional penalties under California Vehicle Code section 23572, also known as California’s DUI child endangerment enhancements.

Under California Vehicle Code section 23572, 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 you were driving under the influence and that there was a minor child under the age of 14 in the car while you drove.

This Thanksgiving be thankful for what you have. You never when those things your thankful for might be taken from you by a drunk driver.

 

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Should You Take a Breathalyzer During a California DUI Stop?

Thursday, October 4th, 2018

There are many misconceptions about what a person should and shouldn’t do during a DUI stop, not the least of which is whether a person should submit to the breathalyzer test. Unfortunately, the answer, like many things in law, is much more complicated than simply “yes” or “no.”

There are actually two breathalyzer tests that can be taken during a California DUI stop. The first is the roadside breathalyzer, often called a preliminary screening alcohol test or “PAS” test, and the second is the “chemical breath test.”

Under California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”

Like the other field sobriety tests that officers hope will give them reason to believe that the driver is intoxicated, the roadside breath test is optional. Having said that, many people don’t even know that the other field sobriety tests are optional. These tests include the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. All field sobriety tests, including the roadside breathalyzer, are optional. Although the officer might threaten to arrest you, stand your ground and politely refuse all field sobriety tests. They are only meant to give the officer the evidence they need to arrest you.

In fact, the officer must advise the driver that the roadside breath test is optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”

Whether the driver has submitted to the roadside breathalyzer or not, the officer must determine if the person is intoxicated and thus should be arrested.

If the officer has the required probable cause to make an arrest for a DUI, whether through the field sobriety tests, the PAS test, or any other information, California’s Implied Consent Law kicks in. Herein lies the difference between a roadside breath test and a chemical test.

Under California’s Implied Consent law, which is codified in California Vehicle Code section 23612(a)(1)(A), “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”

Simply put, if you have a license and you drive in California, you have impliedly consented to submit to the chemical test after you have lawfully been arrested for a DUI, which can either be a breath test or a blood test. If the driver is like me and hates giving blood, then they must provide a breath test. Conversely, if a person opts against the breath test, they must submit to the blood test.

So, to answer the question that is the title of this article, you do not have to (nor do I recommend) submitting to the pre-arrest roadside breath test. However, after someone is arrested, they must do either a breath test or a blood test.

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Arrested for a DUI by Robocop

Friday, September 14th, 2018

Could it be that sometime in the future drunk drivers can be arrested by robotic law enforcement? If you’re anything like me, a product of the 80’s, you might be envisioning something like the Terminator, or Robocop. While we may be closer to automated law enforcement than some might think, it’s not as cool as what my imagination envisions.

Motorola has patented an autonomous car that may actually replace law enforcement in the fight against drunk driving.

Called the “Mobile law enforcement communication system and method,” the vehicle as described in Patent 10049419 is a “communication system, comprising: a self-driving vehicle within which to detain a detainee by law enforcement” that has the ability to make an arrest of a drunk driver, reads the drunk driver their Miranda Rights, determines who the driver’s attorney is, calls the driver’s attorney, communicates with a court regarding bail, and allows the drunk driver to swipe a credit card to post that bail.

Don’t believe me? See Patent 10049419 for yourself.

According to the developers, a self-driving vehicle will respond to a DUI stop where “the detained or arrested individual is placed into the self-driving vehicle for initial processing. Depending on the type of incident or alleged infraction, the individual may or may not remain handcuffed within the vehicle, but is detained within at least a portion of the vehicle throughout the process, such as a backseat area. [P]redetermined law enforcement processes and proceedings take place…using the autonomous vehicle’s communication system.

“Depending on the severity of the incident or alleged infraction, the processes and proceedings taking place within the self-driving vehicle may take the form of one or more of testing, booking, arraignment, and even full adjudication, if applicable. For example, the mobile communication system can be used as a mobile test hub for determining alcohol levels, drugs, and/or weapons. Sensors and scanners plugged in within the self-driving vehicle provide preliminary in-vehicle screening tools to help law enforcement officers assess a driver suspected of being drunk, carrying a dangerous or weapon, and predetermined drugs. As air sensors and scanners continue to evolve, the detained individual may simply remain within the vehicle while the tests are processed, analyzed, and results communicated to one or more appropriate recipients. Depending on the status of the detainee’s confinement, results may be communicated, over one or more wireless communications networks, to law enforcement, a remote attorney, and/or an on-call judge which may be contacted by the communication as part of the mobile processes and proceedings.”

Should this ever come to fruition in my lifetime, I’m not sure how I feel about it considering I still use a pin-on-the-wall calendar to keep track of my upcoming events rather than my smartphone. I can say, however, that it may be better than the subjective and often bias determinations made by the human law enforcement officers we deal with today.

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The Right to Remain Silent During a DUI Stop

Friday, September 7th, 2018

Few people know that they have a right not to say anything to an officer who has pulled them over on suspicion of driving under the influence. Sometimes a person knows that they don’t need to speak to the officer but do so anyways because they think that cooperation will help their cause. Sometimes a person just gets so nervous that they don’t even think about it and start answering the officer’s questions.

What kind of questions?

Some questions an officer might ask, and almost always do, include: “Where are you going?” “Where are you coming from?” “Have you had anything to drink?”

The driver is doing him or herself no favors if they answer with, “I’m going home from the bar and I’ve only had one or two drinks.” All the driver has done is given the police more reason to arrest them and given the prosecutor more evidence to convict them.

Maybe the driver wouldn’t have answered the officer’s questions had they been read their Miranda Rights. Why didn’t the officer read the driver their Miranda Rights before the officer started asking questions? When does the officer have to read the driver their Miranda Rights, if at all?

Before we get into when an officer must give Miranda Warnings to a DUI suspect, it makes sense to address why officers give Miranda Warnings in any case.

All statements given to law enforcement must be voluntarily given, even those given during a DUI stop. The United States Supreme Court in the landmark case of Arizona v. Miranda said that a statement cannot be voluntarily given if a person doesn’t know they have a right not to say anything under the 5th Amendment. Therefore, in order for a statement to be voluntarily given, a person must be made aware that they have a right to remain silent.

Whether it is a DUI stop of an arrest for murder, the Court held that an officer must read a person their Miranda Warnings before a “custodial interrogation.” This means after an arrest and before an interrogation.

When a person is stopped on suspicion of a DUI or even a traffic violation that leads to a DUI investigation, the person is not arrested even though they may be temporarily detained. And inevitably the officer is going to ask questions after stopping the person.

Now, the person has the right not to speak to the officers or answer their questions. But the officer’s duty to advise the driver of the Miranda Warnings has not yet been triggered because the person is not yet under arrest.

Questions asked during this time are considered merely preliminary in nature. And yes, any answers given by the driver during this time are fair game for officers and prosecutors to use in a DUI case against the driver.

It would be a different story if, after the DUI stop, the driver is arrested, but not given Miranda Warnings. If the officer then proceeds to ask the driver questions and the driver answers, those answers would be in violation of Miranda and thus in violation of the 5th Amendment.

So whether it’s before a driver is arrested or after with Miranda Warnings given, a person never has to talk to officers or answer questions. The 5th Amendment right to remain silent exists whether the Miranda Warnings are given or not. Use it! When stopped on suspicion of a California DUI, simply respond to any questions with, “I respectfully decline to answer any questions under the 5th Amendment. Am I under arrest or am I free to leave?”

 

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