Miranda Warnings and the California DUI

Thursday, July 20th, 2017

An officer pulls over a person and begins asking questions. “Where are you going?” “Where are you coming from?” “Have you had anything to drink?”

The driver says, “I’m going home from the bar and I had two beers.” Boom. The next thing that the driver knows is that they’re getting arrested and only then did the officer read the Miranda Warnings to the driver.

Why did the officer not read the driver the Miranda Warnings before they arrested him or her? And more importantly, can this be used to help the driver’s DUI 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.

Thus, was we have the Miranda Warnings.  

So, when must law enforcement actually read a person their Miranda Warnings?

Courts have 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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Bill to Help Veterans Avoid a California DUI

Thursday, July 6th, 2017

A new California Senate bill would allow veterans to avoid a California DUI conviction with a treatment diversion program.

Senate Bill 725 would expand a current military diversion program. The bill, if passed, would provide veterans with the opportunity to receive treatment for issues stemming from their service and which often leads them to drink and drive. If the treatment program is completed successfully, veterans could have their case dismissed and avoid a California DUI conviction

To qualify, veterans must have been diagnosed with post-traumatic stress disorder, traumatic brain injury, military sexual trauma or other conditions related to their service.

The Legislative Counsel’s Digest on the bill states, “This bill would…specify that a misdemeanor offense for which a defendant [veteran] may be placed in a pretrial diversion program…includes a misdemeanor violation of driving under the influence or driving under the influence and causing bodily injury. The bill would not limit the authority of the Department of Motor Vehicles to take administrative action concerning the driving privileges of a person arrested for a violation of those provisions.”

Advocates, myself included, argue that the bill’s intent is rehabilitative and deals with the underlying causes of driving drunk.

“We want to get those people into treatment as early as possible. We don’t want them going out jeopardizing future victims,” said the executive director of the California Veterans Legal Task Force in San Diego. “Everybody on both sides of this thing is pro public safety.”

However, not all are fans including district attorneys and other prosecuting agencies.

“We’re very much pro-veteran and pro-treatment, but we want it to be balanced with the needs of public safety,” prosecutor Harrison Kennedy told NBC 7.

Among their primary complaints are that the bill does not address restitution to victims of DUI related collisions which cause injury and that the bill does not limit the number of times that a veteran offender can utilize the program.

“This creates potential for a dangerous cycle of diversion that jeopardizes the safety of our streets and highways,” said the California District Attorneys Association.

The bill does not affect the DMV’s ability to suspend a veteran offender’s license through the administrative action.

If the bill does not pass, veterans face the same consequences of a California DUI as the rest of the public; informal probation, a DUI program lasting three, six, or nine months, between $390 and $1,000 in fines and fees, possibly AA meetings, possibly a Mothers Against Drunk Driving lecture, possibly a hospital and morgue program, and possibly even jail.

The bill easily passed through the Assembly public safety committee last week and will soon be voted on by the full Assembly.

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Avoid a 4th of July DUI

Thursday, June 29th, 2017

The 4th of July is the annual celebration of the day that the original thirteen colonies declared independence from Great Britain. On this day in 1776, delegates from the colonies formed the Continental Congress which drafted and adopted the Declaration of Independence and announced that the United States of America was its own country.

In fact, John Adams wrote that Independence Day “will be the most memorable epoch in the history of America. I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival. It ought to be commemorated as the day of deliverance, by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires, and illuminations, from one end of this continent to the other, from this time forward forever more.”

Amen!

And John Adams was right. The 4th of July is celebrated with pomp and parade…and now also fireworks, barbeques, and alcohol.

Although the holiday lands on a Tuesday this year, it’s not going to stop drunk drivers from hitting the roads nor is it going to stop law enforcement from taking to the streets in full force to catch those drunk drivers.

CHP’s “maximum enforcement period” will begin at 6pm on Friday evening and will conclude at 11:59pm on Tuesday night.

Last year during the enforcement period, CHP arrested 1,118 motorists statewide on suspicion of a California DUI and CHP investigated 35 traffic collisions in which people were killed. According to the National Highway Traffic Safety Association (NHTSA), between 2011 and 2015, a total of 751 people were killed in DUI related traffic collisions during the 4th of July enforcement period.

Don’t celebrate America’s independence by losing your own with jail. Plan ahead to avoid a 4th of July DUI.

Appoint a designated driver. Make sure that the designated driver remains sober. Often is the case that “designated drivers” just don’t drink as much as their passengers. This is not a designated driver, but someone who runs the risk of getting arrested for drunk driving themselves.

Use alternative means of transportation. We live in a time where a trolley is not the only way to get somewhere without driving. Take a taxi…if you can get one. Good luck with that. Use Uber or Lyft or another ridesharing app. Although a little more expensive, they more available and a little nicer than a cab.

Stay the night. Unless you want to be arrested for drunk in public, don’t try this one at the bar you go to. However, if you attend a 4th of July party, ask the host if you can crash on the couch.

Don’t drink. This may not be the most appealing option if you want to partake in the festivities. However, it is the only surefire way to avoid a California DUI if you plan on driving this 4th of July.

 

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Orange County Man Sentenced to 4 Years for 10th California DUI

Friday, June 23rd, 2017

53-year-old Derek Stacy Haskayne from Placentia was sentenced to four years in a California state prison for this 10th, that’s right 10th, DUI since 2011.

This past Tuesday, Haskayne pleaded guilty to driving with a blood alcohol content above 0.08 percent and driving under the influence, both as felonies. His blood alcohol content was 0.11 percent. It would be his 10th DUI conviction.

Haskayne was arrested for his first California DUI back in October of 2011. For that offense, he was sentenced to the standard for a first time DUI; three years of informal probation and a first-time DUI offender program.

Less than a year later, Haskayne had tallied up five more DUI arrests.

According to his attorney, Marlon Stapleton, Haskayne would post bail and pick up a new DUI arrest before the previous cases could resolve. At one point, five different cases were pending at the same time.

“He went through some really bad times when he picked up most of them,” said Stapleton.

Around the same time of his first DUI, Haskayne’s wife of 20 years had left him and records show that she later filed a restraining order against him stating that he was a “severe alcoholic” and that she feared for the safety of their young son.

The first six cases were eventually resolved when the District Attorney’s Office consolidated them and charged him with multiple felonies. In 2013, Haskayne pleaded guilty and was sentenced to a year in jail with five years of formal probation.

During this first jail stint, Haskayne was allowed to enroll in the Orange County Sheriff’s Department’s community work program allowing him to do work for the county during the day and spend nights at home.

However, less than four months after his guilty plea, Haskayne was picked up on his seventh DUI arrest while he was still technically serving his jail sentence. For that, he was sentenced to two years in prison and was released in October of 2014.

In June of the following year, a Laguna Beach Police officer spotted Haskayne lane straddling who then failed to yield when the officer tried pulling him over. Haskayne kept going for about half a mile before he crashed into a cement light pole. Officers found a prescription bottle containing GHB. At the time, Haskayne was in a rehab facility, but was not being tested for GHB.

“Despite any success the offender has demonstrated under supervision, he has shown by his recent arrest that he has substituted his alcohol addiction with another substance that is not detected by standard drug screening,” according to a probation report. “It is unknown if he had a relapse or has been going through the motions finding alternative methods to numb his pain, which he has been open about.”

Haskayne was sentenced to three years in prison for the June 2015 case, but was given 280 days credit for time served while he was in custody pending the outcome.

In 2016, Haskayne crashed in Placentia, California and was arrested on his ninth DUI.

And that brings us to Haskayne’s to the current (and hopefully his last) case which makes number ten. On June 20th, Haskayne accepted a plea deal from Orange County Superior Court Judge Roger Robbins, over the district attorney’s objection, and was sentenced to four years in prison with credit for 286 days. He was also ordered to pay restitution in the amount of $15,272.54.

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Two DUI’s in Less than Three Hours

Thursday, June 15th, 2017

A Wisconsin man was arrested twice in about two and a half hours for driving under the influence according to Ashwaubenon, Wisconsin Public Safety. What’s more, he’s only 18 years old.

18-year-old Preston Bierhals was on his way home from a graduation party last week when he lost control of his vehicle and struck a light pole. Bierhals told responding officers that he was trying to make a phone call when he lost control of his car.

His blood alcohol content was later determined to be 0.157 percent.

At the time, Bierhals’s license was suspended.

“The legal limit for him is zero, but he was still above the 0.08, he was over 0.10 actually both times,” said Capt. Jody Crocker.

Bierhals was booked for “operating while intoxicated” (OWI), which is the Wisconsin equivalent of California’s “driving under the influence” (DUI).

Instead of keeping Bierhals to sober up, officers released him to someone who signed a Responsibility Agreement not to allow him to drive a vehicle.

“They signed an affidavit that says to us that they will take that responsibility in lieu of this person sitting in jail for the next 12 hours. Here of course, that didn’t work,” said Capt. Crocker.

Why didn’t it work? Well, because less than three hours later, an officer working traffic detail for a triathlon that morning spotted Bierhals driving and recognized him from the arrest just hours prior.

The officer stopped Bierhals once again and administered field sobriety tests to which Bierhals failed again. And again he was arrested on suspicion of OWI.

This time, Bierhals’s blood alcohol content was a 0.121. This is consistent with the average rate of alcohol metabolism (burn-off) of 0.015 percent per hour, assuming no more alcohol was consumed since the first arrest.

In Wisconsin, prosecutors cannot file charges for a second drunk driving offense until the citation Bierhals received for the first OWI is resolved.

According to Capt. Crocker, law enforcement is looking into whether charges should be filed against the person whom Bierhals was released to.

Some of you may be thinking, “What could happen to someone like that?”

Well, here in California a minor who is caught driving with alcohol in their system can face several charges and penalties.

California Vehicle Code section 23136 makes it illegal for a minor to have a blood alcohol content of 0.01 percent or greater while driving. This is knowns as California’s “Zero Tolerance” law for underage drivers. Under this law, a minor faces a one-year suspension of their driver’s license.

California Vehicle Code section 23140 makes it illegal for a minor to have a blood alcohol content of 0.05 percent or greater while driving. Unlike section 23136, this section is an infraction which can result in fines of up to $100 and a one-year suspension of their driver’s license.

However, in Bierhals’s case, had it occurred here in California, prosecutors would have likely charged him with the standard adult DUI under California Vehicle Code section 23152 (driving under the influence and driving with a blood alcohol content of 0.08 percent or greater). A violation of section 23152 is a misdemeanor which carries a three to nine month DUI program, three years of summary probation, up to $1000 in fines, up to six months in jail, and a six-month suspension of driving privileges.

Of course, Bierhals is facing the penalties for a second-time DUI as well. A second time DUI, here in California will also be charged as a misdemeanor, but this time, he’s facing between 96 hours and one year in jail, an 18-month DUI program, and two-year suspension of driving privileges.

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