Should Every Step of the DUI Arrest be Recorded?

Thursday, August 30th, 2018

A report about a South Carolina law has raised the question, “Should every step of the DUI arrest be recorded?” If you’ve my previous posts, you know my answer is a vehement, “yes.”

A South Carolina law requires that the entirety of a DUI stop and arrest must be recorded otherwise the driver’s charges could get dismissed. And a new report suggests that DUI conviction rates have decreased significantly as a result of the law.

Many drunken drivers walk free in SC because of strict law, report says

August 29, 2018. The Post and Courier – In South Carolina, a police dash camera pointed the wrong way could be considered cause for a judge to throw out a drunken driving case, even when deputies say a motorist was clearly impaired.

State law, which critics describe as one of the strictest in the country, requires videotaping virtually every step of a DUI arrest. If the suspect is out of the shot of a dashcam or body camera or the video does not work, courts could dismiss the charges.

Greenville-area prosecutors who handle nearly 1,000 DUI cases a year say that loophole in state law, along with others, hurts conviction rates that have been criticized by Mothers Against Drunk Driving in a report released this week.

The report examined the outcome of hundreds of DUI cases in the Greenville and Columbia areas and found less than half resulted in drunken driving convictions.

An assistant solicitor handling a pending DUI case said she’s preparing arguments for why the judge should accept video into evidence because part of an arrest wasn’t captured on screen. Another Greenville prosecutor said a judge dismissed a case this year because a suspect couldn’t be seen being given Miranda rights, even though a dashcam captured the audio.

“It’s just a really odd and unreasonable requirement,” said Jennifer Tessitore, assistant solicitor for the 13th Circuit.

Technical glitches often spur prosecutors to offer suspects plea deals for lesser crimes, such as reckless driving, she said.

The issue is highlighted in a new report from the South Carolina chapter of Mothers Against Drunk Driving that calls on S.C. leaders to bring down the state’s more than 330 drunk driving deaths a year, which ranks sixth in the nation.

A majority of misdemeanor DUI cases in the Greenville area, or roughly 49 percent, are pleaded down to a lesser charge, while roughly 45 percent result in convictions, according to the 13th Circuit’s analysis of more than 1,200 cases between 2016-17 that was released Tuesday.

That conviction rate is much lower than other major crimes, 13th Circuit Solicitor Walt Wilkins told reporters Tuesday. He pointed to the state requirements on video evidence as a key hurdle.

“Our ability to (prosecute) is hindered by this current statute,” Wilkins said. “It makes it more difficult than it could, or that is allowed by other states.”

For the Columbia area, the conviction rate was 48 percent and another 48 percent of cases were pleaded down, according to MADD’s own analysis of 160 cases between 2016-17.

Defense lawyers who have handled drunken driving cases said the video requirement is no excuse for a poor conviction rate.

“They say it’s a burdensome technicality, but there’s nothing technical about a fair process,” said Joe McCulloch, a Columbia lawyer who handles dozens of DUI cases a year.

Then-state Rep. Ted Vick had a DUI charge thrown out in 2014 because officers failed to videotape the lawmaker being read his Miranda rights. The state has required some form of video evidence in DUI cases since 1998, said Sen. Brad Hutto, a Democratic Orangeburg attorney who worked on the legislation.

Requiring officers to record their interactions has actually strengthened evidence in DUI cases for juries to consider, Hutto said.

“If you have two people there, it’s your word against mine,” he said. “Who are you supposed to believe? If you have a video tape, you can see who’s actually right.”

More than $220,000 in grants from the S.C. Department of Public Safety funded the MADD study. Another $72,000 grant is funding a similar study of the Charleston area, which is expected to be published next year.

Fresh concerns about impaired driving in Charleston were raised in July when a motorist careened onto a sidewalk, fatally striking an 11-year-old girl. Though the driver had no alcohol in his system, police suspected that he had used drugs before the crash.

In June, police said a woman with a blood-alcohol content nearly twice the legal limit swerved into the wrong lane, causing a head-on collision with congressional candidate Katie Arrington, who was traveling on the Savannah Highway in Charleston County.

 

Guess what, critics of the law? You have it because we can no longer trust the arresting officer’s word that the stop was lawful, that procedures were done properly, and that the driver was actually drunk! If prosecutors want a higher conviction rate, how about training officers better or making sure that the equipment is functioning properly?

I’ve been doing DUI defense long enough to know that police lie in DUI police reports more often than I’d like to admit.

In a recent case of mine, a driver told the officer who stopped him that he had one glass of wine with dinner. This prompted the officer to have the driver perform field sobriety tests. Although there was sufficient space in front of the officer’s vehicle and within view the dashcam to perform the tests, the officer took the driver out of the camera’s view. Lo and behold, the officer’s report indicated that the driver failed all of the tests. However, after the driver was arrested and submitted to a chemical test, it was revealed that he had a blood alcohol content of only 0.02 percent, a mere ¼ the legal limit of 0.08. Either the driver failed the field sobriety tests while being sober, which is a problem in and of itself, or the officer lied in his report. I tend to believe the latter.

This shouldn’t be about giving the prosecutors more convictions. It must be about truth, fairness, and transparency with officers who make DUI stops. I applaud South Carolina, and every state should have similar laws.   

Share

Probation for “One of the Worst DUI Offenders in US”

Thursday, August 23rd, 2018

A Minnesota woman, who has been dubbed by police as “one of the worst DUI offenders in the United States” was sentenced on her seventh DUI conviction to 24 months of probation.

Tasha Lynn Schleicher, 41, or New Hope, Minnesota was arrested in April of this year after police responded to a report of a woman passed out behind the wheel of her vehicle at a gas station in Riverside, Illinois.

Upon finding Schleicher, law enforcement said they found her alert and conscious with keys in the vehicle’s ignition and the engine running. Law enforcement also said that it appeared that Schleicher had mistakenly attempted to fill her vehicle’s gas tank with kerosene instead of gasoline while at the kerosene pump.

Law enforcement also noticed that Schleicher appeared to be highly intoxicated and had an open bottle of Crown Royal Canadian whiskey in her front passenger seat.

When law enforcement requested that Schleicher step out of her vehicle so that she could perform field sobriety tests, she was “in total disarray, not wearing shoes, and her clothes were literally falling off her.”

Schleicher proceeded to tell the arresting officers that she had 11 children who she could not find. Witnesses said that Schleicher appeared to be the only one in the vehicle and, after a search of the area, officers found no children nearby.

After refusing the field sobriety tests, Schleicher was arrested on suspicion of driving under the influence.

After the arrest, officers learned that Schleicher’s 11 children had been taken away from her for reasons all related to her alcohol and drunk driving incidences.

The Minnesota mother told law enforcement that she was in Illinois to drop off her 15-year-old son – the only child still in her legal custody – to “party” for spring break. She also told law enforcement that she was pregnant, bleeding, and having a miscarriage. Schleicher was then transported to the hospital where it was confirmed that she was, in fact, not pregnant.

“She’s lied about her name, date of birth, Social Security number and even that she was pregnant, leaving officers no choice but to take her to the emergency room for treatment for something completely fictitious. I believe her trip to the hospital was really an attempt by her to escape custody,” Riverside Police Chief Thomas Weitzel said.

After he arrest, law enforcement determined that Schleicher had outstanding warrants in three states and six prior DUI arrests in Kentucky, Wisconsin, Indiana, California, Oregon, and Minnesota.

“Schleicher’s history of six prior DUI’s in six states, with three outstanding warrants from various states speaks to her transient nature. When she was arrested in a state, she would just not show up in court unless she was held in custody. That’s one of the reasons for so many outstanding warrants. In Minnesota she was arrested with children in the car, and alleged to have been breastfeeding one child while driving intoxicated,” Weitzel said.

Although Schleicher was indicted by a grand jury on seven felony counts of aggravated drunk driving, driving with a revoke license, driving without insurance, and transporting open alcohol, all charges were dropped except for a single DUI charge as part of a plea deal.

On Monday, Schleicher pleaded guilty to that single DUI charge and was sentenced to 24 months of probation.

“A sentence of 24 months of probation for Ms. Schleicher is, simply put, disappointing,” Weitzel said in an emailed statement Tuesday. “This continues to demonstrate that as a nation that drunk driving and drugged driving are not treated as a serious criminal offenses. Society’s views need to change and habitual DUI offenders need to be held accountable for their actions.”

You can form your own opinions about whether two years of probation is appropriate or not. What is not up for opinion is the fact that that alcoholism is a legitimate disease and one that cannot be cured with punishment as evidenced by Schleicher.

 

Share

California Man Faces DUI after Police Find Him Unconscious in Running Car

Friday, June 1st, 2018

A Sonoma man was found unconscious in his parked, running car by Petaluma police. Officers arrested the man, who had recently been convicted of a DUI, on suspicion of another DUI.

Joel Barrera, 34, was found asleep in his vehicle on May 22nd by Petaluma police officers. Although the car was parked in the parking lot of a local park, the engine was running. After waking Barrera, officers determined that he was under the influence of alcohol with a blood alcohol content of almost twice the legal limit of 0.08 percent.

What’s more, officers found a semi-automatic handgun and a loaded magazine in his car and discovered that Barrera was already on probation for a DUI conviction out of Marin County for which his license was currently suspended.

Barrera was arrested on suspicion of driving under the influence, carrying a concealed gun in a vehicle, driving on a suspended license, and violating probation.

We’ll have to wait and see what happens to Barrera. But until then, you might be wondering how it is that someone can even be arrested on suspicion of driving under the influence if they weren’t even driving.

If a person is found sleeping in their car, as was the case with Barrera, it is likely that any arresting officer did not see the person drive. Therefore, there may not be any direct evidence for a prosecutor to prove that a person drove.

Just because law enforcement does not actually see a person drive under the influence doesn’t mean they can’t be found guilty of driving under the influence. A prosecutor can use circumstantial evidence to prove that a person drove to where they were found while under the influence and then fell asleep in their car.

For example, if an intoxicated person is sleeping in their vehicle in the middle of the road or at the scene of a collision (believe me, it happens more often than you would think), then the prosecutor can raise those facts to create the inference that the person had driven to those locations. In other words, the prosecutor may argue that, based on the surrounding circumstances, it is reasonable to infer that the defendant drove to the location where they were found even though there is no direct evidence that they drove there.

On the other hand, if those facts do not exist that would create the inference that the defendant drove then the prosecutor is going to have difficult time proving that the person actually drove the vehicle while being under the influence. This scenario presents itself from time to time as well. But the person may still be charged with another crime such as drunk in public.

In the 1966 case of People v. Belanger, officers found the intoxicated defendant asleep in his vehicle which was located in a parking lot. Although the facts in that case were not enough to create the inference that the defendant had driven to the location while under the influence because he could have driven there sober, drank, and then fell asleep, the officers did arrest the defendant for drunk in public.

The Court concluded that, in order to prevent the defendant from waking up and then drive away drunk, they needed to arrest him on suspicion of being drunk in public.

Needless to say, no person should be in a vehicle when they’re intoxicated whether they’ve driven or not. A prosecutor may still be able to successfully argue the person drove when, in fact, they didn’t. Furthermore, if a prosecutor cannot prove that the person drove, they may still be able to secure a conviction for some other crime such as drunk in public.

Share

LAPD Officer Charged with DUI Murder

Tuesday, April 24th, 2018

A Los Angeles Police Department officer was arrested last week on suspicion of three counts of murder as the result of a suspected DUI-related collision in Whittier last fall.

On September 26, 2017, Edgar Verduzco, 27, was allegedly speeding in the carpool lane under the influence of alcohol on the 605 freeway in Whittier, California, when his Chevy Camaro collided into the rear of a Nissan. The Nissan burst into flames and Verduzco’s vehicle went on to hit a second vehicle.

A family of three – Mario Davila, 60, Maribel Davila, 52, and their son, Oscar Davila, 19 – were the occupants of the Nissan and all three died as a result of the collision. The occupant of the second vehicle suffered minor injuries. Verduzco suffered a broken nose.

Before the collision, Verduzco posted a video on Instagram from a bar and included the hastag #Dontdrinkanddrive. The video depicted a male in a police uniform with a badge with the name “Verduzco.” The video also showed an animated person sitting in a car which appeared to be sitting on the bar counter with beers.

Although the LAPD could not verify the authenticity of the post or the account’s owner, KTLA reported that other videos on the account show a Chevy Camaro and a police officer which appears to be Verduzco in an LAPD patrol car.

For anybody else, officers responding to a collision where drunk driving was suspected would have whipped out their breathalyzers quicker than a gunslinger in the old west. Suspiciously, however, the officers who responded to the collision did not give Verduzco a breathalyzer to determine his BAC at the scene even though, according to California Highway Patrol, he showed signs of intoxication. Instead, a blood test was later conducted and Verduzco was subsequently released on bail pending the outcome of the blood test.

Although it is unclear whether the blood result is in, Verduzco was re-arrested at a friend’s house in Long Beach last week and was booked on three counts of second degree murder, three counts of gross vehicular manslaughter while intoxicated and drunk driving causing injury.

Last Friday, Verduzco continued his arraignment to May 16th. However, it was not before Judge Deborah S. Brazil set his bail at $6.1 million.

It is unclear why Verduzco is being charged with murder in addition to the “lesser-included” vehicular manslaughter. If you’ve read my numerous posts on a DUI-murder charge (also known as “Watson murder”), you’ll know that to charge murder, prosecutors need to prove that the driver was expressly aware of the dangers of driving drunk, yet they did so anyways. This is usually proven when the driver suffered a prior DUI conviction and is admonished on the dangers of driving drunk. Since there is no indication that Verduzco suffered a prior DUI conviction, my guess would be that his position as a law enforcement officer, whose job it is to arrest people on suspicion of DUI, makes him expressly aware of the dangers of driving drunk.

Verduzco is an Army veteran who joined the LAPD in 2015 after returning from a tour of duty in Afghanistan.

“There’s never an excuse for driving under the influence, and if Officer Verduzco is found guilty of whatever he is accused of, then he should suffer the consequences for his reckless actions,'’ said the Los Angeles Police Protective League in a statement issued shortly after the collision.

“My heart goes out to the victims and families so tragically impacted by Verduzco’s criminal actions,” said police Chief Charlie Beck. “Police officers have a moral and legal obligation to abide by the laws that they enforce. [The] arrest demonstrates how seriously we take that obligation.

Stay tuned for updates.

Share

Drunk Driver May Finally Lose License After 28th DUI Arrest

Friday, October 6th, 2017

Danny Lee Bettcher of New York Mills, Minnesota, has been arrested for driving under the influence for the 28th time. Yes, that’s correct, 28th time.

This past week, an off-duty police officer spotted Bettcher drinking at a local Veterans of Foreign Wars (VFW) post. The off-duty officer notified authorities after he saw Bettcher leave the VFW post in his vehicle.

Authorities caught up with Bettcher and pulled him over after he ignored a stop sign and drove onto the highway at 10 mph while swerving. According to officers, Bettcher had bloodshot eyes and a beer can was located behind the passenger’s seat.

“I am way over. Take me to jail,” Bettcher told police after refusing to take a sobriety test, according to the criminal complaint.

According to Assistant County Attorney, Jacob Thomason, Bettcher could be sentenced up to seven years in prison.

Although Bettcher’s license was valid at the time of the arrest, it included “a restriction that any use of alcohol or drugs invalidates the license,” state Department of Public Safety spokeswoman Megan Leonard told the Star Tribune.

As of last week, a revocation of Bettcher’s license was pending.

Bettcher, who attributes his alcoholism to post-traumatic stress disorder following his military service, has already served four years behind bars for other DUI convictions and has been ordered to go to treatment at least 12 times.

So what would it have taken for Bettcher to have his license permanently revoked had he been in California?

The California license suspension can be rather complicated. Suffice it to say, on a first time DUI, a person faces a six-month suspension assuming the driver was over the age of 21, there was no refusal of the chemical test, and there were no injuries as a result of the DUI. You can read my previous posts about the nuances of a first-time DUI license suspension.

If, however, a person suffers a DUI and they have previously been convicted of a DUI within the past 10 years, then the suspension increases significantly.

A second DUI will trigger a two-year suspension and a third DUI will trigger a three-year suspension. If a driver suffers a fourth DUI within 10 years, they are facing a four-year suspension, but they may also be deemed a “habitual traffic offender” and can have their license revoked permanently.

Although Bettcher’s 27th DUI arrest occurred in 2010, it’s unclear whether any of his previous DUI’s occurred within a 10-year window.

I’m no mathematician, but at 64-years-old, as Bettcher was, I can’t imagine that the convictions could have been spaced out such that he would have been able to avoid the habitual traffic offender status and permanent revocation here in California.

Share