Tag Archives: DUI Case

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.

 

DUI Stop After an Anonymous Tip

The holiday season is fast approaching and before you know it, law enforcement will be ramping up its efforts to catch drunk drivers. Their efforts will inevitably include saturation patrols and DUI checkpoints, but they might also include, as they’ve done in the past, an ad campaign encouraging motorists on the road to contact law enforcement if they suspect that another driver is under the influence.

If an anonymous caller tips off police that someone might be driving drunk, the officer has no personal knowledge of facts that would lead them to believe that someone is driving drunk. The officer is only going off of what the tip had said. The tip could be accurate, it could be a lie, or it could just be mistakenly inaccurate. An officer must have probable cause to stop a driver on suspicion of a DUI, and probable cause means that the officer has reasonable and trustworthy facts that the driver is drunk.

The question becomes: Can an anonymous tip give an officer the required probable cause to stop a driver on suspicion of driving under the influence?

The United States Supreme Court in 2014 concluded in the case of Navarette v. California that an officer can use an anonymous tip as the basis for a DUI stop.

In Navarette v California, a motorist was pulled over by California Highway Patrol after an anonymous tip. The anonymous tipster told the dispatcher that they had been run off of Highway 1 near Fort Bragg by someone driving a pickup truck and provided the pickup’s license plate number. As the CHP officer approached the pickup, they smelled marijuana and discovered four bags of it inside the bed of the truck.

Officers identified the occupants of the truck as brothers Lorenzo Prado Navarette and Jose Prado Navarette.

At trial, the brothers filed a motion to suppress evidence claiming that the officers lacked the reasonable suspicion needed to stop them, thus violating the Fourth Amendment of the United States Constitution. The judge, however, denied the motion. The brothers then pleaded guilty to transporting marijuana and were sentenced to 90 days in jail, but appealed.

At the appellate level, the court ruled against the brothers saying, “The report that the [Navarettes’] vehicle had run someone off the road sufficiently demonstrated an ongoing danger to other motorists to justify the stop without direct corroboration of the vehicle’s illegal activity.”

The brothers appealed again, this time to the United States Supreme Court. Once again, the court concluded that an anonymous tip alone can give law enforcement the justification to pull someone over on suspicion of driving under the influence.

In quoting the previous case of Alabama v. White, the Supreme Court said, “[U]nder appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.’”

In finding that the anonymous tip was reliably, the court relied on the fact that the caller claimed eyewitness knowledge of dangerous driving, the fact that the tip was made contemporaneously with the eyewitness knowledge of the dangerous driving, and the fact that the caller used 911 to make the tip (knowing that the call could be traced).

According to the Court, if the tip bears “sufficient indicia of reliability,” officers need not observe driving which would give rise to suspicion that a person was driving under the influence or even that the driver committed a traffic violation. They only need the unverified and unsupported anonymous tip. 

Does anyone else see the problem here?

Justice Scalia did and he voiced his concern in his dissent to the majority opinion in Navarette v. California.

 “Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road…are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.”

Anonymous tipsters are not necessarily reporting on drunk drivers (they don’t know if who they’re reporting on is even drunk). Rather, they are reporting driving errors, any of which can be interpreted as drunk driving. Everybody makes mistakes while driving. In fact, it might be fair to say that no driving trip is perfect and that all driving trips, no matter how short or simple, contain some mistakes. This necessarily means that everyone on the road is a target of anonymous tipsters and anyone can be stopped on suspicion of DUI simply because someone else reported their mere driving mistake (even if they are not drunk).

 

DUI for Sobering Up in Your Car

Imagine the following scenario: A person drives to a bar only expecting to have a couple of drinks, certainly not enough to keep them from being able to drive home. Lo and behold, the person has more than expected and, instead of driving home, they decide to sober up by sleeping it off in the car. While the person is asleep in their vehicle, a police officer walks by and notices the person in their vehicle.

Can the officer arrest the person for a DUI when they were attempting to sober up in their car, but not actually driving?

As a preliminary matter, the police officer would have to have probable cause (reasonable and trustworthy facts that the person was driving under the influence) before the officer could investigate them for a DUI. Let’s assume for discussion purposes that the officer had probable cause to investigate for a DUI.

Whether the officer could arrest the person for a DUI for merely sobering up in a vehicle depends on the state where the incident occurred.

Some states hold that a person can be arrested, charged, and convicted of a DUI if they are in “dominion and control” of their vehicle with the ability to drive it, even though they may not have actually driven it.

California, on the other hand, requires at least some proof that the person actually drove the vehicle.

In the 1991 California Supreme Court case of Mercer v. Department of Motor Vehicles, the court held that the word “drive” in California’s DUI law means a person must volitionally and voluntarily move the vehicle. The court has held that even a “slight movement” is enough to meet the requirement that the defendant drove the vehicle as long as it was voluntary.

Having said that, just because an officer doesn’t see someone drive, as is the case with many DUI arrests, doesn’t mean that the person can’t be arrested for a DUI or something else.

Just because the officer did not see an intoxicated person drive a vehicle doesn’t mean that they didn’t actually drive the vehicle, and if the officer can obtain circumstantial evidence that a person drove, then that might be enough to support the “driving” requirement for a DUI arrest and conviction.

For example, an intoxicated person is found asleep in their vehicle which is in the middle of the road or an unconscious and intoxicated person in their vehicle after crashing it, can still be arrested for a DUI. The vast majority of these types of cases, the officer does not observe the person drive and then stop in the middle of the road. That, however, is not necessary. The prosecutor only needs to introduce facts that can create the inference that the intoxicated person drove without directly proving that the intoxicated person drove.

In other words, if the prosecutor introduces the fact that the person was found intoxicated in the middle of the road, the prosecutor can argue that the person would not have come to the middle of the road had they not driven there. The same thing can be said for someone who is unconscious at the steering wheel of a vehicle involved in an accident.

What about when there is no circumstantial evidence to suggest that the person drove?

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, the officers still arrested the defendant for drunk in public. 

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

Although California requires that a person actually drive a vehicle before they can be convicted of a DUI, no person should be in a vehicle, whether they’re driving it or not, if they are intoxicated. Why risk a California DUI, or some other charge like drunk in public?

 

Does Entrapment Apply to DUI Stops?

Many people often ask whether a DUI checkpoint is entrapment. Some ask whether it is entrapment when an officer who parks his or her patrol vehicle outside of a bar or another alcohol-serving establishment and catches a drunk driver.

Unfortunately, the answer is no in both cases, and the misconception lies in the common use of the word “trap” and the mistaken belief that it applies to the legal definition of entrapment.

In the case of People v. West, the court defined entrapment as “the conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Persuasion or allurement must be used to entrap.”

Like many things in law, this rather confusing definition was later refined by the court in People v. Barraza when it said, “[T]he proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense?”

Simply put, entrapment is a defense when the officer forces someone to do something when that person would not have otherwise done so.

With a DUI, entrapment would occur if the police forced the driver to drink when they would not have done so or force the driver to drive when they would not have done so.

Neither is the case with DUI checkpoints or when an officer parks their patrol vehicle outside of an alcohol-serving establishment.

Although many people consider checkpoints to be “traps,” they do not fit within the legal definition of entrapment. If a drunk driver is stopped at a checkpoint, the officer has neither forced them to drink nor drive. If a drunk driver is stopped and arrested at a checkpoint, it’s because they chose on their own to drink and drive before the encounter with the officer. Similarly, if an officer spots a driver coming out of a bar, follows them out onto the streets, then pulls them over for a DUI, the officer has neither forced them to drink nor drive.

Additionally, in both cases, the officers had the legal right to be at the location where they were. DUI checkpoints time and time again have been held by numerous courts to be constitutional. In fact, in California, one of the requirements a DUI checkpoint must adhere to in order to be constitutional is that drivers must be allowed to lawfully turn away from the checkpoint (Yes, that’s right, drivers cannot be forced to go through a DUI checkpoint). When an officer parks outside of a bar, typically they are in a public space, such as a parking lot, where they have a right to be.

Having said that, just because a person is driving through a checkpoint or observed leaving a bar does not mean that the officer has a right to arrest them on suspicion of a DUI. The officer must have probable cause (the amount of evidence needed for an officer to make an arrest) to believe that a person is driving drunk before an arrest can be made.

At a checkpoint, the officer obtains the evidence (i.e. probable cause) needed to make an arrest by asking passing drivers whether they’ve had anything to drink, observing symptoms of intoxication, and, of course, breathalyzing drivers. Without additional evidence that a person is driving drunk, an officer cannot make an arrest.

Similarly, the mere leaving a bar does not give the officer probable cause that a person is driving drunk, although the officer may suspect the person is driving drunk. If, however, an officer observes a person commit a traffic violation after leaving a bar, they can be pulled over. The traffic violation stop can be used as a pretext to investigate for a DUI.

Can entrapment ever be used as a defense for a DUI? Consider the following.

A person goes to a bar to have a drink. Thinking that they might be over the legal limit of 0.08 percent blood alcohol content, they lawfully sit on a bench outside of the bar. A few minutes later, a police officer approaches the person and demands that they drive out of the parking lot. The person obliges, gets in their car, and drives away.  As the person drives away, the officer stops and arrests the driver for driving under the influence.

Because the driver drove as a result of the officer’s demand when they would not have otherwise done so, entrapment may be a defense for the driver.

While this scenario is uncommon, it has happened. However, in the vast majority of California DUI cases, unfortunately the defense of entrapment cannot be used.

 

Labor Day Checkpoints and Knowing What to Do

Law enforcement agencies throughout Southern California will increase their efforts to thwart would-be drunk drivers this month and on into the Labor Day weekend. One tool I know they plan on using during this time is the DUI checkpoint.

According to the National Highway Traffic Safety Administration (NHTSA), Labor Day weekend is one of the deadliest holidays of the year when it comes alcohol-related collisions. In 2017, there was 376 deadly crashes nationwide for the Labor Day holiday period which ran from September 1st to September 5th. Of those 376 deadly collisions, more than one-third (36%) involved drunk drivers.

Last year, California saw two deaths and 31 injuries on Labor Day.

Since there is an increased chance of getting stopped at checkpoint in the next couple of weeks, it makes sense to remind our readers what their rights are when it comes to a California DUI checkpoint.

The 4th Amendment of the United States Constitution requires that officers have probable cause and a warrant before they can seize and/or search a person. Well, what is a checkpoint? It is certainly a seizure since the police are stopping people on the roads when they would otherwise be free to drive without interruption. It may be also a search if the law enforcement has drivers take a breathalyzer since by doing so they are looking for evidence of drunk driving.

So, checkpoints can involve both searches and seizures, yet police don’t have warrants to stop and breathalyze drivers. How?

In the 1987 case of Ingersoll v. Palmer, the California Supreme Court set forth guidelines to ensure the constitutionality of checkpoints in California such that law enforcement doesn’t need a warrant. Those guidelines are:

  1. The decision to conduct checkpoint must be at the supervisory level.
  2. There must be limits on the discretion of field officers.
  3. Checkpoints must be maintained safely for both the officers and the motorists.
  4. Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
  5. The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
  6. The checkpoint must show indicia of official nature of the roadblock.
  7. Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.
  8. Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.

Three years later in the case of Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop. In doing so, the court held that sobriety checkpoints were constitutional even though officers were technically violating the 4th Amendment (because they don’t have a warrant when they seize and search motorists at DUI checkpoints).

Now that we’ve determined that sobriety checkpoints are constitutional, I would be remiss if I did not tell you what your rights and obligations are, as the driver, should you happen to find yourself stopped at a sobriety checkpoint.

Based on the last of the Ingersoll v. Palmer requirements, checkpoints must be highly visible. As a result, drivers are often aware of the checkpoint before they drive up to it. Believe it or not, drivers are allowed to turn around so as to avoid the checkpoint. They, however, must do so without breaking any traffic laws such as making an illegal U-turn.

If you do not turn away, but rather pull up to the checkpoint, the officer might first ask you some questions such as: Where are you coming from? Where are you going? Have you had anything to drink?

The 5th Amendment to the Constitution gives you the right not to say anything to law enforcement ever. And don’t! Invoke your right to remain silent by telling the officer, “I would like invoke my 5th Amendment right and respectfully decline to answer any of your questions.” Now keep your mouth shut until given the opportunity to call your attorney.

Surely this is not going to sit well with the officer. They may, at that point, have the driver exit the car and request that they perform field sobriety tests. Drivers should absolutely decline to perform the field sobriety tests. They are an inaccurate indicator of intoxication, but fortunately they are optional. I and many other people would have trouble doing them sober.

At this point, the officer is likely fuming, but who cares? You are exercising your constitutional rights.

As a last-ditch effort, they may request that you take a roadside breathalyzer commonly referred to as a “PAS” (preliminary alcohol screening) test. Under California’s implied consent rule, as a driver, you must submit to a chemical test after you have been arrested on suspicion of a DUI. The key word is “after.” Therefore, when you happen upon a checkpoint and the officer requests that you to take the PAS test, you can legally refuse. If, however, the officer has arrested you on suspicion of DUI you must submit to either a blood test or a breath test.

This Labor Day be on the lookout for sobriety checkpoints. But should you find yourself about to drive through one with no way to legally turn around, know your rights and use them. That’s what they’re there for.