Lung Condition Causes Woman to Fail Breathalyzer

Thursday, April 5th, 2018

According to the American Lung Association, Chronic Obstructive Pulmonary Disease, commonly referred to as COPD, which includes chronic bronchitis and emphysema, is a chronic lung disease that makes it difficult to breathe. And according to the World Health Organization, COPD affects 65 million people worldwide. COPD, however, affected one Canadian woman in an unexpected way; it caused her to fail a breathalyzer.

Connie McLean, a 64-year-old woman from New Brunswick, Canada, who suffers from COPD, said that the condition can make everyday living difficult.

“When I’m carrying in wood, I can only carry in a couple sticks at a time and I usually have to stop and get some air before I go and get some more,” she said last week. “And shoveling is even worse.”

Early last month, McLean was pulled over by local law enforcement. The officer asked her if she had been drinking. McLean responded that she had a beer that afternoon. At that point, the officer produced a breathalyzer to try and determine her blood alcohol content.

As a result of the COPD, McLean could not produce a strong enough of a breath sample to provide a breathalyzer reading.

“I tried several times, but due to COPD and mucous in my airway I wasn’t successful,” she said. “And he just almost hollered, ‘You’re not trying, you’re under arrest and you’re going to jail.’”

McLean was charged with refusing to comply with the breathalyzer test which resulted in her vehicle being impounded for 30 days and her driver’s license being suspended for 90 days.

“It makes perfect sense to us that if you have severe COPD that it would be impossible to exhale for any length of time,” said Henry Roberts of COPD Canada. “I would hope the police would show some compassion to people who have difficulty breathing.”

McLean has a court date next month and intends on fighting the charge.

McLean’s predicament is not an unusual one, even here in the United States. Often, people are unable to provide a sufficient breath test for a number of health-related reasons. Breathalyzers require deep lung air, known as alveolar air, to be able to produce a blood alcohol content reading. If a person does not advise an officer of the health issue that might prevent them from providing alveolar air, the officer may believe that the person is deliberately trying to provide a sufficient breath sample.

California courts have found that an inference can be made that a person is deliberately attempting to avoid providing a sufficient breath sample if the facts permit. If such an inference is made, the court treats it as a refusal.

Fortunately, here in California, a driver is not required to give a breath sample for a roadside breathalyzer, commonly referred to as a “preliminary alcohol screening” test or “PAS” test. Refusing it will not result in additional penalties with either the court or the DMV. In fact, many DUI attorneys like myself recommend politely refusing the PAS test.

Of more importance, however, is the mandatory “chemical test” under California’s “implied consent law.” Under the implied consent law, a driver must submit to a chemical test once they are lawfully arrested on suspicion of a DUI. The chemical test can be either a breath or a blood test. Only for a refusal of the chemical test, not the PAS test, may a driver be punished.

Here in the California, a refusal of a chemical test can result in jail time, a longer DUI program, and/or a longer license suspension.

Let’s hope that reason prevails in the Canadian courts for McLean’s sake.

 

Thanks to my student, David Hong, for sending me this story!

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Can Police Go Off of an Anonymous DUI Tip?

Thursday, June 8th, 2017

I am currently representing a person for a California DUI who was arrested after an anonymous tipster informed law enforcement that a possible drunk driver was on the road. Such a situation often raises the question, “Can law enforcement arrest someone based on an anonymous tip when the officers themselves have not witnessed any conduct that would lead them to believe a driver was driving under the influence?”

Unfortunately, the United States Supreme Court recently held that law enforcement can go off of an anonymous tip of a potential drunk driver in the case of Navarette v. California _____ U.S. _____ (Docket No. 12-9490)(2014).

In August 2008, a California Highway Patrol dispatcher received a call from a motorist who had been run off the Highway 1 near Fort Bragg by someone driving a pickup truck. The anonymous caller provided the license plate number of the pickup. A short time later, CHP spotted the pickup and pulled it over. As the CHP officers approached, they smelled marijuana and discovered four bags of it in the bed of the pickup.

The occupants of the pickup were identified as brothers, Lorenzo and Jose Navarette. The brothers plead guilty to transporting marijuana after they unsuccessfully attempted to challenge the constitutionality of the search. Both were sentenced to 90 days in jail.

The First District Court of Appeal in San Francisco relied on the 2006 California Supreme Court ruling of People v. Wells (2006) 38 Cal.App.4th 1078,  in upholding the conviction. The Court in that case said that “the grave risks posed by an intoxicated highway driver” justifies a brief investigatory stop. It found that there are certain dangers alleged in anonymous tips that are so great, such as a person carrying a bomb, which would justify a search even without a showing of reliability. The court went on to say that a “drunk driver is not at all unlike a bomb, and a mobile one at that.”

In its 3-0 ruling, the appellate court said, “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 case was appealed to the United States Supreme Court which held that an anonymous tip can give law enforcement the authority to pull someone over on suspicion of driving under the influence.

The Court held that “under appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop,’” quoting Alabama v. White (1990) 496 U.S. 325, 327.

In finding “sufficient indicia of reliability,” the court relied on 1.) the fact that the caller claimed eyewitness knowledge of dangerous driving, 2.) the fact that the tip was made contemporaneously with the incident, and 3.) the fact that the caller used 911 to make the tip likely 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.  

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Man Found Asleep in Car in OC High School Arrested DUI

Thursday, April 27th, 2017

The Orange County Sheriff’s Department found an intoxicated man asleep inside of his parked vehicle which was located in the middle of Aliso Niguel High School.

According to the Lt. Dan Dwyer of the Orange County Sheriff’s Department, Alexander Nixon, 23, of Las Vegas was arrested last week on suspicion of driving under the influence of alcohol when he was found asleep in his 2014 Dodge sedan which was parked inside of Aliso Niguel High School in Orange County.

Upon waking Nixon, officers suspected that he was under the influence. Nixon then told officers that he had been drinking before attempting to drive home. Nixon also told officers that he thought that he was in a parking lot in Santa Ana.

Nixon field sobriety tests and was subsequently arrested on suspicion of a California DUI.

Although law enforcement said that the car was located in a back lot of the school, media photographs of the scene showed the car inside of an enclosed walkway leading to an outside seating area.

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Had Nixon not confessed to driving, his situation raises an interesting question: Can prosecutors prove that a person drove (which is required for a California DUI) if the person was not seen driving, but their vehicle could have only reached its location through driving?

To be arrested, charged, and convicted of a California DUI, the prosecutor needs to prove that the defendant actually drove the vehicle. And California Courts have held that even slight movement will suffice to meet this requirement.

Movement of the vehicle can be proven through circumstantial evidence, meaning evidence that creates an inference of vehicle movement.

Such was the case in People v. Wilson (1985) 176 Cal.App.3d Supp. 1. The defendant in that case was found asleep in his car which was blocking the 60 freeway in Los Angeles.

The court concluded that “there was ample evidence from which the jury could have inferred that the defendant had been driving his vehicle on the public highway at a time when he was intoxication. From the combination of circumstances – defendant’s sitting in a vehicle in the center of the street–behind the wheel–engine running–lights on, it can be inferred that defendant must have placed himself in such position, and that he accomplished this by driving the car to the place at which he was found.”

The defendant in Wilson argued that it was possible that a friend drove him to the location and placed him in the driver’s seat. He also argued it was possible that the car was already in that position, he intended to drive it, but fell asleep before he could do so.

The Court rejected the defendant’s arguments stating, “It seems unlikely that in either situation the car would have been left parked in the middle of the street, straddling the traffic lanes and facing generally at right angles to the street. Suffice it to say that the jury apparently discarded these possibilities as being unreasonable and adopted the more likely deduction that defendant had driven himself to the area and was then unable to continue."

With that in mind, it seems unlikely prosecutors would even need Nixon’s confession that he drove to convict him of a California DUI. How else would his car have ended up in the middle of a high school?

 

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Another Weapon in the “War on Drunk Driving”: Forced Catheterization

Thursday, May 22nd, 2014

Just how far are we as a free nation willing to go in MADD's jihad on drunk driving?  

Well, how about ramming a catheter up a male DUI suspect's penis to get a urine sample for alcohol analysis — even after he has already had a blood sample taken?


C.P. Man Seeking $11M in Catheterization Lawsuit

Hammond, IN.  May 12 – A Crown Point man is seeking at least $11 million in damages from Schererville, two of its police officers and the owners of Franciscan St. Margaret Mercy Health in a federal lawsuit in which he said he was subjected to a forced catheterization following a traffic stop.

William B. Clark, a former Schererville resident, is suing the town, police Officers Matthew Djukic and Damian Murks and Franciscan Alliance Inc., doing business as St. Margaret Mercy…

In the lawsuit filed Friday in U.S. District Court, Clark, 23, claims he was driving on U.S. 30 near the intersection of U.S. 41 in Schererville last May when he was stopped by Djukic. According to the lawsuit, Djukic allegedly observed the vehicle, which contained one other occupant, driving erratically and claimed he detected a moderate odor of alcohol in Clark's vehicle. Murks allegedly responded in a separate car.

The suit states that Djukic falsely claimed Clark's breath test results were 0.11, exceeding the legal limit of 0.08. The lawsuit also alleges the town failed to provide proof of the test result when a motion for discovery was filed in the criminal case against Clark, which is still pending.

According to his lawsuit, Clark submitted to a blood test at the Dyer hospital that showed his blood alcohol was below the legal limit. It states Djukic, however, became impatient with Clark's inability to urinate to provide a urine sample and made an effort to forcibly get the sample. The suit claims Djukic physically restrained Clark while hospital personnel inserted a catheter to extract the fluid.

The suit claims Murks either used inappropriate force against Clark or failed to take reasonable steps to protect him from being subjected to the use of such force.

The lawsuit states Clark allegedly "loudly moaned in pain" as the process began. It adds that the actions taken to obtain the sample were "painful, degrading and humiliating."…


An isolated incident?  Hardly.  See my previous posts:  Catheter Forced up Penis After DUI Arrest (Washington) and DUI Suspect Forced to Have Penis Catheterized (Utah), to name just two such incidents.   

What's next for citizens suspected of drunk driving?  Why not strap female DUI suspects down on a table and forcefully extract urine samples from them as well?
 

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How Do I Choose the Right DUI Attorney?

Monday, May 5th, 2014

“What’s the difference between lawyers and vultures?”

Let’s face it, we attorneys do not have a good rap. But obviously not all attorneys are bad. And when people have been arrested for DUI and are at their most vulnerable, they must rely on attorneys to navigate their case through the maze that is the law. So how do you choose the right DUI attorney — and what will a DUI lawyer cost?

First off, you’re going to have to do some research. With so much on the line, why would you not? Ask people you know for referrals. Check the ratings of attorneys on websites like avvo.com and yelp.com. Check to see if the attorney you’re considering has had any disciplinary action against them from the California Bar Association. You can check this at calbar.org.

When attorneys become licensed to practice law, they can practice any area of law. Does that necessarily mean that they are qualified to practice every area of law? No. There are many attorneys that are “general practitioners.” This means that they take cases ranging from probate law to real estate law to DUI defense. Personally, if I have a probate case, I’m going to go to a probate lawyer. Understanding the nuances of DUI law and the science involved is crucial in defending a DUI case. If you get arrested for a DUI, wouldn’t you want an attorney who only practices DUI defense or even criminal law?

Be wary of the attorney who calls your case a “slam dunk.” No case is a “slam dunk” and very few things in law are that black and white. The By law, attorneys cannot guarantee an outcome. In fact, most of the time, DUI attorneys don’t know the facts of the case until the first court date, which is when they obtain a copy of police report. Sure, you can tell the attorney your version of the story during the consultation, but that, very often, varies wildly from what the police say.

Expensive doesn’t necessarily mean good. Having said that, you also shouldn’t shop for the cheapest quote on the market. Find out what attorneys are charging for the services you’re looking for. Again, you’re going to have to do some research. I can tell you right now, most DUI attorneys charge a flat fee for DUI defense rather than an hourly fee. And that flat fee can range from below $1,000 all the way up to $10,000. Make sure that you’re comfortable with the price, the payment arrangements, and the services that you’re receiving for them.

Attorneys are not cheap. Don’t drop your hard earned dollars unless you are absolutely completely comfortable with the attorney and the relationship. After all, you are entrusting this person with representing you in a court of law.

The punchline to the joke is “wings.” Don’t get stuck with a vulture.

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