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.   

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Can you be Stopped for a DUI after an Anonymous Tip?

Friday, August 17th, 2018

I’ve seen them and I’m sure you have too; road signs or billboards that encourage drivers to call the police if they spot a suspected drunk driver on the road. I can tell you that drivers often do, in fact, anonymously call police to report other drivers whom they suspect are driving drunk. If the callers are anonymous, how do the police know whether they are telling the truth about what they saw or whether they are even accurate? Police don’t know and, unfortunately, they don’t need to know. According to the law, an anonymous tip is enough for law enforcement to stop someone on suspicion of driving under the influence.

In 2014, the United States Supreme Court decided the case of Navarette v. California, which concluded that law enforcement can go off of an anonymous tip to stop a suspected drunk driver.

The case stemmed from a 2008 stop where 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.

Following the stop, the occupants of the truck were identified as brothers Lorenzo Prado Navarette and Jose Prado Navarette.

At the trial level, 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.

The brother appealed. However, the appellate court in a 3-0 ruling 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 appellate court relied on the 2006 California Supreme Court case of People v. Wells, which stated, “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.”

The case was appealed once again to the United States Supreme Court. And, once again, the Court ruled that an anonymous tip can give law enforcement the reasonable suspicion to pull someone over on suspicion of driving under the influence.

The Supreme Court stated that ““under appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop,’” quoting the 1990 case of Alabama v. White.

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. 

The problem with this ruling is that people are not anonymously reporting drunk drivers. 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 excursion is flawless. This necessarily means that everyone on the road is a target of anonymous tipsters and anyone can be arrested on suspicion of DUI simply because someone else reported their mere driving mistake.

In his dissent, Justice Scalia voiced the same concerns:

“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.”

 

 

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Visiting Canada with a DUI Conviction

Thursday, August 2nd, 2018

Canada considers driving under the influence a very serious crime, so much so in fact, that they consider it an “indictable offense.” This is the functional equivalent to a felony under California law.  Unlike California where a DUI is, for the most part, considered a misdemeanor for a first, second, and third offense and punishable up to a year in jail, as an indictable offense in Canada, a DUI is punishable up to five years in jail.

Because all DUI’s are, for all intents and purposes, considered felonies, anybody convicted of a DUI or even a wet reckless is excludable from entry into Canada.

Notwithstanding a DUI conviction, however, a person can currently enter Canada if they are “deemed rehabilitated.” To be deemed rehabilitated, the maximum term of imprisonment for the DUI conviction was less than 10 years (which it almost always is unless you’ve been convicted of certain felony DUI’s), the sentence for the California DUI conviction was completed at least 10 years ago, and no other indictable offenses were committed during those 10 years. If someone meets these criteria, they do not need to do anything further to gain entry into Canada, although it would be a good idea to have proof of this when trying to cross the border.

In other words, to gain entry into Canada, you must have completed your sentence more than 10 years ago and you cannot have picked up any more “indictable offenses” since.

This, however, may soon change under a new Canadian law which would make it even harder to enter Canada with a DUI on the books.

The new law which will take effect this October is part of Canada’s Cannabis Act, which legalizes recreation marijuana.

“Those people that have been entering into Canada after that 10 years had passed can now have that undone and now become inadmissible again,” said immigration attorney Jamie Fiegel who is a partner at the law firm Fiegel & Carr, which specializes in immigration cases in Canada and the United States.

Under the new law, people will no longer be able to automatically enter Canada following the 10 year-wait period.

“There will be no time period that will be able to be passed that would allow you to automatically regain the right. You will have to file at the Canadian consulate in order to regain the right to enter back into Canada,” said Fiegel.

Fiegel is referring to what is called “individual rehabilitation,” otherwise known as “rehabilitation by application.” The first requirement is that at least five years must have passed since the completion of the sentence for a California DUI conviction. It gets tricky however in trying to calculate the five-year wait period. The five-year wait period can be calculated in the following ways: 1.) five years from the date of sentencing if given a suspended sentence; 2.) five years from the date a fine was paid if given a suspended sentence and a fine; 3.) five years from the end of a prison term with no parole; 4.) five years from the end of parole or probation if sentenced to either; or 5.) five years from the end of a driver’s license suspension.

If someone meets the criteria needed for individual rehabilitation, they will need to fill out an application and submit it to a Canadian visa office located in the U.S. The application requires the applicant to explain why they are rehabilitated. The submission of the application for individual rehabilitation also requires a non-refundable application fee that will also be increasing in October.

While our neighbors to the north might have a reputation for being friendly, they most certainly are not when it comes to past DUI convictions, eh.

If you plan on traveling to Canada and you have a DUI on your record, regardless of how long ago it was, I suggest you contact an immigration attorney to make sure you’re not turned away at the border.

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Tracking where Drunk Drivers had their Last Drink

Thursday, July 26th, 2018

Iowa will begin keeping track of where drunk drivers had their last drink under a new pilot program called “Place of Last Drink.”

The hope is that the program will put pressure on alcohol-serving establishments to refrain from over serving patrons who might then get behind the wheel.

If you ask me, that’s a little like keeping track of sporting goods stores every time one of their patrons misuses a piece of sports equipment which injures someone. The pursuit to stamp out the cause of wrongdoing is being misdirected at those who have no control over it.

Why don’t you be the judge.

Iowa is preparing to track where drunk drivers had their last drinks

July 26, 2018. Des Moines Register – Soon, Iowa officials will gather information on where drunken drivers got drunk.

Officials with the Iowa agency that approves liquor licenses are pairing up with a national organization to track where intoxicated drivers were last served or provided alcoholic beverages.

Iowa is one of three states piloting “Place of Last Drink” tracking through a program overseen by the National Liquor Law Enforcement Association, a nonprofit group based in Maryland. While 12 states have Place of Last Drink, the national organization wants more states to adopt the program, which has been shown to reduce the over-service of alcoholic beverages and arrests for drunken driving.

“You can’t put a cost on lives saved,” said Justin Nordhorn, president of the national organization. “When establishments cut people off when they’ve had too much to drink, when they help them find safe rides home, we have safer roads.”

Nordhorn, who also is chief of Washington state’s liquor and cannabis enforcement and education division, said the association received federal money to develop a nationwide database that will allow law enforcement officers to input information about where an intoxicated person was drinking before a crime, incident or alcohol-related crash.

Data collected through the program will help law enforcement officers track problem establishments and pressure owners to change practices and train employees on ways to avoid over-serving alcohol to customers, Nordhorn said.

If problems persist, the database will provide local law enforcement officials and liquor licensing agencies evidence for possible punishment, he said.

Twenty months ago, an Iowa coalition made 66 recommendations on ways to get impaired drivers off the road through prevention, enforcement, education and adjudication. Place of Last Drink was included in the proposals.

The coalition was formed because of concern over the number of people driving while intoxicated. Since 2005, more than 1,100 people have been killed in alcohol-related crashes in Iowa, Iowa Department of Public Safety data shows.

“We have an over-service problem in Iowa and (Place of Last Drink) seems like a good way to address it,” said Josh Happe, regulatory compliance program bureau chief for Iowa’s Alcoholic Beverages Division. “You start with outreach and education, and if that doesn’t work, sanctions on a liquor license can be an enforcement tool.”

Proving an establishment over-served a customer is difficult, said Steve Larson, the division’s administrator.

Since 2008, just 24 complaints of serving alcohol to an intoxicated person have been filed against the 6,750 Iowa establishments with liquor licenses, a Des Moines Register review found. Seventeen of the complaints resulted in sanctions.

However, Larson said that if the licensing agency can show that numerous people arrested for drunken driving had their last drink at a certain establishment, “we can hold those licensees accountable.”

The agency has begun to reach out to law enforcement agencies to encourage them to take part in the pilot program. Missouri and Vermont are also participating.

Des Moines Police Chief Dana Wingert said his department would be interested in learning more about the program. In March 2016, two Des Moines police officers and the inmate they were transporting were killed in a head-on crash caused by a drunken driver.

“We live in an age of accountability,” Wingert said. “It wouldn’t be like we’re trying to be heavy-handed. There’s an informational component to the bar owners; there’s a training component. It gives you a system of tracking whether a business is making progress.”

Roxann Ryan, Iowa Department of Public Safety commissioner, wrote in an email to the Register that the Iowa State Patrol would work with Larson’s agency on a “gradual implementation” of Place of Last Drink.

Ryan wrote that creation of the database is just one component to improving the safety of Iowa’s roads.

“It may be looking at options for alternative rides, or focusing on a designated-driver program, or just talking about the dangers of impairment in the community where the high-crash areas are located,” she wrote.

Unsurprisingly, the restaurant and bar industry opposes Place of Last Drink.

“Our industry is perpetually frustrated in the idea that the vast majority of people who are over-served alcohol are people coming out of our establishments,” said Jessica Dunker, president and CEO of the Iowa Restaurant Association. “The state of Iowa chose to make everything in the world a liquor store or bar. … Every place you go — the gas station, convenience store, Walgreens — you can buy single-service alcoholic drinks.

“If we really want to do something about the over-consumption of alcohol, then we need to look at the root of the problem: addiction and repeat offenders.”

A 2005 federal study found that about half of the people arrested for driving while intoxicated had their last drink at a bar or restaurant.

That study, coupled with the inability nationally to reduce the percentage of people killed in alcohol-related crashes, prompted the National Transportation Safety Board in 2012 to recommend nationwide implementation of Place of Last Drink programs.

Dunker acknowledge there are establishments in Iowa that serve patrons alcohol when they are intoxicated.

“We have no sympathy for the bad actors,” she said.

She said local law enforcement agencies typically know which bars and restaurants over-serve alcohol to customers and can talk with owners and suggest changes. In addition, if problems persist, authorities can ask that liquor licenses be suspended or not renewed.

“Another reporting tool is not going to help,” she said.

The Iowa Restaurant Association this past legislative session successfully pushed for changes in Iowa’s dram shop law, including putting a cap on some damage awards.

The changes also included dropping language in the law that stipulated servers could not provide alcohol to a patron if they either “knew or should have known” the person was drunk or would become drunk.

The change, which went into effect July 1, now makes it illegal to serve someone who is “visibly” drunk.

Jessica Dunker, the association’s president and CEO, said it was difficult to provide training on the previous standard.

“Visible intoxication has very specific standards — signs you can teach servers to look for,” she said. “You can eyeball somebody and pretty quickly know that they’ve been served enough alcohol to have a high BAC.”

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Utah Braces for New BAC Limit of 0.05 Percent

Tuesday, July 24th, 2018

In March of last year, I wrote about how Utah had passed a law which would lower its blood alcohol content limit from 0.08 percent to 0.05 percent. Well, the law is set to take effect in a mere five months for Utah and the state is getting ready for the change.

Using studies that indicate impairment begins to take effect with a blood alcohol content of 0.04 percent to support its position, the National Transportation Safety Board has supported a 0.05 percent blood alcohol content limit for all states.

Utah, however, is the first of any state to drop its blood alcohol content from 0.08 percent to 0.05 percent.

“We’ve put together a task force on how we are going to usher this in,” said Utah Highway Patrol Captain Steve Winward to state lawmakers this week.

According to Winward, Utah Highway Patrol officers will get four hours of training that will include a review of Utah policy on breathalyzers and other indicators of intoxication. Other police agencies as well as prosecutors from the state will also receive training.

“We really don’t want to change the way we do business,” Winward told members of the Law Enforcement and Criminal Justice Interim Committee. “We want to ensure that we are arresting those that are DUI. We want to educate troopers to focus on impairment and not the number 0.05.”

Winward said the department soon will launch a public relations campaign “to let the public know that it’s coming” and to correct misinformation that has been circulating.

“People think that you can only have one drink and you are over the 0.05,” Winward said. “We want to dispel those myths.”

According to the National Highway Traffic Safety Administration, a male weighing 140 pounds would be at, or close to, a 0.08 percent blood alcohol content having had three drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.08 percent blood alcohol content having had just two drinks within an hour. Regardless of gender, your blood alcohol content will not be as high if you weigh more. Conversely, your blood alcohol content will be higher if you weigh less.

On the other hand, male weighing 140 pounds would be at, or close to, 0.05 percent blood alcohol content having had two drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.04 percent blood alcohol content having had just one drink within an hour.

Of course, these figures are approximate and depend on several factors which include, but are not limited to, whether the person ate, what they ate, what they drank, and how fast they drank it. But based on these approximate numbers, we can see that for both males and females, the difference between a 0.08 and a 0.05 percent blood alcohol content is about one less drink in an hour.

According to Winward, the Utah Highway Patrol will use software to track DUI arrests under the new legal limit.

You can be sure I’ll be keeping track of the law’s “success,” but until then, I’ll make a bold prediction: DUI arrests will increase significantly, but whether drivers are actually under the influence will remain as much of a question mark as it always has been.

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