Entrapment as a Defense to a California DUI?

Tuesday, May 10th, 2016

Many of my clients, especially those who have been arrested at a DUI checkpoint, often ask whether entrapment can be a defense to a California drunk driving charge. Another scenario where the defense of entrapment is inquired about is when an officer parks his vehicle outside of some alcohol-serving establishment and waits for an unsuspecting patron to hop behind the wheel after having one too many drinks.

Unfortunately in both scenarios entrapment cannot be used as a defense.

According to People v. West, (1956) 139 Cal.App.2d Supp. 923, 924, “Entrapment is 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.”

People v. Barraza, (1979) 23 Cal.3d 675, 689, simplified the definition of entrapment when it concluded, “[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?”

In other words, for purposes of a California DUI charge, law enforcement must compel a person to drink and/or compel them to drive when that person would not have otherwise done either.

An example of this would be when an officer finds an intoxicated person in a vehicle who does not plan on driving and the officer then forces them to drive. Since the person would not have driven but for the officer’s demand, an entrapment has occurred. Although unlikely, it has happened.

While DUI checkpoints may be viewed upon as a “trap,” it does not fall within the definition set forth above. People who drive drunk are already driving drunk when they happen upon a DUI checkpoint. Law enforcement is not compelling the drunk driver to drink nor drive.

Furthermore, 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.

Often times, officers will park themselves outside of a bar or other alcohol-serving establishment and wait until they see a patron drive away. This is when the officer pulls the person over.

If the person voluntarily drives away from the establishment drunk, the officer has not forced the person to neither drink nor drive. The officer is merely observing the illegal acts of a person from a public place where he or she has a right to be.

Now, the officer must have probable cause to believe that a person is driving drunk before an arrest can be made. 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.

Unfortunately, while both California DUI checkpoints and law enforcement bar stakeouts are intended to “trap” drunk drivers, neither give rise to the entrapment defense.

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California Senate Committee Passes IID Law

Monday, April 4th, 2016

A couple of posts ago, I wrote about whether a person who has been convicted of a California DUI will be required to install and maintain an ignition interlock device. 

Currently, ignition interlock devices are only required by the DMV for people convicted of a California DUI in four counties as part of a pilot program: Alameda, Los Angeles, Tulare and Sacramento. Otherwise, the requirement that a person install an ignition interlock device is dependent upon whether a judge orders it as a condition of probation.

Last year, Senate Bill 61 extended the pilot program, which was set to end January 1, 2016, to July 1, 2017.

July 1, 2017, however, was too long for Senator Jerry Hill.

Hill authored Senate Bill 1046 which, if passed, would require people convicted of a DUI to install an ignition interlock device in their vehicle throughout California.

The bill took a big step into becoming law this past week when the California Senate Public Safety Committee voted 7-0 in favor of passing the bill. Now that the California Senate Committee has unanimously voted for the bill, it will be sent to the Senate Appropriations Committee.

Not surprisingly Mothers Against Drunk Driving (MADD) fully backed the proposed bill.

“Senator Hill has shown extraordinary leadership on drunk driving prevention, and we are extremely grateful to the committee for agreeing that ignition interlocks do save lives,” said Mary Klotzbach, a MADD National Board member and whose 22-year-old son, Matt, was killed by a drunk driver.

This past February, MADD released its own Ignition Interlock Report, which reportedly showed the deterrent effect that ignition interlock devices had on repeat drunk driving. According to their report, ignition interlock devices prevented 1.77 million drunk driving attempts where the would-be driver’s blood alcohol content was 0.08 percent or more. The report also alleges that ignition interlock devices prevented more than 124,000 drunk driving attempts.

“Today, the Senate Public Safety Committee voted to protect all Californians from the completely preventable, violent crime of drunk driving,” said Klotzbach. When I buried Matt, I buried a piece of my heart. Now I want make sure no other parent, child, brother, or sister ever has to endure this kind of heartache.”

The mandatory installation of ignition interlock devices will add to an already long list of mandatory conditions that a person convicted of a California DUI must complete. What’s more, in addition to the other thousands of dollars associated with a California DUI conviction, people required to install the ignition interlock device will have to pay between $50 and $100 per month to have the device installed and maintained.

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Will I be Required to Install an Ignition Interlock Device?

Monday, March 21st, 2016

The responsibilities associated with a California DUI conviction can be rather daunting. One the more feared tasks is the requirement of having to install the ignition interlock device. The ignition interlock device, however, is not required after all California DUI convictions. Whether a person will be required to install an ignition interlock device depends on several things.

Before we talk about when an ignition interlock device is required, let’s first talk about what the ignition interlock device is. In short, the ignition interlock device is a breathalyzer that is installed into the dash of a vehicle and connected to the ignition. The driver of the vehicle must provide a breath sample with a blood alcohol content reading under 0.08 percent before the device allows the vehicle to be started. Once the vehicle is started, the driver must provide breath samples at random times to while the vehicle is operational.

Following a California DUI conviction, there are a number of things that a judge may have a person do or complete as a condition of probation. I use the word “may” because some conditions are mandatory and some conditions are discretionary. One of the discretionary terms of probation that a judge may impose on a person following a California DUI conviction is the installation of an ignition interlock device.

As a discretionary term, judges sometimes require the ignition interlock device for a person convicted of a California DUI who has also suffered prior DUI convictions, someone who had a high blood alcohol content, or someone who refused a chemical test following the DUI arrest.

However, in January of 2010 Assembly Bill 91 became law and made the installation of an ignition interlock device mandatory in four counties as part of a new pilot program aimed at reducing drunk driving repeat offenses. The counties affected by the law were Los Angeles, Alameda, Tulare, and Sacramento.

The law requiring the ignition interlock device in the abovementioned counties, California Vehicle Code section 23700, in part reads:

"Before a driver’s license may be issued, reissued, or returned to a person after a suspension…of that person’s driving privilege that requires the installation of an ignition interlock device…"

The length of time that a person must have the ignition interlock device installed for depends on how many prior DUI convictions the person has had. A first time offense carries a 5-month installation period. A second time offense carries a 12-month installation period. A third time offense carries a 24-month installation period. A fourth time offense carries a 36-month installation period.

The law provides for an exception to the pilot program for those who do not own a car or otherwise have access to one. If that is the case, a person must complete and submit an “exemption form” to the California DMV. A person can then completely avoid the ignition interlock device by waiting out their suspension plus the period during which they would have had the ignition interlock device installed. If, however, the person obtains a vehicle in that time, they must have the ignition interlock device installed.

The pilot program was set to end as of January 1, 2016, at which time the California DMV was to report to the legislature on the effectiveness of the pilot program in reducing repeat drunk driving offenses in those counties. However, late last year Senate Bill 61 extended the pilot program until July 1, 2017.

Depending of the data collected as a result of the pilot program, it may not be long before we see the installation of ignition interlock devices as a mandatory condition of probation for all California DUI convictions.

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Politician Proposes DUI “Scarlet Letter” License Plate

Monday, February 15th, 2016

Mississippi House of Representative member Gary Chism, R-Columbus has proposed a bill that would force people convicted of two or more drunk driving offenses to display a special license plate which would indicate that they are DUI offenders.

A similar law already exists in Minnesota. Certain DUI offenders in Minnesota are required to display what are known as “whiskey plates,” license plates that begin with “W” followed by a second letter and then four numbers.

Earlier this month, Chism filed HB 548, also known as the Scarlet Letter Driving Under the Influence License Plate Act. If approved, DUI offenders who have been convicted of a second or third DUI would be required to display a license plate that is “yellow, with bold red letters and/or numbers.”

Under Chism’s law, a second offense would require the plate for at least a year. A third offense would require the plate for three years.

"You have a drinking problem if you’ve been caught twice," said Chism. "If everyone knows by you having that tag, it may make you realize what your problem is."

While Chism has his doubts about whether his bill can become law at the moment, he believes that it is important to continue to push for a “DUI scarlet letter.”

"I doubt it’s going to become law at this time, but I think this is just the beginning of it. It has been a big conversation piece that needs to continue," he said. "Theoretically, you need the scarlet letter tag before the felony. If you haven’t learned your lesson after two DUIs, I think a little shaming might help before we send you to the pen (for the felony DUI)."

Chism makes no secret that the purpose of his proposed legislation is to stigmatize and humiliate DUI offenders. His logic is that the shame associated with having to drive with one of these plates will serve as a deterrent to future DUI offenses for the offender as well as observers.

Surely, the plate would serve as a punishment, but is the threat of having to be stigmatized with the plate any more of a deterrent than other punishments associated with a DUI; fines, fees, a DUI program, probation, an ignition interlock device, possibly jail time?

More importantly, could there be unintended consequences of the stigmatization? The ACLU thinks so.

“[It] does nothing more than humiliate an individual based on past decisions" and could lead to "unfair and unreasonable targeting by law enforcement," said Zakiya Summers who the Mississippi ACLU director of communications. "The mandatory fine, incarceration and community services serve as a sufficient and much more rational deterrent. Five days in jail often leads to loss of employment, and this tag provides another barrier to employment."

I couldn’t agree more. Normally officers need probable cause to believe that you have committed a crime before they can stop you and investigate for a crime. However, law enforcement will be more likely to pull someone over merely because of the plate regardless of whether they have the constitutionally required probable cause to do so. Such stops are illegal.

What’s more, the plate could cause problems with other drivers on the road. What are other motorists going to do in the presence of someone with the special license plate? Avoid them on the road because they’re a danger? Stare at them causing motorists to take their eyes off of the road in front of them? Could other motorists be compelled to express anger at the DUI offender? Needless to say, these all, in and of themselves, pose a danger to the road.

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Should a DUI Prevent You from Owning a Gun

Monday, January 18th, 2016

Lawmakers in Indiana are considering whether their state’s application to own a gun license should include a question about whether the applicant has been convicted of misdemeanor driving under the influence.

Currently, the application used by Indiana State Police to grant licenses to carry a gun asks whether the applicant has previously been convicted of a DUI. Indiana Senate Bill 36, written by Sen. James Tomes, R-Wadesville, seeks to remove that question.

"All I was trying to do was just get the State Police to remove those words, ‘Including DUI? Not changing anything else," said Tomes. "State Police can still do these checks on handgun applications. Anybody in the system is gonna get pulled up. You’ve got domestic violence. You’ve got DUIs to the point where you’ve got a felony. You’re through."

Other who agreed with Tomes believed that misdemeanors should not be grounds for automatically refusing a permit, only felonies and domestic violence convictions.

Many of these who testified at a Judiciary Committee meeting on Wednesday, however, strongly disagreed with Tomes.

"Essentially what we’re saying is the combination of alcohol and access to handguns is a lethal combination in situations of domestic abuse," said Kathy Williams, a representative from The Indiana Coalition Against Domestic Violence. "And given the very mild nature of the existing statute, it is only a small stop gap.”

She also provided statistics from Indiana law enforcement agencies to show that up to 80 percent of their domestic violence cases involve alcohol abuse.

“Gun licenses are more than just pieces of paper," said Jody Madeira, a professor at Indiana University-Bloomington’s Maurer School of Law. "That paper conveys an important right. A right that a lot of people, including me in this room, want to uphold and protect the right to carry a handgun. But multiple studies as well as the Centers for Disease Control link alcohol abuse to gun violence.”

While I’m not the biggest fan of guns, it troubles me that legislators are using DUI convictions to prevent gun ownership.

Refer to my previous post: https://www.duiblog.com/2015/11/23/not-all-drunk-drivers-are-alcoholics/

The flawed logic in Indiana’s inquiry into whether a person has suffered a DUI conviction is this:  Many incidences of domestic violence involve alcohol abuse and if a person has suffered a DUI, they must have an alcohol problem. Therefore, they cannot and should not own a gun.

Once again we see the “False Cause Logical Fallacy;” A causes B when there is no causal relationship between the two, but merely a correlation.

A DUI conviction does not mean that the defendant has an alcohol problem. Nor does it mean that they will be involved in domestic violence. In fact, many people who have been convicted of a DUI are not regular drinkers nor are they heavy drinkers, but rather people who made a one-time mistake.

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