Wisconsin Supreme Court Rules Warrantless Blood Draw in DUI Cases Allowed

Thursday, July 5th, 2018

In 2016, the United States Supreme Court held that law enforcement must obtain a warrant before forcibly withdrawing blood from a suspected drunk driver.

Writing for the majority, Justice Samuel Alito said, “It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.”

Notwithstanding the precedent, the Wisconsin Supreme Court seems to think that it can continue to issue decisions that allow that law enforcement to withdraw an unconscious DUI suspect’s blood without a warrant in violation of both the Constitution and the United States Supreme Court. It did so again this week in the case of Gerald Mitchell.

“Nothing in the opinion indicates the Supreme Court considered how its analytical structure would apply in the context of an unconscious suspect arrested for OWI, and it would be too much like reading tea leaves to give any substantive weight to a statement that simply gives the Court’s reasons for not addressing the question we are deciding,” Wisconsin Justice Daniel Kelly wrote.

Mitchell was arrested back in 2013 on suspicion of driving under the influence, or “operating while intoxicated” as Wisconsin calls it. Mitchell passed out after he was arrested, but before he could give consent for officers to withdraw blood. While unconscious, an officer told Mitchell that he could refuse. Not surprisingly, Mitchell didn’t respond. The officer then directed hospital staff to withdraw Mitchell’s blood.

The blood sample indicated that Mitchell’s blood alcohol content was 0.22 percent, well above the legal limit of 0.08 percent.

Based on that information, Mitchell was convicted of driving under the influence.

Mitchell appealed arguing that the blood withdrawal was a violation of his right to be free from unreasonable searches and seizures. An appellate court sent the case to Wisconsin Supreme Court for clarification because the Wisconsin Supreme Court had previously decided that warrantless blood withdrawals were allowed in urgent situations where delay in obtaining consent could lead to the loss of evidence, namely the dissipation of alcohol in the driver’s blood.

The Wisconsin Supreme Court in Mitchell’s case justified the holding by citing Wisconsin’s Implied Consent law stating that drivers automatically consent to blood withdrawals when they have a driver’s license.

Writing for the majority, Chief Justice Patience Roggensack said, “Through drinking to the point of unconsciousness, Mitchell forfeited all opportunity…to withdraw his consent previously given.”

Justice Roggensack went on to cite the legislature’s efforts at stamping out drunk driving to justify the court’s position.

“Just as Wisconsin drivers consent to the above-listed obligations by their conduct of driving on Wisconsin’s roads, in the context of significant, well-publicized laws designed to curb drunken driving, they also consent to an evidentiary drawing of blood upon a showing of probable cause to believe that they operated vehicles while intoxicated,” she wrote.

However, this rationale goes against exactly what the United States Supreme Court said in 2016.

“It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quire another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit,” Supreme Court Justice Samuel Alito wrote. “There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.”

Wisconsin Supreme Court Justice Ann Walsh Bradley dissented from Justice Roggensack arguing exactly what Supreme Court Justice Alito had enunciated two years ago.

“This language compels a single conclusion: law enforcement needed a warrant here,” she said.

Bradley said the majority was merely using Wisconsin’s implied consent law to overrule the guarantees of the Constitution.

“Under the lead opinion’s analysis, however, the opportunity to refuse an unconstitutional search is merely a matter of legislative grace. If the ability to withdraw consent is merely statutory, could the legislature remove the ability to withdraw consent entirely? For the Fourth Amendment to have any meaning, such a result cannot stand,” she wrote.

What’s the point of precedent if states continue to refuse following case law set by the highest court in this country, and refusing to follow it at the expense of constitutionally guaranteed rights?

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California’s Least Known DUI Law: Driving While Addicted

Friday, June 29th, 2018

The most widely known California DUI law is Vehicle Code section 23152(b) which makes it illegal to drive with a blood alcohol content of 0.08 percent or higher. Some people realize that if a person is arrested for a DUI, they will likely also be charged with Vehicle Code section 23152(a) which makes it illegal to drive “under the influence,” meaning that the driver cannot drive as a reasonable sober person would. Very few people, however, are aware of one of California’s more obscure DUI laws; driving while addicted.

Under California Vehicle Code section 23152(c), “[i]t is unlawful for any person who is addicted to the use of any drug to drive a vehicle.”

The purpose of DUI law is to protect the public from drivers who, at the time of driving, are under the influence. So you may be asking yourself the same question that I asked myself the first time I learned of this law: If an addict is not under the influence at the time of driving, how can they still be prosecuted for a DUI? Shouldn’t the law only punish drivers who actually pose a risk to the roads because of current intoxication?

In the 1965 case of People v. O’Neil, the California Supreme Court upheld the law and explained that it, like the other, better-known DUI laws, also protects the public.

In looking at the legislative intent in drafting the law, the court concluded, “when an individual has reached the point that his body reacts physically to the termination of drug administration, he has become ‘addicted’ within the meaning and purpose of [23152(c)]. Although physical dependency or the abstinence syndrome is but one of the characteristics of addiction, it is of crucial import in light of the purpose of [23152(c)] since it renders the individual a potential danger on the highway.”

In other words, the court concluded that a person who is an addict and going through withdrawals can be a danger to the roads. This conclusion presumes that all addicts at all times go through withdrawals and can still be arrested, charged, and convicted of a California DUI. While this presumption is false because not all addicts are always suffering from withdrawals, the California Supreme Court went on to say prosecutors, however, do not need to prove that the driver was suffering from withdrawals at the time of arrest.

“The prosecution need not prove that the individual was actually in a state of withdrawal while driving the vehicle. The prosecution’s burden is to show (1) that the defendant has become ‘emotionally dependent’ on the drug in the sense that he experiences a compulsive need to continue its use, (2) that he has developed a ‘tolerance’ to its effects and hence requires larger and more potent doses, and (3) that he has become ‘physically dependent’ so as to suffer withdrawal symptoms if he is deprived of his dosage.”

If you ask me, the California Supreme Court is contradicting itself. In essence, it is saying that the purpose of the law is to protect the public from addicts who are suffering from withdrawal symptoms while driving, yet it doesn’t require that the addict be suffering from the withdrawal symptoms at the time of driving.

Although this section of the vehicle code is rarely enforced, law enforcement and prosecutors can continue to punish drivers who are addicted to a drug even though they may not be, at the time of driving, under the influence of a drug.

So, again I ask, “Shouldn’t DUI law punish people who actually pose a risk to the public?” Apparently, according to the California Supreme Court, the answer is no.

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Man Arrested for DUI after Horse he was Riding Tramples Boy

Thursday, June 14th, 2018

A man riding his horse during the Colusa County Fair Parade in Colusa, California, last Friday was arrested on suspicion of felony California DUI after his horse trampled a boy.

Armando Martinez Ruiz, a participant in the parade, was thrown from his horse after the horse bucked. As the horse ran away and through a group of spectators lining the parade route, it trampled an eight-year-old boy breaking his leg.

Officers found the horse and Ruiz was arrested on suspicion of felony DUI.

“In California, the same laws apply when riding horses as driving cars,” the Colusa Police Department said on its Facebook page.

This incident comes only a few months after a man was caught riding his horse on the 91 freeway in my hometown of Long Beach.

In that case, California Highway Patrol responded to a report that a man, later identified as Luis Alfredo Perez, had ridden his horse eastbound onto the 91 freeway. Officers found Perez after he exited the freeway in Bellflower.

It was later determined that the Perez’s blood alcohol content was 0.21/0.19 percent, more than double the legal limit, and he was arrested on suspicion of DUI.

Following Perez’s arrest, CHP took to Twitter saying, “No, you may not ride your horse on the freeway, and certainly not while intoxicated.” It included a picture of horse whose name was Guera and who was later released to Perez’s mother.

The Colusa Police Department was not wrong when it said that the same laws apply to horse riders as they do with drivers of motor vehicles.

According to California Vehicle Code section 21050, “Every person riding or driving an animal upon a highway has all of the rights and is subject to all of the duties applicable to the driver of a vehicle by this division…”

Since California DUI laws apply to the rider of a horse on a road, Perez was charged with a run-of-the-mill DUI. He faced fines between $390 and $1,000, three to five years of summary probation, a DUI program of up to nine months, and up to six months in county jail.

Ruiz, on the other hand, is facing felony DUI charges because someone was injured. Depending on the severity of the injury, someone can be charged with either a misdemeanor or a felony when their impaired driving injures someone other than the driver. And because Ruiz is being accused of felony DUI, he faces up to four years in prison, an additional (and consecutive) three to six years because broken bones can be considered “great bodily injury,” a “strike” under California’s Three Strikes Law, a fine between $1,015 and $5,000, and an 18 or 30 month DUI program.

I’ll leave you with a poem written by a dissenting Pennsylvania Supreme Court judge in a Pennsylvania case which held that a horse is not a vehicle for purposes of driving under the influence.

“A horse is a horse, of course, of course, but the Vehicle Code does not divorce its application from, perforce, a steed as my colleagues said. ‘It’s not vague,’ I’ll say until I’m hoarse, and whether a car, a truck or horse, this law applies with equal force, and I’d reverse instead.”

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Drivers Under 21 Could Lose License for a Year for Marijuana DUI

Monday, February 26th, 2018

A new California bill could see drivers under the age of 21 lose their driver’s license for a year if they are caught behind the wheel with marijuana in their system.

State Senator Jerry Hill (D-San Mateo), who has been behind several DUI-related bills, proposed the law so that the state would have the same “zero tolerance” policy for marijuana as it does for alcohol when the driver is under the age of 21.

California’s current “zero tolerance” law, under Vehicle Code section 23136, prohibits drivers under the age of 21 from having any alcohol in their systems. If a driver under the age of 21 tests positive for any alcohol in their system, their driver’s license will be suspended for one year through the DMV, but the matter is not considered criminal. Drivers under the age of 21 who have a blood alcohol content of 0.05 percent or higher, however, can be charged with Vehicle Code section 23140 which is an infraction with a $100 fine, a possible alcohol education class, and the one-year suspension through the DMV. Lastly, a driver under the age of 21 can also be charged with the standard DUI charges under Vehicle Code section 23152 that adults face when they are driving under the influence.

“This bill will save lives by making it illegal for drivers under age 21 to drive under the influence of marijuana, just like current law for alcohol,” Hill said in a statement.

It should be made clear, notwithstanding Hill’s statement, that the law would target the presence of marijuana in the driver’s system, not whether the underage driver was “under the influence” of marijuana.

Currently, there is no reliable way to determine exactly how intoxicated or under the influence someone is as a result of marijuana ingestion even though the psychoactive component of marijuana (delta-9-tetrahydrocannabinol or “THC”) might be present in a person system. A person could have smoked marijuana weeks ago and, while the intoxicating effects have long since passed, the THC may still be detectable in the person’s blood.

Hill foresees law enforcement officers being able to use oral swabs to determine if marijuana has been consumed recently. Although, local law enforcement has experimented with such devices recently, the LA Times reported that no such product has yet been approved for use by California law enforcement agencies.

“We don’t have a device in the field to measure impairment of cannabis,” Richard Desmond, an assistant chief for the California Highway Patrol, told legislators this week.

“[The bill] will do nothing to make the roads safer, nor to reduce youth drug abuse,” Dale Gieringer, director of California NORML (National Organization for the Reform of Marijuana Laws), told the San Francisco Chronicle. “What it will do is encourage cops to conduct random screenings of young drivers without any evidence of dangerous driving and grab their licenses for no good reason.”

Although the proposed law requires that law enforcement have reasonable suspicion that the driver might have marijuana in their system before they forcibly test them, I would not put it past some (maybe many) law enforcement officers to fabricate the reasonable suspicion so that they can conduct random screenings as Gieringer suggests.

Fortunately, the bill provides an exemption for drivers under 21 who use medical marijuana if the officer determines that they are not impaired.

 

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Virginia May Soon Allow Drunk Driving on Private Property

Thursday, February 22nd, 2018

A Virginia bill, if passed, would allow drunk driving on private property within that state.

The bill, introduced by Virginia Republican Senator Richard Stuart, would change Virginia’s current DUI law to decriminalize drunk driving on private property. Current Virginia law does not differentiate between private and public property when a person is driving under the influence. If passed, the legislation would include in Virginia’s DUI law the language, “This section shall not apply to any person driving or operating a motor vehicle on his own residential property or the curtilage thereof.”

The bill has already passed the State Senate by a vote of 37-3. The bill will now go to the House of Delegates for consideration.

To supporters of the bill, it’s more about being able to do what you want on your own property more than it is about being able to drive drunk.

“I really don’t think it has to do with whether or not people want to be able to drink and drive. They just don’t want to be interfered with on their private property,” said Dana Schrad with the Virginia Association of Chiefs of Polices. “From a law enforcement perspective, we’re very much concerned that we’re sending the wrong message to young people that there would be an acceptable time to drink and drive, that it’s okay, and how do you let them know that that doesn’t translate to public roadways?”

Unsurprisingly, not everyone is on board.

“Is a driver with a .14 BAC (blood alcohol content) operating a motor vehicle across Kings Dominion’s parking lot any less of a threat than if he or she were similarly doing so on a neighboring roadway?” asked Kurt Erickson, president and CEO of the nonprofit Washington Regional Alcohol Program. “Inasmuch, the bill throws Virginia down the slippery slope of bifurcating the state’s DUI laws, effectively communicating that it’s okay to drive drunk here, but not there – a dangerous precedent.”

In California, as it is with most states, drunk driving remains illegal on both private and public property.

The California Vehicle Code states that laws including a California DUI “apply to vehicles upon the highways and elsewhere throughout the State unless expressly provided otherwise.”

In 1992 Ronald Dean Arnold Malvitz was arrested for a California DUI while in a privately locked storage facility and sought to challenge California’s law arguing that it didn’t apply to him since he was on private property.

The California Court of Appeals ruled against Malvitz by looking at the legislative history of California’s DUI law.

Prior to 1982, the California Vehicle Code made it illegal to drive drunk “upon a highway or upon other than a highway areas in which are open to the general public.” However, in 1982, the legislature deleted the language referring to the locations upon which a person could be arrested and ultimately convicted of drunk driving.

The Court concluded that the “statute that prohibited driving under the influence of alcohol and/or any drug has emerged unencumbered with any language restricting its reach.”

In other words, the Court concluded that it was the intent of the legislature that, in deleting the portion of the statute which referred to location, the law which prohibits drunk driving should extend to anywhere in California where drunk drivers pose a threat included public highways as well private property.

In addition to the Malvitz ruling, California Vehicle Code section 23215 states, “[law enforcement] may, but shall not be required to, provide patrol or enforce the provisions of [California’s DUI law] for offenses which occur other than upon a highway.”

While drunk driving on private property may soon be allowed in Virginia, I don’t think California will follow suit any time soon.

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