Tag Archives: DUI stop
Cops, like all employees, can be good, bad, or somewhere in the middle. However, it would be difficult to argue that there are many employment positions out there that require the same degree of care, competency and honesty as law enforcement. Sometimes an arresting officer is just a good person who made a bad judgement call. Other times, the officer abused their position. There are serious consequences when a police officer’s misconduct affects a DUI case. Police misconduct in DUI cases is very much real and happens more often than enforcement departments admit or that the public is aware of. In early 2019, amidst public call for police accountability, California enacted a transparency law, which essentially makes police misconduct records available to the public.
After the law was enacted, the Modesto Bee dove into newly released records and found numerous accounts of police misconduct. The documents detailed a lot of dishonesty. Of the records that the outlet uncovered, what it found as probably the most egregious misconduct, was that of an officer who had previously received commendations and public praise for his DUI enforcement efforts. Unfortunately, his elevated DUI numbers were the product of misconduct.
Footage did not match his written reports, which included that he observed signs of intoxication when none were present on the footage and relying on an “odor of alcohol” when the suspect’s BAC turned out to 0.00 percent. The officer “stopped drivers without reasonable suspicion, based on nothing more than the fact they were leaving the parking lot of a bar. He mocked the drivers he pulled over, … recorded evidence of impairment that did not objectively exist and arrested them without probable cause.” Additionally, an internal affairs review of his record concluded that the officer’s conduct was “often rude, belittling, abrupt and arrogant.”
All too often, this type of misconduct is chalked up to as an overzealous pursuit of justice on the officers’ part. Sometimes misconduct isn’t so egregious as what the Modesto Bee’s uncovered but can just be incompetently handling cases. The Modesto Bee’s efforts are only a small glimpse into misconduct in DUI Cases. Unfortunately, misconduct is not an anomaly and virtually every department struggles to address police misconduct within. Because of transparency laws like those in California and other states, law enforcement is coming to grips with the fact that they can’t keep turning a blind eye to bad policing.
Some examples of police misconduct, include:
- Invalid Investigatory Stop: A police officer must have reasonable suspicion that a crime occurred to stop your vehicle. This means that the officer must be able to show he or she had a supported reason for stopping you other than mere suspicion. Generally speaking, traffic violations and equipment failures (i.e., a blown-out taillight), are examples of proper reasons for a stop. However, it is misconduct for an officer to stop without any reason, or, since many officers know this, to fabricate the reason for the stop in their police report.
- Invalid Arrest: Likewise, a police officer must have probable cause that a driver was DUI before they can be arrested. Probable cause means that the officer has reasonable and trustworthy facts that the driver is DUI. It is misconduct for an officer to arrest without probable cause, or, since many officers also know this, to fabricate the reasons for the arrest.
- Out-Of-Uniform, Unmarked Vehicle Stop: In some states, off-duty police officers who are neither in uniform nor in a marked vehicle cannot conduct traffic stops. In those states that prohibit out-of-uniform, unmarked police vehicle stops, doing so is misconduct and evidence obtained from such a stop can be suppressed.
- Improper Administration and Recording of Field Sobriety Tests: There are several standardized field sobriety tests that an arresting officer can use to determine the sobriety of a driver. That officer must understand and properly administer the test, as well as, properly evaluate the results in order for his conclusion regarding intoxication or impairment to be supported. Improper administration of the field sobriety test may invalidate the test and cast reasonable doubt. It should go without saying that intentional or negligent misrepresentation of the driver’s performance is also misconduct.
- Improper Administration of Breathalyzers and Blood Test: Most states require that an officer strictly follow an approved methodof administering breathalyzers and blood tests. Whether a driver is submitting to the optional pre-arrest breathalyzer test, or the required post-arrest chemical tests (that can be either a breath test or a blood test), intentional deviations or mistakes made during this process are considered misconduct and can result in suppression of the results.
- Hostile Attitude: Though certainly not always the case, some officers struggle to be civil to suspects, defendants and attorneys. Often, video footage, like those required in the type of transparency laws that California has enacted, expose the hostile attitude often taken by officers against drivers suspected of drunk driving. Often the hostile attitude is the result of the officer’s preconceived notion that the driver is drunk even though the officer has nothing to base their opinion on.
- Failure to Document: Speaking of transparency laws, there is absolutely no excuse for the lack of a video footage or other documentation of police interactions with drivers in those departments who employ it. Logic would dictate that documentation and video footage would only assist and corroborate an officer’s observation. So why is it that the footage is often left out? Sometimes, video footage that is supposed to be available isn’t because it has gone missing, exists as a corrupted digital file, or the equipment wasn’t working. Would it have corroborated what the officer wrote in his or her report, or would it have shown something else, perhaps misconduct?
Fighting for your rights does not, in and of itself, mean that you are fighting against the officer. However, if an officer fails to follow normal department protocols, whether intentionally or not, your attorney should expose the misconduct and possibly get the a DUI dismissed or at the least to persuade the prosecutor to reduce the charges or penalties.
Consider this: It is a nice spring Thursday evening and you decide to meet friends for dinner. After visiting for a few hours, you decide it is time to drive home. On your way, you happen to go slightly over the speed limit and a police officer pulls you over. Upon his arrival to your driver side window, the police officer notices you have an ignition interlock device installed and immediately asks you to step outside the vehicle and starts to conduct a DUI investigation. Despite the fact that you have not had a single drop of alcohol, you are now being subjected to the humiliating process of a field sobriety test. Does the officer have the right to stop your vehicle and conduct a DUI investigation based solely off the fact that your vehicle was equipped with an ignition interlock device?
What is an Interlock device?
An Ignition Interlock Device (IID) is about the size of a cell phone, connects to a vehicle’s ignition, and is capable of determining a person’s blood alcohol content. Once installed, a driver must provide an alcohol-free breath sample before the engine will start. If the IID detects alcohol on the driver’s breath, the engine will not start. Drivers are periodically required to provide new breath samples en route. The International Council on Alcohol, Drugs and Traffic Safety claims that IIDs can result in a 40–95 percent reduction in the rate of repeat drunk driving offenses.
Interlock Laws in California
Pursuant to a relatively new California state law, the Department of Motor Vehicles (DMV) is conducting a Statewide Ignition Interlock Device (IID) Pilot Program that requires all repeat and all injury-involved driving under the influence (DUI) offenders to install an IID. A first-time DUI without injury will not require installation of an ignition interlock device (at least through the DMV) unless the driver is in one of five pilot counties, which require installation for a first-time offense.
Notwithstanding what the DMV might require, in California, the court, at its discretion, may require that a person convicted of a first DUI offense install an IID their vehicle or vehicles.
IID as a Pretext for a DUI Stop
Under the United States Constitution, law enforcement must have justification before it can initiate a traffic stop or arrest anyone. In the context of a DUI, the level of justification is usually expressed as “reasonable suspicion” for a DUI traffic stop, and “probable cause” for a DUI arrest. In other words, a law enforcement officer must have “reasonable suspicion” that a traffic violation is or was taking place before they can stop a vehicle. “Reasonable suspicion” means that the officer was suspicious that a traffic violation occurred (not necessarily a DUI, because the officers don’t yet have enough facts to stop based on DUI alone) and they can articulate why their suspicion was reasonable.
Most of the time, officers have more than reasonable suspicion to stop a vehicle for a traffic violation because the officer actually witnesses a traffic violation occur, such as speeding or running a red light. However, once a stop is made, the officer must have probable cause to arrest a driver for a DUI. Probable cause means that the officer has reasonable and trustworthy facts that the driver is driving under the influence.
An officer should able to determine if a person has a DMV-required IID installed in their vehicle by scanning a license plate. But that, by itself, doesn’t even warrant the reasonable suspicion that the person has done anything wrong. Remember, that officers need, at a minimum, reasonable and articulable suspicion that a person is driving drunk. Merely knowing that a driver has an IID in his or her car doesn’t mean that the driver is currently drunk (in fact, quite the opposite), and therefore can’t be the officer’s reasonable suspicion needed to make the stop.
From the point the stop is initiated, the law enforcement officer is trying to obtain the requisite probable cause so that they can arrest the driver at the end of the stop on suspicion of DUI. Some of the ways that the officer obtains that probable cause is through observing the signs of intoxication through the driver’s eyes, breath, and speech, observing poor performance on field sobriety tests, and obtaining a BAC reading which would indicate that the driver had alcohol in their system (recall that the pre-arrest roadside breathalyzer is optional).
It goes without saying that if an officer is aware a driver has an IID in their car, the police are going to want to pull that driver over. While courts have held that police can have an ulterior motive for pulling someone over (such as a DUI), the officer must still have the reasonable suspicion that a crime occurred, beyond merely knowing that an IID is in the driver’s car.
Amidst the new Shelter-in-Place orders, some states have relaxed the restrictions against alcohol delivery from restaurants. For some businesses, alcohol sales can make up to 30% of their revenue. The news is welcomed by those in the restaurant industry who have been struggling to stay afloat while their patrons try to comply with the shelter-in-place orders. For example, Maryland issued an executive order, allowing the sale of alcohol for delivery and take-out “if promptly taken from the premises before consumption.” Similarly, Texas Governor Greg announced Wednesday that restaurants can deliver alcohol, including beer, wine, and mixed drinks, alongside food.
California is amongst those states that have eased up on the rules. These relaxed rules make it easier for restaurants to sell beer, wine, and pre-mixed cocktails for pick-up and delivery throughout the state. The California Department of Alcoholic Beverage Control (ABC) released the following statement:
This regulatory relief is designed to support the alcoholic beverage industry in its efforts to assist California in slowing the spread of the virus while assisting the industry in dealing with the economic challenges it is facing as a result. The Department has carefully considered the public’s health, safety, and welfare in providing this relief, and the Department has concluded that none of these measures, exercised on a temporary basis, will jeopardize the public’s health, safety, or welfare.
The Notice of Regulatory Relief delineates a number of issues and the full text of the temporary suspensions can be found at https://www.abc.ca.gov/notice-of-regulatory-relief/.
It is important to note that ABC has only temporarily suspended its enforcement of specific prohibitions, and has every authority to rescind a businesses’ liquor license if a licensee abuses the temporary regulations:
The relief provided by this notice is temporary and may be withdrawn by the Department at any time. The Department intends to provide a 10-day notice of the termination of any such relief, although such relief may be withdrawn immediately should the needs of public safety dictate. In addition, licensees are directed to use the relief provided by this notice responsibly without compromising the public’s health, safety, or welfare. Notwithstanding any other provision of law, if the Department determines that any licensee is found to be abusing the relief provided by this notice, or if the licensee’s actions jeopardize public health, safety, or welfare, the Department may summarily rescind the relief as to that licensee at any time.
In California, not all licenses allow the sale of distilled spirits but instead can only allow the sale of wine or beer for delivery. Regardless, the restaurant must post open-container warnings in the restaurant and online for both the delivery driver and the customer.
ABC requires that the following verbiage be posted in a manner that puts the consumer on notice of still applicable open-container laws:
Alcoholic beverages that are packaged by this establishment are open containers and may not be transported in a motor vehicle except in the vehicle’s trunk; or, if there is no trunk, the container may be kept in some other area of the vehicle that is not normally occupied by the driver or passengers (which does not include a utility compartment or glove compartment (Vehicle Code Section 23225)). Further, such beverages may not be consumed in public or in any other area where open containers are prohibited by law.
California Vehicle Code sections 23221-23229 are collectively referred to as California’s “open container” laws and prohibit driving with an alcoholic beverage that has been opened, even if not consumed. Generally, an infraction of this nature carries a maximum fine of $250.00. In California, whether the beverage has been partially consumed or simply has a broken seal, having an open container in the car is illegal.
While the verbiage that must be posted by restaurants notes that it is illegal to have an open container in a vehicle and to consume in pubic (i.e. drinking in your vehicle while driving), it does not refer to or make any reference to drunk driving. Drunk driving, however, is a natural consequence of drinking while driving, which has been made easier to accomplish with these loosening of the restrictions.
During these trying times, it is important to support your local restaurant industry. However, if you are going to purchase alcoholic beverages with your take-out order, be sure to transport your alcohol in the trunk or bed of your vehicle. A person will not be guilty of violating an open container law if the alcoholic beverage is transported in the trunk of your car or in a place that is not ordinarily occupied by passengers, such as the bed of a truck or lockbox container. If you are not able to transport the alcohol in such a place, try to purchase beverages that are truly sealed, such as an unopened box, and remind your passengers not to drink while you are driving.
More importantly, if alcoholic beverages are in the trunk of a vehicle, or otherwise inaccessible place, a driver is incapable of taking a sip before getting home, thus eliminating the risk of getting a DUI.
It is not uncommon for people arrested on suspicion of a California DUI to mistaken believe that it is in their best interest to flatly refuse the breathalyzer. Not knowing the correct thing to do in this scenario can be the difference between becoming convicted of a California DUI and not, and unfortunately, the right thing to do is a little more complicated than merely refusing the breathalyzer or not.
When people refer to a “breathalyzer” during a California DUI stop, they actually referring to two different tests. The first is the roadside breathalyzer, often called a preliminary screening alcohol test or “PAS” test, and the second is the “chemical breath test.”
According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”
The PAS roadside breath test, like other field sobriety tests such as the walk-and-turn test, the horizontal gaze nystagmus test, and the one leg stand test, are optional. Although an officer might threaten to arrest someone for refusing the optional breathalyzers, a driver should stand their ground and politely refuse to complete any field sobriety tests. Despite what the officer might say, they are optional and are only meant to give the officer the evidence they need to arrest the driver.
In fact, the officer must advise the driver that the roadside breath test is optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”
As stated above, providing a breath sample to an officer during the PAS test only give the officer the evidence they need to arrest a driver. Whether a driver provides the officer that information or not, the officer will have to make the decision to arrest a driver on suspicion of a DUI or not. In order to arrest a driver on suspicion of a California DUI, the officer must have probable cause. The probable cause can consist of driving patterns indicative of intoxication, bloodshot eyes, slurred speech, smell of alcohol on a driver’s breath, admissions of drinking or intoxication, and, yes, a reading of the pass test indicating a BAC of 0.08 percent or higher.
If the officer meets the probable cause standard by obtaining and/or observing enough evidence that a driver is driving under the influence, the officer can lawfully arrest the driver on suspicion of driving under the influence. Once this happens, California’s Implied Consent law takes effect.
California’s Implied Consent law, codified in California Vehicle Code section 23612(a)(1)(A), “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”
Simply put, if you have a license and you drive in California, you have impliedly consented to submit to the chemical test after you have lawfully been arrested for a DUI, which can either be a breath test or a blood test. If the driver opts not to give blood, then they must provide a breath test. Conversely, if a person opts against the breath test, they must submit to the blood test.
So should you pass on the breathalyzer?
Pass on the roadside “PAS” test. Submit to the chemical test required under California’s Implied Consent law (See Breath or Blood Test After a California DUI Stop).
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).