Arrested for a DUI by Robocop

Friday, September 14th, 2018

Could it be that sometime in the future drunk drivers can be arrested by robotic law enforcement? If you’re anything like me, a product of the 80’s, you might be envisioning something like the Terminator, or Robocop. While we may be closer to automated law enforcement than some might think, it’s not as cool as what my imagination envisions.

Motorola has patented an autonomous car that may actually replace law enforcement in the fight against drunk driving.

Called the “Mobile law enforcement communication system and method,” the vehicle as described in Patent 10049419 is a “communication system, comprising: a self-driving vehicle within which to detain a detainee by law enforcement” that has the ability to make an arrest of a drunk driver, reads the drunk driver their Miranda Rights, determines who the driver’s attorney is, calls the driver’s attorney, communicates with a court regarding bail, and allows the drunk driver to swipe a credit card to post that bail.

Don’t believe me? See Patent 10049419 for yourself.

According to the developers, a self-driving vehicle will respond to a DUI stop where “the detained or arrested individual is placed into the self-driving vehicle for initial processing. Depending on the type of incident or alleged infraction, the individual may or may not remain handcuffed within the vehicle, but is detained within at least a portion of the vehicle throughout the process, such as a backseat area. [P]redetermined law enforcement processes and proceedings take place…using the autonomous vehicle’s communication system.

“Depending on the severity of the incident or alleged infraction, the processes and proceedings taking place within the self-driving vehicle may take the form of one or more of testing, booking, arraignment, and even full adjudication, if applicable. For example, the mobile communication system can be used as a mobile test hub for determining alcohol levels, drugs, and/or weapons. Sensors and scanners plugged in within the self-driving vehicle provide preliminary in-vehicle screening tools to help law enforcement officers assess a driver suspected of being drunk, carrying a dangerous or weapon, and predetermined drugs. As air sensors and scanners continue to evolve, the detained individual may simply remain within the vehicle while the tests are processed, analyzed, and results communicated to one or more appropriate recipients. Depending on the status of the detainee’s confinement, results may be communicated, over one or more wireless communications networks, to law enforcement, a remote attorney, and/or an on-call judge which may be contacted by the communication as part of the mobile processes and proceedings.”

Should this ever come to fruition in my lifetime, I’m not sure how I feel about it considering I still use a pin-on-the-wall calendar to keep track of my upcoming events rather than my smartphone. I can say, however, that it may be better than the subjective and often bias determinations made by the human law enforcement officers we deal with today.

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The Right to Remain Silent During a DUI Stop

Friday, September 7th, 2018

Few people know that they have a right not to say anything to an officer who has pulled them over on suspicion of driving under the influence. Sometimes a person knows that they don’t need to speak to the officer but do so anyways because they think that cooperation will help their cause. Sometimes a person just gets so nervous that they don’t even think about it and start answering the officer’s questions.

What kind of questions?

Some questions an officer might ask, and almost always do, include: “Where are you going?” “Where are you coming from?” “Have you had anything to drink?”

The driver is doing him or herself no favors if they answer with, “I’m going home from the bar and I’ve only had one or two drinks.” All the driver has done is given the police more reason to arrest them and given the prosecutor more evidence to convict them.

Maybe the driver wouldn’t have answered the officer’s questions had they been read their Miranda Rights. Why didn’t the officer read the driver their Miranda Rights before the officer started asking questions? When does the officer have to read the driver their Miranda Rights, if at all?

Before we get into when an officer must give Miranda Warnings to a DUI suspect, it makes sense to address why officers give Miranda Warnings in any case.

All statements given to law enforcement must be voluntarily given, even those given during a DUI stop. The United States Supreme Court in the landmark case of Arizona v. Miranda said that a statement cannot be voluntarily given if a person doesn’t know they have a right not to say anything under the 5th Amendment. Therefore, in order for a statement to be voluntarily given, a person must be made aware that they have a right to remain silent.

Whether it is a DUI stop of an arrest for murder, the Court held that an officer must read a person their Miranda Warnings before a “custodial interrogation.” This means after an arrest and before an interrogation.

When a person is stopped on suspicion of a DUI or even a traffic violation that leads to a DUI investigation, the person is not arrested even though they may be temporarily detained. And inevitably the officer is going to ask questions after stopping the person.

Now, the person has the right not to speak to the officers or answer their questions. But the officer’s duty to advise the driver of the Miranda Warnings has not yet been triggered because the person is not yet under arrest.

Questions asked during this time are considered merely preliminary in nature. And yes, any answers given by the driver during this time are fair game for officers and prosecutors to use in a DUI case against the driver.

It would be a different story if, after the DUI stop, the driver is arrested, but not given Miranda Warnings. If the officer then proceeds to ask the driver questions and the driver answers, those answers would be in violation of Miranda and thus in violation of the 5th Amendment.

So whether it’s before a driver is arrested or after with Miranda Warnings given, a person never has to talk to officers or answer questions. The 5th Amendment right to remain silent exists whether the Miranda Warnings are given or not. Use it! When stopped on suspicion of a California DUI, simply respond to any questions with, “I respectfully decline to answer any questions under the 5th Amendment. Am I under arrest or am I free to leave?”

 

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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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Probation for “One of the Worst DUI Offenders in US”

Thursday, August 23rd, 2018

A Minnesota woman, who has been dubbed by police as “one of the worst DUI offenders in the United States” was sentenced on her seventh DUI conviction to 24 months of probation.

Tasha Lynn Schleicher, 41, or New Hope, Minnesota was arrested in April of this year after police responded to a report of a woman passed out behind the wheel of her vehicle at a gas station in Riverside, Illinois.

Upon finding Schleicher, law enforcement said they found her alert and conscious with keys in the vehicle’s ignition and the engine running. Law enforcement also said that it appeared that Schleicher had mistakenly attempted to fill her vehicle’s gas tank with kerosene instead of gasoline while at the kerosene pump.

Law enforcement also noticed that Schleicher appeared to be highly intoxicated and had an open bottle of Crown Royal Canadian whiskey in her front passenger seat.

When law enforcement requested that Schleicher step out of her vehicle so that she could perform field sobriety tests, she was “in total disarray, not wearing shoes, and her clothes were literally falling off her.”

Schleicher proceeded to tell the arresting officers that she had 11 children who she could not find. Witnesses said that Schleicher appeared to be the only one in the vehicle and, after a search of the area, officers found no children nearby.

After refusing the field sobriety tests, Schleicher was arrested on suspicion of driving under the influence.

After the arrest, officers learned that Schleicher’s 11 children had been taken away from her for reasons all related to her alcohol and drunk driving incidences.

The Minnesota mother told law enforcement that she was in Illinois to drop off her 15-year-old son – the only child still in her legal custody – to “party” for spring break. She also told law enforcement that she was pregnant, bleeding, and having a miscarriage. Schleicher was then transported to the hospital where it was confirmed that she was, in fact, not pregnant.

“She’s lied about her name, date of birth, Social Security number and even that she was pregnant, leaving officers no choice but to take her to the emergency room for treatment for something completely fictitious. I believe her trip to the hospital was really an attempt by her to escape custody,” Riverside Police Chief Thomas Weitzel said.

After he arrest, law enforcement determined that Schleicher had outstanding warrants in three states and six prior DUI arrests in Kentucky, Wisconsin, Indiana, California, Oregon, and Minnesota.

“Schleicher’s history of six prior DUI’s in six states, with three outstanding warrants from various states speaks to her transient nature. When she was arrested in a state, she would just not show up in court unless she was held in custody. That’s one of the reasons for so many outstanding warrants. In Minnesota she was arrested with children in the car, and alleged to have been breastfeeding one child while driving intoxicated,” Weitzel said.

Although Schleicher was indicted by a grand jury on seven felony counts of aggravated drunk driving, driving with a revoke license, driving without insurance, and transporting open alcohol, all charges were dropped except for a single DUI charge as part of a plea deal.

On Monday, Schleicher pleaded guilty to that single DUI charge and was sentenced to 24 months of probation.

“A sentence of 24 months of probation for Ms. Schleicher is, simply put, disappointing,” Weitzel said in an emailed statement Tuesday. “This continues to demonstrate that as a nation that drunk driving and drugged driving are not treated as a serious criminal offenses. Society’s views need to change and habitual DUI offenders need to be held accountable for their actions.”

You can form your own opinions about whether two years of probation is appropriate or not. What is not up for opinion is the fact that that alcoholism is a legitimate disease and one that cannot be cured with punishment as evidenced by Schleicher.

 

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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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