Tag Archives: law enforcement

Can Colorado Keep Up?

Questions regarding Colorado’s ability to keep up with the flow of DUI blood tests have come to light since the state’s major policy change that could potentially jeopardize cases.

As of July 1, 2019, rather than sending out their blood tests to private labs, the Colorado Bureau of Investigations (CBI) has taken on the workload themselves in their attempt to cut back on spending. Private lab testing costs, at minimum $300, per case. This switch was in attempt to ease financial burdens on the smaller law enforcement agencies and to better collect data regarding marijuana use among motorists. The hope was that the state would be able to gather more information since the smaller agencies who refrained from sending in samples previously due to the cost, would be more likely to send in their data.

In addition to the fear that the CBI will not be able to handle the overflow that would result from the change in policy, there is also concern regarding the effects on the private labs they took work away from.

Back in 2013, when the Colorado Department of Public Health and Environment closed its labs due to concerns regarding accuracy, a small private lab called ChemaTox, made its way onto the market and has since handled thousands of cases for the state’s law enforcement. However, when CBI dropped its fees at the start of July, it hit ChemaTox hard. According to its owner Sarah Urfer, the business couldn’t keep up.

“It was never our intention to negatively impact a private business. I’m embarrassed and I’m responsible. Where we failed was to do the stakeholder outreach that I expect our agency to do and I should have done in this case to reach out to ChemaTox,” said John Camper, Director of the CBI.

The loss of business that Urfer and her 25 full-time employees suffered within weeks of the change was significant enough that she felt unable to rebuild, leading her to close within the month.

With one of the labs that handled the workload closed for good, all of the tests that were run by them fell onto the CBI.

As of October of last year, Camper announced that the CBI is doing a good job handling its workload and that they are still operating well within the time limits set for speedy trial requirements. However, it must also be noted that the state budgets that have been sent in by the CBI shows that, while they did not clock in any overtime during the months of June and July, the month of August reported that they worked nearly 160 hours of overtime. Camper has stated that he has no intention of asking the legislature for more funding to handle the workload that has already doubled over the last few months and that they still have open positions to fill that will help to keep the turnaround times low.

Prosecutors are still wary and have warned the CBI that, should the department become overwhelmed, they will have to resort to dropping cases because of the inability of the labs to present evidence that the prosecution needs to move forward. The prosecution uses test results for not only DUI cases, but also cases such as vehicular homicide and murder, and toxicology in its many forms are crucial to such cases. In the case of trial proceedings, the prosecution is also worried about the CBI’s ability to be able to provide experts available for testimony at trial.

Lastly, at the Joint Budget Committee in July, a point was made by State Representative Jonathan Singer (D-Longmont) when it was announced that the CBI would be running a full panel test on every DUI case sample that comes through its doors, regardless of whether or not the sample came in for just alcohol analysis. The reason for the full panel was to gather information about the effects of marijuana use throughout the state. Colorado’s current DUI law is not specific to alcohol or drugs, thus there is a grey area, but the CBI has admitted to the potential for challenges on the practice.

Singer questions the constitutionality of such actions. “If we’re looking for substances that weren’t the initiating or even the secondary reason for an arrest or a charge, are we wandering into any federal constitutional concerns about custody of evidence?”

That definitely sounds like something that could be a concern.

 

California School Bus Driver DUI on the Job

Last week, a school bus driver from Paradise, California was arrested on suspicion of driving under the influence of alcohol after several students riding on her bus, as well as parents of children on that bus, reported that she may have been drunk.

Students and their parents called 911 to report that the school bus driver, Desiree Ann Abrams, was speaking loudly, interacting inappropriately with the students, and smelled as though she had been drinking.

“When we got on the bus that day, she was kind of slurring her words. I thought she was just having a really good day but when I sat down she was stopping people and asking them questions what’s your middle name, how old are you, you’re looking pretty good today,” Dustin Jones, an eighth-grader at Paradise High School, told local news outlet KRCR.

When CHP officers arrived, they observed signs commonly associated with being intoxicated and determined that Abrams was driving under the influence.

According to law enforcement, no students were on board of the bus at the time of the DUI stop because they had already been dropped off at their regular stops.

“I thought she was just joking around until I saw she got arrested then I believed it,” said Phenix Rye, a junior at Paradise High School.

Paradise Unified School District confirmed the incident.

“A Paradise Unified School District bus driver was arrested on 11-15-19. District Administration was present at the scene and confirmed that students were safe and secure. We are grateful for the prompt response of both the Butte County Sheriff’s Office and the California Highway Patrol as well as the courageous actions of students and families. As always, student safety remains our top priority. Resources will be made available for students that may need additional support. Thank you for your understanding and support in this ongoing process.”

Abrams is out on bond and facing DUI charges and child endangerment.

Not only is Abrams looking at the punishment under California’s DUI law, she is also looking at additional penalties because of the danger that she placed the student in.

Under California Vehicle Code section 23572, California’s child endangerment DUI enhancement law, a first time DUI conviction where a minor under the age of 14 is in the car will bring an additional 48 hours in a county jail. A second time DUI conviction will bring an additional 10 days in jail. A third time will bring an additional 30 days in jail. A fourth will bring an additional 90 days. Furthermore, these penalties are to be served consecutively, not concurrently with the underlying DUI penalties.

The prosecutor need only prove that the driver was driving under the influence and that there was a minor child under the age of 14 in the car when that person drove.

The students being transported by Abrams, however, were high school students whose ages generally range from 14 to 18. If so, how can Abrams be charged with child endangerment for a DUI if the enhancement only applies to children under the age of 14?

Often times, prosecutors will charge child endangerment as a separate and whole charge against a person under the Penal Code, not as a mere enhancement to a DUI under the Vehicle Code.

California Penal Code section 273(a) makes it illegal for an adult to 1.) cause or permit a minor to suffer unjustifiable physical pain or mental suffering, 2.) cause or permit a minor to be injured, or 3.) cause or permit a child to be placed in a dangerous situation.

The crime of child endangerment, if a misdemeanor, carries up to one year in county jail and up to a $1,000 fine. However, if the risk to the child or children included death or “great bodily injury,” a felony child endangerment conviction carries two, four, or six years in a California state prison, and a fine of up to $1,000.

It should be noted that a person arrested for a DUI with a child in the car cannot be punished under both the Vehicle Code’s enhancement law and the Penal Code’s child endangerment law. Thus, if Abrams is found guilty, she’ll be punished for the DUI, and either the child endangerment enhancement or a separate child endangerment conviction.

 

Prescription Drug DUI

In late August, a Montebello police lieutenant was taken into custody in San Bernardino County on suspicion of driving under the influence of drugs. He had previously been arrested on suspicion of driving under the influence of prescription drugs, although charges were never filed. The arrest serves as a reminder that someone can be arrested for a California DUI with drugs, both illegal and legal.

On August 21st, Montebello Police Lt. Christopher Cervantes, 47, was arrested after police believe he rear-ended another car in the city of Montclair.

Neither Cervantes nor the other driver were injured in the collision, Cervantes was booked on suspicion of DUI at the San Bernardino County Jail, and he was subsequently placed on paid administrative leave.

In 2015, Cervantes was arrested following a collision with a tree in Diamond Bar. Although he tested positive for a combination of pain-relieving prescription drugs acetaminophen, butalbital, codeine, and morphine, the Los Angeles County District Attorney’s Office declined to file charges citing a lack of evidence.

In 2011, Cervantes was detained after resisting arrest at a San Diego hotel party where he falsely claimed to police that he was a federal agent. Charges were never filed for this arrest either.

“I’m aware of everything in his personnel file and as I was the one who promoted him, I was confident that he was a great candidate for promotion to lieutenant,” said Montebello Police Chief Brad Keller. Cervantes was promoted by Keller after

 Cervantes’s 2015 arrest.

As a high-ranking police officer, Cervantes should have been acutely aware that a person can still be arrested for driving under the influence of drugs, including prescription drugs. Many people, on the other hand, often believe that a DUI can only occur if a driver has alcohol in their system. Some people believe that a DUI can occur with only alcohol or illegal drugs, and because a drug might be legal, whether prescription or over-the-counter, a driver cannot get a DUI if they have legal drugs in their system.

California Vehicle Code section 23152 (f) states, “It is unlawful for a person who is under the influence of any drug to drive a vehicle.”

“Any drug” includes those that are illegal as well as legal, both prescription and over the counter.

The important consideration here is the phrase “under the influence.” Although, prescription drugs and other legal drugs fall within the definition of “any drug,” a person must also have his or her mental or physical abilities impaired to such a degree that he or she is unable to drive a vehicle with the caution of a sober person to be “under the influence.”

What kinds of medications can cause you to be under the influence? Tranquilizers, narcotic pain pills, sleep aids, antidepressants, cough medicines, antihistamines, and decongestants to name a few. And how might they cause you to be under the influence? Drowsiness, dizziness, nausea and vomiting, blurred vision, and confusion, to name a few. Kind of sounds like being drunk, doesn’t it?

A few years back, the AAA Foundation for Traffic Safety found that almost half of people 70 years old and above take up to five medications per day. Additionally, a survey from the foundation found that 72% of people 55 and over, the demographic most likely to take medications for chronic conditions, had no idea that their driving performance could be affected by their prescription medications.

Remember, a DUI does not just mean driving under the influence of alcohol, or even illegal drugs, but all drugs including prescription and over-the-counter drugs. If it is capable of affecting a person’s driving ability, then it’s best to wait until after a driving excursion is over.

 

DUI Stop After an Anonymous Tip

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).

 

“Heroic” Daughter Records and Calls 911 on Drunk Driving Mom

A 10-year-old girl is being hailed as a hero by both law enforcement and her mother for recording and calling 911 on, get this, her mother who was driving drunk.

Stephanie Davis, 31, was stopped shortly after 4pm on Saturday in Glendale, Arizona after police received a 911 call from Davis’s daughter that Davis was driving drunk. According to Maricopa County court records, when police arrived, Davis was found stumbling around outside her car, exhibiting slurred speech and bloodshot eyes.

“When she walked, she had to be supported by officers, and when she tried to exit the patrol vehicle, she fell down and had to be caught by officers,” according to court documents.

Police also found Davis’s three children in the car, one of which had recorded Davis’s drunk driving and had called 911. The 10-year-old provided police with the video of the incident and, according to court records, the children could be heard in the background yelling at Davis to pull over so that she wouldn’t crash the vehicle.

Davis later confessed to drinking wine while watching the Lion King with her daughter and 4-year-old nieces. She also later failed field sobriety test and was served a warrant for a blood test.

“This is the most embarrassing thing to happen in my life…the most failed moment of being a mother,” Davis told KTVK of Phoenix.

As Davis prepares to go to court on September 23rd, she has praised her “heroic” daughter for “absolutely [doing] the right thing.”

As a first-time DUI offender in Arizona, Davis faces a minimum of 24 hours in jail (the law provides for 10 days minimum with nine days suspended) up to six months, up to $2,500 in fines and fees, a license suspension between 90 and 360 days, installation of an ignition interlock device, possible probation for three years, possible community service, and possible alcohol assessment coupled with an alcohol education class.

While not exactly the same had Davis’s DUI been in California, she’d be facing similar consequences. In California, Davis would have faced three years of informal probation, up to six months in jail, between $390 and $1,000 in fines (not including “penalties and assessments” which increase the fine by about three to four times), a minimum three-month DUI course, possible jail, possible community service and/or labor, possible installation of an ignition interlock device, possible MADD Victim Impact Panel, possible Hospital and Morgue Program,  and a license suspension.

California also treats DUI with children in the car very seriously. Not only would Davis be looking at the punishment under California’s DUI law above, she would also be looking at additional penalties under California Vehicle Code section 23572, also known as California’s DUI child endangerment enhancements.

Under California Vehicle Code section 23572, a first time DUI conviction where a minor under the age of 14 is in the car will bring an additional 48 hours in a county jail. A second time DUI conviction will bring an additional 10 days in jail. A third time will bring an additional 30 days in jail. A fourth will bring an additional 90 days. Furthermore, these penalties are to be served consecutively, not concurrently with the underlying DUI penalties.

The prosecutor need only prove that you were driving under the influence and that there was a minor child under the age of 14 in the car while you drove.

Davis’s words of advice to parents: “Save the wine for at home.”