Should Waze be Allowed to Post DUI Checkpoint Locations?

Monday, February 11th, 2019

I’m sure most of you have heard of Waze, possibly even use it yourself. On the off chance that you haven’t heard of it, Waze is a smartphone app developed by Google that provides real-time traffic information for drivers. Users simply plug in their destination address or location and Waze provides the quickest possible route using GPS and real-time user input while en route. While driving, not only are users directed to the fast route, but they are also made aware of upcoming traffic, obstacles in the road, street closures, and yes, police presence, including the location of DUI checkpoints.

The New York Police Department is not happy about it and is seeking to stop it.

The NYPD has sent a letter to Google demanding that it stops allowing users to post the location of DUI checkpoints claiming that the app is “encouraging reckless driving.”

“Individuals who post the locations of DWI checkpoints may be engaging in criminal conduct since such actions could be intentional attempts to prevent and/or impair the administration of the DWI laws and other relevant criminal and traffic laws. The posting of such information for public consumption is irresponsible since it only serves to aid impaired and intoxicated drivers to evade checkpoints and encourage reckless driving,” NYPD acting Deputy Commissioner Ann Prunty said in the letter to Google dated February 2.

Although Waze does not have a feature that specifically alerts drivers about upcoming DUI checkpoints, it does notify drivers of upcoming police presence.

“We believe highlighting police presence promotes road safety because drivers tend to drive more carefully and obey traffic laws when they are aware of nearby police. We’ve also seen police encourage such reporting as it serves as both a warning to drivers, as well as a way to highlight police work that keeps roadways safe,” a Waze spokesperson said in a statement to CNN last week. “There is no separate functionality for reporting police speed traps and DUI/DWI checkpoints — the Waze police icon represents general police presence.”

However, in Waze’s feature that displays upcoming police presence, users can report the presence of a DUI checkpoint as a comment about what they have observed including whether the police presence is a DUI checkpoint.

Law enforcement complaints on the posting of DUI checkpoint locations is nothing new. In July of 2016, the National Sheriff’s Association released a statement which said, “Evidence on social media shows that people who drink and drive use Waze’s police locator feature to avoid law enforcement. …The facts are clear. It is just a matter of time before we start seeing the dangers that lurk within the Waze app’s police locator feature.”

The California Supreme Court in the 1987 case of Ingersoll v. Palmer held that, for DUI checkpoints to be constitutional, they must meet the following criteria:

  1. The decision to conduct checkpoint must be at the supervisory level.
  2. There must be limits on the discretion of field officers.
  3. Checkpoints must be maintained safely for both the officers and the motorists.
  4. Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
  5. The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
  6. The checkpoint must show indicia of official nature of the roadblock.
  7. Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.
  8. Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.

Three years later in the case of Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop. In doing so, the court held that sobriety checkpoints were constitutional even though officers were technically violating the 4th Amendment.Having said all of that, nothing prevents a driver, nor should it, from letting others know when and where a DUI checkpoint is. Waze has not provided a feature that specifically points out DUI checkpoints. Rather, users can advise of DUI checkpoint locations in comments. How is this any different than speaking about police activity with friends and family in person, or in a text, or in an email? How is it any different that speaking about police activity on Facebook, Twitter, or Instagram? It isn’t any different, and to allow law enforcement to prevent such speech would be a violation of the 1st Amendment. Doing so would also open the door to allow law enforcement to dictate what we can or can’t say on our social media sites. That is not acceptable.

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Supreme Court to Decide if Cops Can Draw Blood from Unconscious Driver

Tuesday, January 22nd, 2019

The United States Supreme Court has agreed to hear and decide a case that challenges a Wisconsin law that allows law enforcement to withdraw blood from an unconscious driver that they suspect was driving under the influence.

The case stems from the 2013 arrest of Gerald Mitchell in Sheboygan County, Wisconsin. After receiving reports that the driver of a gray van may have been intoxicated, officer Alex Jaeger pulled Mitchell over. A pre-arrest breathalyzer revealed that Mitchell had a blood alcohol content of 0.24 percent, three times the legal limit. Officer Jaeger then arrested Mitchell and drove him to a hospital to withdraw a blood sample.

By the time Mitchell and officer Jaeger had arrived at the hospital, Mitchell had lost consciousness and could not be woken. While at the hospital, Mitchell appeared to be too intoxicated to answer questions from a blood-withdrawal consent form. Notwithstanding his unconscious state, blood was taken from Mitchell without a warrant and without his expressed consent.

The blood test revealed that Mitchell’s blood alcohol content was 0.22 percent.

At trial, Mitchell challenged the results arguing that the warrantless blood withdrawal amounted to an unreasonable search and seizure in violation of the 4th Amendment. Mitchell’s suppression motion, however, was denied and the jury convicted him of driving under the influence.

The Wisconsin Supreme Court took up the case to address whether implied consent under “implied consent laws” (laws that require a person to submit to a breath or a blood test if they are legally allowed to drive and if law enforcement has probable cause to believe a person is driving under the influence) is constitutionally sufficient to allow a blood withdraw without expressed consent while a driver is unconscious.

The Wisconsin Supreme Court held that, by virtue of Mitchell’s mere possession of a driver’s license, Mitchell had already impliedly provided consent to allow law enforcement to withdraw blood if law enforcement had the probable cause to arrest him on suspicion of driving under the influence. To boot, the court concluded that officer Jaeger had the probable cause to arrest Mitchell on suspicion of driving under the influence, and therefore law enforcement could withdraw blood from Mitchell while he was unconscious.

In its opinion, the court stated, “…we conclude that consent given by drivers whose conduct falls within the parameters of [Wisconsin’s Implied Consent law], is constitutionally sufficient consent to withstand Fourth Amendment scrutiny…” Furthermore, the court concluded that Mitchell, having consumed alcohol to the point of unconsciousness, “…forfeited all opportunity, including the statutory opportunity…to withdraw his consent previously given; and therefore, [Wisconsin’s Implied Consent law] applied, which under the totality of circumstances reasonably permitted drawing Mitchell’s blood. Accordingly, we affirm Mitchell’s convictions.”

The United States Supreme Court is set to hear Mitchell’s case and it could be decided by late June of this year.

In 2016, the United States Supreme Court ruled that it was lawful for states to impose penalties for drunk driving suspects who refused to take a breath test under the state’s Implied Consent law. However, the Court went on to conclude that while their “prior opinions have referred approvingly to the general concept of implied consent laws,” that “there must be a limit to the consequences to which motorists may be deemed to have consented to only those conditions that are ‘reasonable’ in that they have a ‘nexus’ to the privilege of driving.” Thus, Implied Consent laws that punish people who refuse a blood test are too intrusive and, therefore, unconstitutional.

“[If] criminal penalties for refusal are unlawful because they too heavily burden the exercise of the Fourth Amendment right to refuse a blood test, can it really be that the state can outright abolish the very same right?” Mitchell’s attorneys asked.

Mitchell’s attorney’s question is a valid and one that I hope the Court concludes the answer is “no.”

 

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New Canadian DUI Law: Police can Breathalyze in Homes, Bars, and Restaurants

Tuesday, January 15th, 2019

I know I complain a lot about the DUI laws here in California. There is much improvement to be made with regard to how law enforcement enforces drunk driving laws and how prosecutors prosecute drunk driving laws. Having said all that, at least we’re not in Canada.

Section 253 of the Criminal Code of Canada was effectively changed in December of 2018 which gave law enforcement the authority to seek breath samples from people who might have been driving under the influence of alcohol.

Here in California, an officer must have probable cause that a person was under the influence before they could arrest them on suspicion of a DUI. Only then was a person required to provide either a breath or a blood sample. Prior to that arrest, any breath sample provided was voluntary on behalf of the driver.

Under Canada’s new law, police officers no longer need to have “reasonable suspicion” that a person had consumed alcohol to force that person to take a breathalyzer. Police could demand breath samples from people at their home, in a bar, or at a restaurant. If the person refuses, they could be arrested and charged, and if convicted, can face a fine and a driving suspension.

Notwithstanding the potential to arrest a person who was not driving under the influence of alcohol, but rather lawfully drinking in their home or elsewhere, supporters of the law point to the use of another “tool” in combating drunk driving.

“Police miss a lot of impaired drivers,” said Toronto police spokesman Sgt. Brett Moore. “It’s just a really good, strong message that there’s a real high likelihood that if you get stopped by police, you’re going to get asked to submit to a breath test.”

Not surprisingly, Mothers Against Drunk Driving Canada also supports the new law asserting that mandatory alcohol screening will make the roads safer.

Don’t get me wrong, I too support making roads safer, but not at the risk of arresting, charging, and punishing people for doing something perfectly lawful. I’m not the only one.

“It’s ridiculous, it’s basically criminalizing you having a drink at your kitchen table,” Paul Doroshenko, a Vancouver criminal defense lawyer who specializes in impaired driving cases, told Global News. “If you start to drink after you get home, the police show up at your door, they can arrest you, detain you, take you back to the (police station) and you can be convicted because your blood alcohol concentration was over 80 milligrams (per 100 millilitres of blood) in the two hours after you drove.”

The Canadian Civil Liberties Association also expressed concern about Canada’s new law saying that mandatory alcohol testing will disproportionally affect racial minorities who might be unfairly targeted by law enforcement.

Notwithstanding its problems, Minister of Justice and Attorney General Jody Wilson-Raylould believes that the law with withstand judicial scrutiny when it is challenged in court and is in support of the new law.

“Impaired driving is the leading criminal cause of death and injury in Canada,” said Wilson-Raybould in December. “I believe these reforms will result in fewer road deaths and fewer Canadian families devastated by the effects of an impaired driver. This is one of the most significant changes to the laws related to impaired driving in more than 40 years and is another way that we are modernizing the criminal justice system.”

It could take years for legal challenges to make their way through Canada’s appeal courts and even the Supreme Court of Canada. Until then, people, all people in Canada, are subject to a law that could find them in legal trouble even though they’ve done nothing wrong.

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Man Arrested for DUI for Falling Asleep while Tesla in Autopilot Mode

Thursday, December 6th, 2018

Last week, California Highway Patrol arrested a driver for DUI after he had fallen asleep in his Model S Tesla while it drove down Highway 101 in autopilot mode.

A CHP officer spotted a grey Tesla going about 70 miles per hour on Highway 101 near Redwood City. As the officer approached the vehicle, he also noticed that it appeared the driver of the Tesla was asleep behind the wheel. CHP then closed traffic on the highway and proceeded to slow the Tesla by pulling a patrol vehicle in front of it and slowing down, thus causing the Tesla to slow down.

The driver of the vehicle eventually awoke to the CHP stopping his vehicle. Once stopped, responding officers suspected that the driver was under the influence and had the driver perform field sobriety tests, which he allegedly failed.

“It’s great that we have this technology; however, we need to remind people that…even though this technology is available, they need to make sure they know they are responsible for maintaining control of the vehicle,” CHP spokesman Art Montiel said.

In January of this year, CHP arrested a driver who was found passed out behind the wheel of a Tesla on San Francisco’s Bay Bridge. According to CHP, the driver’s blood alcohol content was more that double the legal limit. The man claimed he wasn’t responsible because the vehicle was in autopilot.

While fully autonomous vehicles may be in the offing, no major car manufacturer has yet to develop a fully autonomous vehicle for public consumption. In fact, Tesla warns that its autopilot features are not fully autonomous. “Autopilot is intended for use only with a fully attentive driver,” a Tesla spokes person told the Washington Post earlier this year. Rather, auto pilot systems are designed to detect obstructions in the road and, if necessary, bring the vehicle to a halt if the driver does not respond in time.

In fact, a goal of Elon Musk is to have fully autonomous vehicles in the near future.

“We aimed for a very simple, clean design, because in the future – really, the future begins now – the cars will be increasingly autonomous,” Musk said in July of last year. “So, you won’t really need to look at an instrument panel all that often. You’ll be able to do whatever you want: You’ll be able to watch a movie, talk to friends, go to sleep.”

This, however, raises an interesting legal dilemma.

California law requires that a drunk driver be in physical control of the vehicle and must cause the vehicle to move in the slightest amount. Are drunk drivers who are in autopilot really in physical control of the vehicle and cause it to move if the car is in autopilot? At least right now, the answer is a likely yes.

Drivers still need to operate a vehicle in autopilot to a certain degree. As Tesla’s spokesperson pointed out, Tesla’s autopilot feature still requires a fully attentive vehicle to take control of the vehicle to engage in maneuvers that are not available in autopilot. Just because a vehicle has autopilot mode does not mean that it is autonomous.

The question will become even trickier when fully autonomous vehicles are introduced to the public. If a vehicle is fully autonomous, then there is no need for a driver to be in any kind of control of the vehicle. On the other hand, a driver (now a passenger of a fully autonomous vehicle) will still need to input coordinates and tell the vehicle where to go, which can raise the argument that the passenger is, in fact, in control of the vehicle.

You can see how this technology can raise interesting legal questions. I suppose we’ll just have to 1.) wait for fully autonomous vehicles, and 2.) see what the legislature and/or courts do to define what it means to be “in control” of a fully autonomous vehicle.

Until then, drinking and getting behind the wheel of a vehicle while in autopilot mode will still land you a DUI in California.

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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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