Drunk Driver Incriminates Herself on Facebook

Monday, September 11th, 2017

Sometimes clients or potential clients send me messages on public forums like Facebook. Shockingly, the messages include incriminating statements or even admissions of guilt. I have to remind them that the internet is like Las Vegas in that what goes on the internet, stays on the internet and that it can be seen by anyone, including the police and prosecutors.

A Michigan woman found this out the hard way when she posted about her DUI collision on social media.

The woman was driving under the influence of alcohol when she collided into another vehicle. Following the collision, she fled the scene to a nearby hotel which had a computer and she immediately began posting about the incident.

Officers tracked her down to the hotel. The front desk attendant told the officers that the woman had come in, said that she had been in a collision, and that she had been drinking.

The officers then then tracked down the computer that the woman had been using. The woman had closed neither Facebook nor the Facebook messages that she had sent a friend. Lo and behold, there was a message from the woman to her friend detailing the DUI-accident.

A later breath test revealed that the woman had a blood alcohol content of 0.12 percent. It was also discovered that her license was expired. She was booked on charges of driving under the influence, operating a vehicle with an expired license, and leaving the scene of an accident causing injury.

It wouldn’t surprise me if the Facebook message will be used against the woman in court.

Ok, so the officers in this instance didn’t discover the incriminating social media information as you might’ve expected, namely scanning pages hoping to come across incriminating information. That doesn’t change the point I’m trying to make.

Keep your mouth shut…and your fingers off the computer.  

The Fifth Amendment exists for a reason and is useless unless it is exercised. It doesn’t matter whether you’re guilty or innocent. Exercising your right to remain silent is about protecting yourself and your rights.

Not only will statements made to police be used against someone in a DUI case, or any criminal case for that matter, but also the information they post on social media.

Being a criminal defense attorney for close to eight years now, I’ve known prosecutors and law enforcement agents to search Facebook and other social media platforms for information that might incriminate people. If found, that information is often used as evidence in a criminal case against the person.

If you are arrested on suspicion of driving under the influence, simply tell the officers that you respectfully decline to answer any questions without a lawyer present. Bear in mind that officers do not need to read you the Miranda Rights before they start asking question during a DUI stop. If you are arrested and charged, do not discuss the matter with anyone, either online or in person, to anyone but your attorney.

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Avoid a 4th of July DUI

Thursday, June 29th, 2017

The 4th of July is the annual celebration of the day that the original thirteen colonies declared independence from Great Britain. On this day in 1776, delegates from the colonies formed the Continental Congress which drafted and adopted the Declaration of Independence and announced that the United States of America was its own country.

In fact, John Adams wrote that Independence Day “will be the most memorable epoch in the history of America. I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival. It ought to be commemorated as the day of deliverance, by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires, and illuminations, from one end of this continent to the other, from this time forward forever more.”

Amen!

And John Adams was right. The 4th of July is celebrated with pomp and parade…and now also fireworks, barbeques, and alcohol.

Although the holiday lands on a Tuesday this year, it’s not going to stop drunk drivers from hitting the roads nor is it going to stop law enforcement from taking to the streets in full force to catch those drunk drivers.

CHP’s “maximum enforcement period” will begin at 6pm on Friday evening and will conclude at 11:59pm on Tuesday night.

Last year during the enforcement period, CHP arrested 1,118 motorists statewide on suspicion of a California DUI and CHP investigated 35 traffic collisions in which people were killed. According to the National Highway Traffic Safety Association (NHTSA), between 2011 and 2015, a total of 751 people were killed in DUI related traffic collisions during the 4th of July enforcement period.

Don’t celebrate America’s independence by losing your own with jail. Plan ahead to avoid a 4th of July DUI.

Appoint a designated driver. Make sure that the designated driver remains sober. Often is the case that “designated drivers” just don’t drink as much as their passengers. This is not a designated driver, but someone who runs the risk of getting arrested for drunk driving themselves.

Use alternative means of transportation. We live in a time where a trolley is not the only way to get somewhere without driving. Take a taxi…if you can get one. Good luck with that. Use Uber or Lyft or another ridesharing app. Although a little more expensive, they more available and a little nicer than a cab.

Stay the night. Unless you want to be arrested for drunk in public, don’t try this one at the bar you go to. However, if you attend a 4th of July party, ask the host if you can crash on the couch.

Don’t drink. This may not be the most appealing option if you want to partake in the festivities. However, it is the only surefire way to avoid a California DUI if you plan on driving this 4th of July.

 

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Texalyzer to Help Cops Crack Down on Distracted Driving

Wednesday, May 10th, 2017

You heard me right. Not a breathalyzer, but a texalyzer. A new device has been developed that could help law enforcement determine whether a person was using a cell phone at the time a traffic collision occurred.

Just as a breathalyzer can help determine whether alcohol in a person’s system played a part in a traffic collision, the texalyzer can help law enforcement and prosecutors determine whether a driver’s texting possibly played a part in a traffic collision.

By connecting the phone via a cord to the device, law enforcement would be able to know what apps were open and in use with a time stamp.

Lawmakers in New York and several other cities are considering allowing law enforcement to use the device to crack down on texting while driving. It is currently illegal in California to “drive a motor vehicle while holding and operating a handheld wireless telephone.” This provision includes texting while driving.

Cellebrite is the company behind the device and has been working with Ben Lieberman of New Castle, N.Y. whose son was killed in a 2011 car crash.

The driver who collided with the car whom Lieberman’s son was a passenger originally told law enforcement that he had fall asleep behind the wheel which led his car veering into oncoming traffic.

Law enforcement could not check the driver’s phone to see if he was lying without a warrant.

"We often hear, ‘just get a warrant’ or ‘just get the phone records.’ … The implication is that the warrant is like filling out some minor form," said Leiberman. "It’s not. In New York, it involves a D.A. and a judge. Imagine getting a D.A. and a judge involved in every breathalyzer that’s administered, every sobriety test that’s administered."

Leiberman was able to eventually get the phone records through a civil lawsuit which showed that the driver had been texting before the collision.

Privacy advocate groups have concerns with the device which is still in development.

"Distracted driving is a serious concern, but this bill gives police power to take and search our phones after almost every fender-bender," says Rashida Richardson, legislative counsel for the New York Civil Liberties Union. "This is a concern because our phones have some of our most personal and private information — so we’re certain that if this law is enforced as it is proposed, it will not only violate people’s privacy rights, but also civil liberties."

The bill that Richardson is referring to is New York Senate Bill S2306 which provides for the field testing of mobile telephone and portable electronic device usage while driving after an accident or collision.

Recent studies have shown that distracted driving, like texting while driving, is just as dangerous a drunk driving.

A new study by the Cambridge Mobile Telematics, a leader in smartphone-centric telematics, is one such study.

Some of the study’s key findings included: Distracted driving occurred during 52 percent of trips that resulted in a crash; on drives that involved a crash, the average duration of distraction was 135 seconds; phone distraction lasts for two minutes or more on 20 percent of drives with distraction, and often occurs at high speeds; the worst 10 percent of distracted drivers are 2.3 times more likely to be in a crash than the average driver, and 5.8 times more likely than the best 10 percent of distracted drivers.

You can be sure we’ll be keeping our eyes and ears open for whether law enforcement usage of such a device gains any traction here in California.

 

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San Diego Begins Using Mouth Swabs to Detect Drugged Drivers

Thursday, March 23rd, 2017

I’ve been writing for some time now that roadside drug tests for suspected DUI of drugs stops are not far off. The increase in drug usage and the growing acceptance of marijuana has law enforcement agencies and law makers clamoring for a device that can quickly and accurately test whether drivers are under the influence of drugs. While current devices are not quite yet capable of telling law enforcement how intoxicated a driver might be, they can say whether a driver has drugs in their system. And San Diego became the latest city to use such devices roadside.

Last week, San Diego police began using roadside oral swabs to test drivers for the presence of marijuana, cocaine, methamphetamine, amphetamine, methadone, opiates, and benzodiazepines. The oral swabs cannot, however, test the amount of drugs in the driver’s system nor can it test for the driver’s level of intoxication.

The inability to test for quantity of drug or intoxication is legally important because, under California law, a person can only be arrested, charged, and convicted of a California DUI if they are “under the influence of a drug.” This means that a person’s physical or mental disabilities are impaired to such a degree that they no longer have the ability to drive with the caution characteristic or a sober person of ordinary prudence under the same or similar circumstances.

With the swab test only able to indicate the presence of one of the drugs listed above, a prosecutor must still prove that a person was not driving with the care of that of a sober person. This is done with officer testimony of poor driving patterns, failure of field sobriety tests, and visual symptoms of drug impairment.

Although many, including Mothers Against Drunk Driving, often forget, the mere presence of drugs in a driver’s system does not necessarily mean that they are driving under the influence. Tetrahydrocannabinol (THC), the active component in marijuana, for example, can stay in a person’s system for up to several weeks after the smoking or ingestion of marijuana. While, the THC may still be present, the person may no longer be “under the influence.”

San Diego began using the oral swab test, called Dräger 5000, after officials met with authorities in Colorado which legalized recreational marijuana in 2014.

Under San Diego protocol, law enforcement will only request the oral swab after they suspect that the driver might be under the influence of a drug. And before that, the officer must have probable cause to even stop the driver in the first place.

Like the preliminary screening alcohol test (PAS) test in DUI of alcohol cases, the oral swab test is also optional. And like the PAS test, it is never suggested that a driver voluntarily submit to the test. Never give law enforcement and prosecutors any more information than they already have.

Only after a person is arrested must they submit to a chemical test and if law enforcement suspects that a person was driving under the influence of a drug, they’ll have to take a blood test.

According to a study by the California Office of Traffic Safety, 38 percent of drivers killed in vehicle collisions during 2014 tested positive for either legal or illegal drugs. This is up six percent from 2013. While this may seem like a high number, testing positive does not necessarily mean that those drivers were actually under the influence and impaired by a drug.

Although drugged driving is and will always be a problem, we can’t continue to arrest people for driving for the mere presence of drugs in their system because presence does not mean impairment.

 

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Could Extending Last Call in California Increase DUI Incidences?

Thursday, February 23rd, 2017

Many people know Nevada, particularly Las Vegas, as the obvious exception to widely accepted last call time of 2 a.m. and some know that a few states such as New York, Hawaii, and Alaska have later last calls than 2 a.m. California’s last call is 2 a.m. One senator hopes to extend the last call in certain California cities such as Los Angeles to 4 a.m.

Just to be clear before I move on, “last call” refers to the last time for which a bar or restaurant can sell alcohol to patrons.

The bill, which was introduced by Sen. Scott Wiener and entitled Let Our Communities Adjust Late Night Act, would allow municipalities to extend last call to 4 a.m. with the approval of the California Department of Alcoholic Beverage Control. The bill provides the flexibility to allow an extension of last call to certain cities or “specific areas” of a town. It also would allow an extension only on certain days of the week or only on specific holidays.

A similar bill by Sen Mark Leno was rejected in 2013 by the Senate Committee on Governmental Organization.

Not so surprisingly, Mothers Against Drunk Driving (MADD) are opposed to extending the last call time just as they were back in 2013.

"MADD supports uniform closing times for establishments that serve alcohol to avoid creating the dangerous possibility that patrons will bar-hop for that one last drink — a dangerous scenario that all too often increases the risk of drunk driving," national spokeswoman for the group, Becky Iannotta, said in an email to LA Weekly.

According to Weiner, the extra two hours would provide an enormous amount of extra revenue to the hospitality industry in California. In a statement Weiner said that the law would allow cities to “benefit economically and culturally from a strong nightlife presence.”

Amongst the supporters of the bill is the California Restaurant Association and the California Music & Culture Association.

“Nightlife is a major economic and cultural driver in California,” said the California Music & Culture Association’s co-chair, Ben Bleiman, in a statement. “This bill represents a crucial opportunity for California’s cities and towns to choose to join the ranks of those across the country and the world offering truly world-class nightlife for their residents and visitors.”

The group Taxpayers for Improving Public Safety argued in 2013, when Sen. Leno attempted to introduce his bill, that staggering the last call times in California would lessen the burden on law enforcement and public transportation because not all bargoers and drunks would be hitting the streets at the same time.

 

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