Can Body Cameras Assist in DUI Stops?

Monday, March 14th, 2016

It’s no big secret that many people have come to distrust law enforcement. The public distrust peaked in recent times after the highly publicized, and criticized, officer-involved shootings of Kelly Thomas, Eric Garner, Michael Brown, and Freddy Gray, to name a few.

In response, several law enforcement agencies began to issue body cameras to their officers with the hopes that incidences like these stop or, at a minimum, provide unbiased, objective information on what actually occurred.

In fact, even President Barack Obama urged law enforcement agencies throughout the country to issue body cameras to officers and offered $20 million in federal funds towards obtaining them.

As of April this year, Davis Police will be the latest law enforcement agency to be equipped with body cameras to record interactions with the public.

“It’s a great evidence-gathering tool for us,” said Lt. Tom Waltz. “It’s also another level of transparency. In situations where there’s a dispute about what occurred, we have a recording of it.

Davis officers will not be allowed to delete or modify footage obtained from the body cameras. They will however, be allowed to view the footage before giving a statement or preparing a police report. The footage will be uploaded to a server following an officer’s shift, or the footage can be uploaded immediately in cases where it is necessary to view the footage immediately.

With the use of body cameras increasing amongst law enforcement agencies here in California, the questions arises, “what effect will body cameras have on DUI stops?”

Many law enforcement agencies currently use what are commonly known as “dash cams;” cameras mounted to the dash of police squad cars. The cameras capture the DUI stop and provide information on whether the officer had the probable cause to make the traffic stop. The camera, however, is limited in that it cannot capture what the officer regularly uses as a justification to begin investigating and ultimately making an arrest for a DUI; the up-close interaction with the person whom they’ve pulled over.

What’s more, when officers have a person perform field sobriety tests, they often take them out of the view of the dash cam. The officers then prepare a police report which indicates that the person failed the field sobriety test, sometimes without even explaining how or why they came to the conclusion that the person failed.

The job of police is to obtain information and evidence objectively. Unfortunately, this is often not the case.  Officer testimony and police reports are regularly made for the purpose of securing a DUI conviction and, as such, are biased.

A body camera, however, would serve to provide first-hand evidence to support officer claims that a person was, in fact driving drunk. If an officer justifies a DUI arrest by claiming that an arrestee had slurred speech and bloodshot, watery eyes, the footage would verify the officer’s claims. If an officer determines that a person failed field sobriety tests, the footage from the body camera could support the officer’s interpretation of the person’s performance.

Lt. Waltz of the Davis Police Department used a word that I think captures what will hopefully become effect of using body cameras for law enforcement; transparency. The purpose of the body camera is not necessarily to find incriminating evidence, exculpatory evidence, or even evidence of police misconduct. The purpose of the body camera is to find the truth and if that’s what it provides, I’m on board.


Are DUI Checkpoints Constitutional?

Monday, December 28th, 2015

As the New Year approaches, law enforcement efforts to halt drunk driving is more elevated than it has been all of 2015. Part of the anti-DUI efforts will inevitably include DUI checkpoints. When I warn friends and family of the DUI checkpoints, often I get the question: how are DUI checkpoints constitutional?

Normally, if an officer wants to stop a vehicle, they must have probable cause to believe that the driver committed a crime. And normally when an officer pulls someone over, the driver commits a traffic violation in the officer’s presence thus giving them the probable cause to be pulled over.

Such is not the case with DUI checkpoints. While officers do, in fact, stop drivers at checkpoints, unfortunately they don’t need the generally required probable cause.

The U.S. Supreme Court in Michigan v. Dept. of State Police v. Sitz held that, while random checkpoints technically violate the 4th Amendment right against unreasonable search and seizure, the governmental interest in preventing drunk driving outweighs the relatively minor infringement on the right not to be stopped absent probable cause.

The Court said, “[T]he balance of the State’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment.”

The California Supreme Court held in Ingersoll v. Palmer that random sobriety checkpoints are considered “administrative procedures” instead of “criminal investigations” making them more akin to agricultural checkpoints and airport screenings. The Court went on to say that there are factors which must be weighed to help determine the constitutionality of the checkpoint:

1.) The location of the checkpoint should be made at the supervisory level.

2.) The selection of vehicles stopped should be based on a neutral mathematical formula (such as every third car) rather than officer discretion.

3.) The checkpoint must be safe with proper lighting and signs.

4.) The checkpoint must be visible to oncoming motorists.

5.) The location of the checkpoint must be reasonable and in area most likely to yield DUI arrests.

6.) The time and duration of the checkpoint should minimize intrusiveness and maximize effectiveness.

7.) The length of the detention of motorists should be no longer than necessary to determine if a person is driving drunk.

8.) Law enforcement should publicize the checkpoint to minimize intrusiveness and maximize the deterrent effect of the checkpoint.  In 1993, the California Supreme Court, in People v. Banks, stated that although publicity is not a requirement of checkpoints, it helps.

In addition to these factors, the Court stated that motorists who seek to avoid the checkpoint must be allowed to do so. However, most checkpoints have officers waiting in idle patrol cars ready to chase down motorists who attempt to leave. It goes without saying that if an officer sees a motorize attempt to avoid a checkpoint, they’re automatically suspicious that the person is driving drunk.

While officers who witness motorists driving away from a checkpoint might be suspicious, there’s not much they can do about it…that is, unless they see you commit a traffic violation in the process of turning around.

If you don’t opt to turn around, exercise your 5th amend rights and remain silent. The officers posted at the checkpoint will likely ask where you’re coming from, where you’re going to, and whether you’ve had anything to drink. You do not need to answer these questions and you can respectfully decline.

The officers may request that you take a preliminary screening alcohol test, otherwise known as a pre-arrest breathalyzer. This too you have the right to decline and you should. The only time a drive must submit to a chemical test, whether a breath test or a blood test, is after that driver has been lawfully arrested on suspicion of a California DUI.

Lastly, the officers at a DUI checkpoint may ask drivers to perform field sobriety tests. As I’ve said multiple time before, field sobriety checkpoints are notoriously unreliable and subject to the self-serving interpretations of the officer. Fortunately, these too are optional. Never voluntarily perform these tests. While you may think you can “pass” them, many times even sober people fail.

Yes, California DUI checkpoints are constitutional. However, there are things that you can do this New Years to protect yourself should you find yourself driving through one.


Do Officers Need to Read Miranda Rights During a California DUI Stop?

Monday, September 28th, 2015

We see it on T.V. and in the movies; officers arresting someone and immediately reading them their Miranda Rights. Unfortunately it is a common misconception that a California DUI case will be thrown out because an officer does not read a DUI suspect the Miranda Rights after a DUI stop. Unbeknownst to many, the law is very specific as to when Miranda Rights must be read.               

In the landmark case of Miranda v. Arizona, the United States Supreme Court said that a confession that is the fruit of an interrogation after someone is arrested is not voluntary if the suspect does not know that he or she has the right to remain silent under the 5th Amendment. And only voluntary confessions are allowed as evidence. Therefore, all suspects must be advised of their rights before a "custodial interrogation.”. Voila! The Miranda Rights were born.

From what we’ve seen on T.V. and in the movies, most of us can recite the Miranda Warnings verbatim. However, if you’re one of the rare few who haven’t watched Law and Order recently, they go a little something like this:

"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

According to the United States Supreme Court, two things must occur before Miranda Rights attach; 1.) a custody and, 2.) an interrogation.

Having said that, most of the questions asked during a California DUI stop occur after a traffic stop, but before the person is arrested. Questions that occur during this time are merely for investigatory purposes. The officer cannot arrest someone for a California DUI unless they have probable cause to believe that the person is driving drunk. The pre-arrest investigatory questions are aimed at obtaining this probable cause.

“Where are you coming from? Where are you going to? Have you been drinking? How many drinks have you had? Have you taken any medication?”

Even though a person is not yet advised of their right to remain silent, they still need not answer the questions. In fact, you never need to speak with officers.

If the officer obtains the probable cause to believe that the person is driving drunk, either through incriminating answers to the pre-arrest questions, performance on field sobriety tests, or the officer’s observation of the signs of intoxication, they will conduct a DUI arrest.

Even after a person is arrested for a California DUI, the officer still need not read a person their Miranda Rights, although they almost always do. If the driver is arrested, the officer only needs to advise someone of their rights before they conduct any questioning.

And when that happens, God forbid, remember:

“I do not consent to any search, I am invoking my 5th Amendment right to remain silent, and I want my lawyer now.”



Are MADD Awards to Officers for DUI Arrests Warranted?

Monday, August 10th, 2015

Mothers Against Drunk Driving (MADD), the hyper-aggressive group that advocates for tougher laws on drunk driving, regularly awards local officers for the high number of DUI arrests they make in a given year. In fact just last month, several such awards were given in several California counties.

To be eligible for the MADD award, officers must arrest a minimum of 25 drunk drivers within a one year period.

“Officers Corey Baker and Kevin VanFleet were among several police officers from Ventura, Santa Barbara and San Luis Obispo counties who received the MADD Award,” said the Simi Valley Acorn. “Baker detected impairment in 82 drivers in 2014, and VanFleet made 36 arrests.”

According to The Californian, Monterey California Highway Patrol Officer Peter Avila was given the award for making 66 DUI arrests in 2014. This was more than any other CHP officer in the Monterey area in 2014.

To many, this seems like a good thing; awarding those who take drunk drivers off of the road. But the flaw in this is that just because a person was arrested does not necessarily mean that they are driving drunk.

So are these awards warranted?

An arrest means nothing without a conviction. Remember, we are all innocent until proven guilty. This necessarily means that a person was not driving drunk if and until they are proven to be driving drunk with a conviction.

As a DUI defense attorney, I can tell you first hand that many DUI arrests do not end up as DUI convictions.

Officers pretty regularly arrest people for DUI when there is not enough evidence for a conviction, sometimes when there is not even enough evidence for an arrest. Why might they do this? I hate to say it, but it’s because they can.

Take for example a recent case I had. My client was pulled over for speeding. What led the officer to believe that my client was possible DUI, I’ll never know. But my client was asked to perform field sobriety tests anyways. My client, of course, “failed” the field sobriety tests even though his blood alcohol content was determined to be 0.04 percent and well below the legal limit.

Although my client was arrested for a California DUI, he was not drunk. Fortunately, the prosecutor agreed and declined to file charges, but not before my client spent the night in jail and spent the money to hire me to represent him.

My client was not driving under the influence, yet his arresting officer received one arrest credit towards MADD’s award.

Do these awards incentivize officers to make illegal DUI arrests? I doubt it. Personally, I think officers would make such arrests whether the awards were given or not.

But, if you ask me, we’re rewarding the wrong action by the officer because many (and I mean many) DUI arrests are illegal arrests and many do not result in convictions. Not all people who are arrested for drunk driving are actually driving drunk.


Warrantless Blood Draw Allowed because Cop Relied on Bad Law

Monday, April 6th, 2015

A Kansas Court of Appeals ruled that a trial court incorrectly suppressed evidence because, although it was illegal for the officer to obtain it without a warrant, the officer acted in good faith in obtaining it.

Let’s put this into some context.

In 2008 Kansas enacted a law which allowed law enforcement to conduct a warrantless search in drawing blood from someone who was involved in an accident that resulted in serious injury or death. In other words, according to the law, the mere involvement in a traffic violation which led to injury or death constituted the probable cause to allow officers to obtain blood without a warrant to determine if the person was driving drunk.

See anything wrong?

A traffic violation resulting in injury or death does not, by itself, constitute probable cause that a person is driving drunk.

In State vs. Declerck, a 2014 case, the Kansas Supreme Court held the law to be “unconstitutional to the extent it requires a search and seizure absent probable cause the person was operating or attempting to operate a vehicle under the influence of drugs or alcohol.

“We are acutely aware the statute in question attempts to address the terrible toll impaired drivers inflict on our state’s highways, but we are reminded of the ‘truism that constitutional protections have costs,’” said the Declerck court citing the United State Supreme Court ‘s decision in Coy v. Iowa.

Let’s go back to our story.

In February of 2012, Troy Meitler was involved in an accident in Reno County, Kansas where a person was killed. A Kansas Highway Patrol trooper obtained blood from Meitler while he was unconscious and receiving emergency medical treatment. Meitler was charged with involuntary manslaughter, aggravated battery and driving under the influence of drugs.

The trial court judge, however, suppressed the blood evidence because the trooper did not have probable cause to believe Meitler. In suppressing the evidence, the trial court cited the Declerek decision.

Prosecutors appealed the trial court’s decision to suppress the blood evidence.

The Kansas Court of Appeals reversed the trial court’s decision. Two of three appellate judges held, “we are unable to conclude that on February 10, 2012 (the day of the accident), a reasonable law enforcement officer should have known that (the 2008 Kansas statute) was unconstitutional. The district court’s contrary legal conclusion finding that the good-faith exception did not apply in this case was error.”

The dissenting judge acknowledged that evidence generally could be admitted when police officers acted under an existing law that eventually is found to be unconstitutional. However, Judge Gordon Atcheson, cited the Supreme Court, in pointing out that an officer’s good faith reliance does not apply “if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws.”

“State legislatures may not override decisions of the United States Supreme Court construing federal constitutional rights by passing statutes designed to thwart those decisions and dilute those rights,” Atcheson wrote. “That is a fundamental precept of our system of governance integrating the dual sovereignty of state and federal authorities.”

Atcheson is exactly right. This, unfortunately, was lost on the majority of the court.

There is no question that the law was unconstitutional. And there’s no question that the officer was relying on it.

However, as I read about Meitler’s appeal, I wondered how we even got to this point. Shouldn’t those entrusted with creating laws that affect citizens so significantly have at least a fundamental understanding of the Constitution? One would think.

At the time the officer drew the blood, the law had not yet been officially deemed unconstitutional. So only slightly less culpable than the legislature is the trooper. As the authority who enforces the laws that the legislature enacts, I would like to think that the trooper questioned whether he actually had probable cause to believe that Meitler was under the influence. Although I doubt it.