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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Wisconsin Supreme Court Rules Warrantless Blood Draw in DUI Cases Allowed

Thursday, July 5th, 2018

In 2016, the United States Supreme Court held that law enforcement must obtain a warrant before forcibly withdrawing blood from a suspected drunk driver.

Writing for the majority, Justice Samuel Alito said, “It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.”

Notwithstanding the precedent, the Wisconsin Supreme Court seems to think that it can continue to issue decisions that allow that law enforcement to withdraw an unconscious DUI suspect’s blood without a warrant in violation of both the Constitution and the United States Supreme Court. It did so again this week in the case of Gerald Mitchell.

“Nothing in the opinion indicates the Supreme Court considered how its analytical structure would apply in the context of an unconscious suspect arrested for OWI, and it would be too much like reading tea leaves to give any substantive weight to a statement that simply gives the Court’s reasons for not addressing the question we are deciding,” Wisconsin Justice Daniel Kelly wrote.

Mitchell was arrested back in 2013 on suspicion of driving under the influence, or “operating while intoxicated” as Wisconsin calls it. Mitchell passed out after he was arrested, but before he could give consent for officers to withdraw blood. While unconscious, an officer told Mitchell that he could refuse. Not surprisingly, Mitchell didn’t respond. The officer then directed hospital staff to withdraw Mitchell’s blood.

The blood sample indicated that Mitchell’s blood alcohol content was 0.22 percent, well above the legal limit of 0.08 percent.

Based on that information, Mitchell was convicted of driving under the influence.

Mitchell appealed arguing that the blood withdrawal was a violation of his right to be free from unreasonable searches and seizures. An appellate court sent the case to Wisconsin Supreme Court for clarification because the Wisconsin Supreme Court had previously decided that warrantless blood withdrawals were allowed in urgent situations where delay in obtaining consent could lead to the loss of evidence, namely the dissipation of alcohol in the driver’s blood.

The Wisconsin Supreme Court in Mitchell’s case justified the holding by citing Wisconsin’s Implied Consent law stating that drivers automatically consent to blood withdrawals when they have a driver’s license.

Writing for the majority, Chief Justice Patience Roggensack said, “Through drinking to the point of unconsciousness, Mitchell forfeited all opportunity…to withdraw his consent previously given.”

Justice Roggensack went on to cite the legislature’s efforts at stamping out drunk driving to justify the court’s position.

“Just as Wisconsin drivers consent to the above-listed obligations by their conduct of driving on Wisconsin’s roads, in the context of significant, well-publicized laws designed to curb drunken driving, they also consent to an evidentiary drawing of blood upon a showing of probable cause to believe that they operated vehicles while intoxicated,” she wrote.

However, this rationale goes against exactly what the United States Supreme Court said in 2016.

“It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quire another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit,” Supreme Court Justice Samuel Alito wrote. “There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.”

Wisconsin Supreme Court Justice Ann Walsh Bradley dissented from Justice Roggensack arguing exactly what Supreme Court Justice Alito had enunciated two years ago.

“This language compels a single conclusion: law enforcement needed a warrant here,” she said.

Bradley said the majority was merely using Wisconsin’s implied consent law to overrule the guarantees of the Constitution.

“Under the lead opinion’s analysis, however, the opportunity to refuse an unconstitutional search is merely a matter of legislative grace. If the ability to withdraw consent is merely statutory, could the legislature remove the ability to withdraw consent entirely? For the Fourth Amendment to have any meaning, such a result cannot stand,” she wrote.

What’s the point of precedent if states continue to refuse following case law set by the highest court in this country, and refusing to follow it at the expense of constitutionally guaranteed rights?

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Stopping as a Sobriety Checkpoint

Friday, June 8th, 2018

Memorial Day just past and summer is around the corner. Summer months mean beach trips, vacations, barbeques, 4th of July, and this year, my personal favorite, the World Cup. Where there is fun to be had, law enforcement expects drunk and impaired driving. Many of the summer activities I just mentioned do, often, involve indulging in the alcoholic beverage, possibly even a little of the Mary Jane now that’s it’s legal here in California. One of law enforcement’s favorite weapons in their battle against impaired driving is the sobriety checkpoint.

The 4th Amendment of the United States Constitution requires that officers have probable cause and a warrant before they can seize and/or search a person. Well, what is a checkpoint? It is certainly a seizure since the police are stopping people on the roads when they would otherwise be free to drive without interruption. It may be also a search if the law enforcement has drivers take a breathalyzer. So how can law enforcement do this without having a warrant?

In the 1987 case of Ingersoll v. Palmer, the California Supreme Court set forth guidelines to ensure the constitutionality of checkpoints in California. Those guidelines are as follows:

  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.

Now that we’ve determined that sobriety checkpoints are constitutional, I would be remiss if I did not tell you what your rights and obligations are, as the driver, should you happen to find yourself stopped at a sobriety checkpoint.

Based on the last of the Ingersoll v. Palmer requirements, checkpoints must be highly visible. As a result, drivers are often aware of the checkpoint before they drive up to it. Believe it or not, drivers are allowed to turn around so as to avoid the checkpoint. They, however, must do so without breaking any traffic laws such as making an illegal U-turn.

If you do not turn away, but rather pull up to the checkpoint, the officer might first ask you some questions such as: Where are you coming from? Where are you going? Have you had anything to drink?

The 5th Amendment to the Constitution gives you the right not to say anything to law enforcement ever. And don’t! Invoke your right to remain silent by telling the officer, “I would like invoke my 5th Amendment right and respectfully decline to answer any of your questions.” Now keep you mouth shut until given the opportunity to call your attorney.

Surely this is not going to sit well with the officer. They may, at that point, have the driver exit the car and request that they perform field sobriety tests. Drivers should absolutely decline to perform the field sobriety tests. They are an inaccurate indicator of intoxication, but fortunately they are optional. I and many other people would have trouble doing them sober.

At this point, the officer is likely fuming, but who cares? You are exercising your constitutional rights.

As a last-ditch effort, they may request that you take a roadside breathalyzer commonly referred to as a “PAS” (preliminary alcohol screening) test. Under California’s implied consent rule, as a driver, you must submit to a chemical test after you have been arrested on suspicion of a DUI. The key word is “after.” Therefore, when you happen upon a checkpoint and the officer requests that you to take the PAS test, you can legally refuse. If, however, the officer has arrested you on suspicion of DUI you must submit to either a blood test or a breath test.

This summer season be on the lookout for sobriety checkpoints. But should you find yourself about to drive through a checkpoint with no way to legally turn around, know your rights and use them. That’s what they’re there for.

 

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Can a DUI Attorney Challenge Breathalyzer Results?

Sunday, May 21st, 2017

When people think of a DUI stop, two things immediately come to mind; the field sobriety tests and the breathalyzer. I can tell you without going into much detail here that field sobriety tests are designed for failure. If you would like more details, see many of the previous articles I’ve written on the fallacies of field sobriety tests.

But what about the breathalyzer? Are they inaccurate as well and can the results of a breathalyzer be challenged?

A number of studies have shown that breathalyzers are often inaccurate. That too is a discussion for a different time. But the more important question, since breathalyzers are generally inaccurate, is whether a breathalyzer result can be challenged in court.

Unfortunately, the California Supreme Court in 2013 ruled that, although breathalyzers are generally inaccurate, scientific evidence challenging the accuracy of breathalyzers in California is not admissible as evidence in DUI trials.

The ruling stems from the 2007 DUI stop of Terry Vangelder. Vangelder was stopped for speeding in San Diego. Although having admitted to consuming some alcohol, Vangelder passed field sobriety tests. Vangelder then agreed to a preliminary screening alcohol test (an optional roadside breathalyzer) which indicated that Vangelder’s blood alcohol content was 0.086 percent. Based on that, Vangelder was arrested and transported to the police station where he submitted to a chemical breath test (a required post-arrest breathalyzer). This breath test showed a blood alcohol content of 0.08 percent. Vangelder then submitted to a blood test which indicated that his blood alcohol content of 0.087 percent.

At trial, Vangelder called Dr. Michael Hlastala, a leading authority on the inaccuracies of breathalyzers.

"They are (inaccurate)," Dr. Hlastala testified before the trial judge. "And primarily because the basic assumption that all of the manufacturers have used is that the breath that [is] measured is directly related to water in the lungs, which is directly related to what’s in the blood. And in recent years, we’ve learned that, in fact, that’s not the case."

The judge however, did not allow the testimony and Vangelder was found guilty. Vangelder appealed and the appellate court reversed the decision in 2011. San Diego City Attorney, Jan Goldsmith, then appealed the appellate court decision arguing that such testimony would undermine California’s a per se law making it illegal to drive 0.08 percent blood alcohol content or higher.

Unfortunately, the California Supreme Court sided with Goldsmith.

“[T]he 1990 amendment of the per se offense was specifically designed to obviate the need for conversion of breath results into blood results — and it rendered irrelevant and inadmissible defense expert testimony regarding partition ratio variability among different individuals or at different times for the same individual," Chief Justice Tani Gorre Cantil-Sakauye wrote for the court. "Whether or not that part of expired breath accurately reflects the alcohol that is present only in the alveolar region of the lungs, the statutorily proscribed amount of alcohol in expired breath corresponds to the statutorily proscribed amount of alcohol in blood, as established by the per se statute."

The Court went on to say that, “Although Dr. Hlastala may hold scientifically based reservations concerning these legislative conclusions, we must defer to and honor the legislature’s reasonable determinations made in the course of its efforts to protect the safety and welfare of the public."

Sounds to me like the Supreme Court is willfully ignoring science simply because the legislature was well intentioned. Sounds like flawed logic.

While people can no longer challenge the accuracy of breathalyzers in general, people who are suspected of DUI in California can still challenge the accuracy of the particular breathalyzer used in their case.

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West Virginia Supreme Court Rules for DUI on Private Property

Monday, November 14th, 2016

The West Virginia Supreme Court reversed a lower court’s decision and ruled that people can be arrested and convicted of driving under the influence even if it occurred on private property and have their licenses revoked.

The case stems from an incident in 2012 when a man by the name of Joshua Beckett crashed an ATV in a field on the farm owned by his family. Following the collision, Beckett was taken to the hospital where it was discovered that his blood alcohol content was 0.17 percent. He was subsequently charged with driving under the influence.

A magistrate dismissed the DUI case, but an administrative judge upheld a prior revocation of Beckett’s driver’s license for 45 days notwithstanding Beckett’s argument that there was no evidence that he drove on a public street or highway.

Beckett appealed the decision to the Monroe County Circuit Court. There, the circuit court judge ruled that because Beckett’s “actions did not occur on land open to public use,” the administrative judge did not have jurisdiction to revoke his license.

The Division of Motor Vehicles’ commissioner who originally revoked Beckett’s license appealed the decision to the West Virginia Supreme Court.

“The Legislature’s definition of the phrase ‘in this State’ … extends the reach of our driving-under-the-influence laws to any individual driving a vehicle within the physical boundaries of West Virginia, even if the vehicle is driven only upon private property not open to the general public,” Chief Justice Menis Ketchum who wrote a portion of the majority opinion. “The Legislature chose to structure our DUI statutes to regulate the condition of the driver, not the locale in which the driving is taking place. Thus, the Legislature expressed its plain intent to prohibit an intoxicated person from driving a vehicle anywhere in West Virginia, whether on public roads or across private land.”

The decision and its rationale mirrors that which the law here in California.

Division 11 of the California Vehicle Code sets forth the “rules of the road,” if you will, which includes California’s laws against driving with a 0.08 blood alcohol content or higher and driving while under the influence. California Vehicle Code section 21001 states, “The provisions of [Division 11] refer exclusively to the operation of vehicles upon the highways, unless a different place is specifically referred to.” The Code then goes on to state, “[t]he provisions of this chapter apply to vehicles upon the highways and elsewhere throughout the State unless expressly provided otherwise.”

Prior to 1982 the vehicle code made it illegal to drive drunk “upon a highway or upon other than a highway areas in which are open to the general public.” However, in 1982, the legislature deleted the language referring to the locations upon which a person could be arrested and ultimately convicted of drunk driving.

The California Court of Appeals in People v. Malvitz relied on the earlier version of the California Vehicle Code to help clarify the issue. The Court concluded that the “statute that prohibited driving under the influence of alcohol and/or any drug has emerged unencumbered with any language restricting its reach.”

In other words, the Court concluded that it was the intent of the legislature that, in deleting the portion of the statute which referred to location, the law which prohibits drunk driving should extend to anywhere in California where drunk drivers pose a threat included public highways as well private property.

Furthermore, California Vehicle Code section 23215 states, “[law enforcement] may, but shall not be required to, provide patrol or enforce the provisions of [California’s DUI law] for offenses which occur other than upon a highway.”

Whether you’re in West Virginia or in California, it is illegal to drive under the influence on public roads as well as on private property.

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