Drunk Driving on an ATV

A little over a week ago, two drivers were arrested for driving their all-terrain vehicles while under the influence of alcohol.

George Mooshian, 47, and Randy Hoisington, 55, both of Newport, New Hampshire were driving their ATV’s while under the influence of alcohol when Mooshian drove his ATV off of the trail and into a tree. Hoisington, who was following behind Mooshian, attempted to avoid colliding into Hoisington and rolled his ATV.

Both ATV operators were flown to the hospital for serious injuries.

Fish and Game officials responded to the incident and determined that speed and alcohol were contributing factors in both collisions. Also, neither driver was wearing a helmet at the time of the collisions.

Mooshian and Hoisington were arrested on suspicion of operating a OHRV (off-highway recreational vehicle), which is another name for an all-terrain vehicle.

Although this particular incident happened in another state, someone in California can also be charged with a California DUI for operating an ATV while intoxicated.

For those who take to the dunes or off-road trails on their ATVs, it is not uncommon to pack a cooler of beers as refreshments. To the surprise of many riders, if the beer is consumed before hopping aboard the ATV, it could land them in jail on California DUI charges.

For purposes of California DUI law, an ATV is a motor vehicle. Although California DUI law requires that a person drive a “vehicle,” California Vehicle Code Section 670 defines a “vehicle” as “a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”

Because ATV’s are considered vehicles, drunk drivers of ATV’s are subject to the same penalties as those who are arrested for a California DUI in their vehicle; probation, up to 6 months in jail, up to $1,000 in fines, and other possible penalties.

Does it matter if the drunk ATV driver is not on a public road way? Unfortunately, no.

Off-road trails and sand dunes are considered public roadways for the purposes of California DUI law. The California Court of Appeals in the case of People v. Malvitz concluded that the legislative intent of California DUI laws was that they extend beyond the public roadways to anywhere in California including private off-road trails or dunes.

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Posted August 12, 2017, 3:54 pm
Categories: dwi

Can DUI Marijuana Be Detected or Measured?

I’ve posted in the past on the difficulties law enforcement faces in detecting impairment from marijuana while driving — both subjectively (symptoms, field sobriety tests and the officer’s opinion) and objectively (analysis of blood or other bodily substances).  See, for example, Identifying and Proving DUI Marijuana ("Stoned Driving"), Can Breathalyzers Measure Marijuana?New Efforts to Push Roadside DUI Marijuana Test and San Diego Begins Using Mouth Swabs to Detect Drugged Drivers. There is even disagreement among scientists as to how much marijuana must be ingested to become impaired, and how the metabolism (absorption and elimination) of marijuana functions in any individual — for example, how long the active metabolites remain in the blood. See How Much Does It Take to Impair Driving? and New Study: Minimal Impairment From Marijuana.

The following excerpts from a segment of a recent public radio presentation does an excellent job of laying out the difficulties in detecting marijuana impairment and measuring levels of active THC (delta-9-tetrahydrocannabinol) in the blood.  


Scientists Still Seek a Reliable DUI Test for Marijuana

July 30, 2017.  NPR  – Despite the increasingly legal use of cannabis in many states, cops still don’t have the equivalent of a reliable alcohol breathalyzer or blood test — a chemically based way of estimating what the drug is doing in the brain. Though a blood test exists that can detect some of marijuana’s components, there is no widely accepted, standardized amount in the breath or blood that gives police or courts or anyone else a good sense of who is impaired…

A number of scientists nationally are working hard to create just such a chemical test and standard — something to replace the behavioral indicators that cops have to base their judgments on now…

Turns out it can be a lot harder to chemically determine from a blood or breath test that someone is high than to determine from such a test that they’re drunk.

Ethanol, the chemical in alcoholic drinks that dulls thinking and reflexes is small and dissolves in water. Because humans are mostly water, it gets distributed fairly quickly and easily throughout the body and is usually cleared within a matter of hours. But THC, the main chemical in cannabis that produces some of the same symptoms, dissolves in fat. That means the length of time it lingers in the body can differ from person to person even more than alcohol — influenced by things like gender, amount of body fat, frequency of use, and the method and type of cannabis product consumed.

In one study, researchers had 30 frequent marijuana users stay at a research facility for a month without any access to drugs of any sort and repeatedly tested their blood for evidence of cannabis.

"And it shocked everyone, including ourselves, that we could measure, in some of these individuals, THC in the blood for 30 days," says Marilyn Huestis, a toxicologist with the University of Maryland School of Medicine who recently retired from leading a lab at the National Institute on Drug Abuse.

The participants’ bodies had built up stores of THC that were continuing to slowly leech out, even though they had abstained from using marijuana for a full month. In some of those who regularly smoked large amounts of pot, researchers could measure blood THC above the 5-nanogram level for several days after they had stopped smoking.

Conversely, another study showed that people who weren’t regular consumers could smoke a joint right in front of researchers and yet show no evidence of cannabis in their blood.

So, in addition to being invasive and cumbersome, the blood test can be misleading and a poor indicator of whatever is happening in the brain…


The NPR segment went on to discuss the difficulties police officers have in judging whether a person who has consumed marijuana was impaired.  After law enforcement training seminars involving volunteers who had smoked different amounts of marijuana, the program concluded:


Right now, these officer’s opinions loom large. If they decide you’re driving high, you’re going to jail. But at the end of the day, they’re just making educated guesses. Two different officers could watch the same person doing the same sobriety test and make different decisions on whether to arrest. In previous courses, officers had decided that a volunteer was impaired when in fact the volunteer hadn’t smoked at all.   

So, just like the THC blood test, the judgments officers make can also yield false positives and negatives….


An increasing number of states are simply throwing up their hands and, in effect, deciding that actual impairment is not necessary: the crime is in driving with an arbitrary amount of THC in the blood — even if there is no actual impairment at all.  

This follows what the federal government imposed on the states a few years ago: a new crime of driving with 0.08% blood-alcohol, to overcome the difficulties of having to prove the driver was actually impaired — despite the proven fact that many people are not impaired at that level or higher.  In alcohol cases, however, it is at least possible to measure alcohol levels, and roughly determine absorption and elimination times.

But changing the crime of driving while impaired by marijuana to one of having an arbitrary amount in the system makes arrest and conviction much easier for police and prosecutors, right?  And isn’t that the important thing?
 

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Posted August 9, 2017, 9:45 am
Categories: dwi

DUI with Keys in the Ignition but No Driving?

Not only do I practice DUI defense and write these posts on DUI-related topics, but I also teach law which sometimes includes teaching students what is required for a DUI. Students are often surprised when I tell them that, in California, driving must occur for a person to be arrested, charged, and convicted of a California DUI.

States are split on whether a person can get a DUI for merely having their keys in the ignition. States that don’t require that the defendant actually drive are called “dominion and control” states. Fortunately, California is not one of those states.

In states that have “dominion and control” DUI laws, if a person is intoxicated and has dominion and control of their vehicle with the mere ability to drive, they can be arrested, charged, and convicted of that state’s DUI laws. California, on the other hand, requires that the defendant actually drive the vehicle.

In 1991, the California Supreme Court in the case of Mercer v. Department of Motor Vehicles held that the word “drive” in California’s DUI law means that the defendant volitionally and voluntarily moved the vehicle. While no movement is insufficient for a DUI, the courts have held that even a “slight movement” is enough to meet the requirement that the defendant drove the vehicle.

Therefore, in California, a person cannot get a DUI for merely having the keys in the ignition. The officers and prosecutor would need evidence, in addition to the keys being in the ignition, that the person voluntarily moved the vehicle.

When there is no direct evidence that the defendant drove, such as the officer witnessing the defendant driving, proof that the defendant drove can be established through circumstantial evidence and inferences.

For example, if a person is on the shoulder of the freeway as the sole occupant of a vehicle with the keys in the ignition and they are under the influence or have a blood alcohol content of 0.08 percent or higher, the prosecutor and jury can infer that there was no other way to get to shoulder of the freeway and there was no one other person who could have driven there.

Contrast that with a scenario in which the defendant is found under the influence or with a blood alcohol content of 0.08 percent or higher in their vehicle which is in their driveway and the keys are in the ignition. Here, there is no other circumstantial evidence to create the inference that the defendant actually drove the vehicle.

So, just because you can’t be arrested, charged, and convicted of a DUI with just the keys in the ignition, doesn’t mean that a you should be drunk in a vehicle with keys in the ignition. Don’t put it past law enforcement and prosecutors to try to establish that a person drove even if ever so slightly.

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Posted August 4, 2017, 6:29 pm
Categories: dwi

Teen Who Livestreamed Drunk Driving Collision Pleads Not Guilty

You may have already seen the video. A California teen livestreamed herself driving drunk and crashing the vehicle that she was driving. The collision killed her younger sister. The teen driver, Obdulia Sanchez, pleaded not guilty to gross vehicular manslaughter and number of other felony offenses this past Wednesday.

18-year-old Sanchez of Stockton, California was filming herself behind the wheel of a 2003 Buick with her 14-year-old sister, Jacqueline and another 14-year-old girl in the back seats. The video showed Sanchez dancing to music as she was driving moments before the collision. The accident itself was caught on the camera as the footage shows the inside of the vehicle as it rolled. Moments later, Sanchez shows her sister’s body with fatal head injuries.

“Hey, everybody, if I go to f***ing jail for life, you already know why,” Sanchez told viewers of the livestream. “My sister is f***ing dying. Look, I f***ing love my sister to death. I don’t give a f***. Man, we about to die. This is the last thing I wanted to happen to us, but it just did. Jacqueline, please wake up.”

Neither girl in the back seat were wearing seatbelts and both were ejected. Manuela Seja, the surviving passenger suffered severe injuries to her right leg.

It was later determined that Sanchez’s blood alcohol content was 0.10 percent.

According to the District Attorney’s Office, Sanchez was charged with felony vehicular manslaughter with gross negligence, felony manslaughter while intoxicated, two counts of felony driving under the influence resulting in injury and two counts of felony driving with a blood alcohol content of 0.08 percent or more causing injury.

“The behavior demonstrated both prior to and after the incident, as documented by the defendant’s own recording, is disturbing and shocking,” Deputy District Attorney Harold Nutt said in a statement. “The Merced County district attorney’s office will do everything in its power to see that justice is done in this matter.”

On Wednesday, Sanchez appeared on video for her arraignment where her public defender, Ramnik Samrao pleaded not guilty to all counts on her behalf.

After the hearing, Samrao told reporters that Sanchez “feels absolutely terrible.” Although Sanchez admitted to killing her sister in the video, Samrao maintains that it is unclear whether a crime was committed. “We don’t know that she was drunk, that’s the allegation,” he said.

Sanchez is being held on $560,000 bail and, if convicted, faces up to 13 years and eight months in a California state prison.

I understand how the video can make it easy to rush to judgment about Sanchez or what her fate should be. However, we must to remind ourselves that one of the cornerstones of our criminal justice system is the notion that everyone is innocent until proven guilty. If Sanchez is guilty, the system needs to take its course before she is, in fact, deemed guilty. Then, and only then, can she be punished for what she did.

 

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Posted July 27, 2017, 8:22 pm
Categories: dwi

Driving Drunk….in Your Own Driveway?

In the latest news from the front lines of the "War on Drunk Driving"….


Suspected Drunken Driver Can Be Busted in Own Driveway 

Detroit, MI.  July 25 – The Michigan Supreme Court says a driveway is no refuge for a drunken driver.

The court says Northville authorities could charge Gino Rea with drunken driving, even if his car never left the driveway. The court says a driveway is “generally accessible to motor vehicles” under state law, even if on private property.

Police went to Rea’s home three times one day in 2014 to respond to noise complaints. At one point, an officer saw him drive out of the garage and pull back in. His blood-alcohol level was three times the legal limit.


The next thing you know they’ll be arresting people for DUI on bicycles and wheelchairs.  Oh, right, they’re already doing that.  See, for example, Felony Bicycle DUI and DUI in a Wheelchair
 

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Posted July 27, 2017, 8:22 am
Categories: dwi

DUI-E is here

Jon Ibanez and I have posted in the past about the dangers of "distracted driving" — that is, driving while using a cell phone, reading a map, putting on makeup, etc.  See, for example, Jon’s recent post Is Distracted Driving as Dangerous as Drunk Driving?.  And over 12 years ago I commented in Drunk Drivers vs Distracted Drivers on a wide range of research concerning the relative dangers of using cell phones while driving, such as:


A detailed study on the effects of cell phone use on driving was conducted by researchers at the University of Utah, and reported in a paper entitled Fatal Distraction? A Comparison of the Cell-Phone Driver and the Drunk Driver given at the Second International Driving Symposium on Human Factors in Driving Assessment, Training and Design (July 2003). Using a simulator, the researchers measured how subjects reacted to vehicles braking in front of them…The conclusion of the researchers: Drivers on cell phones showed greater impairment, less responsive behavior and more accidents than drunk drivers. 


Yet, our legislators’ continuing fixation with alcohol — largely fueled by MADD’s political influence — has resulted in ignoring the ultimate goal of saving human life. 

This appears to finally be changing….


Washington’s New DUI-E Law Takes Effect Sunday

Spokane, WA.  July 18 – ….The DUI-E law, for driving under the influence of electronics, outlaws holding a cell phone at any time while driving, unless you’re calling 9-1-1 in an emergency. The law even prohibits picking up the phone at stoplights.  The first ticket for an DUI-E will cost you $136. Get a second ticket within five years, and it’ll cost $234. The new law also tickets drivers $99 for grooming, smoking, eating or reading while behind the wheel. (Governor) Inslee says that in many cases a distracted driver is more dangerous than a drunk driver.

"When you are driving with a cell phone, you are a more dangerous driver than if you’re driving drunk with a .08 alcohol level," said Governor Inslee. He continued by saying this is a situation we deal with on a daily basis.


While this is encouraging, the news article continues with an observation by law enforcement that highlights the drunk vs distracted double standard:
 

Spokane County Sheriff’s deputy Craig Chamberlain says the new law isn’t meant to punish people.  "The bottom line with the new changes in this law is that we want folks to be safe on the roadway."


So…the new distracted driving laws aren’t meant to punish people — only to make the roads safe?  Then why do our drunk driving laws continue to be focused on punishment — of admittedly "less dangerous" drivers?  
   

(Thanks to Joe.)
 

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Posted July 25, 2017, 8:50 am
Categories: dwi

Miranda Warnings and the California DUI

An officer pulls over a person and begins asking questions. “Where are you going?” “Where are you coming from?” “Have you had anything to drink?”

The driver says, “I’m going home from the bar and I had two beers.” Boom. The next thing that the driver knows is that they’re getting arrested and only then did the officer read the Miranda Warnings to the driver.

Why did the officer not read the driver the Miranda Warnings before they arrested him or her? And more importantly, can this be used to help the driver’s DUI case?

All statements given to law enforcement must be voluntarily given, even those given during a DUI stop. The United States Supreme Court in the landmark case of Arizona v. Miranda said that a statement cannot be voluntarily given if a person doesn’t know they have a right not to say anything under the 5th Amendment. Therefore, in order for a statement to be voluntarily given, a person must be made aware that they have a right to remain silent.

Thus, was we have the Miranda Warnings.  

So, when must law enforcement actually read a person their Miranda Warnings?

Courts have held that an officer must read a person their Miranda Warnings before a “custodial interrogation.” This means after an arrest and before an interrogation.

When a person is stopped on suspicion of a DUI or even a traffic violation that leads to a DUI investigation, the person is not arrested even though they may be temporarily detained. And inevitably the officer is going to ask questions after stopping the person.

Now, the person has the right not to speak to the officers or answer their questions. But the officer’s duty to advise the driver of the Miranda Warnings has not yet been triggered because the person is not yet under arrest.

Questions asked during this time are considered merely preliminary in nature. And yes, any answers given by the driver during this time are fair game for officers and prosecutors to use in a DUI case against the driver.

It would be a different story if, after the DUI stop, the driver is arrested, but not given Miranda Warnings. If the officer then proceeds to ask the driver questions and the driver answers, those answers would be in violation of Miranda and thus in violation of the 5th Amendment.

So whether it’s before a driver is arrested or after with Miranda Warnings given, a person never has to talk to officers or answer questions. The 5th Amendment right to remain silent exists whether the Miranda Warnings are given or not. Use it! When stopped on suspicion of a California DUI, simply respond to any questions with, “I respectfully decline to answer any questions under the 5th Amendment. Am I under arrest or am I free to leave?”

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Posted July 20, 2017, 8:39 am
Categories: dwi

Bill to Help Veterans Avoid a California DUI

A new California Senate bill would allow veterans to avoid a California DUI conviction with a treatment diversion program.

Senate Bill 725 would expand a current military diversion program. The bill, if passed, would provide veterans with the opportunity to receive treatment for issues stemming from their service and which often leads them to drink and drive. If the treatment program is completed successfully, veterans could have their case dismissed and avoid a California DUI conviction

To qualify, veterans must have been diagnosed with post-traumatic stress disorder, traumatic brain injury, military sexual trauma or other conditions related to their service.

The Legislative Counsel’s Digest on the bill states, “This bill would…specify that a misdemeanor offense for which a defendant [veteran] may be placed in a pretrial diversion program…includes a misdemeanor violation of driving under the influence or driving under the influence and causing bodily injury. The bill would not limit the authority of the Department of Motor Vehicles to take administrative action concerning the driving privileges of a person arrested for a violation of those provisions.”

Advocates, myself included, argue that the bill’s intent is rehabilitative and deals with the underlying causes of driving drunk.

“We want to get those people into treatment as early as possible. We don’t want them going out jeopardizing future victims,” said the executive director of the California Veterans Legal Task Force in San Diego. “Everybody on both sides of this thing is pro public safety.”

However, not all are fans including district attorneys and other prosecuting agencies.

“We’re very much pro-veteran and pro-treatment, but we want it to be balanced with the needs of public safety,” prosecutor Harrison Kennedy told NBC 7.

Among their primary complaints are that the bill does not address restitution to victims of DUI related collisions which cause injury and that the bill does not limit the number of times that a veteran offender can utilize the program.

“This creates potential for a dangerous cycle of diversion that jeopardizes the safety of our streets and highways,” said the California District Attorneys Association.

The bill does not affect the DMV’s ability to suspend a veteran offender’s license through the administrative action.

If the bill does not pass, veterans face the same consequences of a California DUI as the rest of the public; informal probation, a DUI program lasting three, six, or nine months, between $390 and $1,000 in fines and fees, possibly AA meetings, possibly a Mothers Against Drunk Driving lecture, possibly a hospital and morgue program, and possibly even jail.

The bill easily passed through the Assembly public safety committee last week and will soon be voted on by the full Assembly.

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Posted July 6, 2017, 12:31 pm
Categories: dwi

Avoid a 4th of July DUI

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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Posted June 29, 2017, 8:51 pm
Categories: dwi

Is a New .05% Law Coming to Your State?

On January 15th of last year, the National Highway Traffic Safety Board (NHTSA) issued the following news release:


Feds Want to Lower the Legal Limit to One Drink

Washington, DC. Jan. 15 – The National Transportation Safety Board wants to decrease the legal driving limit to one drink, lowering the legal limit on blood-alcohol content to 0.05 “or even lower.”…

The agency issued the recommendation while admitting that “the amount consumed and crash risk is not well understood.”

“We need more and better data to understand the scope of the problem and the effectiveness of countermeasures,” they said….

A 0.05 BAC level would reduce the number of drinks an average-weight man of 180 pounds could have to two, according to Blood Alcohol Calculator. Women could only have one drink before they exceeded the limit. A 100-pound woman reaches .05 BAC with just one drink, but two drinks would put any woman under 220 pounds at or above the government’s desired limit.

Under the current level of 0.08, an average weight man can have four drinks until reaching the limit.


On the next day, I posted the following on this blog:


To give all of this some context, let me offer a history of this focus on the lowering of blood-alcohol limits rather than on the more important issue of alcohol-caused impairment….

The original drunk driving laws were simple and fair: Don’t drive under the influence of alcohol (DUI). Then, many years ago, law enforcement came up with crude devices to measure alcohol on the breath of drunk driving suspects. But what did, say, a .13% blood-alcohol concentration (BAC) mean? They turned to the American Medical Association which, in 1938, created a "Committee to Study Problems of Motor Vehicle Accidents". At the same time, the National Safety Council set up a "Committee on Tests for Intoxication".

After some study, these two groups came up with their findings: a driver with .15% BAC or higher could be presumed to be "under the influence"; those under .15% could not. That’s right: .15%. And that recommendation lasted for 22 years. But prosecutors and certain groups of "concerned mothers" were not happy with the low DUI arrest and conviction rates.

Under increasing political pressure, the committees "revisited" the question in 1960 and agreed to lower the presumed level of intoxication to .10%. Had the human body changed in 22 years? Had the AMA been negligent in their earlier studies? Or were politics and law once again trumping scientific truth?

Well, the arrest and conviction rates shot up, but there were still too many people escaping the DUI net. Then MADD was formed. Soon after, legislation began appearing in many states that created a second crime, in addition to driving under the influence: driving with a BAC of .10% or higher.

This new crime did not require the driver to be affected by alcohol: even if sober, he would be guilty if his blood-alcohol was .10%. In effect, it completely ignored the questions of intoxication, driving impairment and individual tolerance to alcohol. And, despite questions of double jeopardy, the individual could be charged and even convicted of both the traditional DUI and the new .10% crimes! This gave police and prosecutors a powerful new weapon, and drunk driving arrests/convictions jumped once again.

This was not good enough. Under increasing pressure from an ever more powerful MADD, in 1990 four states lowered the blood-alcohol level in DUI cases to .08%; others soon followed and, ten years later, federal politicians (with one eye on MADD) passed an appropriations bill in effect coercing all states into adopting the new .08% BAC standard.


Since I wrote this, three months ago Utah enacted a new law lowering the blood-alcohol level drunk driving to .05%. See Jon Ibanez’ DUIblog post Utah Lawmakers Vote to Lower State’s BAC Limit to 0.05%.

Interestingly, on June 17th — shortly after the new .05% law was enacted — the Salt Lake City Tribune published the following comments from the original founder of MADD, Candy Lightner:


Founder of MADD Says Utah’s New Drunk Driving Law is an Unhealthy Distraction

Salt Lake City, Ut.  June 17 – While drunk driving remains a serious concern, other threats are mounting on our roadways. According to a recent report from the Governors Highway Safety Association and the Foundation for Advancing Alcohol Responsibility, 43 percent of drivers involved in fatal crashes tested positive for some sort of drug, legal or illegal. And with the rise of smartphones and other gadgets, people are distracted more than ever while driving.

As the founder of Mothers Against Drunk Driving (MADD) I can attest that there is a new kind of madness on the roads. And new approaches are needed to save lives.

Unfortunately, the necessary debate on how to solve these new challenges isn’t happening in earnest. The traffic safety community is distracted by an issue that will do little to save lives: lowering the drunk driving arrest threshold from .08 to .05.

Back in the early years at MADD we focused on getting serious drunk drivers off the road…In the more than 35 years since MADD’s founding, we have fought drunk driving ferociously and saved countless lives in the process.

But today, the pendulum has swung too far in the other direction — with government agencies pushing states to arrest people for having little to drink before driving instead of pursuing strategies to tackle serious distraction and impairment. Anyone who works in traffic safety knows that most highway deaths are not caused by drivers with low blood alcohol content levels, but are the result of drivers with substance abuse disorders. Focusing finite resources on casual drinkers instead of drug and alcohol abusers is a miscalculation with deadly consequences…

 
Maybe it’s time for the decades-old "War on Drunk Driving" to redirect its fixation away from alcohol and towards the real problem today:  drugs and distracted driving….  
 

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Posted June 27, 2017, 10:13 am
Categories: dwi

Orange County Man Sentenced to 4 Years for 10th California DUI

53-year-old Derek Stacy Haskayne from Placentia was sentenced to four years in a California state prison for this 10th, that’s right 10th, DUI since 2011.

This past Tuesday, Haskayne pleaded guilty to driving with a blood alcohol content above 0.08 percent and driving under the influence, both as felonies. His blood alcohol content was 0.11 percent. It would be his 10th DUI conviction.

Haskayne was arrested for his first California DUI back in October of 2011. For that offense, he was sentenced to the standard for a first time DUI; three years of informal probation and a first-time DUI offender program.

Less than a year later, Haskayne had tallied up five more DUI arrests.

According to his attorney, Marlon Stapleton, Haskayne would post bail and pick up a new DUI arrest before the previous cases could resolve. At one point, five different cases were pending at the same time.

“He went through some really bad times when he picked up most of them,” said Stapleton.

Around the same time of his first DUI, Haskayne’s wife of 20 years had left him and records show that she later filed a restraining order against him stating that he was a “severe alcoholic” and that she feared for the safety of their young son.

The first six cases were eventually resolved when the District Attorney’s Office consolidated them and charged him with multiple felonies. In 2013, Haskayne pleaded guilty and was sentenced to a year in jail with five years of formal probation.

During this first jail stint, Haskayne was allowed to enroll in the Orange County Sheriff’s Department’s community work program allowing him to do work for the county during the day and spend nights at home.

However, less than four months after his guilty plea, Haskayne was picked up on his seventh DUI arrest while he was still technically serving his jail sentence. For that, he was sentenced to two years in prison and was released in October of 2014.

In June of the following year, a Laguna Beach Police officer spotted Haskayne lane straddling who then failed to yield when the officer tried pulling him over. Haskayne kept going for about half a mile before he crashed into a cement light pole. Officers found a prescription bottle containing GHB. At the time, Haskayne was in a rehab facility, but was not being tested for GHB.

“Despite any success the offender has demonstrated under supervision, he has shown by his recent arrest that he has substituted his alcohol addiction with another substance that is not detected by standard drug screening,” according to a probation report. “It is unknown if he had a relapse or has been going through the motions finding alternative methods to numb his pain, which he has been open about.”

Haskayne was sentenced to three years in prison for the June 2015 case, but was given 280 days credit for time served while he was in custody pending the outcome.

In 2016, Haskayne crashed in Placentia, California and was arrested on his ninth DUI.

And that brings us to Haskayne’s to the current (and hopefully his last) case which makes number ten. On June 20th, Haskayne accepted a plea deal from Orange County Superior Court Judge Roger Robbins, over the district attorney’s objection, and was sentenced to four years in prison with credit for 286 days. He was also ordered to pay restitution in the amount of $15,272.54.

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Posted June 23, 2017, 6:28 pm
Categories: dwi

Two DUI’s in Less than Three Hours

A Wisconsin man was arrested twice in about two and a half hours for driving under the influence according to Ashwaubenon, Wisconsin Public Safety. What’s more, he’s only 18 years old.

18-year-old Preston Bierhals was on his way home from a graduation party last week when he lost control of his vehicle and struck a light pole. Bierhals told responding officers that he was trying to make a phone call when he lost control of his car.

His blood alcohol content was later determined to be 0.157 percent.

At the time, Bierhals’s license was suspended.

“The legal limit for him is zero, but he was still above the 0.08, he was over 0.10 actually both times,” said Capt. Jody Crocker.

Bierhals was booked for “operating while intoxicated” (OWI), which is the Wisconsin equivalent of California’s “driving under the influence” (DUI).

Instead of keeping Bierhals to sober up, officers released him to someone who signed a Responsibility Agreement not to allow him to drive a vehicle.

“They signed an affidavit that says to us that they will take that responsibility in lieu of this person sitting in jail for the next 12 hours. Here of course, that didn’t work,” said Capt. Crocker.

Why didn’t it work? Well, because less than three hours later, an officer working traffic detail for a triathlon that morning spotted Bierhals driving and recognized him from the arrest just hours prior.

The officer stopped Bierhals once again and administered field sobriety tests to which Bierhals failed again. And again he was arrested on suspicion of OWI.

This time, Bierhals’s blood alcohol content was a 0.121. This is consistent with the average rate of alcohol metabolism (burn-off) of 0.015 percent per hour, assuming no more alcohol was consumed since the first arrest.

In Wisconsin, prosecutors cannot file charges for a second drunk driving offense until the citation Bierhals received for the first OWI is resolved.

According to Capt. Crocker, law enforcement is looking into whether charges should be filed against the person whom Bierhals was released to.

Some of you may be thinking, “What could happen to someone like that?”

Well, here in California a minor who is caught driving with alcohol in their system can face several charges and penalties.

California Vehicle Code section 23136 makes it illegal for a minor to have a blood alcohol content of 0.01 percent or greater while driving. This is knowns as California’s “Zero Tolerance” law for underage drivers. Under this law, a minor faces a one-year suspension of their driver’s license.

California Vehicle Code section 23140 makes it illegal for a minor to have a blood alcohol content of 0.05 percent or greater while driving. Unlike section 23136, this section is an infraction which can result in fines of up to $100 and a one-year suspension of their driver’s license.

However, in Bierhals’s case, had it occurred here in California, prosecutors would have likely charged him with the standard adult DUI under California Vehicle Code section 23152 (driving under the influence and driving with a blood alcohol content of 0.08 percent or greater). A violation of section 23152 is a misdemeanor which carries a three to nine month DUI program, three years of summary probation, up to $1000 in fines, up to six months in jail, and a six-month suspension of driving privileges.

Of course, Bierhals is facing the penalties for a second-time DUI as well. A second time DUI, here in California will also be charged as a misdemeanor, but this time, he’s facing between 96 hours and one year in jail, an 18-month DUI program, and two-year suspension of driving privileges.

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Posted June 15, 2017, 7:47 pm
Categories: dwi

Can Police Go Off of an Anonymous DUI Tip?

I am currently representing a person for a California DUI who was arrested after an anonymous tipster informed law enforcement that a possible drunk driver was on the road. Such a situation often raises the question, “Can law enforcement arrest someone based on an anonymous tip when the officers themselves have not witnessed any conduct that would lead them to believe a driver was driving under the influence?”

Unfortunately, the United States Supreme Court recently held that law enforcement can go off of an anonymous tip of a potential drunk driver in the case of Navarette v. California _____ U.S. _____ (Docket No. 12-9490)(2014).

In August 2008, a California Highway Patrol dispatcher received a call from a motorist who had been run off the Highway 1 near Fort Bragg by someone driving a pickup truck. The anonymous caller provided the license plate number of the pickup. A short time later, CHP spotted the pickup and pulled it over. As the CHP officers approached, they smelled marijuana and discovered four bags of it in the bed of the pickup.

The occupants of the pickup were identified as brothers, Lorenzo and Jose Navarette. The brothers plead guilty to transporting marijuana after they unsuccessfully attempted to challenge the constitutionality of the search. Both were sentenced to 90 days in jail.

The First District Court of Appeal in San Francisco relied on the 2006 California Supreme Court ruling of People v. Wells (2006) 38 Cal.App.4th 1078,  in upholding the conviction. The Court in that case said that “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.”

In its 3-0 ruling, the appellate court 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 case was appealed to the United States Supreme Court which held that an anonymous tip can give law enforcement the authority to pull someone over on suspicion of driving under the influence.

The Court held that “under appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop,’” quoting Alabama v. White (1990) 496 U.S. 325, 327.

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.  

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Posted June 8, 2017, 11:12 am
Categories: dwi

Do I have to Take a Breath Test?

You heard me say a couple of weeks ago that breathalyzers are inaccurate and, as a result, lawyers can challenge the results of a particular breathalyzer. Lawyers, however, cannot challenge breathalyzers generally even though they are inaccurate.

This begs the question: Do you have to take a breathalyzer test?

Like many things in law, the answer is that it depends. In California, there are two different “breathalyzer” tests. One test is required by law, while the other is not.

According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”

The California Vehicle Code is referring to the roadside breathalyzer, called a preliminary alcohol screening test (PAS test), that officers use to obtain the evidence they need to make a DUI arrest. As an officer makes a stop, whether the officer suspects a DUI or not, they don’t have the evidence needed to arrest the driver on suspicion of a DUI. To obtain that evidence, the officer may ask the driver questions, the officer may have the driver perform field sobriety tests, and the officer may ask the driver to submit to a PAS test. In fact, the PAS test is considered a field sobriety test.

Like the field sobriety tests, the PAS test is optional. Also like the field sobriety tests, a driver should not submit to the PAS test.

In fact, the investigating officer must advise the driver that the PAS test is, in fact, optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”

If a driver tells the officer they consumed alcohol or the driver performs and fail the field sobriety tests or the driver provides a PAS sample that shows the presence of alcohol, the driver will likely be arrested on suspicion of a California DUI.

Once the driver is arrested, the California Vehicle Code requires that the driver submit to a “chemical test,” which can either be a breathalyzer test or a blood test. This is called California’s “implied consent law.”

California Vehicle Code section 23612(a)(1)(A) states, “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”

In other words, if you can legally drive in California, you have impliedly consented to a chemical test if you are lawfully arrested on suspicion of a DUI.

Unlike the PAS test, if you are arrested for a DUI and you do not want to provide a blood sample, the chemical breath test is not optional.  

In fact, refusing the chemical test can lead to increased penalties such as a longer DUI school, a longer license suspension, and even jail time.

To sum up, the pre-arrest PAS test is optional and you should always politely decline this test. A post-arrest chemical breath test is required provided the suspect opts not to provide a blood sample.

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Posted June 1, 2017, 10:04 am
Categories: dwi

Don’t Laugh at DUI Victims

A Michigan woman learned not to mock DUI victims the hard way; she was thrown in jail.

Amanda Kosal, 25, was in court and waiting to be sentenced for a DUI-related collision that killed Jerome Zirker, a father of five. While Zirker’s sister was giving the court a victim impact statement in court, Kosal’s mother, Donna, and Donna’s boyfriend could be heard laughing in the audience of the courtroom.

Judge Quiana Lillard heard the laughing and kicked Donna’s boyfriend out of the courtroom calling him a clown.

“It’s time for him to go … Whoever can sit here at a tragic moment like this and laugh and smile when somebody has lost a family member, I mean the entire time that Mr. Zirker’s sister was speaking, that clown, and that’s what I am going to call him, a clown, was sitting there smiling and laughing,” said Judge Lillard.

While Donna followed her boyfriend out of the courtroom, Judge Lillard said to her, “You can go too because if you don’t know how to act, you can go to jail, so leave.”

Donna could be heard saying something as she stepped out of the courtroom. Almost immediately after leaving the courtroom, Judge Lillard ordered her bailiff to bring Donna back into the courtroom where she was given 93 days in jail for contempt of court.

“Take her, she’s going in the back,” the judge said to the bailiffs.

Then Judge Lillard addressed the rest of the courtroom audience saying, “Anybody else wanna go? You can go too.”

“These are very serious matters. I understand that you all are very upset because your loved one is going to prison, but guess what, she’s going to prison for the choices that she made. These people are here grieving, saddened because a senseless act took away their loved one and you’re sitting here acting like it’s a joke?”

After spending the night in jail, Donna apologized to Judge Lillard the following morning saying, “I deeply apologize for what I did. I was under a lot of stress.”

Judge Lillard took pity on Donna and reduced her 93 days in jail to 92 days and was given credit for the night she spent in jail. She was then released.

“What you have to understand is as hard as this is for you to see your baby going to prison, imagine what that family feels like when their child is dead. I hope that you learned a valuable lesson from this,” said Judge Lillard.

Amanda Kosal, Donna’s daughter, was ultimately sentenced to three to 15 years in prison for the deadly DUI collision that killed Zirker. Kosal admitted that she was drunk when she veered into oncoming traffic colliding with Zirker’s SUV, killing him and severely injuring his fiancée, Brittany Johnson.

I represent DUI defendants like Kosal every day. I also represent people who have been charged with contempt of court. But that doesn’t mean that I condone either Kosal or her mother’s actions. In fact, I find them reprehensible.

The video of the incident can be found here:

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Posted May 26, 2017, 7:54 pm
Categories: dwi

Can a DUI Attorney Challenge Breathalyzer Results?

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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Posted May 21, 2017, 3:47 pm
Categories: dwi

Texalyzer to Help Cops Crack Down on Distracted Driving

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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Posted May 10, 2017, 7:42 pm
Categories: dwi

Do Drugged Drivers Cause More Traffic Deaths than Drunk Drivers?

The increase in DUI of drugs has led some to ask whether drugged drivers cause more fatal traffic collisions than drunk drivers. At least according to a new study, the answer is yes.

The Governors Highway Safety Association (GHSA) and the Foundation for Advancing Alcohol Responsibility, a nonprofit funded by alcohol distillers, released a report in April of this year that found in 2015, drivers killed in vehicle collisions were more likely to be under the influence of drugs than alcohol. This was the first recorded time where it is suggested that drugged driving is responsible for more traffic fatalities than drunk driving.

“Drug impaired driving is increasing,” said Jim Hedlund a private consultant from Ithaca, New York who conducted the study for the Governors Highway Safety Association. “We have new data that show drugs are more prevalent to drivers than alcohol is for the first time.”

The study showed that 43 percent of drivers tested in fatal vehicle collisions in the United States had used either a legal or illegal drug. According to the study, 37 percent of drivers tested had a blood alcohol content above the legal limit of 0.08 percent.

Marijuana was the most common drug detected. 9.3 percent of drivers who had their blood tested had amphetamines in their system and in many cases, drivers had multiple drugs in their system.

While the result of the study may be accurate, those who are suggesting that the results indicate that drugged driving causes more traffic fatalities than drunk driving is somewhat misleading.

The presence of alcohol in a person’s system does not necessarily mean that they are under the influence. However, the legislature has created a per se blood alcohol content limit of 0.08 because science has shown that the mental or physical abilities of those with a blood alcohol content of 0.08 are likely so impaired that they can no longer operate a vehicle with the caution of a sober person, using ordinary case, under similar circumstances.

Thus, while the study only tested whether drivers had a 0.08 percent blood alcohol content or higher and not actual impairment, we know that if the driver had a blood alcohol content of 0.08 percent or higher, they were also likely impaired.

Therefore, to conclude that more drugged drivers cause fatal vehicle collisions than drunk drivers is inaccurate. In other words, we cannot compare driving statistics of those with a blood alcohol content of 0.08 percent and those with drugs in their system.

Furthermore, drugs such as marijuana can stay in a person’s system for far longer than alcohol, sometimes for up to weeks at a time. Therefore, the likelihood of drugs being present in a person’s system, whether they used recently or not, is far higher than the likelihood of alcohol being present in a person’s system.

For once, Mothers Against Drunk Driving (MADD) and I actually agree on something.

Like myself, MADD officials questioned the methodology of the results, noting that there is no scientifically agreed level of impairment with drugs such as marijuana.

Another of MADD’s concerns is that the study is leading people to believe that the country is doing better than we have been in terms of drunk driving.

“There is no way you can say drugs have overtaken alcohol as the biggest killer on the highway,” said J.T. Griffin, chief government affairs officer at MADD. “The data is not anywhere close to being in a way that would suggest that … We’re doing a lot of good things on drunk driving, but the public needs to understand this problem is not solved.”

According to NORML, with whom I tend to agree, the study merely reflects the increased detection of drugs and alcohol, but does not reflect any direct connection to fatal vehicle collisions.

 

 

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Posted May 4, 2017, 1:15 pm
Categories: dwi

Hospitals Have to Call Police if Patient’s Blood Test Shows .08% Alcohol?

Imagine that you’ve had a nice evening out, highlighted by a fine dinner accompanied by a glass of wine.  On your way home from the restaurant, however, you and your companion are rear-ended by another vehicle.  Minutes later, an ambulance arrives and takes you to a nearby hospital.  You are examined and treated in the emergency room.

Soon after the attending physician is finished, you are released — and promptly arrested by waiting police officers for DUI.

Unknown to you, the hospital had called the police and reported that blood tests taken as part of your medical examination revealed a blood-alcohol level over .08%.

They can’t do that, you say?  This isn’t a police state?  Consider a recent court decision from Oregon where exactly this situation happened…and continues to happen:


Feds Force Hospitals to Report Alleged DUI Patients to Police

Portland, OR.  April 27 – This month, an Oregon Appeals court agreed with a district court ruling which forces first responders to become state actors.

"Oregon statue 676.260 says a health care facility “shall notify” a law enforcement officer in the course of treatment when a person’s blood alcohol level exceeds .08 percent or their blood contains a controlled substance."…

"As part of defendant’s medical treatment, hospital staff had drawn a sample of his blood and tested it, ascertaining that his BAC was .333 percent. After defendant refused to consent to a blood draw, Trooper Dunlap did not seek a warrant for a blood draw. Nor did he ask hospital staff for the results of the blood test. However, pursuant to their duty under ORS 676.260, hospital staff verbally disclosed to Dunlap that defendant’s BAC was .333 percent and Dunlap included that information in his police report."…

The District court ruled that police couldn’t violate a person’s Constitutional rights because it was the hospital that informed the police.

"After a hearing, the trial court denied defendant’s motion, concluding, as relevant here, that the hospital’s disclosure of defendant’s BAC test result to Dunlap did not violate defendant’s constitutional rights because it did not constitute state action."

"We need not, and do not, consider whether the fact that OR S676.260 required the hospital staff to disclose defendant’s BAC to law enforcement means that the disclosure constituted state action."…


In other words, it would have been a violation of the driver’s constitutional rights if a governmental agency had reported the test results.  But the hospital was a private organization, and so there was no "state action" involved.  Yet, it was a state law that forced that private organization to report the test and the results to the police.


(Thanks to Joe.)
 

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Posted May 3, 2017, 9:50 am
Categories: dwi

Man Found Asleep in Car in OC High School Arrested DUI

The Orange County Sheriff’s Department found an intoxicated man asleep inside of his parked vehicle which was located in the middle of Aliso Niguel High School.

According to the Lt. Dan Dwyer of the Orange County Sheriff’s Department, Alexander Nixon, 23, of Las Vegas was arrested last week on suspicion of driving under the influence of alcohol when he was found asleep in his 2014 Dodge sedan which was parked inside of Aliso Niguel High School in Orange County.

Upon waking Nixon, officers suspected that he was under the influence. Nixon then told officers that he had been drinking before attempting to drive home. Nixon also told officers that he thought that he was in a parking lot in Santa Ana.

Nixon field sobriety tests and was subsequently arrested on suspicion of a California DUI.

Although law enforcement said that the car was located in a back lot of the school, media photographs of the scene showed the car inside of an enclosed walkway leading to an outside seating area.

Had Nixon not confessed to driving, his situation raises an interesting question: Can prosecutors prove that a person drove (which is required for a California DUI) if the person was not seen driving, but their vehicle could have only reached its location through driving?

To be arrested, charged, and convicted of a California DUI, the prosecutor needs to prove that the defendant actually drove the vehicle. And California Courts have held that even slight movement will suffice to meet this requirement.

Movement of the vehicle can be proven through circumstantial evidence, meaning evidence that creates an inference of vehicle movement.

Such was the case in People v. Wilson (1985) 176 Cal.App.3d Supp. 1. The defendant in that case was found asleep in his car which was blocking the 60 freeway in Los Angeles.

The court concluded that “there was ample evidence from which the jury could have inferred that the defendant had been driving his vehicle on the public highway at a time when he was intoxication. From the combination of circumstances – defendant’s sitting in a vehicle in the center of the street–behind the wheel–engine running–lights on, it can be inferred that defendant must have placed himself in such position, and that he accomplished this by driving the car to the place at which he was found.”

The defendant in Wilson argued that it was possible that a friend drove him to the location and placed him in the driver’s seat. He also argued it was possible that the car was already in that position, he intended to drive it, but fell asleep before he could do so.

The Court rejected the defendant’s arguments stating, “It seems unlikely that in either situation the car would have been left parked in the middle of the street, straddling the traffic lanes and facing generally at right angles to the street. Suffice it to say that the jury apparently discarded these possibilities as being unreasonable and adopted the more likely deduction that defendant had driven himself to the area and was then unable to continue."

With that in mind, it seems unlikely prosecutors would even need Nixon’s confession that he drove to convict him of a California DUI. How else would his car have ended up in the middle of a high school?

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Posted April 27, 2017, 6:05 pm
Categories: dwi

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