DUI BLOG

This past Friday the Kansas Supreme Court ruled that it is unconstitutional to criminalize a chemical test refusal following a DUI arrest in that state.

Prior to the ruling, refusing a chemical test could land a person a misdemeanor or a felony charge depending on how many times they had refused in the past.

The Kansas Supreme Court ruling comes on the heels of the United States Supreme Court’s announcement that they’ll decide the same issue for a Minnesota law which also made it a crime to refuse a chemical test after a DUI arrest. Let’s hope that the United States Supreme Court takes a page from the Kansas Supreme Court’s ruling when the time comes.

The Kansas Supreme Court’s 6-1 decision found that chemical tests are essentially searches and, as such, it was unconstitutional to punish someone for exercising their constitutional right to refuse that search without a warrant.

“Once a suspect withdraws consent, whether it be express consent or implied (under the statute), a search based on that consent cannot proceed,” the court held.

A common argument in favor of implied consent laws articulated in numerous previous court decisions was that a state’s compelling interest in combating drunk driving outweighed the “relatively minor” infringement on our 4^th amendment right to be free from unreasonable searches and seizures. The Kansas Supreme Court, however, held exactly the opposite.

I agree. If the 4^th Amendment doesn’t protect searches of our bodies, what does it protect?

Not surprisingly, Mothers Against Drunk Driving disagrees. “Obviously MADD’s position is that driving is a privilege and not a right,” said Christopher Mann, former police officer and member of the national board of directors for MADD. “We support penalties for refusing to take chemical tests. We think law enforcement members need to have all the tools at their disposal to keep our roads safe from drunken drivers who kill about 10,000 people a year.”

I too agree that we need to keep our roads safe from drunk drivers, but not at the expense of our constitutional rights.

California too has an implied consent law requiring that drivers who have been lawfully arrested on suspicion of driving under the influence submit to a chemical test. Although California does not make it a separate criminal offense to refuse a chemical test like Kansas or Minnesota, it does allow prosecutors to allege a “refusal enhancement” to the criminal DUI charge.

If a person is found to have refused a chemical test in California, they face a one-year license suspension through the DMV, additional jail time, a longer DUI program, a MADD Victim Impact Panel lecture, and/or a hospital and morgue program.

A few years ago, the United States Supreme Court held that DUI sobriety checkpoints were constitutionally valid.  Michigan v. Sitz.   In a 5-4 decision, Chief Justice Rehnquist admitted that such checkpoints violated a citizen’s rights under the Fourth Amendment, but held that this was only a "minimal intrusion" into those rights, and that violation was "outweighed" by the government’s interest in apprehending drunk drivers.  See my posts The Slow Death of the Fourth Amendment and Sobriety Checkpoints: The Slippery Slope.

As part of that decision, however, the Court held that law enforcement must provide certain minimum safeguards in establishing those checkpoints.  However, the Court left it up to the states to set up these procedures.  The guidelines are typified by those named by the California Supreme Court in Ingersoll v. Palmer.  These include the requirement that the police agency publish advance notice to the public of the checkpoint, so that citizens could choose to avoid them if they wished.  Since then, cases have also established the principle that drivers who are approaching a checkpoint can turn away — if they can do so safely and without violating traffic laws; the police cannot pull them over for trying to avoid the checkpoint (a restriction that police routinely ignore).

If advance publicity is required, and if drivers can choose to turn away, can’t a citizen lawfully warn drivers that a checkpoint is ahead — assuming he is not obstructing traffic?  

Ohio Man Sentenced to 240 Days for Recording Cops and Holding Up a Sign Warning Drivers of DUI Checkpoint
 
Cleveland, OH.  Feb. 12 - An Ohio man was sentenced to 240 days in jail Thursday for First Amendment-related activities, including attempting to video record police in public and warning drivers of an upcoming DUI checkpoint by holding up a sign….

Odolecki, who was on trial for two incidents involving the Parma Police Department, was convicted of one count of misconduct at the scene of an emergency, two counts of obstruction of official business and one count of disorderly conduct…

The first incident took place on June 13, 2014 where Odolecki was standing on a sidewalk, holding up a sign reading “Checkpoint Ahead. Turn Now!” to warn motorists of an upcoming DUI checkpoint.

He was approached by two cops, one who told them he had the right to stand there with the sign, but he needed to remove the phrase “Turn Now!” from the sign…

Police cited Odolecki for obstructing and had his sign confiscated…

Then on July 29, 2015…Odolecki came across a group of cops gathering around a teenager near a bridge off a busy thoroughfare.  Thinking the teen may have been getting unlawfully harassed, he began recording from across the street before crossing the street to get a better angle.  He stood about 40 feet away with a railing separating himself from the cops when the cops told him to get lost because the teen was having “a real bad day.”…  

Odecki was charged with obstructing and misconduct at the scene of an emergency in the second incident, and was later convicted for both incidents and received the maximum jail time.

Eight months in jail for holding up a sign and filming police on a cell phone from 40 feet away….
 

Mississippi House of Representative member Gary Chism, R-Columbus has proposed a bill that would force people convicted of two or more drunk driving offenses to display a special license plate which would indicate that they are DUI offenders.

A similar law already exists in Minnesota. Certain DUI offenders in Minnesota are required to display what are known as “whiskey plates,” license plates that begin with “W” followed by a second letter and then four numbers.

Earlier this month, Chism filed HB 548, also known as the Scarlet Letter Driving Under the Influence License Plate Act. If approved, DUI offenders who have been convicted of a second or third DUI would be required to display a license plate that is “yellow, with bold red letters and/or numbers.”

Under Chism’s law, a second offense would require the plate for at least a year. A third offense would require the plate for three years.

"You have a drinking problem if you’ve been caught twice," said Chism. "If everyone knows by you having that tag, it may make you realize what your problem is."

While Chism has his doubts about whether his bill can become law at the moment, he believes that it is important to continue to push for a “DUI scarlet letter.”

"I doubt it’s going to become law at this time, but I think this is just the beginning of it. It has been a big conversation piece that needs to continue," he said. "Theoretically, you need the scarlet letter tag before the felony. If you haven’t learned your lesson after two DUIs, I think a little shaming might help before we send you to the pen (for the felony DUI)."

Chism makes no secret that the purpose of his proposed legislation is to stigmatize and humiliate DUI offenders. His logic is that the shame associated with having to drive with one of these plates will serve as a deterrent to future DUI offenses for the offender as well as observers.

Surely, the plate would serve as a punishment, but is the threat of having to be stigmatized with the plate any more of a deterrent than other punishments associated with a DUI; fines, fees, a DUI program, probation, an ignition interlock device, possibly jail time?

More importantly, could there be unintended consequences of the stigmatization? The ACLU thinks so.

“[It] does nothing more than humiliate an individual based on past decisions" and could lead to "unfair and unreasonable targeting by law enforcement," said Zakiya Summers who the Mississippi ACLU director of communications. "The mandatory fine, incarceration and community services serve as a sufficient and much more rational deterrent. Five days in jail often leads to loss of employment, and this tag provides another barrier to employment."

I couldn’t agree more. Normally officers need probable cause to believe that you have committed a crime before they can stop you and investigate for a crime. However, law enforcement will be more likely to pull someone over merely because of the plate regardless of whether they have the constitutionally required probable cause to do so. Such stops are illegal.

What’s more, the plate could cause problems with other drivers on the road. What are other motorists going to do in the presence of someone with the special license plate? Avoid them on the road because they’re a danger? Stare at them causing motorists to take their eyes off of the road in front of them? Could other motorists be compelled to express anger at the DUI offender? Needless to say, these all, in and of themselves, pose a danger to the road.

I’ve written here in past posts about the difficulties of trying to use a breathalyzer on a driver to determine whether he is under the influence of marijuana.  See Is It Possible to Prove Driving Under the Influence of Drugs?.   As a study authored by Dr. Jim Hedlund, formerly a senior official with the National Highway Traffic Safety Administration, has concluded:.

The relations between a drug’s presence in the body, its concentration, measured in blood, breath, saliva or urine, and its
impairing effects are complex and not understood well. A drug may be present at low levels without any impairing effects. Some
drugs or metabolites may remain in the body for days or weeks, long after any impairment has disappeared (Berning et al., 2015;
GAO, 2015).

In particular, marijuana metabolites can be detected in the body for weeks after use (Berning and Smither, 2014).
On the other hand, concentrations in the body of some drugs decrease rapidly while impairing effects persist. For marijuana,
THC concentrations fall to about 60% of their peak within 15 minutes after the end of smoking and to about 20% of their peak
30 minutes after the end of smoking while impairment lasts for 2 to 4 hours (Kelly-Baker, 2014; Logan, 2014).

In addition, individuals differ in how their bodies absorb and metabolize a drug. In experimental settings, wide ranges of drug
concentrations produce similar levels of impairment in different individuals (Berning et al., 2015). NHTSA’s observation is generally
accepted: “At the current time, specific drug concentration levels cannot be reliably equated with a specific degree of driver
impairment” (Berning et al., 2015). GAO (2015) agrees: “identifying a link between impairment and drug concentrations in the body,
similar to the 0.08 BAC threshold established for alcohol, is complex and, according to officials from the Society of Forensic
Toxicologists, possibly infeasible.”

Will science and profit-hungry corporations ever be able to produce a breath-analyzing device that can accurately and reliably measure the amount of marijuana in a a driver’s blood?  Doubtful, but not for lack of trying.  The following is from a recent edition of Forensic magazine:

“At the same time that marijuana use is growing dramatically, law enforcement has been impeded by the lack of tools to help identify stoned drivers and get them off the road,” according to the company Hound Labs.

Now, the company is claiming they’ve created a technology capable of detecting THC (tetrahydrocannabinol) levels below 500 pg in a breathalyzer test.  According U.S. News & World Report, the technology will be tested early next year in clinical trials.

“Measuring marijuana is not a simple extension of the technology in current alcohol breathalyzers,” according to Hound Labs. “The approach used in an alcohol breathalyzer won’t detect THC molecules in lungs because THC requires a scientific method more than a million times more sensitive than one needed to measure alcohol. Until now, very large, expensive and specialized detection tools were needed to detect THC in breath.”  

The company’s CEO Mike Lynn said the law enforcement version of the product will sell for “well under a thousand dollars,” and the commercial consumer version will be even less, reports the U.S. News & World Report.

If true, this would be quite a break-though.  If true….
 

It is not uncommon for a person to be arrested on suspicion of DUI after having been only observed and stopped by law enforcement in a private parking lot. And the question arises, “can you get convicted of a California DUI if the officer never observes you driving on a public road and you are stopped on private property?”

There is a misconception that the California Vehicle Code only sets forth the rules of the road for public roadways.

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.”

The language of the Vehicle Code is admittedly vague. Ronald Dean Arnold Malvitz challenged the language of the Vehicle Code in the 1992 case of People v. Malvitz.

Malvitz was arrested for California DUI in a privately locked storage facility. Malvitz argued that since the DUI arrest occurred on private property and not on a public highway, California’s DUI law (section 23152 of the Vehicle Code) did not apply to him.

The California Court of Appeals though it necessary to clarify whether the language of the Vehicle Code was meant to include private property.

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 Court 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.”

Even though law enforcement not required to patrol or enforce California’s DUI laws on private property, I can tell you that they most certain will and do all the time.