Are You Safe From a DUI Arrest In Your Home?

 

While it is true that most DUI arrests take place on city streets, many do occur in the home. Many believe the police cannot arrest a person for a DUI if they are in their own home.  While this is generally true, the Courts have allowed the police to enter a person's home even without a warrant if there is probable cause to believe the person recently drove and is DUI. The most basic evidence the police need to arrest someone in their own home for DUI is to prove the person drove within 3 hours of arrival and did not consume any alcohol or drugs once they got home.

The seminal case on the subject is Welsh, a US Supreme Court case that ruled a search of a home for a DUI driver was illegal.   In Welsh v. Wisconsin (1984) 466 US 740, the US Supreme Court ruled that the Fourth Amendment was violated when an officer made a warrantless entry into a residence to arrest a DUI suspect.  Apparently though is Wisconsin the law treats DUI as a ticket which carries only a fine as punishment. Unlike Wisconsin, California treats DUI as a criminal offense, subject to fines and mandatory incarceration. This distinction was relied on by the California Supreme Court to find that a warrantless entry to arrest a recent DUI suspect did not violate the Fourth Amendment.

There have been more recent California cases which allow warrantless entry in a home for DWI suspects.  We will discuss these cases and the current legal trends in future articles.

Matthew Ruff is a DUI Lawyer in California, he can be reached at 310-527-4100

Court Rules Police Can Search Regardless Of Marijuana Prescription

Acting on a tip from an informant and surveillance evidence, police officers obtained a warrant to search the garage of Clark's residence for evidence of a marijuana grow. Officers seized marijuana plants, cocaine, and a shotgun. Clark filed a motion suppress the evidence, arguing that his cultivation of marijuana was legal under the Act and that there were no facts presented in support of the search warrant that the cultivation was illegal. Following the denial of the motion, Clark entered a plea of guilty. On appeal, Clark argued that the trial court erred because the Act imposes an affirmative duty on investigating law enforcement officers to inquire about a suspect's status as a qualified patient or primary caregiver.  This criminal case will be viewed very closely by many DUI attorneys representing those accused of possession of pot in this state.

The Court upheld the decision. While the Act provides a defense at trial, it does not grant any immunity from arrest that would require reversal of a conviction for possession or cultivation of marijuana whenever law enforcement officers fail to conduct an adequate investigation of the defendant's status as a qualified patient or primary caregiver prior to his or her arrest. Given the holding of Mower, the court here concluded that the Act cannot be interpreted to impose an affirmative duty on law enforcement officers to investigate a suspect's status as a qualified patient or primary caregiver under the Act prior to obtaining a search warrant. Motions and trials are used to investigate the truth and legal effect of the medical marijuana defense provided under the Act. The facts in the search warrant affidavit provided sufficient probable cause to search Clark's residence, and the suppression motion was properly denied.  According to a DUI Lawyer in Bakersfield, this case presents many questions as to how far judges will allow police to go when they are legal to possess marijuana in California.  

DUI Excluded From New Legislation

Prop 47 brings good news to many criminal defendants but the news is not helpful to DUI offenders.  Prior to Proposition 47's amendment to section 666, subdivision (a) allowed a petty theft conviction to be punished as felony only if the defendant had been convicted three or more times of specified crimes and had served a term for the offense in any penal institution or had been imprisoned therein as a condition of probation. Former section 666, subdivision (b) allowed a petty theft conviction to be punished as a felony when the person had been convicted of only one of the enumerated offenses (with the same imprisonment requirement) if the person was required to register or had previously been convicted of ANY serious or violent felony. The newly amended version of section 666 allows a petty theft conviction to be punished as a felony if the defendant (1) has been convicted of one of the specified crimes and incarcerated for the offense and (2) is required to register under CA law has a prior violent or serious felony conviction under section 667, subdivision (e)(2)(C)(iv), or has a section 368, subdivision (d) or (e) conviction.

Though not helpful to DUI offenders with prior convictions, The eligibility requirements for misdemeanor punishment in amended section 666 differ from the other statutes affected by Proposition 47. The other statutes provide that the offense at issue will be punished as a misdemeanor unless the defendant has one or more prior convictions for an offense specified in Penal Code section 667, subdivision (e)(2)(C)(iv) or an offense requiring registration under Penal Code section 290. In contrast to this, amended section 666 states that petty theft with a prior may only be punished as a felony if the above requirements are met. The nature of prior convictions permitting felony treatment is both narrower (prior conviction of only a certain class of serious or violent felonies elevate petty theft to felony level) and broader (any person required to register under SORA and any prior conviction of section 368, subdivision (d) or (e) (which is not a serious or violent felony) elevates petty theft to a felony). Rather than only excluding defendants who have one or more prior convictions for an offense requiring registration under section 290, amended section 666 excludes defendants who are required to register pursuant to SORA (Pen. Code, §§ 290-290.024). There may be cases where a defendant is required to register under SORA based on an offense that is not listed in Penal Code section 290. 

New California Law Makes Many Felony Crimes a Misdemeanor, Not DUI

The On November 4, 2014, California voters passed Proposition 47, which enacts the Safe Neighborhoods and Schools Act. It reduces a number of low-level theft and drug offenses to straight misdemeanors unless the defendant has specified prior convictions. The statute focuses on drug and theft crimes, unfortunately DUI was not part of the law changes.  Voters obviously sounded off loudly about the prison overcrowding and this will work to reduce those incarcerated. 

Can The Police Stop A Car For Driving Too Slow?

Many DUI cases begin with a traffic stop for violating the vehicle code.  In any case where the defendant asserts the police stopped him without legal cause the people have the burden of showing the warrantless seizure and search of the defendant was justified .  See People v. Williams (1999) 20 C4th 119, 83 CR2d 275; Wilder v. Superior Court (l979) 92 Cal.App.3d 90. The people have offered evidence that the initial seizure of the defendant, which lead to the unlawful search of her person and effects and subsequent arrest for DUI was justified by a violation of CVC 22400 (a) or driving too slow.

CVC 22400 (a) states:

No person shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic unless the reduced speed is necessary for safe operation, because of a grade, or in compliance with law.

CVC 22400 (a) clearly states no person shall stop “so as to impede or block normal and reasonable movement of traffic...” implying there is no violation of CVC 22400 if there is no impediment to traffic flow. The court need only look at the plain language of the statute to see the code section is meant to prohibit conduct which impedes traffic flow. Where there is no traffic flow on a roadway, it would be impossible to violate CVC 22400 because an essential element of the illegal conduct is missing.

Looking to case law interpreting the meaning of CVC 22400(a), in Shannon v. Thomas, 57 Cal. App. 2D 187, a California appellate court with binding authority specifically refused to hold, as a matter of law, that someone pushing a car on a public road in the dead of night constituted a violation of California's minimum speed law. [The Shannon case examined CVC 549, which was the predecessor to (and substantially similar) to CVC 22400.] The court held “we are impressed that it was for the jury to determine whether appellants in pushing their automobile on the highway in the manner they did, impeded or blocked the normal and reasonable movement of traffic at three o'clock in the morning...” A factor weighing on that court's decision was the time of night and the lack of traffic at that time. This analytical approach would be favorable to the Defendant before the court today, whose conduct occurred on a desolate road with little to no traffic late at night. No other California cases directly address CVC 22400, but persuasive authority interpreting the phrase “impede or block normal reasonable movement of traffic..” can be found in our sister jurisdictions. People v. Beeney 181 Misc. 2d 201; 694 N.Y.S.2d 583; 1999 N.Y. Misc. LEXIS 299, held:

“...the dispositive factor when determining whether slow speed is a violation or may serve as reasonable articulable suspicion for a stop) is its effect upon other drivers. In other words, whether the slowness impedes traffic so as to pose a real danger to other motorists, as opposed to potential danger or temporary inconvenience.”

The reasoning in the Beeney adds compelling weight to the Defendant's argument that CVC 22400 simply was not and could not be violated on a roadway with no other traffic because there could not have been a impedement to other motorists if there were none there. The Beeney court looked to similar holdings from Pennsylvania, North Dakota, Michigan and Illinois.

Can Breath Tests Be Wrong?

Breath testing machines have always had various faults that created potential defenses to a DUI attorney. The newest generation of machines also have a multitude of potential errors and faults that may render a breath test inaccurate. According to Matthew Ruff, a DUI Attorney in Torrance California, One of the best ways to attack a breath test is to use a defense expert in the area of toxicology. Many experts have a vast amount of experience working within the states crime lab and often bring with them a substantial amount of credibility given the fact they once worked and testified on behalf of the prosecution. When it comes to breath testing each case needs to be examined carefully to scrutinize the breath samples for possible error as it relates to a person's true blood alcohol level. One of the most fruitful areas of attack in recent years is on the issue of interfering substances. When we say interfering substances, we mean the breath machine is picking up substances other than alcohol but reporting them as a BAC result.  This is especially true for older breath machines and virtually all PAS devices sense the basic working of these machines rely on the use of a fuel cell that reacts to various substances and may display those substances as a blood alcohol level when in fact the true BAC or blood alcohol level may be much lower.

Some people in certain professions  are more prone to  interfering substances than others .for example occupational exposure  to toluene  for example will show up as alcohol  on various machines as well  substances containing acetone .when these substances are inhaled, for example ,during the course of a person's occupation ,this exposure can cause  a false  positive for alcohol  and can increase the  true blood alcohol levels by as much as  point .05 %.  Though this may not seem  like a significant amount for persons  subject to zero tolerance  even a fraction of a percentage point  can result  in termination  of employment or the loss  of their drivers license.  One example of a person  who may be exposed  to interfering chemicals  could be someone who works  in an industrial setting ,someone who paints for a living ,works in a auto body shop ,or is a janitor by trade .He or she may be exposed  to certain compounds  which can enter the bloodstream and cause  in interfering substance error  in the blood-alcohol test .

In one recent publicized case  a painter  was arrested for DUI  and  his  blood-alcohol level  was reported  as being  above the legal limit . it turns out is exposure  to certain chemicals  such as acetone  and the like  in its trade  may have  caused  in artificially high  BAC  level  and  subjected him  unfairly  to criminal prosecution . an expert in the area of toxicology  could be utilized  to convey  to the jury  at trial  how  certain substances  may  falsely influence  the breath machine . some scientific studies seem to  infer  that  interference  from a variety of  chemicals  may  have  a deleterious  affect  on  certain  breath  testing  machines  used  in  DUI  prosecutions .

DO I Need To Disclose My DUI Arrest On A Job Application?

Here is the scenario:  You are arrested for a DUI and are given a Court date to appear and  answer to the charges months away, before you ever even get to your arraignment to are in the process of job hunting which requires you to fill out job applications.  How do you deal with the DUI arrest on the application?

In order to answer this question we must first understand that being arrested alone does not mean you "have a DUI on your record".  An arrest under the law is requires a very low level of proof and it does not equate to being guilty of the offense for which you were arrested.  We must remember that under the United States and California Constitutions a person is "presumed innocent" unless and until the contrary is proven in a Court of law beyond a reasonable doubt.

So, how do you deal with a application for employment?  First, take a careful look at the question being asked.  Under California law it is actually illegal for a private employer to ask if you have ever been arrested.  This means that  most applications will not directly ask you about an arrest alonne.  the question is usually phrased as "Have you ever been convicted of a crime".  Under this scenario you can honestly answer "NO" to that question if your case has not yet been resolved in Court.  There are times when a private employer may ask if you have any "pending"  cases in Court.  This question is much more tricky and involves a more careful response.  You should consult your attorney to help respond in this type of situation.

In addition, there are governmental employers and jobs that require security clearances, etc.  which can be exceptions to the rule.  Remember, CA law only excludes "private employers from asking about arrests that do not culminate into a conviction.  If you are seeking employment from these entities consult your lawyer for a more detailed answer to these applications.