Interesting DUI Cases
Responsible Driver Gets Arrested for DUI
Have you ever been in a situation where you realize you drank too much and shouldn’t drive, so you decide to wait in your car until you can drive safely? Be careful not to sit in the driver’s seat, or have you keys in the ignition because you may be arrested for a DUI even though you had no intention to drive. Even worse, you may be arrested even if you decide to “sleep it off” or lie down in your back seat until you feel it’s safe to drive. That’s what happened to one of my clients.
Someone called “911” and reported a DUI driver was seen getting into a car and driving out of a parking lot. CHP arrived and found the vehicle was still parked in the same parking lot identified by the 911 caller. My client was in the backseat lying down, and my client’s passenger was in front passenger seat reading. The CHP officer arrested my client for DUI, and the DA filed DUI charges even though my client had a clean record and there was no evidence of any driving or intent to drive.
The DA indicated it was going to take time to get the 911 “tape,” but once I had discovery, I asked my investigator take a statement from my client’s passenger, and to locate and take a statement from the 911 caller. I began preparing for the DMV APS hearing that would have resulted in my client’s license being suspended regardless of whether the DA later dismissed the case, or my client was acquitted by a jury at trial.
An investigation interview can lock in the witness’ statement by the 3rd party investigator that has no reason to exaggerate or falsify a report. These interviews are usually recorded as well. It can be a huge difference-maker in cases like this one, where one independent witness may be able to establish driving – the DA’s weak link in proving the case. I submitted the statement from the DA’s lone witness prior to the Trial Readiness Conference (TRC), which was scheduled about two weeks before the trial date. I never got a call back, but I expected the DA would dismiss the case at the TRC given the admission by their witness. Instead, the DA told me they were still waiting for the 911 recording and if their witness said things that indicated my client drove on the “tape”, they were going forward with trial. Seriously? So, I had no choice but to prepare for trial. Jury trials can be unpredictable, and you really never know what to expect from the DA’s witnesses, including officers involved; there are always surprises so you better be a master of the case before you pick a jury and begin the trial.
When I appeared in court on the first day set for jury trial, the DA finally made the decision to dismiss the case. Clearly, this should have happened months earlier or even before they filed charges, given the fact that my client was still in the parking lot, in the back seat, and there was no evidence of intent to drive. So, apparently being responsible and doing the right thing doesn’t always work. The best bet in that situation is to be get the keys out of your hands or pockets, out of ignition, lock the car and don’t come back until you’re sober enough to drive. Or, be sure to retain me to help you if you’re arrested for DUI.
Avoiding A Checkpoint – Bad Stop – Suppression Motion (PC§1538.5)
Although I’m not recommending it, it is legal to avoid a DUI Checkpoint, although you may get pulled over anyway, especially if the officer believes you committed a traffic code violation in doing so.
In this case, my client was driving toward a DUI Checkpoint one evening and because he had been drinking, although feeling below the legal limit, made the decision to do a u-turn over a double-yellow line, then proceeded to drive along the shoulder for about 200 feet before moving back into the lane. In order to meet Constitutional muster, Checkpoints are supposed to be only for “educational” purposes. Therefore, “avoiding a DUI Checkpoint” is not illegal until you enter the cone area set up by law enforcement. Still, if law enforcement observes other driving issues that they allege are evidence of possible impaired driving, it could be enough to justify a warrantless stop under the lower standard of “reasonable suspicion.”
The investigator who worked on this case is a former CHP officer and a very smart guy. He visited the scene and did some measurements. He submitted a report that concluded the driving was legal. As our investigator found, this area is not in a residential or a commercial district (depends on how far away homes and/or businesses are), and it is therefore legal to make a u-turn over a double-yellow line. But, we also had to deal with the driving issues after the u-turn – driving on the shoulder area for about 200 feet, and any other “bad” driving issues the officer may introduce in his testimony in court. But, my research led me to the conclusion it was arguably legal to drive on the shoulder in this situation, and I found a vehicle code section that recommended about a 200-foot buffer when merging into traffic in a situation similar to this one. The argument was essentially that my client was being cautious before entering the roadway after making the u-turn. It was also nighttime, with lights coming from the Checkpoint area and not much lighting in the direction my client was driving. I spent a lot of time writing a motion to be filed in court, but first up was the DMV APS hearing.
Fortunately, we had a smart and fair DMV Safety hearing officer who took the time to listen to and dig into this technical, somewhat tedious and confusing argument about whether this turn was legal, and we won the hearing. My client’s license suspension was “Set Aside” – no suspension.
Next up, I filed a Suppression Motion in Superior Court (PC§1538.5).
I felt good about the written motion I filed in court, but you never know what might come in when the officer testifies. When the arresting officer got on the stand, I referred him to the numerous photos being projected on the screen that were began at the intersection the report indicated the Checkpoint was situated. The officer told the court the Checkpoint wasn’t anywhere near that intersection. No, it was about 1000 feet east of that intersection. Gulp! I asked the officer whether he was familiar with the area (I knew he worked that area). Then, through a series of questions, I was able to lock in the fact that established there were no homes or businesses in the area where the officer was now testifying the Checkpoint was located that evening. So, after oral arguments the judge granted our motion, the evidence was suppressed, and my client’s DUI case was dismissed, as well.
Our investigation focused on whether the u-turn over the double yellow lines was in fact in a “residential” or a “commercial” zone, and therefore illegal. Our measurements gave us an argument that the DUI Checkpoint was set up in an area where it was in fact legal to make a u-trn over double yellow lines. There were some other driving “issues” in the report, and you never know what an officer may add in terms of additional facts not in the report that may derail your argument. Although I was expecting the unexpected, I was surprised when the officer testified that the Checkpoint and stop were over a mile from the area the report indicated it was.
Fortunately, using our aerial photographs, I was able to get the officer to agree that the u-turn happened in an area that was also arguably outside a commercial or residential district. The judge ruled in our favor, and the case was dismissed. In his ruling, the judge said, “The actual reason the officer pulled him over is because he avoided a checkpoint (legal here)”, but also agreed the turn was legal, and further agreed with my argument that his driving along the shoulder for almost 200 feet was simply cautious driving, as there was no weaving or other driving issues that could have justified a stop for “reasonable suspicion.”
Felony Marijuana DUI Case Reduced By Judge
As I wrote in the narrative on the DUI’s page, in the absence of alcohol and/or other drugs, marijuana DUI’s are often easier to defend than other DUI’s, assuming you have the science on your side. And, although judge’s don’t have to power to dismiss charges on their own prior to trial, in felony cases that involve “wobblers” (charges that can be filed as felonies or misdemeanors), judges have the power to reduce those cases to misdemeanors “at any time”, regardless of the arguments coming from the DA’s office.
A few years ago I had a client who was charged with felony DUI causing injury (to another). He was driving in the mountains not far from the Sacramento area. He had planned a trip with his girlfriend to go fishing and hunting, and was towing a boat for the first time in his life. At some point the boat began to veer wildly from left to right and his vehicle was being pushed toward the shoulder with a cliff on the other side. My client could not control the boat as he approached a curve so he steered the vehicle into the rock on the left side of the road to slow it down and stop it before they completely lost control and found themselves driving off a cliff. His girlfriend suffered a broken leg – broken bones in this situation almost always trigger a felony filing.
Although my client gave the officer a long list of medications he was taking, including a prescription for marijuana, the other drugs were not the type of drugs that can impair a person. And, he did admit smoking before hours before he left, and the test results showed relatively high levels of THC, and I believe the active ingredient of Delta 9. DA’s don’t always request quantitative testing before a case is set for trial, but here they did. So, I had Ed Smith at Drug Detection Labs perform a forensic review. The DA wanted a pleae to a felony violation of VC§23153 and a long jail sentence in lieu of prison time.
After talking with Ed Smith and transcribing our discussion, I put together a brief that made the argument that is supported by science: regular users of marijuana typically build up a tolerance to the effects that impair one’s ability to drive. Contast that with a “naïve” user, a person who is ingesting the drug with little, or no prior use. I set the case for a conference in chambers with the judge and DA. We met several times over the next three or four months. Finally, the judge agreed to reduce the charges to a misdemeanor and offered a few days of work project rather than many months in jail and a felony.
It is unusual for a judge to reduce a case to a misdemeanor prior to a plea, and prior to a preliminary hearing. And, in my mind, the case was completely defensible had my client chosen to take the case to jury trial, although given the high levels of THC, it’s possible the DA’s expert could have convinced the jury the science was against us. But, my client chose to resolve the case as a misdemeanor and to move on with his life.
The information provided here is general in nature and is not intended to answer every question that may arise in your particular case and therefore should not be relied on in the place of professional advice in a given case.