Texas Man Allegedly Had Blood Forcibly Drawn without Consent After DUI Arrest

Los Angeles DUI laws are very particular about what can and cannot be used as evidence during a DUI case. The following Texas case depicts what can happen if police officers don’t follow appropriate protocol.

According to news reports, in early January, an allegedly DUI driver, Joel Garcia, slammed into another car after speeding through a red light. The crash killed three people. Garcia’s own injuries were severe enough to warrant pain medication. Police had been afraid that the medications would lead to a false positive for DUI on his blood test, so they withdrew blood without his consent.

Garcia’s lawyer later protested that forcible removal of blood violated his rights. Texas, alongside many other states, allows police officers to engage in certain probing investigative activities without needing warrants following grievous injury or death. Due to Garcia’s alleged actions, three people were dead. The police believed that the seriousness of the situation allowed them to exercise their right to remove his blood for testing.

The U.S. Supreme Court has previously ruled that pressing or exigent circumstances do not provide officers with a reason to forego consent, except under some circumstances. In every case, this “exigency” must be carefully reviewed and validated by the court.

The DUI was not Garcia’s first offense. Police arrested him for another DUI earlier in the year. On the night of the fatal crash, he allegedly had several beers and three shots of spirits before getting in his car.

This case is important for two reasons.

1. Every state law is different. Had Garcia been driving in a different state, he might have had grounds to sue the police department for obtaining his blood without his consent.

2. The attention of an experienced Los Angeles DUI lawyer can be critical.

Designing and executing an effective defense against DUI charges (even simple ones) is not intuitive. Fortunately, you can trust the seasoned, highly successful Michael Kraut. Call a DUI lawyer in Los Angeles with nearly two decades of experience.

Call attorney Michael Kraut at (323) 464-6453 for help if you’ve been stopped for DUI in Los Angeles. Or Contact our team online. We’re located at 6255 Sunset Boulevard, Suite 1480, Los Angeles, California 90028.

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Man Gets Through DUI Checkpoint Without Rolling Down His Window

A man in Chiefland, Florida posted a video to YouTube showing how he pulled through a DUI checkpoint without ever rolling down his car window or speaking to the police. His solution? Attach a ziplock bag to the outside of his car that had his “Fair DUI” statement inside it, along with his license, insurance information and vehicle registration. Here’s the video:

The police handled the situation pretty smoothly and looked, at least to me, a little bemused by the whole thing. The driver, Jeff Gray, has a YouTube channel called “Honor Your Oath” where he encourages people to “Stay cool, Be polite, Flex Your Rights, and Always Film The Police.” Gray also says his goal is to “teach citizens that our rights do still exist, and to show how best to assert those rights.” Gray also points out that he is not an attorney.

Over a million people have watched the video. Two Sheriffs in Florida gave statements about what happened, which provoked this not-so-well-thought-out article.

So if Jeff Gray was able to cruise through a DUI checkpoint without ever rolling down his window or saying a word to the police, does that mean everyone can legally do that?

Let’s get some things straight first.

One, please don’t take video of something working once on YouTube as evidence that it will always work. That’s a twist on the old logical fallacy known in Latin as “argumentum ad traditio” – the appeal to tradition, although I guess we could update it as the “argumentum ad YouTubio” – the Appeal to YouTube.

Second, don’t take the fact that the police did nothing as evidence or confirmation that they couldn’t do anything. We’ll talk about this more below, but please understand that the police make mistakes. They’re not robots. Just because they didn’t stop Gray, or order him to roll down his window, get out of the car, etc., doesn’t mean that they couldn’t have. We’ll talk about the law on this in a moment, but as a matter of common sense don’t get these ideas confused.

Back in 1990 the U.S. Supreme Court decided a case called Michigan Dept. of State Police v. Spitz. The question in that case was whether states could use DUI checkpoints and briefly examine drivers for signs of intoxication without violating the constitution. The Court weighed the interests of the state in keeping drunk drivers off of the road against the interests of the drivers in not being detained. The Court sided with the state, and held that DUI checkpoints are not unconstitutional.

So what does that actually mean? That means that states are allowed to operate DUI checkpoints to check drivers for signs of intoxication. This would, naturally, include stopping drivers and interacting with them to see if they had glassy eyes, slurred speech, and/or smelled like alcohol.

But there are restrictions. If they’re not running a DUI checkpoint, the police have to have a reason to pull your car over. This can be for any traffic violation, moving (like speeding) to non-moving (having an expired license plate). And, until the U.S. Supreme Court’s recent decision in Heien v. North Carolina, the police had to had to be legally about their legal reason for initiating a traffic stop. Not anymore.

If you decide to try Mr. Gray’s trick for avoiding a DUI checkpoint be aware the police have every right to insist that you speak with them. Although it worked for him, it probably won’t work for you.

Sam proudly represents those accused of crimes and injured through no fault of their own throughout the greater Tampa Bay area.

Read all posts by Sam Harden

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Florida Man Goes Through DUI Checkpoint Without Saying A Word

In order to avoid an incorrect assertion of a person’s speech being slurred or the smell of alcohol or drugs wafting from the car at a DUI checkpoint, a man in Florida tested out a novel approach. Jeff Gray put his license, registration, and insurance information in a plastic bag out his window with a message from Fair DUI:

“I remain silent

No searches

I want my lawyer”

Apart from a few strange glances, Jeff made it through the checkpoint without incident.

Read more.

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HOLD THE PHONE…BUT DON’T SEARCH IT WITHOUT A WARRANT

If a driver is pulled over and charged with a criminal offense, can the police search through the data on the driver’s cell phone? That question was recently addressed by the United States Supreme Court. The case does not directly involve a DUI/OVI, but it’s definitely worth reporting in this blog. This is a significant case in the area of search and seizure law, and there are frequently search and seizure issues in DUI/OVI cases.

The case is Riley v. California. Riley was stopped for a traffic violation, and he was ultimately arrested for a weapons charge. After Riley’s arrest, an officer searched Riley and seized his cell phone from his pants pocket. The officer accessed information on the phone and observed the repeated use of a term associated with a street gang. Later, at the police station, a gang unit detective looked through the digital contents of the phone. The detective found photographs and videos connecting Riley to a gang and implicating Riley in a gang-related shooting.

Riley’s motion to suppress the evidence from his cell phone was denied. The cell phone evidence was used to convict Riley and was also used to enhance Riley’s sentence based on his gang membership. Riley appealed, and the case made its way to the United States Supreme Court. The Court held that police may not search information on cell phones without a search warrant.

The Supreme Court’s reasoning was straight-forward. Individuals have a right to be free from unreasonable searches. A warrantless search is unreasonable unless it falls within a specific exception to the warrant requirement. The only exception that may apply to this situation is the ‘search incident to arrest’ exception: after a person is arrested, police may search the area within the arrestee’s immediate control. The rationales for the exception are officer safety and preventing destruction of evidence, and those rationales do not apply to the data contained in the cell phone.

The Court observed that, compared to other objects which may be seized in a search incident to arrest, cell phones are different both quantitatively and qualitatively. Quantitatively, cell phones’ huge storage capacity and ability to access additional storage make them capable of accessing enormous amounts of text, photos, and videos. Qualitatively, many people “keep on their cell phones a digital record of nearly every aspect of their lives”. As searching the information contained on a cell phone is a significant intrusion on the owner’s privacy, a cell phone may be seized incident to arrest, but accessing the data on the phone requires a search warrant. The opinion, written by Chief Justice Roberts, implies the Court would extend the warrant requirement to data stored in the cloud.

The Court’s unanimous decision in Riley is a refreshing recognition by the Court that search and seizure law must develop with changing technology. The government argued that warrants aren’t necessary because government agencies could develop protocols to address privacy concerns. In response, Chief Justice Roberts underscored the high value Americans place on privacy: “the founders did not fight a revolution to gain the right to government agency protocols”.

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After a DWI charge, don't let your license go without a fight

Let's say that you were just arrested for drunk driving, and as the days and weeks pass, you are put in front of a judge multiple times. During one of these courtroom visits, you are informed that your driver's license is being revoked, and hearing this breaks your heart. Your job, your life, your responsibilities to your family and friends -- all of these things are being ruined because of this determination.

Losing your driver's license can be, and usually is, a crippling consequence of a DWI charge. Your job could be at risk, as well as your freedom and ability to get from place to place. This is a massive punishment that people who are accused and convicted of driving while intoxicated need to fight as soon as they possibly can.

Here in Minnesota, you have to inform the Minnesota Commissioner of Public Safety that you intend to challenge the decision to revoke your license within 30 days of receiving notification that your license is being revoked.

It's also important to note that here in Minnesota, there are two separate cases going on with your DWI charge. Even if you win the DWI case, you could lose your license in the other case.

Given the high-risk nature of this DWI setup in Minnesota, you need to defend yourself by consulting with a criminal defense attorney that has extensive experience with DWI cases. If you're in the state of Minnesota, consider us at Strandemo Sheridan & Dulas. We can help you with both of the court cases you have to deal with after a DWI. Don't give up your license without a fight.

Tags: Drunk Driving Charges

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Court Finds Cop “Immune” for DUI Arrest Without Evidence

The following facts are fairly typical of what happens in a disturbing number of DUI cases:  

Ohio: Federal Court Overturns Bogus DUI Arrest

Chillicothe, OH.  June 19 — A sober woman is fighting back after she was falsely arrested and imprisoned for driving under the influence of alcohol (DUI). The Sixth Circuit US Court of Appeals ruled last Wednesday that Catrena Green could proceed in her lawsuit against Ohio State Highway Patrol Trooper Adam B. Throckmorton after lab tests proved she had a blood alcohol content (BAC) level of 0.0 and no drugs in her system.

The three-judge panel overturned the decision of a US district court granting Throckmorton immunity for his actions in Chillicothe, Ohio in August 2008. He had seen Green’s SUV driving in the opposite direction with her high beams activated. Throckmorton made a U-Turn and pulled her over in stop recorded by a dashboard camera. Green explained she had her high beams on because it was difficult to see in the wet conditions and she was trying to be careful. She asked whether she had done anything else wrong.

"No, not really," Throckmorton said during the stop. "You just brighted me and blinded me."

Throckmorton then claimed that Green’s pupils were "constricted" and that she had difficulty getting out of her seatbelt. Though Green did not smell of alcohol or drugs, Throckmorton decided to perform field sobriety tests on her. He noted that she was unable to follow the swift motion of his pen in a horizontal-gaze nystagmus test that he spent twenty seconds administering. He noted that "she talked slowly" while repeating the letters of the alphabet beginning with "L" and ending in "S." She struggled to stand on one leg in the balance test. Green, who was 42 and overweight at the time, swayed slightly while performing the walk-and-turn test.

On the basis of those tests, Throckmorton arrested Green for DUI. She spent two days in jail while trying to meet bail with only a credit card. Green argues she was detained and tested without probable cause, in violation of the Fourth Amendment. She insisted that the lab tests proved the trooper was lying.

"We find her argument persuasive," Judge Ronald Lee Gilman wrote for the court. "What matters here, rather, is what mattered in Miller: that a subsequent test for drugs and alcohol showed that the driver was in fact sober. That evidence alone is sufficient to cast doubt on the truthfulness of Throckmorton’s testimony regarding Green’s pupils."

The court decided that a jury should decide whether there were specific and articulable facts, not just a hunch, justifying Green’s detention for the sobriety tests.

"We understand, of course, the difficulty inherent in making on-the-fly determinations regarding possible driving impairments, just as we recognize the severity of drunk driving and the potential consequences of an incorrect call had Green ultimately proven to be impaired," Judge Gilman wrote. "But this difficulty and these consequences always exist when an officer stops someone for a traffic violation. Yet officers do not have free rein to administer field sobriety tests to whomever they please and then to arrest that person for making the slightest misstep while performing the tests. Whether that is what happened in this case is a question for the jury."

So….no erratic driving….no slurred speech….no alcohol on the breath….no swaying or poor balance….no bloodshot eyes…no difficulty understanding directions.  But she used her bright lights, had trouble standing on one leg (42, overweight and nervous) and "failed" a nystagmus test which was clearly incorrectly given. Oh….and she had no alcohol or drugs in her body.

The only question here is:  Why did the lower court give this idiot a free pass?  Since when do cops have "immunity"?  
 

This entry was posted on Friday, June 29th, 2012 at 9:39 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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