Saturday, February 12, 2011

Drunk Driving Exceptions to the Constitution and to the Law

One of the biggest problems facing those doing constitutional defense for people accused of drunk driving, and facing people who want to serve honorably as jurors in drunk driving trials who cannot fathom the idea that their government deceives them on this or any other topic, is that drunk driving has long been, and is increasingly, a political crime. 

It is no secret that MADD, SADD, and other Prohibitionist political action groups, forgetting apparently that the 18th Amendment was repealed, elevating symbolic victimization to an art form, have bulldozed their way into legislative and judicial precincts so effectively that their governmental patrons low-crawl around and pander to their extortion to keep them from demonstrating outside legislative chambers and courthouses.  And those groups’ political terrorism has effectively engrafted drunk driving exceptions to the Constitution, and to common sense, onto our juro-political landscape such that “deuces” are harder for the defense effectively to litigate than are murders.

Consult the footnotes below to make full sense of each of these points or examples. As I have lectured, publicly and privately, for well-over 20 years, and as I have scolded in the trial courts and courts of appeal, there have grown up drunk driving exceptions to the Fourth Amendment [Ingersoll v. Palmer (1987) 43 Cal.3d 1321, Michigan v. Sitz (1990) 496 U.S. 444[1], People v. Banks (1993) 6 Cal.4th 926, People v. Wells (2006) 38 Cal.4th 1078[2], People v. Schofield (2001) 90 Cal.App.4th 968[3], People v. Thompson (2006) 38 Cal.4th 811[4], People v. Mateljan (2005) 129 Cal. App. 4th 367[5], People v. Hardacre (2004) 116 Cal.App.4th 1292[6], People v. Trotman (1989) 214 Cal.App.4th 430, 436[7], Gikas v. Zolin (1993) 6 Cal.4th 841[8]], to the Fifth Amendment self-incrimination clause [Berkemer v. McCarty (1984) 468 U.S. 420[9], South Dakota v. Neville (1983) 459 U.S. 553[10]], to the Fifth/Fourteenth Amendments due process clauses [California v. Trombetta (1984) 467 U.S. 479[11], People v. McHugh (2004) 119 Cal.App.4th 202[12], MacDonald v. Gutierrez (2004) 32 Cal.4th 150[13], People v. Bransford (1994) 8 Cal.4th 885[14], Burg v. Municipal Court (1983) 35 Cal.3d 257[15]], to the Fourteenth Amendment equal protection clause [People v. Chavez (2004) 116 Cal.App.4th 1[16]], to the Ex Post Facto Clause [People v. Sweet (1989) 207 Cal.App.3d 78 and People v. Forrester (2007) 156 Cal.App.4th 1021[17], Ellis v. DMV (1942) 51 Cal.App.2d 753[18]], and, inter alia, to the very meaning and concept of recidivistic enhancement for repeated offenses.[19]

And perhaps the ultimate recent exemplar that political result-orientedness controls the field is Troppman v. Valverde (2007) 40 Cal. 4th 1121, where the state Supreme Court held that administrative sanctions for drunk driving do not require any proof ofdriving.”  Huh??  If you prove that you were actually, factually not driving, the state can take your license as if you were if the self-serving cop convincingly claims that he thought you were!  And we wonder why the people of Iraq are not welcoming our version of a “rule of law” with open arms and roses in the streets!  It is no different from what they had, merely more pretentious.

We must wake up to the evil of allowing any political lobbying group or interest to occupy a criminal law niche, and we must implore our legislators, prosecutors, judges, and juries to recall that we are supposed to have a rule of law here, and defaults are supposed to be in the direction of liberty not power or punishment, and political crimes based on phony statistics and formented fears and paranoias of the unknowing public defines tyranny.  Of course, imploring our political legislators to understand things and then to do the right thing might be difficult, as I found when I spoke against SB 289 in Sacramento. We got the evil legislation shelved, but it became clear to me in that experience that legislators have not a clue what is going on and they march to the beat of the loudest and most lucrative drummer.

The Framers noted in Federalist 78 that one of the functions of the judiciary in this Republic is to protect individuals from overly oppressive government; increasingly, though, when the subject is drunk driving, the judiciary has become one of the oppressors.  That must be reversed, lest the notion of "rule of law" become merely a quant and distant memory.

[1] In Indianapolis v. Edmond (2000) 531 U.S. 32, 39, drunk driving was decreed to be an exception from the general rule of particularized suspicion for liberty infringements, further proving that DUI is a political crime.

[2]        This enunciation of the radical doctrine that there is a DUI exception to the well-established anonymous tip rule is eyebrow-raising in the extreme, but cert. was denied, even though the holding is contrary to U.S. Supreme Court precedent, and it is premised on the constructed hyperbole that DUI is more like a bomb than a concealed gun! See also Lowry v. Gutierrez (2005) 129 Cal.App.4th 926 [anonymous informants okay for stops for DUI license suspension purposes, even though 4th Amendment standards are supposed to govern such proceedings]. I must confess that I thought Wells would go the other way, given that the U.S. supes have so held, or that cert. would be granted.
In original constitutional intent [the "originalism" that is all the rage but rarely faithfully attended], of course, there is no “public safety” exception to the 4th Amendment, because the 4th Amendment was designed to be individuals’ safety against public power. Ah, those “originalists.” Wonder what Framers’ utterances they look at when they self-servingly assign themselves such misleading labels!

[3] “Presence,” a common law requirement for misdemeanor arrests since before the Framing, and hence deemed to be a reasonability requirement under the 4th Amendment by well-established authority, is not required for a DUI arrest because the evidence “might” disappear.  Of course, it might also be increasing due to the passage of time, but who cares ~ “get them drunks off’n thuh road”!/?

[4] Notwithstanding the Framers considered one’s residential door to be the threshold beyond which even the King could not pass, if MADD’s obedient gendarmes want to come in to arrest you for DUI, let not a warrant nor the 4th Amendment stand in their way. The citadel has surely fallen. For an offense of lesser gravity than DUI, though, the door is still closed to marauding gendarmes. See People v. Hua (2008) 158 Cal.App.4th 1027 [suspicion of possession of less than an ounce of marijuana does not permit a warrantless entry/arrest on exigency arguments].

[5] It is not constitutionally unreasonable for the government to break the law by using unlicensed people to draw blood for DUI arrests [stabbing a person with a needle is, of course, ADW!]; breaking the law to enforce it does not offend constitutional precepts, at least where DUI is involved.

[6] Not constitutionally unreasonable for cops to violate speed trap prohibitions to arrest DUI driver because speeding is not related to drunk driving. [Silver lining: “he was speeding” is irrelevant at DUI trial!]

[7] Schmerber “necessity” or “exigency” requirement for warrantless blood draw, requiring more than evanescence of the evidence, tossed out window, because it is DUI.  But then, uh, Schmerber was a DUI case!/?  See reaffirmation of Schmerber clear standard in Missouri v. McNeely (2013) 569 U.S. --- [133 S.Ct. 1552].  Some courts, and all prosecutors, in our state are suggesting that the cops should be allowed to rely on the Trotman heresy to keep from losing their illegally seized chemical evidence because the intentional misrepresentation of the clear constitutional law lasted for so long.

[8] The DMV can thumb their administrative noses at what the criminal courts say about the illegality of the stop that brought the DUI suspension issue to their attention; they have their own “standards” that the appeals courts won’t disturb, because it is, after all, drunk driving! [It’s also supposed to be “a Constitution that we’re expounding”!]  More explicitly, the exclusionary rule does not apply to the “civil” DMV proceedings growing out of the criminal case, to which it applied and where its application resulted in dismissal! Park v. Valverde (2007) 152 Cal.App.4th 877, 880.  For DUI, the "executive" is pigeonholed into mutually exclusive realms such that commands against one component of the executive does not work a command against another component, a most curious constitutional doctrine indeed!

[9] Even though Miranda applies after a “person has been taken into custody or otherwise deprived of his freedom of action in any significant way,Miranda v. Arizona (1966) 384 U.S. 436, 444 [emphasis added], they don’t think commanding one to stop for DUI investigations and accusatorily grilling him beside the road with red lights flashing is a freedom deprivation of any significance.  Huh??  Lunatics running the asylum?  No, Prohibitionists running DUI law, with whom the “independent” judiciary is too often in political cahoots.

[10] Even though the Fifth Amendment prohibits compelled statements coming into evidence, and hence prohibits DAs from commenting on an accused’s refusal to talk, if a person arrested for DUI says “I refuse” to take your tests,” that is admissible and can be commented upon: it is drunk driving, after all!

[11] The cops can ignore express legislative commands to collect back-up tests, and they can throw out or not collect test results, and that does not offend due process unless you can show that (a) the tossed stuff would have helped you, and (b) the cops knew it and threw it out to prevent that help.  You have to prove what you don’t have, and never saw, and have to prove the cops knew the unarticulable/undiscovered significance of the stuff you know nothing about.  That’s from the “Catch 22”nd Amendment, I guess!

[12] Systematic, purposeful scheme by county to break the law in DUI evidence collections does not offend the Constitution.  The Fourth Amendment standard in Schmerber is that blood evidence may only be collected according to "accepted medical practices," which did not include blood collections in other than a medical facility by other than true medical personnel, but what the heck - this is drunk driving - do what you want, Mr. Cop.

[13] As long as there is some sworn statement, regardless of its substance and content, the license suspension can be based on unsworn material at DMV hearing, regardless of statutory language that could be construed otherwise.

[14] Even though the science of the matter is that BAC from blood testing and BAC from breath testing might be vastly different, from person to person and for the same person under varying circumstances, it does not offend the Constitution to prevent you from introducing evidence, or cross-examining, about such things; it is DUI after all!  The Supreme Court has partially corrected the evil perceived from Bransford by clearly holding recently what was implied in Bransford, that partition ratio is a valid line of inquiry for the (a) count, just not for the (b). People v. McNeal (2009) 46 Cal.4th 1183.

[15] There’s no constitutional problem convicting a person for a quasi strict liability/per se offense, even where he has no actual notice of when his conduct becomes criminal, because it is, after all, drunk driving!

[16] Drunk drivers are not similarly situated with drug addicts [even though we keep hearing that alcohol is a drug!], so benefits of CRC not available to felony DUI defendant.

[17] There’s no constitutional problem lengthening the priorability-effects shadow resulting from a DUI conviction after the conviction because…, hm, uh, oh yeah, it’s the new case that is the bad thing!  “But the priorability shadow is a consequence of the previous conviction.”  “Shut up: it’s drunk driving!”

[18] One’s right to a license due to DUI conviction can be affected by changes in the law after the convictions, conformably with ex post facto prohibitions, because the change is to “protect the public.”  Huh???  The Constitution is to protect the public from government; government was not generally understood to be the protector, but instead the obliterator, which is why we have a Constitution, and [supposedly] limited government.

[19] See People v. Snook (1997) 16 Cal.4th 1212, People v. Baez (2008) 167 Cal.App.4th 197, wherein “prior” convictions need not to have really been of prior conduct to invite recidivistic enhancement [altering the meaning and concept and value of recidivism] for drunk driving and DUI-manslaughter, although it does need to be prior conduct for other crimes. See, e.g., People v. Rojas (1988) 206 Cal.App.3d 795.


  1. Dear Sir:
    While I might be inclined to agree with most if not all of your comments here, it seems to me that an originalist might have to explain why the forefathers did not anticipate this set of problems there being no automobiles at the time the constitution was written. Before you reject his thought let me complete it. I don't think that you can question the proposition that being impaired by whatever substance is dangerous when driving a one ton (or more) vehicle at any speed. Perhaps that is why driving is universally recognized as a privilege not a right. Further if one so defines driving, is not one taking it out of the system of rights you have outlined above?

  2. The "privilege" vs "right" debate is not that helpful to the necessary analysis here, because the label does not define the degree of protection the Constitution mandates. After all, the 5th Amendment "right" against self-incrimination is really a "privilege," but there is a constitutional "right" to not have that privilege abridged. And once a "privilege" is granted, one has due process "rights" to its continued enjoyment. The right vs privilege thing is really to support an ends-oriented conclusion that courts arrive at that they will happily strip away one and less so the other.

    The Framers would have no problem, conformably with due process, to punish provable harms, like truly impaired driving, horse-back riding, or carriage operation. They would not appreciate, however, concocting politically ordained distinctions based on political agendas, and they would demand that the courts side with individuals, not with the government, as occurs now with DUI.

    Of course now, because DAs have trouble proving impairment, the states have developed the quasi-per se standard of driving with a specific amount in the system, and that sort of strict liability for criminal sanctions would not be appreciated by the Framers nor anyone truly devoted to a rule of law where personal responsibility and accountability are the expected standards.

    The gist of this post, however, is to reveal the extent to which the courts and legislatures are willing to lose their souls to serve a victimization lobby's [MADD] political goals by eroding established constitutional and statutory and customary doctrines that are largely still enforced in other areas of criminal accountability.

    It is interesting to note the goat-entrails-reading quality of "science" the courts admit for DUI trials. There is no recognized scientific correlation between walking a straight line [with one foot in front of the other, an artificial way of walking], or touching one's nose, or reciting the alphabet backwards, or estimating the passage of 30 seconds with your eyes closed, and impairment by alcohol. None; never has been; never will be. The polygraph is a more reliable indicator of truth than those are of impairment, yet neither court nor legislature allows the polygraph into evidence, whereas the courts eagerly and solemnly let those phony-baloney tests in for DUI.

    DUI is a political crime, and that is anathema to the Framers, and hence to me.


Be civil, intelligent, and non-confrontational.