With Memorial Day weekend approaching, it seems to be an appropriate time to talk about a legal issue that is likely to affect a number of people over the next few days: DUI checkpoints.
DUI checkpoints are a unique tool for law enforcement because they allow police to stop a vehicle and detain its occupants without any indication whatsoever that something illegal is going on. Normally, this isn't allowed - - stopping and detaining a person without probable cause to believe that a crime has been committed is considered an unreasonable search and seizure under the Fourth Amendment.
However, the California Supreme Court decided that DUI checkpoints do not violate the Fourth Amendment, or the California Constitution, because they are not criminal investigations but rather serve a "regulatory function" of keeping intoxicated drivers off the road. See Ingersoll v. Palmer (1987) 43 Cal.3d. 1321.
In order to be considered "regulatory" and not a "criminal investigation," and thus be Constitutionally permissible, a DUI checkpoint must comply with eight different criteria: (1) the decision to implement a checkpoint must be made at the supervisory level, not by officers in the field; (2) there must be limits on the discretion of the officers in the field in deciding whom to stop; (3) there must be measures taken to ensure that the checkpoint area is safe for motorists; (4) the location of the checkpoint must be reasonable; (5) the time of day the checkpoint is operating must be reasonable; (6) the checkpoint must be clearly marked as an official law enforcement roadblock; (7) the duration of the stop must be reasonable; and, (8) there must be advance publicity given disclosing that the checkpoint will be in place.
The advance publicity requirement means that there must be notice given in a newspaper or similar publication that informs the community when and where the checkpoint will be operating. So, if law enforcement is acting in compliance with what is required, a person should be able to find out where a checkpoint is going to be and avoid it.
If a person is stopped at a checkpoint and subsequently arrested for DUI, this provides a good opportunity to beat the DUI case by filing a motion to suppress evidence. I am of the opinion that, generally speaking, a motion to suppress based on an unreasonable detention should be made in every DUI case where the defendant was stopped at a checkpoint. The reasoning behind this view is that when such a motion is made be the defense, the burden is on the prosecution to show that the traffic stop was reasonable. In a situation where the stop occurred at a checkpoint, the prosecution has the burden of proving all eight requirements were met. This is no easy task, and may result in the motion to suppress being granted and the case dismissed.
Checkpoints that allow law enforcement to stop and detain law abiding citizens who are simply on their way home are the sort of government intrusion that goes against the core beliefs this Country relies on. At least for now, however, the courts have determined that such an intrusion is warranted because of the dangers posed by driving under the influence of alcohol.
In any event, the best way to avoid a DUI checkpoint issue is to hop in a cab. I recommend Yellow Cab. (408) 777-7777.
Have a safe and happy Memorial Day.
Thursday, May 21, 2009
Thursday, May 7, 2009
San Jose's "Public Intoxication" Problem Stems From Poorly Drafted Legislation
A recent investigation by the San Jose Mercury News discovered that the San Jose Police Department makes more arrests for public intoxication than any other law enforcement agency in California.
This probably comes as no surprise to the local criminal defense bar and to nearly anyone who has walked down Santa Clara Street after midnight, but it does raise some very real civil rights concerns. Perhaps most concerning is the fact that 57% of those arrested for public intoxication by San Jose Police are Latino (and the population of San Jose and surrounding areas is nowhere near 57% Latino).
To spell it out, the "concerns" are the following: (1) police officers are using the law prohibiting public intoxication as a vehicle to arrest whomever they please - - even if that person is not doing anything illegal; and, (2) police officers are discriminating against Latinos by arresting them more often than non-Latinos.
The SJPD's fondness for public intoxication arrests has led to significant fallout in the local community. Even before the Mercury News brought the issue to the attention of the general public, there were the effects on the correctional and judicial systems: the jail has to house the thousands of arrestees, the District Attorney's office files criminal complaints against those arrested, the courts have to process these cases, and in some instances the Public Defender's office is appointed to represent those charged. Now, the Mayor has launched a task force to investigate the problem and propose solutions, and, most recently, 7 out of the 10 members of that committee have resigned over claims that the City is preventing them from fully investigating. The controversy and and its various related costs continue.
The point is that, regardless of where one stands on this issue, there are significant social and economic costs when a local law enforcement agency is accused of this sort of misconduct. The real unfortunate thing is that this could have all been prevented; and the solution has nothing to do with back end remedies like task forces and looking over the shoulder of police. The real solution is to attack the source of the problem, at the front end: the law that police are using as justification for arresting all these people. If this statute were drafted more clearly and without using such vague language, there would not be so much potential for law enforcement abuse and thus there would not be so many accusations of the same.
The statute in question, the actual law that prohibits "public intoxication" is California Penal Code section 647(f). (The "f" is important . . . a number of the various other subdivisions of section 647 deal with prostitution and related offenses). Penal Code section 647(f) states that a person is guilty of a misdemeanor if he or she:
"is found in any public place under the influence of intoxicating liquor, any drug, controlled substance, toluene, or anycombination of any intoxicating liquor, drug, controlled substance,or toluene, in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason ofhis or her being under the influence of intoxicating liquor, anydrug, controlled substance, toluene, or any combination of anyintoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free use of any street, sidewalk, or other publicway."
The key part of the statute is the part that reads "in a condition that he or she is unable to exercise care for his or her own safety or the safety of others." Now, what does that mean? Clearly someone who is found passed out unconscious would fall under that definition, but beyond that, your guess is as good as mine. Typically, and in order to comply with the Constitution of this great nation, a statute that imposes criminal liability needs to be a little more clear about the conduct it is prohibiting. Otherwise it is subject to being void as "unconstutionally vague."
There is a very good reason for the principle that a statute must be clear and unambiguous about the conduct it is prohibiting. The reason is that if it is too vague (e.g., "in 'a condition' . . . "), there is a danger that the statute will be abused - - that is, law enforcement will arrest people in accordance with their own personal beliefs or standards and not in accordance with what the law says. Police are then subject to allegations of abuse of power and discriminatory enforcement. Sound familiar?
The statute could easily be fixed. What it is really designed to prohibit is a person being so intoxicated in public that they are absolutely incapacitated. So it should say that: "When a person is found to be under the influence of intoxicating liquor and/or drugs and in an unconscious state, that person is guilty of public intoxication." That would solve the problem. There would be no more disputes about whether a person was really guilty of being "unable to care for their own safety," as opposed to being guilty of having a bad attitude toward a cop or of being Latino.
There are a couple ways to fix the statute. The Legislature could amend the text so it is more clear about the conduct it is prohibiting. A defendant could challenge the statute in court as being unconstitutionally vague, and a court that was serious about its obligations under the Constitution would strike it down. But none of that will happen.
None of that will happen because it wouldn't be popular or a good political move to change a criminal law in such a manner that it might punish less people or make things more difficult for police. Additionally, it isn't the most serious of crimes - - no one is going to prison for years at a time for a 647(f) - - so even if it is contrary to the Constitution, who cares?
As the City of San Jose becomes more and more bogged down in the controversy over discriminatory enforcement of the public intoxication law, as task forces are appointed, members resign in protest, and accusations of racism against law enforcement fly, maybe the option of making sure all our laws (even the little ones) fully comply with the Constitution will become more attractive to the powers that be.
A law being "slightly unconstitutional" is no different from someone being "a little bit pregnant." As San Jose is finding out, even a relatively insignificant law that means well can cause some big problems if it isn't drafted in strict compliance with Constitutional principles.
This probably comes as no surprise to the local criminal defense bar and to nearly anyone who has walked down Santa Clara Street after midnight, but it does raise some very real civil rights concerns. Perhaps most concerning is the fact that 57% of those arrested for public intoxication by San Jose Police are Latino (and the population of San Jose and surrounding areas is nowhere near 57% Latino).
To spell it out, the "concerns" are the following: (1) police officers are using the law prohibiting public intoxication as a vehicle to arrest whomever they please - - even if that person is not doing anything illegal; and, (2) police officers are discriminating against Latinos by arresting them more often than non-Latinos.
The SJPD's fondness for public intoxication arrests has led to significant fallout in the local community. Even before the Mercury News brought the issue to the attention of the general public, there were the effects on the correctional and judicial systems: the jail has to house the thousands of arrestees, the District Attorney's office files criminal complaints against those arrested, the courts have to process these cases, and in some instances the Public Defender's office is appointed to represent those charged. Now, the Mayor has launched a task force to investigate the problem and propose solutions, and, most recently, 7 out of the 10 members of that committee have resigned over claims that the City is preventing them from fully investigating. The controversy and and its various related costs continue.
The point is that, regardless of where one stands on this issue, there are significant social and economic costs when a local law enforcement agency is accused of this sort of misconduct. The real unfortunate thing is that this could have all been prevented; and the solution has nothing to do with back end remedies like task forces and looking over the shoulder of police. The real solution is to attack the source of the problem, at the front end: the law that police are using as justification for arresting all these people. If this statute were drafted more clearly and without using such vague language, there would not be so much potential for law enforcement abuse and thus there would not be so many accusations of the same.
The statute in question, the actual law that prohibits "public intoxication" is California Penal Code section 647(f). (The "f" is important . . . a number of the various other subdivisions of section 647 deal with prostitution and related offenses). Penal Code section 647(f) states that a person is guilty of a misdemeanor if he or she:
"is found in any public place under the influence of intoxicating liquor, any drug, controlled substance, toluene, or anycombination of any intoxicating liquor, drug, controlled substance,or toluene, in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason ofhis or her being under the influence of intoxicating liquor, anydrug, controlled substance, toluene, or any combination of anyintoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free use of any street, sidewalk, or other publicway."
The key part of the statute is the part that reads "in a condition that he or she is unable to exercise care for his or her own safety or the safety of others." Now, what does that mean? Clearly someone who is found passed out unconscious would fall under that definition, but beyond that, your guess is as good as mine. Typically, and in order to comply with the Constitution of this great nation, a statute that imposes criminal liability needs to be a little more clear about the conduct it is prohibiting. Otherwise it is subject to being void as "unconstutionally vague."
There is a very good reason for the principle that a statute must be clear and unambiguous about the conduct it is prohibiting. The reason is that if it is too vague (e.g., "in 'a condition' . . . "), there is a danger that the statute will be abused - - that is, law enforcement will arrest people in accordance with their own personal beliefs or standards and not in accordance with what the law says. Police are then subject to allegations of abuse of power and discriminatory enforcement. Sound familiar?
The statute could easily be fixed. What it is really designed to prohibit is a person being so intoxicated in public that they are absolutely incapacitated. So it should say that: "When a person is found to be under the influence of intoxicating liquor and/or drugs and in an unconscious state, that person is guilty of public intoxication." That would solve the problem. There would be no more disputes about whether a person was really guilty of being "unable to care for their own safety," as opposed to being guilty of having a bad attitude toward a cop or of being Latino.
There are a couple ways to fix the statute. The Legislature could amend the text so it is more clear about the conduct it is prohibiting. A defendant could challenge the statute in court as being unconstitutionally vague, and a court that was serious about its obligations under the Constitution would strike it down. But none of that will happen.
None of that will happen because it wouldn't be popular or a good political move to change a criminal law in such a manner that it might punish less people or make things more difficult for police. Additionally, it isn't the most serious of crimes - - no one is going to prison for years at a time for a 647(f) - - so even if it is contrary to the Constitution, who cares?
As the City of San Jose becomes more and more bogged down in the controversy over discriminatory enforcement of the public intoxication law, as task forces are appointed, members resign in protest, and accusations of racism against law enforcement fly, maybe the option of making sure all our laws (even the little ones) fully comply with the Constitution will become more attractive to the powers that be.
A law being "slightly unconstitutional" is no different from someone being "a little bit pregnant." As San Jose is finding out, even a relatively insignificant law that means well can cause some big problems if it isn't drafted in strict compliance with Constitutional principles.
Tuesday, May 5, 2009
Introduction
My name is Nick Emanuel, and I am a lawyer in San Jose, California. I specialize in trial work. My practice encompasses both civil litigation and criminal defense. For more information on that, please visit my website at http://www.ngelawyer.com/.
This blog will be a forum to discuss, for the most part, legal issues and news and their effect on our everyday lives. I intend to update with new posts at least once a week, so check back regularly.
This blog will be a forum to discuss, for the most part, legal issues and news and their effect on our everyday lives. I intend to update with new posts at least once a week, so check back regularly.
Subscribe to:
Posts (Atom)
