Sobriety Checkpoints

CA Law Limits Cops From Impounding Cars At DUI Checkpoints

October 13, 2011 | The Law Offices of Susan L. Hartman

San Diego County police departments and other California law enforcement agencies will have new limitations on towing unlicensed drivers’ vehicles when they conduct drunk driving checkpoints starting on January 1st, 2012. AB-353, which was sponsored by Assemblymen Gibert Cedillo, D-Los Angeles, and Michael Allen, D-Santa Rosa, was signed into law by Governor Jerry Brown on October 9th, according to californiawatch.org.

Officers working a sobriety roadblock often evaluate possible DUI drivers and ensure drivers have valid driver’s licenses. Many, mostly illegal immigrants, are cited for not having a license. Under current California law, their cars are then impounded for 30 days. This practice has generated tens of millions of dollars a year for towing companies and local governments, as the government receives a portion of the fines and fees collected from the contracts they have with the tow yards. (See previous blog entry, “CA Lawmakers Take Steps To Limit Money Made Off Impounded Vehicles At Drunk Driving Checkpoints.”)

Under AB-353, the police are no longer able to immediately impound the cars of sober, unlicensed drivers at these checkpoints. Instead, the cars will be released to a qualified driver representing the registered owner. In application, the vehicles will remain at the DUI checkpoint during the operation, giving the owner an opportunity to claim the vehicle. If the car is not claimed before the operation concludes, it is towed; however, it will be released as soon as a representative of the owner claims it at the tow yard and pays the city release fee and the tow and storage fee. This eliminates the mandatory 30 day impound and all the additional daily storage fees. The difference can be between a few hundred dollars and a few thousand dollars, the owner’s ability to pay, and the possibility of the owner losing the car.

This new law does not affect the officers’ ability to cite a driver and impound the vehicle for 30 days if that driver is driving on a suspended or revoked license.

The bill that would have restricted how DUI checkpoints are run, AB-1389, was vetoed by the governor.

Pacific Beach DUI Checkpoints Not Conducted On July 4th Weekend

August 5, 2011 | The Law Offices of Susan L. Hartman

Pacific Beach has hosted a drunk driving checkpoint during the July 4th weekend for the past eight years. However, the San Diego Police Department decided not to have one this year. The Pacific Beach residents are outraged by this because not only is San Diego the city with the most DUI-related arrests in the country, but Pacific Beach has the majority of those arrests.

PB Planning Committee members confronted San Diego police Officer Mark McCullough about this. He claimed the chief of police requested that the checkpoints be shared by other communities, according to 10news.com.

Instead of DUI checkpoints, San Diego Police used saturation patrols to address the drunk driving issue and alcohol-related offenses in Pacific Beach and Mission Beach this year.

San Diego DUI checkpoints are funded by grants given to the police department from the California Office of Traffic Safety (OTS). Those funds are provided by the National Highway Traffic Safety Administration (NHTSA).

San Diego law enforcement must use those funds to deter drunk driving throughout the city, not just in Pacific Beach and Mission Beach. Since checkpoints are intrusive and ineffective, saturation patrols, which specifically target those who are involved in alcohol-related incidents, are a much better way to use the funds and the city’s resources.

Del Mar Races Targeted for DUI Crackdown and Arrests

July 22, 2011 | The Law Offices of Susan L. Hartman

del mar.jpg Del Mar horseracing season kicked off on July 20th, and thousands of San Diegans came out to the track to bet on the thoroughbreds and have a few cocktails.

San Diego and Oceanside Police Departments, along with the San Diego County Sheriff’s Department, stopped 349 motorists near the track between 3 p.m. Wednesday and midnight on opening day, according to 10news.com. Fifteen people were arrested for drunk driving, four were arrested for driving without a license, fourteen vehicles were impounded, and thirty-five citations were issued for other traffic violations.

Included in the DUI arrests was jockey Mike Smith, a 2003 inductee in the horse-racing Hall of Fame. He has won 10 American Classic and Breeder’s Cup races, including the big three, the Kentucky Derby, Belmont Stakes, and the Preakness.

Earlier in the day, Smith rode Mr. Commons to win the Oceanside Stakes. However, around 11:30 p.m., we was allegedly seen driving very slowly and weaving by Carmel Valley Road and Via Albertura, approximately five miles from the track. He was pulled over by San Diego Police and arrested for drunk driving.

The jockey was booked into jail and later released after posting bail. Smith, who weighs only 115 pounds, apologized for his actions after he admitted to drinking about 3 glasses of wine. He is due in court on September 1st.

According to the “Blood Alcohol Concentration Chart” on the California Department of Motor Vehicles’ website, a 115 pound person having consumed 3 drinks, would likely be under the influence for purposes of driving within the four hours of the first drink. (Note, this is just an estimate as many factors will effect the actual blood alcohol content, or BAC.)

The Del Mar Races will continue through September 7th. You can expect the police will be out in full force in the Del Mar area looking for drunk drivers. So if you plan on attending the races and indulging in a few adult beverages, make sure you utilize public transportation or designate a sober driver. However, if you are driving, stopped, and ultimately arrested for drunk driving, contact

Vista Judge Rules Escondido DUI Checkpoint Case To Go To Trial

July 18, 2011 | The Law Offices of Susan L. Hartman

A Vista judge denied the motion to exclude evidence against two men who were passing through a drunk driving checkpoint and refused to unroll their window, which prompted an Escondido officer to break his window and make an arrest for resisting an officer.

The North County Times reported that Angel Navarrete and his passenger, Daniel Alfaro, drove through a sobriety checkpoint on February 11th, 2011, around 7:30 p.m., on East Valley Parkway and Juniper Street. Navarrete refused to roll his window all the way down as he video recorded the police response. His intention was to challenge the Escondido checkpoint and was totally sober while confronting the officers.

The motion was heard on July 8th, in front of Judge Robert Kearney. The attorneys for the men argued that the arrest was illegal because drivers are not required by law to roll down their window at a checkpoint and Navarrete’s window was unrolled enough for the officer to conduct an investigation. They also pointed out that the proper procedures for a checkpoint were not followed in this case. The judge disagreed and denied the motion. The trial is set for August 30th.

A defendant may motion the court to suppress evidence under Penal Code section 1538.5, if the search or seizure without a warrant was unreasonable. Under People v. Williams, a warrantless search or arrest is presumptively illegal. When the question of the legality of an arrest or a search or seizure is raised, the defendant makes a prima facie case of illegality where the arrest, search, or seizure was accomplished without a warrant, then the burden rests upon the prosecution to show proper justification for the arrest, search, or seizure.

If the court finds the prosecution failed to meet their burden, the defense motion will be granted. The prosecution will then decide if it has enough evidence that is admissible to proceed with the matter. Often cases are dismissed or lesser charges with lesser penalties are offered.

Note: This is a follow-up story to one previously published in this blog on May 6th, 2011, (see “Escondido Sobriety Checkpoint Challenged“).

CA Lawmakers Take Steps To Limit Money Made Off Impounded Vehicles At Drunk Driving Checkpoints

July 12, 2011 | The Law Offices of Susan L. Hartman

state capital.jpg San Diego and other California counties have been making millions of dollars off vehicle impounds at drunk driving checkpoints, according to 10news.com. In a recent audit, a discrepancy was found between the number of cars that are impounded and the number of drivers arrested for being under the influence. Most of the impounds are happening to drivers that are sober.

The DUI checkpoints are funded by grants given to local law enforcement agencies by the California Office of Traffic Safety. Those funds are provided by the National Highway Traffic Safety Administration (NHTSA) and they are to be used to address alcohol and drug issues on the roadways, not impounding vehicles.

As a result of the audit, state lawmakers are pushing AB-1389 and AB-353 to curb the millions of dollars made by cities and law enforcement agencies off the cars that are impounded at sobriety checkpoints.

As the law currently stands, law enforcement can conduct a combined vehicle inspection and sobriety checkpoint to check for violations of motor vehicle exhaust standards in addition to DUI offenses. During a drunk driving roadblock, if an officer determines that a person is driving without ever being issued a driver’s license, they may be immediately arrested and their car impounded for 30 days. If the driver had a valid license at some point, but is driving through the sobriety checkpoint without a valid license, their vehicle may be impounded for a shorter period of time upon issuance of a notice to appear in court and the registered owner presents a valid license and proof of current registration.

AB-1389 states a combined vehicle inspection and sobriety checkpoint will no longer be allowed. Instead, local law enforcement would be allowed to establish a sobriety checkpoint program to identify drivers who are in violation of specified DUI offenses. Each motorist stopped would be detained so law enforcement may briefly question the driver and look for specified signs of intoxication. All provisions of DUI roadblocks under Ingersoll v. Palmer (1987) would be followed, including providing advanced notice of the general location within 48 hours of conducting the operation.

Further, AB-1389 does not allow for impounding vehicles at the checkpoints unless one of the specified conditions applies.

The existing law also authorizes law enforcement to immediately arrest a person and cause the removal and seizure of the vehicle they were operating if the officer determines the person was driving the vehicle while their driving privilege was suspended or revoked or without having been issued a license. A vehicle is subject to forfeiture as a nuisance if it is driven on a highway by a driver with a suspended or revoked license, or by an unlicensed driver. The vehicle is to be impounded for at least 30 days if its driver is unable to produce a valid driver’s license.

Under AB-353, the registered owner of the vehicle would be able to retrieve a vehicle that was impounded pursuant to a sobriety checkpoint program, the following day, upon a showing proof of a currently valid driver’s license and vehicle registration.

Recently, there have been allegations that drunken driving checkpoints and vehicle impound policies have been used to harass illegal immigrants, see caivn.org and 10news.com. Now, this audit shows local government and law enforcement agencies are actually profiting financially. Because of this, they should not be able to qualify for the grants which have an intended purpose of deterring drunk driving offenses.

Drunk Driving Checkpoints Net More Impounded Cars Then DUI’s

July 9, 2011 | The Law Offices of Susan L. Hartman

San Diego law enforcement agencies have been racking up statistics at DUI checkpoints, and it is not on arresting drunk drivers, rather impounding cars, according to 10news.com. And even more surprising, most of those impounds are happening to sober drivers.

The roadblocks have been a revenue source of millions of dollars for cities and law enforcement agencies conducting the stops as impound fees are collected. This leads to the appearance that DUI checkpoints are being conducted specifically to raise money, not as a deterrent to drunk driving.

In a recent audit, a discrepancy was found between the number of cars that are impounded and the number of drivers arrested for being under the influence at these checkpoints throughout San Diego County.

Chula Vista Police arrested 105 people for DUI during roadblocks in 2010, but impounded 723 cars.
El Cajon Police arrested 5 drunk drivers at checkpoints but impounded 94 cars.
Escondido Police arrested 56 but impounded 654 cars in their sobriety checkpoints last year, making Escondido one of the highest impound to DUI arrest ratios in San Diego County.

These checkpoints are funded by grants given to local law enforcement agencies by the California Office of Traffic Safety. Those funds are provided by the National Highway Safety Act. The grant funds used for DUI checkpoints are supposed to address issues with alcohol and drugs, not impounding vehicles.

As a result of this audit, state lawmakers are pushing AB-1389 and AB-353 to curb the millions of dollars made by cities and law enforcement agencies off the cars that are impounded at sobriety checkpoints.

Costa Mesa Police Will Not Publish DUI Checkpoint Locations

June 16, 2011 | The Law Offices of Susan L. Hartman

Starting this Monday, the Costa Mesa Police Department will cease announcing the locations of their drunk driving checkpoints, according to dailypilot.com.

Under the old policy the locations and times were announced. “Those that listen or read about our checkpoints can plan to steer clear of the area with little fear of apprehension. We no longer issue press releases stating the upcoming checkpoint locations in order to add to the deterrent factor to keep people from driving under the influence,” stated Sgt. Dave Makiyama.

In People v. Banks, a 1993 California Supreme Court decision, the court ruled that the police are not required to provide advance notice when scheduling DUI sobriety checkpoints. However, it is still one of the eight factors to be considered in determining its constitutionality.

Even though this ruling was effective in 1993, many law enforcement agencies still publish the date, time, and location of their sobriety checkpoints. To find this information, you can look up the police department’s website and look under “press releases” to find announcements for upcoming roadblocks. There are also smartphone applications which allow users to find the locations online.

Even though the unannounced checkpoint can be found to be constitutional, Mayor Pro Tem Jim Righeimer believes drunk driving roadblocks cause unnecessary traffic delays and are a waste of government funds. He stated the checkpoint hours, 6 p.m. until midnight, are at the end of a shift, giving officers more overtime pay which is paid by the federal government. Roadblocks are funded by a grant from the California Office of Traffic Safety, which receives funding from the federal National Highway Traffic Safety Administration.

Oceanside Announces DUI Checkpoint

June 10, 2011 | The Law Offices of Susan L. Hartman

oceanside pd.jpg Oceanside Police Department scheduled a drunk driving checkpoint that will be conducted on Friday, June 10th, from 8:00 p.m. until 3:00 a.m. in the City of Oceanside. The exact location has not been announced.

This DUI checkpoint will be conducted just two weeks after the Memorial Day weekend where law enforcement conducted sobriety checkpoints and saturation patrols throughout San Diego County.

San Diego Police reported that on Friday, May 27th, they conducted a saturation patrol in the Pacific Beach area. Eighteen drivers were arrested for DUI. On Sunday May 29th, another saturation patrol of Pacific Beach ended with fifteen drivers being arrested for drunk driving.

California Highway Patrol (CHP) reported eighty three drivers were arrested suspected of drunk driving in San Diego County during the Memorial holiday weekend, according to lemongrove.patch.com.

With graduation ceremonies, holidays, and the summer months upon us, you can bet the San Diego County law enforcement agencies will spend some of its grant money from the California Office of Traffic Safety to continue its efforts to arrest suspected drunk drivers.

Drunk Driving Checkpoint Apps Banned By Apple

June 8, 2011 | The Law Offices of Susan L. Hartman

DUI checkpoints have been publically announced on apps available for Apple, Google, and RIM (Blackberry) cell phones. In a prior drunk driving blog posting, we announced that some U.S. Senators and State Attorney Generals have asked these companies to stop publishing this information to the public.

While Google and RIM’s guidelines remain unchanged, Apple recently announced new App Store Review Guidelines for their iOS-based devices, according to cnet.com. Section 22.8 specifically states “apps which contain DUI checkpoints that are not published by law enforcement agencies, or encourage and enable drunk driving, will be rejected.”

The ban only covers those checkpoints that are unpublished by law enforcement. In California you can search the law enforcement websites to find out when and where checkpoints will be conducted. If you want to know if there is a DUI checkpoint scheduled in San Diego and you don’t have an app for that on your cell phone, check the San Diego Police Department, the San Diego Sheriff’s Department, CHP, and other local law enforcement websites such as El Cajon Police, Chula Vista Police, National City Police, and Oceanside Police.

Escondido Drunk Driving Checkpoint Challenged

May 6, 2011 | The Law Offices of Susan L. Hartman

Escondido Police conducted a sobriety checkpoint in February 2011. According to 10news.com, one of the drivers passing through, Angel Navarrete, and his passenger, Daniel Alfaro, challeged the officers’ reason for the detention and videotaped the outcome. After not complying with the officers’ request to roll down his window and show his driver’s license, the officer proceeded to smash his window and arrest both men for resisting a police officer. Both plead not guilty and are due back in court in July 2011.

Resisting arrest is addressed under Penal Code Section 148, which states: “Every person who willfully resists, delays, or obstructs any public officer…in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”

The California Criminal Jury Instructions (CALCRIM) provide what the prosecutor must prove beyond a reasonable doubt for a conviction for resisting, delaying, or obstructing an officer, (see CALCRIM 2656): 1.) The person was a peace
officer lawfully performing or attempting to perform his duties as a peace officer; 2.) The defendant willfully resisted, obstructed, and/or delayed the person in the
performance or attempted performance of those duties; and, 3.) When the defendant acted, he knew, or reasonably should have known, that the person was a peace officer performing or attempting to perform his duties.

So was the officer acting lawfully? If not, the defendant must be found not guilty. CALCRIM 2670 provides: A peace officer is not lawfully performing his or her duties if he is unlawfully arresting or detaining someone or using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention.

Unlawful Detention: A peace officer may legally detain someone if the person consents to the detention or if specific facts known or apparent to the officer lead him to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime; and, a reasonable officer who knew the same facts would have the same suspicion. Any other detention is unlawful.

Unlawful Arrest: A peace officer may legally arrest someone if he has probable cause to make the arrest. Any other arrest is unlawful. Probable cause exists when the facts known to the arresting officer at the time of the arrest would persuade someone of reasonable caution that the person to be arrested has committed a crime.

DUI checkpoints must be conducted under the guidelines of Ingersoll v. Palmer in order for it to be constitutional. One of the criteria is the length and nature of the detention. “Each motorist stopped should be detained only long enough for the officer to question the driver briefly and to look for signs of intoxication, such as alcohol on the breath, slurred speech, and glassy or bloodshot eyes. If the driver does not display signs of impairment, he or she should be permitted to drive on without further delay. If the officer does observe symptoms of impairment, the driver may be directed to a separate area for a roadside sobriety test. At that point, further investigation would of course be based on probable cause, and general principles of detention and arrest would apply.”

It should be further noted that a driver can avoid the checkpoint and the officers cannot detain him or her unless “in avoiding the checkpoint the driver did anything unlawful, or exhibited obvious signs of impairment.”

In this case, the driver was not intoxicated and he had a valid driver’s license. He chose to drive through the checkpoint. He spoke to the officers through his window. The officers said he was detained, but they would not state a reason why. They threatened to arrest him for obstructing or delaying an officer because he refused to produce his license. Since he did not have signs of impairment, the officers should have let him proceed after a brief encounter.