Anti-Drunk Driving Awards Ceremonies & Officer Manipulation of Field Sobriety Test Evaluations

In light of an article in the Orange County Register regarding the recent awards ceremony sponsored by the Orange County Chapter of Mothers Against Drunk Driving, the story of two Chicago police officers who were caught misrepresenting DUI suspects’ performance on field sobriety tests comes to mind.  Like many of the Orange County law enforcement officers listed below, Officer Parker and Officer Haleas, both Chicago police officers, received awards for having more DUI arrests than almost any other officer in the Chicago area from a local anti-drunk driving organization: the Schaumburg-based Alliance Against Intoxicated Motorists.

As nearly any DUI defense lawyer will tell you, there are two major reasons why police officers might cut corners or even lie to boost their DUI arrest numbers: First, they stand to profit from the resulting overtime for going to court on the cases, and second, there are numerous accolades and awards to be had.

While the practice of misrepresenting a DUI suspect’s performance on the field sobriety tests is not necessarily uncommon, finding actual proof of the misrepresentation is.  This is particularly so when many prosecutors and judges look the other way and excuse the discrepancies as being something that just cannot be seen from the angle of the video camera in the patrol vehicle.  In this case though, the proof came by way of same type of video camera found in most patrol vehicles across Orange County.

According to the article in the Chicago Sun Times, when prosecutors viewed the video of Officer Joe D. Parker’s July 2008 sobriety test of Raymond L. Bell, they realized that the video did not comport with what the officer wrote in his police report.  After reviewing the evidence, the prosecutors decided to dismiss the driving under the influence (DUI) charges against Mr. Bell.

According to the article in the Chicago Sun Times, Officer Parker wrote in his police report that Mr. Bell lost his balance and used his arms to steady himself during the field sobriety tests.  The patrol video from Officer Parker’s patrol unit, however, showed a different story.  Officer Parker’s patrol video, which was obtained and viewed by the Chicago Sun Times, showed that when Officer Parker activated his overhead lights to pull Bell over, Bell immediately slowed down but continued to drive for about 40 seconds until he was able to safely exit at the first off-ramp; however, Officer Parker wrote in his arrest report that: “Due to speed, operator refused to stop.”

Officer Parker also wrote in his arrest report that Bell‘s eyes were bloodshot and that he had a strong odor of alcohol when he stepped out of the car.  He further stated that Bell “staggered” and that his gait was “unsteady” as he was exiting his vehicle, all of which was contradicted by the patrol video.

Officer Parker first had Mr. Bell perform the Walk-and-Turn test, in which he had to put one foot on a line, with his arms at his sides, then take nine steps heel-to-toe, turn and walk back with nine more steps.  The patrol video showed Mr. Bell appearing to be perfectly balanced while he performed the sobriety test.  According to Officer Parker’s arrest report, though, Bell performed the test unsatisfactorily.

Officer Parker next had Mr. Bell perform the One-Leg Stand test, in which he would need to raise one foot about six inches off the ground and count to 30.  Mr. Bell initially put his foot down when Officer Parker told him to keep looking at his foot, but thereafter, Mr. Bell stood almost still with his foot off the ground as he counted past 30.  In his report, though, Officer Parker marked Mr. Bell down for lowering his foot and also for hopping, using his arms for balance, and swaying.  None of which was supported by the patrol video.

After the field sobriety tests, Bell requested to take a Breathalyzer, but Officer Parker said that he did not have the device in his patrol vehicle, and thus could not administer the test.  Later, Bell refused to take the test at the station.

According to the Chicago Sun Times, dozens of DUI arrests by Officer Parker are currently under review.  A review of Officer Haleas’s arrests for similar types of misconduct has already led to 156 cases being dismissed.  According to the Chicago Sun Times, Officer Parker could not be reached for comment.

Mothers Against Drunk Driving (MADD) has an Orange County Chapter that also provides awards ceremonies for local law enforcement officers who have accumulated mass numbers of DUI arrests.  According to the Orange County Register, at the most recent Orange County awards ceremony, about 350 uniformed Orange County law enforcement officers dined as 24 of their fellow officers were given the 2009 Century Award for making 100 or more arrests for suspicion of driving under the influence during 2008.  Additionally, a dozen prosecutors received the 2009 Diligent Prosecution Award for their work in DUI convictions and drunk driving deaths.

At the Orange County Mothers Against Drunk Driving Awards Ceremony, Officers with more than 100 arrests for suspicion of driving under the influence received a Century Award.  Motorcycle officer Tai Huynh of the Huntington Beach Police Department received the quadruple Century Award for making 445 DUI arrests in one year.  It is noteworthy to point out, though, that the awards were given out for arrests for suspicion of driving under the influence, not convictions. 

What follows is a list from the Orange County Register article of the recipients of the 2009 Century Awards, including the recipients of the Double, Triple and Quadruple Century Awards.  With most officers working only three-to-four days per week, and only 365 days in a year minus vacation time, some officers appear to have averaged more than four arrests per shift.

 

2009 Century Award Recipients

The following officers were honored for making 100 or more arrests:

Officer Weston Hadley

Santa Ana Police Department

101 arrests

Officer Kevin Plog

Orange Police Department

101 arrests

Officer Allen Rieckhof

Costa Mesa Police Department

102 arrests

Deputy Peter Mach

Orange County Sheriff‘s Department

Stanton Police Services

103 arrests

Officer Brad Miller

Newport Beach Police Department

103 arrests

Officer Chris Wren

Fullerton Police Department

104 arrests

Sgt. Dale Shields

Huntington Beach Police Department

105 arrests

Officer Jeff McCann

Costa Mesa Police Department

105 arrests

Officer Scott Dibble

Costa Mesa Police Department

106 arrests

Officer Erik Rosado

Costa Mesa Police Department

107 arrests

Officer Rick Cummings

Costa Mesa Police Department

108 arrests

Officer Tony Reitz

Costa Mesa Police Department

109 arrests

Officer Kenny Edgar

Fullerton Police Department

111 arrests

Officer Eric Little

Newport Beach Police Department

112 arrests

Patrol Officer Wade Wilson

Huntington Beach Police Department

125 arrests

Patrol Officer Roman Altenbach

Huntington Beach Police Department

135 arrests

Patrol Officer Doug Demetre

Huntington Beach Police Department

141 arrests

Officer James Rice

Buena Park Police Department

142 arrests

Motor Officer Mark Van Meter

Huntington Beach Police Department

142 arrests

Corporal Mark Bell

Santa Ana Police Department

153 arrests

 

Double Century, 200 or more arrests

Officer Michael Kuplast

Santa Ana Police Department

202 arrests

 

Triple Century, 300 or more arrests

Officer Kirk Salmon

Orange Police Department

307 arrests

Officer Justin McGowan

Orange Police Department

314 arrests

 

Quadruple Century, 400 or more arrests

Motor Officer Tai Huynh

Huntington Beach Police Department

445 arrests

 

For Orange County Register Article:

http://www.ocregister.com/articles/driving-drunk-award-2333526-officers-received

 

For Chicago Sun Time Article:

http://www.suntimes.com/news/metro/1470350,CST-NWS-duivideo11.article#

 

OCSD Press Release: DUI Roving Patrol Event 

According to an “Orange County Sheriff’s Department Press Release” dated: March 19, 2009, the Orange County Sheriff’s Department (OCSD) will be conducting DUI roving patrols in the cities of Dana Point, San Juan Capistrano and San Clemente on Saturday, March 21, 2009.

 

According to the Press Release, these Multi-City DUI Teams will target areas within the cities of Dana Point, San Juan Capistrano and San Clemente that have a high incidence of DUI related arrests and collisions.  Funding for the program is provided by a grant from the California Office of Traffic Safety, through the National Highway Traffic Administration (NHTSA).

Head of the Bureau of Investigation at Orange County District Attorney’s Office

According to R. Scott Moxley of the OC Weekly, Don Blankenship—the longtime head of the Bureau of Investigation at the Orange County District Attorney’s Office—has been forced to take an “extended leave” and “is not expected to return to the office,” according to a memo sent to staff.

According to the OC Weekly article, published on March 9, 2009, the internal memo did not explain the reason for Blankenship’s departure; but that in his absence, Mike Major will serve as “acting” head of DA investigations.  According to the OC Weekly, sources advised that Blankenship, a former Santa Ana Police Department union official before brought into the Orange County District Attorney’s Office in 1999, has been “snarled in behind-the-scenes scandals for more than six months.”

View Full Article:

http://blogs.ocweekly.com/navelgazing/breaking-news/head-investigator-for-da-canne/

California’s Financial Responsibility Laws

If a person is convicted of a DUI, or suffers an administrative suspension subsequent to an Administrative Per Se Hearing before the California Department of Motor Vehicles, he/she will need to file proof of financial responsibility with the California Department of Motor Vehicles.  The proof of financial responsibility will need to remain on file with the California Department of Motor Vehicles typically for a period of three years, and a failure to do so will result in the immediate suspension of one’s driver’s license.  A suspension imposed out of the State of California for failure to maintain proof of financial responsibility can also result in a suspension of a person’s driver’s license in another state as well. 

When proof of financial responsibility is required, the person for whom it is required, must at all times carry, in the vehicle being driven, written evidence of one of the following types of financial responsibility:

• A valid liability insurance policy, for damage to someone else’s property or person (SR-22);
• A $35,000 surety bond;
• A DMV issued self-insurance certificate;
• An acknowledgement by the DMV of a $35,000 cash deposit

Said persons must show this written evidence to a peace officer upon request, and also to any other driver and/or property owner following a traffic accident.

Additionally, any person, whether subjected to the above requirements or not, must file DMV’s Traffic Accident Report Form (SR-1) within 10-days of any accident, if there is over $750.00 damage to anyone’s property, any injury, or death, regardless of whether or not you are at fault in the accident.

The SR-1 must be filed with the DMV.  An insurance agent/broker or other legal representative cannot file the report on another’s behalf.  Moreover, a traffic collision report and/or police report does not satisfy this legal requirement, but a person involved in an accident may include a copy of any such reports with the completed SR-1 filing.

A person who fails to file an SR-1 will have their driver’s license suspended until the SR-1 is filed.  The SR-1 Form is available at all DMV and California Highway Patrol (CHP) Offices throughout the State.  It is also available for download on the DMV’s website at: www.dmv.ca.gov.

California Penal Code § 836(a)(1) authorizes a warrantless arrest for a misdemeanor where it is committed in the officer’s presence. “Presence” requires volitional movement of the vehicle perceived by the senses of the arresting officer. Mercer v. DMV (1991) 53 C3d 753.

CVC § 40030.5 further authorizes a warrantless arrest for a misdemeanor drunk driving offense not committed in the officer’s presence, as follows:

In addition to the authority to make an arrest without a warrant pursuant to paragraph (1) of subdivision (a) of §836 of the Penal Code, a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug when any of the following exists:

• (a)  The person is involved in a traffic accident.
• (b)  The person is observed in or about a vehicle that is obstructing a roadway.
• (c)  The person will not be apprehended unless immediately arrested.
• (d)  The person may cause injury to himself or herself or damage property unless immediately arrested.
• (e)  The person may destroy or conceal evidence of the crime unless immediately arrested.

 The act of driving for purposes of the drunk driving statutes means “volitional movement” of the vehicle. Mercer v. DMV (1991) 53 C3d 753. In Mercer, the California Supreme Court contrasted the term “drive,” commonly understood to require “volitional movement” of the vehicle, with the term “driver” defined in CVC § 305 as one who is either driving or in actual physical control. The court pointed out that the phrase “actual physical control” does not appear anywhere in the drunk driving offense statutes. Further, the court noted that since “driver” is defined as one who drives or is in actual physical control, the two terms (“driver” versus “actual physical control”) must have different meanings. Construing these statutes strictly, rather than broadly, as is required by Keeler v. Superior Court of Amador County (1970) 2 C3d 619, 631, the court held that mere actual physical control is not enough to constitute driving. Thus, “drive” for the purpose of the drunk driving statutes, requires actual “volitional movement” of the vehicle. The Mercer Court stated that: “Any doubt about our understanding of the word ‘drive’ is dispelled by decades of case law holding that the word ‘drive,’ when used in a drunk driving statute, requires evidence of a defendant’s volitional movement of a vehicle.” Id., at 410. 

Mercer further noted the following regarding the distinction between the terms “drive” and “operate” in Footnote 8 of its decision. Accord, Thomas v. State (1976) 277, Md. 314, 353 A2.d 256:

The term ‘driving’ is encompassed within the term ‘operating’; but the reverse is not necessarily so. One may not drive a vehicle without operating it; but one may operate the engine or devices of a vehicle without driving it. Otherwise stated: while all driving is necessarily operation of a motor vehicle, not all operation is necessarily driving. Id., 353 A.2d at p. 259, quoting McDuell v. State (Del.1976) 231 A.2d 265, 267.) See also, e.g., Williams v. State (1965) 111 Ga.App. 588, 142 S.E.2d 409, 411 (“[T]he offense of operating an automobile while under the influence of intoxicants can be committed without driving it, but the offense of driving while under the influence can not be committed without operating the car.”; Jacobson v. State (Alaska 1976) 551 P.2d 935, 937; Gallagher v. Commonwealth (1964) 205 Va. 666, 139 S.E.2d 37, 39; Bradam v. State (1950) 191 Tenn. 626, 235 S.W.2d 801, 802-803. [Emphasis added.]

The Mercer decision has been overwhelmingly supported by its progeny. In Draeger v. Reed (App. 3 Dist. 1999) 69 Cal.App.4th 1511, the court held that “for purposes of drunk driving statutes, the phrase, ‘to drive a vehicle’ is understood as requiring evidence of volitional movement of a vehicle.” Further, in People v. Lively, (App. 6 Dist. 1992) 10 Cal.App.4th 1364, review denied, the court held that “‘driving,’ for purposes of misdemeanor ‘drunk driving’ means any volitional movement of a vehicle.”

With respect to the “driving” element of the crime of driving under the influence, even slight movement of the vehicle, so long as it is volitional, of course, constitutes direct evidence that the vehicle was being driven. People v. Garcia (Super. 1989) 214 Cal.App.3d Supp. 1, Thus, while a police officer may not make a “lawful arrest” for “drunk driving” if the arrestee’s vehicle is lawfully parked and the officer has not observed the vehicle move pursuant to Mercer, an officer’s testimony that the arrestee’s vehicle rolled 15-to-20 feet in his presence was sufficient evidence that the arrestee drove the vehicle within the meaning of the drunk driving statutes pursuant to Garcia. Moreover, pursuant to People v. Wilson (Super. 1985) 176 Cal.App.3d Supp. 1, there was sufficient evidence to show that the arrestee had been “driving,” and that he had been intoxicated at the time of driving, when he was seen sitting in the vehicle behind wheel with the engine running and the lights on when police found him approximately one-half mile from the nearest on-ramp from the freeway.  Thus, circumstantial evidence can be used to establish that a person was driving.

Also be aware that an anonymous and uncorroborated telephone tip about a potential drunk driver may be enough to trigger the “public safety” exception to the Fourth Amendment, even where the police do not independently observe anything unusual about the motorist or his driving prior to the enforcement stop. People v. Wells.  In Wells, the dispatcher broadcasted “a possibly intoxicated driver ‘weaving all over the roadway,’” and described the vehicle as an “80′s model blue van traveling northbound on Highway 99 at Airport Drive.” The officer, who was heading southbound 3 to 4 miles away from that location when he got the call, positioned himself on the shoulder of northbound Highway 99. “Two or three minutes” later he saw a blue van traveling approximately 50 miles per hour. He made an enforcement stop without independently observing any unusual, suspicious, or illegal driving.  Absolutely frightening.

It is because of these issues that you need a DUI Specialist to defend you in a driving under the influence (DUI) case. please contact the Law Office of Barry T. Simons by telephone at: 949-497-1729.  You may also send a confidential contact form via email to: info@simonslaw.com.  The form can be found on our website: www.duilawyerorangecounty.com.  The call could mean the difference between your being convicted of a DUI or being acquitted of it.

For information on California DUI Laws and representation for driving under the influence, please contact our website at: www.duilawyerorangecounty.com.