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Drunk Driving Exceptions to the Constitution and to Other Legal Standards

This is a work in progress presenting drunk driving exceptions to the Constitution, and to statutory and customary laws, and to established practices.  It will be expanded and modified from time-to-time.  There are always newer "exception" than presented here.  The anti-liberty practices and pronouncements of government regarding drunk driving are a veritable pandemi that we cannot keep in front of.

As I have lectured, publicly and privately, for well-over 30 years, and as I have scolded in the trial courts and appeals courts, 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. Wilson (2003) 114 Cal.App.4th 953[7], Gikas v. Zolin (1993) 6 Cal.4th 841[8], see Schmerber/McNeely/Birchfield discussion infra], 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], People v. Vangelder (2013) 58 Cal.4th 1[16]], to the Fourteenth Amendment equal protection clause [People v. Chavez (2004) 116 Cal.App.4th 1[17]], 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[18], Ellis v. DMV (1942) 51 Cal.App.2d 753[19]], and, inter alia, to the very meaning and concept of recidivistic enhancement for repeated offenses.[20]

Then we have Borger v. Department of Motor Vehicles (2011) 192 Cal.App.4th 1118, which reversed the trial court's order to set aside the license suspension because the unobjected-to/un-contradicted testimony of the licensee's expert that the breath device is inherently flawed at the margins would undo their profitable applecart!  A default in the facts is not a default in the facts if the default helps the motorist and if you can concoct a doctrine that the “facts” are a “legal issue.”  Huh?  A few of us filed depub letters against that outrageous holding, but they were denied.

 And perhaps the ultimate exemplar that 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 driving if the self-serving cop convincingly claims that he thought you were!  And we wonder why the people of Iraq and Afghanistan 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.

One area in which there manifestly is not a DUI exception to the Constitution on the federal plane is in Sixth Amendment confrontation clause matters, as we see from the recent Bullcoming v. New Mexico (2011) --- U.S. --- [131 S. Ct. 2705], expanding on Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), to give us: “The accused's right is to be confronted with the analyst who made the certification [that the BAC was above the threshold for aggravated DWI], unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.  We hope the example of Bullcoming will inspire the courts to back away from DUI exceptions to other established doctrines, and the Constitution, but the politics of drunk driving and the shrill pushiness of MADD and such victimization groups is so intimidating that our “hope” is with a small “h.”  Our state courts, however, are doing everything possible to detour that roadblock, although they have given us one surprisingly helpful case preventing certain hearsay from government criminalists about other criminalists' test results. People v. Sanchez (2016) 63 Cal.4th 665, 694-695.  The case needs to be studied carefully.  Trial Courts are energetic in detouring what should be the rule there, knowing appeals are costly and uncertain things.

We do have one very helpful case, which our state courts are also trying desperately and aggressively to detour, and that is Missouri v. McNeely (2013) 569 U.S. --- [133 S.Ct. 1552], wherein the U.S. Supreme Court again holds that warrants are presumptively required for DUI blood draws and they must be drawn according to accepted medical practices, reiterating the then-47 year old rule of Schmerber v. California (1966) 384 U.S. 757.

Schmerber held, generally, that warrants are presumptively required for drunk driving arrest blood draws, the blood draws must be done according to accepted medical practices, and draws other than by medical personnel in a medical facility might be unconstitutional.  Pretty clear.  Unless you have an agenda of muddying up the water.  And many do.

Some courts followed the clear presumptive warrant rule, others feigned ignorance that such a rule had been announced.  So, 47 years later, the U.S. Supreme Court gave us McNeely, which holds, in essence, “we really meant what we said in Schmerber that DUI arrest blood draws may only proceed upon warrant [absent delineated exceptions], and they must be done according to accepted medical practices [the justices clearly thinking that all blood draws were being administered in medical facilities by medical personnel].”  Now, many courts, including California, said/say “oh, that's what you meant – well don't hold it against the poor cops, who can't be expected to understand you better than we do, so now they have a ‘good faith' defense to their unconstitutional blood extractions.”  Ignorance of the law helps cops in their work, but it does not help our clients in their conduct!  What was left unresolved there is the effect of “implied consent.”

Our own court of appeal answered part of that in People v. Harris (2015) 234 Cal.App.4th 671, wherein it announces that an operational implied consent advisal, to result in true consent [one of the exceptions alluded to in McNeely], must announce that a person has a right to refuse as well as to take one of the available tests.  If they select refusal, they must then be advised of the downsides of that refusal, but a supposed implied consent blood draw is not a consensual blood draw without the advisal of a right to refuse.  Of course "implied" "consent," when the government commands that you are "required" to do thus and so, is a dishonest contradiction that one would see enforced only in a political crime like drunk driving.  Of course, it is clear that if a cop tells you that you are "required" by law to do something and you respond that you will, that is not "consent," but rather merely "assent," as thoughtful case spelled out. People v. Ling (2017) 15 Cal.App.5th Supp. 1, 8-10.  That will take on increasing importance once people start to understand that whatever "implied consent" may mean, it cannot apply to blood tests, because those require a warrant and "implied consent" is not Fourth Amendment consent, an important contribution from Birchfield v. North Dakota (2016) --- U.S. --- [136 S.Ct. 2160] and the later Mitchell v. Wisconsin (2019) --- U.S. --- [139 S.Ct. 2525]. (The California Supreme Court really messed up the status of much of this area of law with a post-Mitchell ruling, about which more later.)  The Court makes clear, passingly, to those seeking clarity, that "implied consent" statutes, whatever they may do, cannot apply to blood tests.  That observation is conveniently overlooked by most Courts in search and seizure motions.

Four years ago, the U.S. Supreme Court gave us Birchfield, which reaffirms the presumptive warrant rule for blood draws, but downgrades breath demands to an incident to arrest rationale!  Justice Alito says a cop sticking a breath tube in your mouth is no different from you yourself sucking on a straw for beverages!  Uh, yeah, but compelling it is the rub.  Inviting the Hoover Vacuum Cleaner salesman into your home is not different from a cop walking into it – except for the choice and permission of the person whose liberty is invaded!  Justice Alito dramatically contorts the well-established "incident to arrest" doctrine from a passive involvement by the arrestee into one requiring active participation by the arrestee.  But we cannot instruct the Courts about search incident, or other established doctrines, unless we understand them ourselves, and I am finding with horror that too many attorneys do not.

I sometimes think some of the judges we deal with must have matriculated at Trump University!  There is no other incident to arrest evidence collection that requires affirmative performance by the person who was arrested essentially to create and then to turn over the evidence.  Chimel v. California (1969) 395 U.S. 752, on which the Court nominally bases its holding, allows the police to themselves collect what they find within lunging distance, while the suspect stands uninvolved; it never required the suspect to perform any task to generate and then supply the “incident” evidence.  But for the breath collections, a person must perform and blow until he is blue in the face for the "incident" search.  That is doctrinally defective and not at all related to Chimel, but, hey, it's drunk driving, so who cares!/?  SCOTUS manufactured from whole cloth a radical new doctrine and claimed it was merely an extension of an old, seminal doctrine, and few shout outrage.

Does anyone really doubt that drunk driving is a political crime?  Every year there are additions to DUI laws, regulatory and administrative and penal, never lightening the load on the individual.  The biggie this year is broadened requirements for interlock devices, where the government mandates those convicted of DUI to do business with a private company to install stuff in people's cars into which they have to blow to get the car to start. I wonder how they decide what companies to give that lucrative business to?  I wonder how they came up with the idea that such private enterprise should be part of the criminal justice punitive machinery? Having testified in front of legislative bodies in Sacramento and having seen the jackals that hawk their wares to the legislators, I know just what chicanery visits those decisions.

The latest outrage is that diversion has been authorized for all misdemeanors [AB3234], but the governor, obviously pressured by MADD religio-moralistic forces, has promised to seek legislation excluding DUI from that benefit.  Even though the mental health diversion for misdemeanants statute was enacted decades after a Vehicle Code section that suggests that pretrial diversion would not be available, two court of appeal opinions have, with analysis so strained it could burst the ligaments of the Republic, held that the earlier statute essentially defines the later one, so mental health diversion does not exist.  Huh?  It used to be that later statutes are enforceable against earlier inconsistent ones.  But not for drunk driving, apparently!  Another outrageous drunk driving exception.


[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. Supreme Court has so held, or that cert. would be granted, but I was sadly mistaken.  But then Navarette v. California (2014) --- U.S. --- [134 S.Ct. 1683] came down and has somewhat mucked up the works [regarding anonymous finger-pointers for DUI stops], but there are ways of dealing with it, in a negative pregnant sort of way, which many are illustrating in successful motions attacks.  This is another area, however, that the cases need to be studied carefully, and then understood, and then pressed onto a judiciary that too often does not understand.

In original constitutional intent, or course, there is no “public safety” exception to the 4th Amendment, because the 4th Amendment was designed to be individuals' safety against public power; there is no enunciated plan for the government to be the supplier of generalized “safety.” 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, we are told, 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 curiously 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 tossed out window, because it is DUI.  But then, uh, Schmerber was a DUI case!/?  However, maybe Wilson is now tossed out the window by the otherwise odious case of People v. Vangelder (2013) 58 Cal.4th 1, which, inter alia, pronounces that all breath devices that a federal regulator lists as accurate are equally accurate for the numerical BAC evidence.  Of course the real teaching of Schmerber is that warrants are presumptively required for DUI chemical test collections [narrowed to blood by Justice Alito in Birchfield, infra], but that is still being ignored/detoured by many Courts, especially in California.

[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.

[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, Neo-Prohibitionists running DUI law, with whom the “independent” judiciary is too often in political cahoots.  There is a helpful silver lining in the otherwise odious case of Atwater v. City of Lago Vista (2001) 532 U.S. 318 that could eliminate the Berkemer exception, but it will require years of aggressive assaults on that citadel by attorneys who understand and care.

[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.

[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 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, one which can result in extensive custody for its violation, even where he has no actual notice of when his conduct becomes criminal, because it is, after all, drunk driving!

[16] In a Galileo v. Pope Urban VIII type contest, with the state Supreme Court embracing Pope Urban, our High Court obliterated defendants' due process rights to put on an affirmative defense to the People's accusation by proclaiming that if federal regulators have deemed breath devices, using 70 year old now disproven science, are accurate, new science cannot be introduced by the defense to rebut the claim.  This might be one of the most shocking holdings since Dred Scott.  We are supposedly a "nation conceived in Liberty," not in police power.

[17] 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.

[18] 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, wait, the priorability shadow is a consequence of the previous conviction.”  “Shut up: it's drunk driving!”

[19] 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.

[20] 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.

Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987


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