About: Micah Schwartzbach

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Georgia Supreme Court: DUI Suspects Have the Right to Refuse Breath Tests

The United States Constitution provides everyone in the country with certain rights. States have their own constitutions, which can provide people in those jurisdictions with additional—or broader—rights. That dynamic is why, on October 16, Georgia became somewhat of an exception in the realm of DUI law.

Right Against Self-Incrimination

The Fifth Amendment to the U.S. Constitution provides a right against forced self-incrimination. So does Paragraph XVI of the Georgia Constitution. In Olevik v. State, the Georgia Supreme proved that it interprets the state version of that right differently than the U.S. Supreme Court  interprets the federal version.

The U.S. Supreme Court has decided that the Fifth Amendment applies to “testimony”—acts of communication—but not anything else. The Georgia Supreme Court, on the other hand, has determined that Paragraph XVI of its constitution protects people in that state “from being forced to perform acts that generate incriminating evidence.” What that means in DUI cases is the following:

  • Under the U.S. Constitution, it’s okay for a state government to impose criminal penalties for a motorist refusing to blow deep lung air into a breathalyzer after a valid DUI arrest.
  • Under the Georgia Constitution, the state government may not hand out criminal penalties for a breath-test refusal.

New Georgia DUI Rule

Combine the rule from Olevik and a blood-test rule from a 2016 U.S. Supreme Court decision, and you have the following principle in Georgia: A DUI suspect normally cannot receive criminal punishment for refusing either a warrantless blood test or a breath test. Georgians have a constitutional right to refuse to submit to either kind of test.

The wrinkle, though, is that it’s fine for the Georgia government to impose noncriminal penalties for refusing a blood or breath test. Put another way, the state government can still suspend a Georgia DUI suspect’s driver’s license for the act of refusing a chemical test. And, importantly, the standardized warning officers give suspects about agreeing to chemical testing in the Peach State remains valid.

Another Court Rules in Favor of Freedom to Record the Police

In a February 2016 decision, a federal judge broke from all the other courts in the country that had acknowledged a First Amendment right to record the police. The judge essentially held that people who don’t announce that they oppose what police officers are doing don’t have the right to observe and photograph those officers. (Here’s the opinion, and here’s our post on it.)

In July of 2017, though, a panel from the U.S. Third Circuit Court of Appeals reversed that federal judge. The court unequivocally endorsed the position that so many others had taken—that there is a First Amendment right to record police activity in public. Noting that “[e]very Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh)” had agreed with the proposition, the court reiterated what’s becoming an increasingly clear principle of law:

“[T]he First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.” (Fields v. City of Philadelphia, No. 16-1650 (3d Cir. 2017).)

New York Enacts New Boating-While-Intoxicated Legislation

By John McCurley

motorboat

On August 16, 2016, New York Governor Andrew Cuomo signed Tiffany Heitkamp’s Law. The new legislation—which takes effect November 1, 2016—increases the boating-while-intoxicated (BWI) penalties for most offenders with prior drunk-driving convictions.

In New York, anyone with a prior offense who’s convicted of either BWI or DWI is subject to greater penalties. But whether the prior offense was a BWI or a DWI can make a big difference.

Under current New York law, a BWI conviction is punished as a repeat offense only if the prior conviction was also for BWI. So, even if a boater has three prior DWIs—but no prior BWIs—a BWI conviction will be considered first offense.

Once Tiffany Heitkamp’s Law goes into effect, a DWI will count as a prior offense when someone is being sentenced for BWI. For instance, if a BWI offender has been convicted twice of DWI in the past three years, the current BWI will be punished as a third offense.

Interestingly, the new law doesn’t go the other way: It doesn’t make BWI offenses count as priors for purposes of sentencing DWI offenders. In other words, a first-time DWI offender with multiple BWI priors will still be sentenced as a first offender.

California Passes Law Legitimizing Motorcycle Lane Splitting

By John McCurley

LaneSplitter1

 

Most California drivers have had the experience of sitting in freeway traffic when a motorcycle flies past, squeezing between grid-locked cars—a practice called “lane splitting.” Opinions differ on whether lane splitting should be allowed. Some motorists—mostly those who drive cars—believe that lane splitting is too dangerous and should be banned. Motorcyclists, on the other hand, generally think that lane splitting can be done safely and ought to be legal. But what’s the law in California?

Until just recently, California law was vague on the legality of motorcycle lane splitting. California Vehicle Code Section 21658—the only law on the books that would arguably cover lane splitting—says that when a roadway is divided into two or more lanes going in the same direction, all vehicles must be driven “as nearly as practical entirely within a single lane.” The California Highway Patrol (CHP) interpreted this law as neither authorizing nor prohibiting lane splitting.

However, on August 19, 2016, Governor Jerry Brown signed into law Assembly Bill 51 (AB 51). The legislation will add Section 21658.1 to the California Vehicle Code, with an effective date of January 2, 2017. The new law defines “lane splitting” as driving a motorcycle “between rows of stopped or moving vehicles in the same lane, including on both divided and undivided streets, roads, or highways.” Interestingly, the law doesn’t specifically say what’s permitted, but instead authorizes the CHP to create “educational guidelines” related to lane splitting safety. (Cal. Veh. Code § 21658.1.)

The CHP has yet to issue guidelines, but past CHP publications might give some indication of what’s to come. Previously, the CHP published guidelines (which they later retracted) that included advisements against motorcycle lane splitting when:

  • traveling more than ten miles per hour faster than the flow of traffic
  • traveling 40 miles per hour or faster, or
  • the flow of traffic is 30 miles per hour or faster.

The prior guidelines also explained that only riders who are experienced and competent enough should attempt lane splitting.

Though there’s still some uncertainly about the details of the new legislation, AB 51 makes California the first state to formally approve motorcycle lane splitting. It remains to be seen whether other states will follow California’s example.

Another Court Says the Fourth Amendment Doesn’t Apply to Credit Card Swipes

The U.S. Eighth Circuit Court of Appeals is among the latest courts to consider whether the police need a legal justification in order to swipe someone’s credit card. In a June decision, it took the popular view that examining a card in this way isn’t a Fourth Amendment “search.” According to this position, there’s no real difference between looking at the information on the front of a card and using a device to examine the magnetic strip on the back of it. (United States v. DE L’Isle, No. 15-1316 (8th Cir. 2016).)

To the Eighth Circuit and several other courts, an officer doesn’t need a warrant or other legal justification in order to swipe or scan a card. An officer who has legitimately accessed a card—as opposed to one who has, say, arbitrarily stopped someone on the street and snatched the card away—can run it through a machine in order to investigate its legitimacy.

In the case that led to the ruling, law enforcement came by a stack of credit, debit, and gift cards during a search after a traffic-stop-turned-arrest. Suspicious, as they tend to be when encountering big bunches of cards, officers scanned the plastic. The scans confirmed their suspicion of identity theft, exposing the cards as having either stolen information or no account information at all.

For more on the case, including the court’s rationale and potential differences in court rulings on this issue, see Can the Police Swipe or Scan Your Credit Card?

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