Category Archives: Criminal Law

California’s New “Open Container” Law Applies to Driving With Marijuana in the Car

California has had medical marijuana since 1996. And in November 2016, California voters approved Proposition 64, which legalized recreational marijuana use in the state. (Read the specifics of California’s marijuana laws.) The result was a patchwork of laws that—while achieving the primary purposes—left the public with safety concerns and law enforcement with questions about enforcement.

In an effort to address the public safety and enforcement issues, the Legislature passed S.B. 94 (the “Medicinal and Adult-Use Cannabis Regulation and Safety Act”). Governor Jerry Brown signed S.B. 94 into law on June 27, 2017.

One issue tackled by S.B. 94 is how to deal with motorists who are in possession of marijuana while driving. Essentially, the legislation amends the existing alcohol “closed container” law—California Vehicle Code section 23222 (2017)—to include marijuana. The new law prohibits driving while in possession of any “receptacle” containing cannabis that has been “opened or has a seal broken, or loose cannabis flower not in a container.” The law, however, doesn’t restrict open containers of marijuana stored in the trunk of the car. And medical marijuana patients can drive while in possession of marijuana if carrying a valid medical marijuana card or physician’s recommendation and the container is either “sealed, resealed, or closed.”

A violation of the marijuana closed container law is an infraction and carries a maximum $100 fine.

(Find out about how marijuana legalization has affected California’s DUI laws.)

California Stops Suspending Driver’s Licenses for Unpaid Traffic Tickets

In recent years, California has made efforts to alleviate the burden unpaid traffic citations place on low-income motorists.

The first major step was the start of the traffic-ticket amnesty program in October 2015. The amnesty program allowed certain people with unpaid traffic or non-traffic infraction tickets to apply for fine reductions and license reinstatement. Over 200,000 Californians were able to take advantage of traffic amnesty. However, the program ended on April 3, 2017.

But not to worry—Governor Jerry Brown recently signed legislation that brings drivers more permanent relief. The new law (which went into effect on June 27, 2017) prohibits courts and the Department of Motor Vehicles from suspending a driver’s license for simply failing to pay a traffic ticket fine. In approving the legislation, the governor commented that the threat of license suspension didn’t help the state collect unpaid fines but often led to undesirable consequences such as loss of employment and parents being unable to transport kids to and from school.

(Get more details about the new law and what the California Legislature is doing on this front.)

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).)

Tiger Woods Arrested on DUI Charges

On May 29, 2017, professional golfer Tiger Woods was arrested on suspicion of driving under the influence (DUI). Police arrested Woods in Jupiter, Florida, just miles from his Jupiter Island home.

According to the arrest report, at about 2:00 a.m., police found Woods parked in his Mercedes on the side of the road, engine running. Woods was allegedly stopped in the right traffic lane, with the passenger side of his car partially blocking the bike lane. On the driver’s side of the car, police observed two flat tires and damaged rims. Police also noticed damage to the front and back bumpers. Woods’ brake lights were reportedly illuminated and his right turn signal flashing.

The officer who approached the vehicle said he found Woods asleep at the wheel. When the officer shined his flashlight into the car, Woods reportedly opened his eyes. The officer noted that Woods had slurred and speech and was slow to answer questions and provide his driver’s license, registration, and insurance. At some point, Woods allegedly told police he was coming from L.A. on his way to Orange County.

Woods completed several field sobriety tests (FSTs), including the three “standardized” FSTs. The standardized FSTs are roadside tests—the horizontal gaze nystagmus (HGN), walk and turn, and one-leg stand—that the National Highway Traffic Safety Administration (NHTSA) has deemed reliable indicators of impairment. According to police, Woods had problems following officer instructions and performing the FSTs.

Woods denied drinking or illegal drug use but admitted he had taken prescription medications. The results of two breath tests confirmed that Woods had no alcohol in his system. Woods also provided a urine sample, which will presumably reveal what intoxicating substances may have been in his body. Media reports indicate the medications Woods was on may have included the painkiller Vicodin. In a statement issued after his arrest, Woods reiterated the incident didn’t involve alcohol but rather was the result of “an unexpected reaction to prescribed medications.” Woods explained: “I didn’t realize the mix of medications had affected me so strongly.”

So where does Woods stand legally?

Tiger was released from jail on his “own recognizance” several hours after his arrest and is due in court for his arraignment on July 5, 2017.

Woods will likely face DUI charges. Florida’s DUI laws cover drunk and drugged driving. A motorist can be convicted of a drug-related DUI for driving or being in “actual physical control” of a vehicle while under the influence of certain intoxicating chemicals or any controlled substance. A driver is considered “under the influence” if affected by the substances ingested “to the extent that the person’s normal faculties are impaired.” And being in “actual physical control” generally means the driver is in the vehicle and has the capability of operating it. (Fla. Stat. Ann. § 316.193 (2017).)

Let’s look at how the law might apply to the facts of Tiger’s case. Police didn’t see Woods driving. But he was arguably in actual physical control of his car because he was sitting in the driver’s seat with the car running. And there’s evidence of impairment: Woods apparently crashed his car, had slurred speech, and performed poorly on FSTs. However, as of yet, it’s unclear what substances Woods had in his system. To be convicted of DUI, the prosecution must show Wood’s impairment was the result of ingesting one of the substances specified in the DUI law. Unfortunately, perhaps, for Woods, the list of qualifying drugs and controlled substances is extensive and includes Vicodin—a medication Woods was allegedly taking.

If convicted of DUI, Woods faces up to six months in jail, $500 to $1,000 in fines, and a six-month to one-year license suspension. (Fla. Stat. Ann. § 316.193 (2017).)

(Read more about the consequences of a first-offense DUI in Florida.)

GOP Candidate Greg Gianforte Cited for Misdemeanor Assault on the Eve of Montana’s Special Election

On May 24, 2017, the Gallatin County Sheriff cited Republican congressional candidate Greg Gianforte with misdemeanor assault. (Read the press release.) The citation followed an incident at the GOP candidate’s campaign headquarters in Bozeman, Montana in which Gianforte allegedly attacked Guardian reporter Ben Jacobs. According to Jacobs, Gianforte “body slammed” him after becoming irritated by a question about the Republicans’ health care bill. A Fox News reporter who witnessed the episode said Gianforte grabbed Jacobs by the neck and slammed him to the grounds. Gianforte’s spokesperson issued a statement that portrayed Jacobs as the instigator of the scuffle.

(See the Guardian’s article about the alleged assault, which includes an audio recording of the incident.)

After conducting an investigation, the Gallatin County Sheriff’s Office concluded there was probable cause to believe Gianforte was guilty of misdemeanor assault. Gianforte must appear in court for the citation between now and June 7, 2017. If convicted, Gianforte faces up to six months in jail and/or a maximum $500 in fines. (Mont. Code Ann. § 45-5-201 (2017).)

Montana voters go to the polls today—May 25, 2017—to decide who will fill the House of Representatives seat left vacant by former Congressman Ryan Zinke’s appointment as U.S. Interior Secretary. It’s unclear how Gianforte’s last-minute run-in with the law might affect his chances of prevailing over Democratic candidate Rob Quist in the close special election contest.