Category Archives: Criminal Law

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.

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?

Federal Ruling Muddies the Law on Recording the Police

Police arrest iStock_000019659948XSmallConstitutional and criminal law are littered with nuances  and vagaries. But at least we’ve got a basic, First-Amendment rule on recording the police. To summarize:

Almost every court to consider the issue has determined that the First Amendment gives you the right to record (pictures, video, and audio) an officer in public while he is performing his duties. But that doesn’t mean you’re allowed to record if you’re doing so surreptitiously (secretly), interfering with the officer, or otherwise breaking the law. 

(Recording the Police: Legal?)

A recent federal-court decision, however, has gummed up the works. At least for the moment.

The case in question involves separate lawsuits by two citizens claiming Philadelphia police officers violated their rights. The first citizen, apparently interested merely in taking what he thought would be a good picture, photographed about 20 officers standing outside a home. The second citizen tried to videotape an arrest of a protestor at a rally. Each plaintiff has alleged subsequent mistreatment by the officers on hand. (See the opinion for more detail.)

The judge assigned to the case held last month that the First Amendment doesn’t give citizens the right to “photograph police absent any criticism or challenge to police conduct.” The judge essentially said that you can’t photo the police merely for the sake of photo’ing the police.

To observe that it’d be a big deal if this line of thinking were to catch on might be to understate. Think for a moment about some of the smartphone-documented police/citizen encounters in recent years.

The decision represents a significant break from the widely accepted rule noted above. But an appeal is apparently coming. And at least one expert expects the higher court—which is one step below the U.S. Supreme Court—to reverse the trial judge.

If it doesn’t, we’ll have much more to write about.

Kansas Supreme Court: Law Making It a Crime to Refuse DUI Chemical Testing Is Unconstitutional

By John McCurley

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Like all other states, Kansas has an “implied consent” law for drivers suspected of DUI (driving under the influence). These laws generally require that drivers arrested for driving under the influence submit to chemical testing for the purpose of determining whether and how much alcohol or drugs are in their bodies. (These tests typically involve the analysis of blood, breath, or urine.)

In most states, the consequences of refusing a chemical test are administrative—the driver’s license will often be suspended for a period of time and the driver might need to pay a fine or install an ignition interlock device. These administrative penalties for refusing testing are often in addition to any punishment for driving drunk, which is its own crime.

Kansas, however, is one of a handful of states that make it a separate crime–under at least some circumstances—to refuse a chemical test. So, until quite recently, some drivers in Kansas who drove drunk and refused testing could be convicted of both a DUI and test refusal.

Refusal Statute Struck Down

Generally, Kansas law makes refusing a chemical test a crime if the driver has at least one prior DUI conviction or instance of refusing a chemical test. A conviction carries mandatory jail time and can be a felony. (Kan. Stat. Ann. § 8-1025 (2015).)

But on February 26, 2016, in State v. Ryce, the Kansas Supreme Court decided that the law making it a crime to refuse a chemical test violates federal constitutional rights of drivers. The court explained that, under the Fourth Amendment’s prohibition against unreasonable searches and seizures, drivers have a right to refuse chemical testing. The law making refusal a crime violated that right, according to the court.

The decision means that Kansas drivers who refuse to submit to chemical testing can no longer be convicted of refusal as its own offense. (Refusal will, however, still likely lead to administrative consequences such as a suspended license.) It’s unclear how the decision will affect drivers already convicted of refusing a chemical test. (State v. Ryce, No. 111, 698, slip opinion.)

DUI Testing After Ryce

The Ryce decision has important implications for law enforcement. The case naturally led to another decision that was issued by the Kansas Supreme Court on the same day it decided Ryce. In the second case, the court found that an officer violated a DUI suspect’s Fourth Amendment rights by coercing him into submitting to a chemical test.

In the second case, the officer told the suspect that if he refused to take a chemical test, he would face criminal penalties equal to or worse than those resulting from a DUI conviction. The suspect consented to the testing, but later argued that it constituted an illegal search and seizure on the theory that he consented only after being threatened with criminal penalties. The court agreed that the suspect’s consent wasn’t freely given because the officer’s advisement to the suspect—that criminal penalties could be imposed—wasn’t true. (See State v. Nece, No. 111, 401, slip opinion.)

Now, in Kansas, refusing to submit to a chemical test isn’t a crime. Not only that, but officers can’t threaten criminal prosecution to get drivers to agree to testing. It remains to be seen whether other states that have laws criminalizing chemical test refusals will follow the Kansas Supreme Court’s lead.