What are the Penalties for a California DUI?

It goes without saying that the punishment for driving under the influence in California, and across the United States for that matter, continues to increase significantly thanks to the hypervigilance of Mothers Against Drunk Driving and like organizations.

So what are the current penalties for a California DUI conviction?

The following is a list of what a person can expect if arrested and convicted of a first-time California DUI. It should be noted that penalties and punishment increase beyond what is listed below when a person has suffered prior DUI convictions within 10 years. The following is what can be expected out of a first-time conviction only.

The first thing a person can expect are the fines and fees. The statutory minimum fine that a person must pay following a California DUI is $390. The maximum is $1,000. Absent aggravating circumstances such as a collision, a person can expect $390. However, in addition to the $390, a person can expect to pay “penalties and assessments,” which will bring the overall amount to about $2,000, give or take a few hundred. I can’t tell you exactly what “penalties and assessments” means. In fact, I’ve heard judges say that they don’t know what it means. Suffice it to say, they are akin to court taxes.

When convicted of a California DUI, a person will be placed on summary (informal) probation for a period of three to five years. Again, absent aggravating circumstances, a person should expect the lower term of three years. Informal probation simply means staying out of trouble and doing what the court ordered. This includes not picking up any new cases, DUI or otherwise, not driving without a valid license, and not driving with any measurable amount of alcohol in the system. During the probationary period, a person must also complete the terms associated with that probation. This includes paying all fines and fees, completing a DUI program, and completing any other conditions the court might order.

The last of the penalties that are required by law is the requirement that a person complete a DUI program. For a first-time California DUI, a person is facing a three-month, six-month, or nine-month program. Like the probation and fines, the longer programs are given when the facts surrounding the DUI include aggravating circumstance. Otherwise, a person can expect to complete the three-month program called AB-541.

The aforementioned are what a person can expect by law. There are, however, other penalties which are not mandated by law, but rather discretionary.

If arrested and convicted of a California DUI, a person can be ordered to complete a “Hospital and Morgue Program.” The program is self-explanatory and is, in my opinion, the most unpleasant of the penalties. Participants in this program must first visit the hospital and listen to doctors explain the negative consequences of drinking and driving. Then the person must visit the morgue or coroner’s office and view the bodies of victims of drunk driving. Following the completion of both the hospital component and the morgue component, the participant must write an essay on their experience.

 Another discretionary punishment for a California DUI is a Mothers Against Drunk Driving Victim Impact Panel. This is a one-day lecture hosted by the group where victims of drunk drivers speak on the impact that driving under the influence has had on their lives.

The court may order a person to complete a number of Alcoholics Anonymous (AA) meetings. As many people know, AA meetings are hosted by the non-profit organization for the purpose of “stay[ing] sober and help[ing] other alcohols achieve sobriety.”

Lastly, the court can order a person convicted of a California DUI to install an ignition interlock device (IID). An ignition interlock device is essentially a breathalyzer that is installed into the ignition of a person’s vehicle. The device will not allow a person to start their vehicle unless they provide a breath sample free of alcohol. It should be noted that, by law, the DMV already requires the installation of an IID for five months in four California counties; Alameda, Tulare, Sacramento, and Los Angeles.

Again, this is what is commonly ordered and what can be expected. The courts have great discretion as to what can be given as punishment for a California DUI including the unexpected. Believe me, prosecutors are currently pushing for as much punishment as possible and this is precisely why it is extremely important to hire an experienced California DUI attorney if arrested on suspicion of a California DUI.



Posted October 17, 2016, 9:49 am
Categories: dwi

Is there such a thing as Attempted DUI?

It’s not a common question, but one that I was asked about during a criminal law class that I teach: Is there such a thing as attempted DUI?

“When might this scenario present itself,” you might ask.

Imagine a scenario when a person is extremely drunk at a bar. After leaving the bar, the person enters their vehicle, but cannot start it because they are drunkenly using the wrong key. Unbeknownst to the person, a police officer was outside of the bar and witnessed the whole thing.

The officer can’t arrest the person for a DUI because in California, the law requires that the person actually drive their vehicle. But can the officer arrest the person for attempting to drive drunk?

In People v. Garcia, law enforcement found the defendant in her vehicle which was in the fast lane of the highway with the hazard lights on. As her vehicle began to roll backwards, the defendant unsuccessfully attempted to start the engine. She was, however, able to put the vehicle in park. Law enforcement observed the entire thing and arrested the defendant.

After the defendant was convicted, the court of appeals determined that the crime of “attempt” can be applied to a California DUI.

According to the California Penal Code, an “[a]ttempt requires a specific intent to commit the crime, and a direct but ineffectual act done towards its commission.”

Driving under the influence is, what is called, a “general intent” crime because it only requires that a person intend to commit the act of driving, but not necessarily driving while drunk. A “specific intent” crime, on the other hand, requires that a person intent to commit a crime. Theft, for example, is a specific intent crime because it requires that the person have the specific intent to steal the property of someone else. But very few people intend on driving while drunk. Rather, they intend to drive while they also happen to be drunk. It is subtle, but very important distinction.

The court in Garcia essentially ruled that an attempted California DUI is a specific intent crime. In other words, a person can specifically intend on attempting to commit the crime of driving under the influence, not just the act of driving. This ruling begs the question: If a person can specifically intend to attempt to drive while under the influence, then can the mere fact that they are drunk negate their specific intent to commit a crime?

This may sound a little confusing, so let me put it in other terms. Let’s say a person becomes so drunk that they “black out,” but are still conscious. That person then steals his neighbor’s lawn gnomes because, in his drunken state, he thinks it will be funny. If he is prosecuted for theft, the prosecutor would have to prove that the person had the mental state to specifically commit the crime of theft. This may be difficult for the prosecutor to do if the person was “blacked out” drunk.

So let’s recap. A California DUI is a general intent crime because a person doesn’t intent to drive under the influence. However, when they attempt to drive under the influence, but unsuccessfully do so, it is a specific intent crime where a prosecutor must prove that a person actually intended on committing a crime of attempted DUI. The intoxicating effects of alcohol consumption can serve to negate the specific intent needed to commit the crime of attempted DUI.

So where does that leave us? Unfortunately, I don’t know and I don’t think the court knows either.

The court in Garcia went on to say that it was “not unmindful that there might be some troublesome questions which will have to be resolved in a later case.”




Posted October 11, 2016, 8:58 am
Categories: dwi

The Future is Here: Breathalyzer Skin Patches

We all know that if someone is arrested on suspicion of drunk driving, they will be required to take a breathalyzer test, usually later at the police station. And this test result will be the primary evidence used against him in a drunk driving case.

The first problem with this is that the amount of alcohol in the blood is constantly changing — either rising due to absorption from recent drinking or, more likely, falling due to metabolism of the alcohol.  

The second problem is that it is only illegal to have a .08% blood-alcohol concentration at the time of driving — not later at the police station.  And this breath test may not be given for an hour or two after the driving has ended — particularly in accident cases, where the police may not arrive for some time.  So the prosecution has to try to estimate what the blood-alcohol level was when the suspect was driving based upon the later test.

The third problem is that because of this, for the test results to be admissible as evidence in court they have to have been obtained within a certain period of time — in California, for example, within three hours.

But what if there was a breath-testing device which could record what the blood-alcohol level was at the time the suspect is actually driving?

Flexible Wearable Electronic Skin Patch Offers New Way to Monitor Alcohol Levels

San Diego, CA.  Aug. 2 – Engineers at the University of California San Diego have developed a flexible wearable sensor that can accurately measure a person’s blood alcohol level from sweat and transmit the data wirelessly to a laptop, smartphone or other mobile device. The device can be worn on the skin and could be used by doctors and police officers for continuous, non-invasive and real-time monitoring of blood alcohol content.

The device consists of a temporary tattoo — which sticks to the skin, induces sweat and electrochemically detects the alcohol level — and a portable flexible electronic circuit board, which is connected to the tattoo by a magnet and can communicate the information to a mobile device via Bluetooth…

Clearly, the government would be very interested in requiring anyone convicted of DUI to wear such a patch for the probationary period (commonly three years).

But what if that government decided to take the next step…..and require everyone to wear these skin patches — as a condition for driving any vehicle?  



Posted October 6, 2016, 5:05 pm
Categories: dwi

New IID Law Signed into Law in California

California Governor Jerry Brown signed Senate Bill 1046 into law this past week making ignition interlock devices mandatory for most DUI offenders.

An IID device is essentially a breathalyzer that is attached to the dashboard of an offender’s vehicle. The device will not the offender to start their ignition if it detects alcohol on the offender’s breath.

The bill was authored by Senator Jerry Hill (D-San Mateo) and extended California’s existing pilot program for another two years which required the installation of an IID for all first time offenders for a period of five months in Alameda, Sacramento, Tulare, and Los Angeles counties.

The bill would require an IID in a number of circumstances; a first-time DUI offense involving injury would require an IID for six months, a first-time non-injury DUI offense would require an IID for six months with full driving privilege if a person does not want to serve a one year suspension with a restricted license, a second-time DUI offense would require an IID for a year, a third-time DUI offense would require an IID for two years, and a fourth or subsequent DUI offenses would require an IID for three years.

“This is a great day for California and this bill will clearly save lives. A week doesn’t go by without us hearing about another death from a drunk driver,” Hill said, noting the recent killing of a 3-year-old in the East Bay, as well as the Southern California accident where a drunk driver killed the 10-year-old daughter of a Hillsborough Elementary School District board member. “It’s needless to say the state should not condone this behavior and we need to do something to stop it.”

Not so surprisingly, Mothers Against Drunk Driving pushed heavily for the bill and applauded its signing last week.

“No parent should have to lose their child to the criminal negligence of a drunk driver — especially when technology exists to prevent such a tragedy,” said MADD board member Mary Klotzbach, whose son Matt was killed by a drunken driver in 2001, in a statement.

Opponents of the bill, including Sarah Longwell, executive director of the American Beverage Institute, argue that California should focus its resources on higher risk, multiple DUI offenders rather than first and second-time offenders. Other complaints of opponents are that the bill undermines a judge’s discretion in sentencing DUI offenders and that the IID requirement is expensive to implement and enforce.

“Our argument is there’s a hard-core population of offenders who are out there habitually driving at extreme intoxication levels. Let’s … focus our resources on that hard-core population, make sure they’re complying,” Longwell said. “We think ignition interlocks can absolutely be a useful tool in fighting drunk driving, it’s about at what level do you expand these mandates and at what point is it a diminishing return?”

The bill will go into effect January 1st of 2019 and last until 2026 unless the California Legislature extends or modifies is.

The typical cost of an IID runs between $60 and $80 per month for maintenance and calibration with a $70 to $150 installation fee.



Posted October 3, 2016, 11:12 am
Categories: dwi

LAPD Officers Charged in DUI Cover-Up

Usually when I write about officers falsifying DUI police reports, it’s because they’ve done so to create non-existent evidence to justify a DUI arrest and help secure a wrongful conviction. So when I see a story of officers falsifying evidence to hide a DUI, I take notice.

According to the Los Angeles Times, two LAPD officers have been charged with attempting to cover up a DUI-related collision by driving the drunk driver home and falsifying the police report.

Officers Rene Ponce and Irene Gomez were patrolling a neighborhood in Boyle Heights, California on October 26, 2014, when they responded to a crash involving a drunk driver. According to prosecutors, the drunk driver had collided into two parked cars.

Prior to Ponce and Gomez’s arrival, a neighbor was awakened by the sound of the collision and observed the man who crashed into his neighbors’ vehicles attempt to flee the scene. The neighbor, Larry Chavez, 63, and two other neighbors gave chase and eventually caught up with the man.

“We held him down till one of the cops came,” Chavez told The Times. “He was so drunk.”

However, instead of conducting the DUI investigation, Ponce, 39, and Gomez, 38, lied in their police report and said that the drunk driver fled the scene when, in fact, they drove him home to his apartment and told him to sleep it off.

Following an internal affairs investigation, Ponce and Gomez were charged with felony filing a false police report and conspiracy to commit an act injurious to the public, according to the Los Angeles County District Attorney.

Ponce’s attorney declined to comment. Gomez’s attorney, on the other hand, maintains that his client did nothing wrong.

“My client has an outstanding record, with an outstanding reputation for truth and honesty,” Gomez’ attorney, Ira Salzman told The Los Angeles Times. “She’s well-respected by her peers.”

If convicted, the officers face up to three years in jail.

There is a misconception that DUI defense attorneys condone drunk driving and anything that helps a drunk driver get off the hook is a good thing. I can speak for most DUI attorneys when I say that is absolutely not true. We want law enforcement to do their jobs, and we want the Constitution to be upheld, and we want the truth.

I do not applaud Ponce and Gomez’s actions. All I ask is that they investigate the DUI within the bounds of the law while maintaining the constitutional rights of the person suspected of driving under the influence.  





Posted September 26, 2016, 4:13 pm
Categories: dwi

Challenging the Breathalyzer in a California DUI Case

The breathalyzer is the most commonly used method for testing the blood alcohol content of suspected drunk drivers in California. Yet, both myself and Lawrence Taylor have written on more than a few occasions about the inaccuracies of the breathalyzer. Such inaccuracies include, but are not limited to an inability to differentiate between blood alcohol and “mouth alcohol,” elevated temperatures causing elevated BAC readings, and certain diets causing elevated readings.  

So can a person suspected of driving under the influence of alcohol in California challenge the accuracy of breathalyzers in court?

Notwithstanding the widely proven fact that breathalyzers are generally inaccurate, the California Supreme Court in 2013 ruled that scientific evidence refuting the accuracy of breathalyzers in general in California DUI cases are inadmissible.

The issue arose when a California trial court agreed with the prosecutor and excluded the testimony of a defense expert of Terry Vangelder who would have testified that breathalyzers, in general, can be inaccurate.

In 2007, California Highway Patrol pulled over Vangelder for allegedly going 125 miles per hour in San Diego. Although having admitted to consuming some alcohol, Vangelder passed field sobriety tests. Vangelder then agreed to a preliminary screening alcohol test (an optional roadside breathalyzer) which indicated that Vangelder’s blood alcohol content was 0.086 percent. Based on that, Vangelder was arrested and transported to the police station where he submitted to a chemical breath test (a required post-arrest breathalyzer). This breath test showed a blood alcohol content of 0.08 percent. Vangelder then submitted to a blood test which indicated that his blood alcohol content of 0.087 percent.

At trial, Vangelder called Dr. Michael Hlastala, a leading authority on the inaccuracies of breathalyzers.

"They are (inaccurate)," Dr. Hlastala testified before the trial judge. "And primarily because the basic assumption that all of the manufacturers have used is that the breath that [is] measured is directly related to water in the lungs, which is directly related to what’s in the blood. And in recent years, we’ve learned that, in fact, that’s not the case."

The judge however, did not allow the testimony and Vangelder was found guilty. Vangelder appealed and the appellate court reversed the decision in 2011. San Diego City Attorney, Jan Goldsmith, then appealed the appellate court decision arguing that such testimony would undermine Californi’s a per se law making it illegal to drive 0.08 percent blood alcohol content or higher.

Unfortunately, the California Supreme Court sided with Goldsmith.

“[T]he 1990 amendment of the per se offense was specifically designed to obviate the need for conversion of breath results into blood results — and it rendered irrelevant and inadmissible defense expert testimony regarding partition ratio variability among different individuals or at different times for the same individual," Chief Justice Tani Gorre Cantil-Sakauye wrote for the court. "Whether or not that part of expired breath accurately reflects the alcohol that is present only in the alveolar region of the lungs, the statutorily proscribed amount of alcohol in expired breath corresponds to the statutorily proscribed amount of alcohol in blood, as established by the per se statute."

The Court went on to say that, “Although  Dr. Hlastala may hold scientifically based reservations concerning these legislative conclusions, we must defer to and honor the legislature’s reasonable determinations made in the course of its efforts to protect the safety and welfare of the public."

I’m sorry, but I read that to say, “We recognize that science is important in determining the accuracy of breathalyzers, but we’re not going to undermine the legislature because of its good intent.”

Legislators are not scientists.

The effect of the decision was that people suspected of a California DUI can no longer offer evidence that breathalyzers, in general, are inaccurate. People suspected of a California DUI can, however, still challenge the accuracy of a particular breathalyzer.

Seems to me that the California Supreme Court doesn’t want accuracy in California DUI cases.



Posted September 20, 2016, 6:58 pm
Categories: dwi

Are Marijuana Breathalyzers Here?

Law enforcement continues to be frustrated in trying to prove that a possibly impaired driver is under the influence of marijuana (so-called "stoned driving").  

As recent posts on this blog have pointed out, the simple fact is that there is no scientifically valid method for measuring marijuana and its effect. The current method involves drawing a blood sample from the person after the suspect is arrested and analyzing it for marijuana — or, more accurately, for the presence and amounts of the active ingredient, THC (tetrahydrocannabinol), in the blood.  

But there are two primary problems with this.  First, the marijuana measured may well be inactive and still present in the body from ingestion days or even weeks earlier.  Second, there is no generally accepted scientific evidence as to what levels of THC can cause sufficient impairment to the ability to safely operate a motor vehicle.  See, for example, my previous post Identifying and Proving DUI Marijuana ("Stoned Driving").  

The latest attempts for a quick-and-easy way to prove "stoned driving" involve developing a "marijuana breathalyzer" — a device that will test for THC on the breath, as is done for alcohol with current breathalyzers.  To date, these have proven inaccurate and unreliable.  See previous posts Can Breathalyzers Measure Marijuana? and Is a Marijuana Breathalyzer in the Offing?

Today, a company claims to have finally developed the long-hoped-for answer to law enforcement’s dilemma…           

Pot Breathalyzer Hits the Street

U.S. News & World Report.  Sept. 14 – American police have for the first time used a marijuana breathalyzer to evaluate impaired drivers, the company behind the pioneering device declared Tuesday, saying it separately confirmed its breath test can detect recent consumption of marijuana-infused food.

The two apparent firsts allow Hound Labs to move forward with plans to widely distribute its technology to law enforcement in the first half of next year, says CEO Mike Lynn.   Lynn, an emergency room doctor in Oakland, California, also is a reserve officer with the Alameda County Sheriff’s Office and he helped pull over drivers in the initial field tests, none of whom were arrested after voluntarily breathing into the handheld contraption…

The technology, if all goes according to plan, will be welcomed by both sides of the pot legalization debate, those who fear drugged drivers and reformers outraged that pot users in some jurisdictions are subjectively detained and forced to undergo blood tests that don’t prove impairment, especially in frequent users….

There’s a two-part testing challenge now: confirming with laboratory equipment that the device gives accurate results, and then correlating specific measurements (given in picograms of THC) with levels of intoxication, a challenge that will include sending stoned drivers on an obstacle course — something already done informally….

Hound Labs, of course, isn’t the only company that sees an opening as U.S. states increasingly regulate sales of marijuana for recreational or medical use, but it is ahead of the curve, beating another company aiming to introduce a marijuana breathalyzer, Cannabix Technologies….   

Hmmmm…..Might there a conflict of interest when the CEO is a reserve police officer involved in field testing his own product?  And how can an indirect analysis of THC on the breath done in the field be more reliable and accurate than directly analyzing it in the blood in a laboratory?  

Profit and politics has always trumped science and truth in the DUI field.  See my post DUI Laws Overrule Scientific Truth.



Posted September 14, 2016, 1:10 pm
Categories: dwi

Do “Dominion and Control” DUI Laws Incentivize Drunk Driving?

Despite what some think, drunk driving doesn’t necessarily involve driving. In some states a person can actually be arrested, charged and convicted of drunk driving even when the person didn’t drive their vehicle. Such states have what are called “dominion and control” DUI laws. Under “dominion and control” DUI laws, if a person is intoxicated and have dominion and control of their vehicles with the mere ability to drive, they can be arrested, charged, and convicted of that state’s DUI laws.

Simply put, “dominion and control” DUI laws create the possibility of someone getting arrested, charged, and convicted of a DUI when they’re trying to sober up in their vehicle and have absolutely no intent to drive.

Having said that, the question arises, “Do ‘dominion and control’ DUI laws give people incentive to actually drive drunk?”

This question is currently being asked by law makers in New Jersey.

Steve Carrellas, director or government and public affairs for the New Jersey chapter of the National Motorists Association, considered the repercussions of such a scenario.

“But then they’ll say, ‘Well, I have more of a chance of getting arrested doing the right thing than I do attempting to drive home, so I’m going to drive home.’ What a mixed message,” said Carrellas.

“I think it has to be looked to on a case-by-case basis,” said New Jersey Assemblyman John McKeon.

McKeon says it appears the law needs redefining.

“I’m going to consider it now that this topic is swirling around and there seems to be a lack of consistency. I’m going to do it in an intelligent way, though. We’ll have special hearings in the Legislature and hear what law enforcement has to say, hear what attorneys have to say that specialize in that field and try to come up with something that’s consistent,” he said.

Carrellas and McKeon are right to question the law. Lawmakers, be it the courts or our legislators, have a duty to create laws to deter bad behavior and not punish good behavior. First off, we don’t want to punish people who deliberately attempt to avoid driving drunk by sleeping it off in the car. And we most certainly don’t want to give incentive people to drive drunk.

Fortunately, we here in California don’t have that problem. California is not a “dominion and control” DUI law state. In California, the law requires that a person actually drive a vehicle. In 1991, the California Supreme Court in the case of Mercer v. Department of Motor Vehicles held that the word “drive” in California’s DUI law means that the defendant volitionally and voluntarily moved the vehicle. The court has held that even a “slight movement” is enough to meet the element of driving.



Posted September 12, 2016, 3:55 pm
Categories: dwi

Marijuana Legalization and the California DUI

It would not be a surprise to many if California was the next state to legalize recreational marijuana with Proposition 64. If approved, California would follow the heels of Alaska, Oregon, Washington, Colorado, and the District of Columbia. California is among five states to vote on the legalization of recreational marijuana this November 8th. As the sixth largest economy in the world and an already existing thriving medical marijuana market, it is estimated that the marijuana industry could become a $6 billion industry by 2020.

In 2010, voters failed to pass Proposition 19, which would have legalized recreational marijuana, by a 53.5% majority of vote. So do California voters have the same sentiment six years later? Current polls show support for the passing of Proposition 64 by 60% or more, making it the initiative most likely to pass on the ballot.

Since Proposition 64 is likely to pass, it would be appropriate to discuss how it might affect California DUIs and California DUI law.

California Vehicle Code section 23152(e) makes it illegal to drive a vehicle while under the influence of drugs including marijuana. Unlike California’s DUI of alcohol law, there is no legal limit for marijuana, or more specifically, tetrahydrocannabinol (THC) the psychoactive component of marijuana. Therefore, a person can only be arrested and convicted of a marijuana DUI if the ingestion of marijuana impairs a person’s ability to drive a vehicle as a sober person would under similar circumstances.

To prove that a person is driving under the influence of marijuana, a prosecutor can use officer observations of driving patterns, observations during the traffic stop, performance on field sobriety tests, and the presence of THC in any blood test done.

Since “under the influence” is an extremely subjective standard, it is often very difficult to prosecute DUI of marijuana cases. This is especially true if the driver refused to perform the field sobriety tests and/or the officer did not observe driving that would be indicative of someone who is under the influence of marijuana.

If proposition 64 is passed, law makers could seek some sort of per se limit for how much THC can be in a person’s blood while driving. Several states have set a per se limit of five nanograms of THC per milliliter of blood. Colorado, has set a five nanogram per milliliter of blood limit to allow for the presumption that a person is “under the influence.” Unfortunately, current per se limits for THC, however, are an inaccurate measure of how impaired a person is.

Unlike alcohol, THC is fat soluble and remains in a user’s system long after they have ingested the marijuana, sometimes by several weeks. This creates the possibility of being arrested with five nanograms of THC in the system weeks after a person has smoked marijuana and well after the “high” is gone. Yet, because the THC is present, a person can either be arrested or, in Colorado, presumed to be under the influence.

In June of last year, Cannabix Technologies Inc., a Vancouver based company announced the testing of a prototype marijuana breathalyzer. The company says that the breathalyzer will be able to test whether a person has ingested alcohol within the past two hours. Although the machine will not test for a quantitative amount of THC, it will provide a timeframe for marijuana usage, which is a better indicator of impairment that nanograms of THC in a person’s blood.

In April of this year, the California state legislature awarded UCSD’s cannabis research center $1.8 million to study THC impairment and develop an accurate roadside test for marijuana impairment.

While an accurate test for marijuana impairment may be in the offing, nothing yet exists to provide lawmakers with the ability to create an accurate per se level. Until that happens, which may be before pot shops open up in January of 2018 if Proposition 64 is passed, law enforcement and prosecutors will have to continue to rely on California’s flimsy standard of “under the influence.”



Posted September 5, 2016, 7:28 am
Categories: dwi

Turning a Blind Eye to DUI

Put yourself in the following situation: You and your friend, Vary Waysted agreed to go out to the local watering hole for the evening. This time, however, is Vary’s turn to be the designated driver. Half way into the evening, you notice Vary at the bar ordering a drink, but you do nothing. You know he shouldn’t have any alcohol because he was to be driving the both of you home, but still you do nothing. Sure enough, on the drive home Vary is stopped on the way home and arrested on suspicion of a California DUI.

You may be thinking to yourself that you would never allow that, that you would’ve spoken up and admonished Vary for not staying absolutely sober. But believe it or not, this is an extremely common phenomenon and it, unfortunately, is the cause of many drunk driving incidences and arrests.

Still don’t believe me? The Colorado Department of Transportation (CDOT) recently offered a brewery tour as part of a social experiment which demonstrated that turning a blind eye to drunk driving actually does happen.

Denver, Colorado is quickly becoming one of America’s epicenters for craft breweries. And a group of beer enthusiasts signed up to partake in tour of three of its breweries. Unbeknownst to the beer enthusiasts was that the transportation for the tour was a bus driven by an actor hired by the CDOT and the tour guide was also an actor.

With hidden cameras documenting the tour, the participants enjoyed their beers. None of the participants, however, seemed to care too much that their bus driver was enjoying beers right alongside them.

Fortunately, the driver was only drinking non-alcoholic beer. To drive the point home, the tour guide, who was similar to the driver in height and weight was actually drinking the alcoholic beer. After three 16-ounce beers, the tour guide had a blood alcohol content of 0.10 percent.

In a news release, the CDOT said "even small amounts of alcohol can land you a DUI."

"The experiment confirmed for us that many adults underestimate the dangers associated with driving after having a few drinks," CDOT spokesman Sam Cole said in a statement. "The participants never expressed concern that their driver was drinking and driving."

So why do so many people willfully choose to ignore information and situations which may be harmful to themselves or others?

As I’ve mentioned before, I have a background in psychology. While my focus on the law has long since overshadowed my focus on psychology, my interest does get piqued when psychology intersects with DUI law.

Humans turn a blind eye to information and situations which may be harmful to themselves or others when doing so is easier than facing the scary, hostile, and/or objectionable consequences of acknowledging and confronting the situation.

Let’s go back to our scenario. Instead of turning a blind eye, you confront Vary Waysted about ordering the drink when he was supposed to be the designated driver. The confrontation leads to an argument, but eventually Vary acquiesces to remaining sober. Although Vary doesn’t talk to you for the rest of the evening, both of you make it home safe and DUI-free.

Before turning a blind eye to DUI, ask yourself, “Would I rather have someone upset with me for a little while or run the risk of being involved in a DUI-related accident?”




Posted August 29, 2016, 7:09 am
Categories: dwi

Do I have to Do a Breathalyzer During a California DUI Stop?

Of all the questions I get about what to do and what not to do during a California DUI stop, the question about whether a person has to give a breath sample after a DUI stop is among the most common of the questions.

Strangely enough, the answer is both “yes” and “no” depending on which breath sample we’re talking about.

When law enforcement pulls someone over, chances are they already think the person is driving under the influence. However, in order to arrest them for a California DUI, law enforcement needs probable cause. This means that the officers must have facts that would lead a reasonable person to believe that the person is driving drunk. In other words, the officers cannot just arrest someone on the hunch that the person is driving while under the influence. They need facts to suggest that the person is actually driving drunk.

The officers get the probable cause, or facts, through their own observations and when the driver performs and fails the field sobriety tests. In addition to the field sobriety tests that people typically think of, there is the preliminary screening alcohol (PAS) test. This is a roadside breathalyzer that is also considered a field sobriety test. And like the other field sobriety tests, the PAS test is optional. If the PAS test shows that a person has alcohol in their system, then the officers have the facts that would suggest that the person is driving under the influence.  

According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”

The officer who makes the stop, by law, must advise the person that the PAS test is optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”

If the PAS test detects alcohol in the person’s system, they’ll likely be arrested for a DUI. Once the person is arrested, they must take a chemical test which can either be a breath or a blood test according to California’s Implied Consent Law.

California Vehicle Code section 23612(a)(1)(A) sets forth the Implied Consent requirement. “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”

In other words, if you’re licensed to drive in California, you have impliedly consented to give either a breath or a blood sample when you are lawfully arrested on suspicion of a California DUI.

The key word here is “lawfully” arrested. If the officer did not observe any poor driving and the person does not perform any field sobriety tests including the PAS test, the officer may not have the probable cause to arrest the person. And if the officer does not have probable cause that the person is driving under the influence, yet they arrest the person anyways, the arrest is no longer lawful.  

When an arrest is unlawful, all evidence obtained after that arrest, including the results of the chemical test are inadmissible.

As you can see, it can be rather complicated. So simply put, you do not have to take the pre-arrest breathalyzer called the PAS test, but you do have to take a post-arrest chemical test which could include a breathalyzer.



Posted August 22, 2016, 9:14 am
Categories: dwi

Temporary Tattoo Give BAC Reading

Considering purchasing a personal breathalyzer? I’ve suggested it before as one of several ways to help prevent a DUI. What if knowing your blood alcohol content was a simple as slapping on a temporary tattoo? Well, researchers at the Center for Wearable Sensors at the University of California San Diego have created a removable electronic tattoo that detects the wearer’s BAC.

A team of researchers at the center were interested in a device that offered continued BAC monitoring which typical breathalyzer do not offer. The researchers also wanted to develop a BAC detector that could not be skewed by factors other than blood alcohol such as mouthwash, acid reflux, or alcohol residue in the mouth all of which affect typical breathalyzers.

The tattoo is similar to other devices sometimes mandated by the court as a condition of a California DUI sentence or a condition of being release without having to post bail pending the outcome of a California DUI case. At least in Southern California, the device is called a SCRAM device which passively tests “insensible” sweat, or trace amounts of sweat, excreted from a person’s skin. The SCRAM device is rather bulky and can be relatively expensive.

The tattoo, however, emits a drug called pilocarpine, which generates sweat. The tattoo then tests the sweat excreted from the skin as a result of administration of the pilocarpine for ethanol alcohol through sensors which are attached to the skin. However, unlike the SCRAM device, the temporary tattoo and sensors are attached to a flat, flexible circuit board that is about an inch in length. The circuit board then transmits the information to the wearer’s phone via Bluetooth.

One of the project scientists and professor of nanoengineering, Joseph Wang, has said that the tattoo device could be made even smaller than its current form with continued engineering. He added that, unlike the SCRAM device, the tattoo could cost a mere pennies to produce.

“We developed a new tattoo-based wearable alcohol sensor that enables real-time monitoring of blood alcohol level, overcoming limitations of conventional non-invasive alcohol sensors,” said Jayoung Kim, a co-author and PhD student at UCSD.

The tattoo comes at a time when law makers and law enforcement agencies are actively seeking more reliable and efficient ways to detect blood alcohol content.

Earlier this year, the National Institute on Alcohol Abuse and Alcoholism, which is part of the National Institute of Health, awarded $200,000 to San Francisco-based BACtrack for developing a bracelet-type device as the winner of its Wearable Alcohol Biosensor Challenge. BACtrack has produced a number of personal breathalyzers for consumer use.

Keith Nothacker, BACtrack’s founder and chief executive officer, said that the firm is working on bringing the winning sensor, called “Skyn,” to the consumer market for around $99 and offer a version that is integrated into a band for the Apple watch.

In a press release, Joseph Wang said that the primary purpose for developing the BAC-detecting temporary tattoo was to prevent drunk driving.

“Lots of accidents on the road are caused by drunk driving. This technology provides an accurate, convenient and quick way to monitor alcohol consumption to help prevent people from driving while intoxicated,” Wang said.

Hopefully soon the temporary tattoo will be available for consumer use. And maybe the BAC detecting tattoo will prevent, not just drunk driving, but also someone from getting so drunk that they get a real tattoo that they might regret the next morning.



Posted August 16, 2016, 9:57 am
Categories: dwi

Crime Labs Paid for Convictions – But Not for Aquittals?

A conviction in a drunk driving case depends, of course, on the accuracy and reliability of the blood or breath test administered to the suspect.  And this depends upon the accuracy and reliability of the government’s crime laboratory — more specifically, on the honesty and skills of the crime lab technicians.  It is the crime lab techs who analyze the blood tests, maintain and check the accuracy of the breath machines — and testify in trial.

It is, of course, assumed that these lab techs — who are usually working for the same government that is prosecuting the accused defendant — are objective and honest scientists, with no stake in the outcome.  This is certainly what prosecutors reassure their juries.

But what if the crime labs have a financial interest in the outcome of the trial?

New Study Finds That State Crime Labs Are Paid Per Conviction

Huffington Post, Aug. 29, 2013 – I’ve previously written about the cognitive bias problem in state crime labs. This is the bias that can creep into the work of crime lab analysts when they report to, say, a state police agency, or the state attorney general. If they’re considered part of the state’s “team” — if performance reviews and job assessments are done by police or prosecutors — even the most honest and conscientious of analysts are at risk of cognitive bias. Hence, the countless and continuing crime lab scandals we’ve seen over the last couple decades. And this of course doesn’t even touch on the more blatant examples of outright corruption.

In a new paper for the journal Criminal Justice Ethics, Roger Koppl and Meghan Sacks look at how the criminal justice system actually incentivizes wrongful convictions. In their section on state crime labs, they discover some astonishing new information about how many of these labs are funded…

The author of this article, Radley Balko, then excerpts the following findings from that study (entitled "The Criminal Justice System Creates Incentives for False Convictions"):

Funding crime labs through court-assessed fees creates another channel for bias to enter crime lab analyses. In jurisdictions with this practice the crime lab receives a sum of money for each conviction of a given type. Ray Wickenheiser says, ‘‘Collection of court costs is the only stable source of funding for the Acadiana Crime Lab. $10 is received for each guilty plea or verdict from each speeding ticket, and $50 from each DWI (Driving While Impaired) and drug offense.’’

In Broward County, Florida, ‘‘Monies deposited in the Trust Fund are principally court costs assessed upon conviction of driving or boating under the influence ($50) or selling, manufacturing, delivery, or possession of a controlled substance ($100).’’

Several state statutory schemes require defendants to pay crime laboratory fees upon conviction. North Carolina General Statutes require, ‘‘[f]or the services of’’ the state or local crime lab, that judges in criminal cases assess a $600 fee to be charged ‘‘upon conviction’’ and remitted to the law enforcement agency containing the lab whenever that lab ‘‘performed DNA analysis of the crime, tests of bodily fluids of the defendant for the presence of alcohol or controlled substances, or analysis of any controlled substance possessed by the defendant or the defendant’s agent.’’

Illinois crime labs receive fees upon convictions for sex offenses, controlled substance offenses, and those involving driving under the influence. Mississippi crime labs require crime laboratory fees for various conviction types, including arson, aiding suicide, and driving while intoxicated.

Similar provisions exist in Alabama, New Mexico, Kentucky, New Jersey, Virginia, and, until recently, Michigan. Other states have broadened the scope even further. Washington statutes require a $100 crime lab fee for any conviction that involves lab analysis. Kansas statutes require offenders ‘‘to pay a separate court cost of $400 for every individual offense if forensic science or laboratory services or forensic computer examination services are provided in connection with the investigation.’’

In addition to those already listed, the following states also require crime lab fees in connection with various conviction types: Arizona, California, Missouri, Tennessee, and Wisconsin.

(Emphasis added.)

The Huffington Post author then concludes:

Think about how these fee structures play out in the day-to-day work in these labs. Every analyst knows that a test result implicating a suspect will result in a fee paid to the lab. Every result that clears a suspect means no fee. They’re literally being paid to provide the analysis to win convictions. Their findings are then presented to juries as the careful, meticulous work of an objective scientist.

Do you still think that a citizen accused of drunk driving can receive a fair trial?  Or is this yet another example of "Bad Drunk Driving Laws, False Evidence and a Fading Constitution"?



Posted August 11, 2016, 9:43 am
Categories: dwi

Does Uber Really Reduce Drunk Driving?

Logic tells us that with the increased use of ride-sharing apps like Lyft and Uber that there would a lower number of drunk driving arrests. I’ve been saying it since they’ve become available: If you’re too drunk, don’t drive. Take alternative means of transportation like Lyft and Uber. And it seems like people have been.

In 2015 Uber collaborated with Mothers Against Drunk Driving (MADD) to commission a study on the impact of Uber on drunk driving. The study found that DUI arrests and accidents fell significantly in areas where Uber was available.

“In California, Uber’s home state and largest market, drunk-driving crashes fell by 60 per month among drivers under 30 in the markets where Uber operates following the launch of uberX,” the study authors stated. “That’s an estimated total of 1,800 crashes prevented since July 2012.”

Last month, however, the American Journal of Epidemiology published a study that contradicted Uber and MADD’s initial claims.

The study compared DUI related deaths on weekends and holidays in U.S. counties before the introduction of ride-sharing apps and after. Researchers from the University of Southern California and Oxford University focused on statistics from the 100 most populated metropolitan cities in the U.S.

The study concluded that there was no significant reduction in drunk driving deaths before and after the introduction of Uber and other ride-sharing apps.

“We found that the deployment of Uber services in a given metropolitan county had no association with the number of subsequent traffic fatalities, whether measured in aggregate or specific to drunk-driving fatalities or fatalities during weekends and holidays,” wrote the researchers. Study co-author David Kirk told the Washington Post the report indicates “there’s still tons of room for improvement when it comes to reducing drunk driving fatalities.”

The authors speculated on the reasons behind their findings:

“The average inebriated individual contemplating drunk driving may not be sufficiently rational to substitute drinking and driving for a presumably safer Uber ride,” said the study’s authors. “[I]t is also possible that many drunk drivers rationally conclude that it is too costly to pay for an Uber ride (or taxi) given that the likelihood of getting arrested for drinking and driving is actually quite low.”

Uber spokesperson, Brooke Anderson, responded to the recent study in an email to the Washington Post:

“We’re glad Uber can provide an alternative to drunk driving and help people make more responsible choices. Our ridership numbers show that trips peak at times when people are more likely to be out drinking and 80% of riders says that Uber has helped them personally avoid drinking and driving.”

Whether the research points to a reduction in DUI-related fatalities or not, one thing remains sure. Taking an Uber or other ride-sharing app is always a better option than driving drunk.



Posted August 9, 2016, 7:19 am
Categories: dwi

Supporter of Anti-Drunk Driving Law Charged with DUI with Children in Car

Stephen Miller, 40, of Pennsylvania was arrested and charged early last month with two counts of driving under the influence, two counts of endangering the welfare of children and various traffic citations. Miller championed Pennsylvania’s “Kevin’s Law,” the name of which honored his son who was killed by a hit-and-run driver suspected of drunk driving. The law increased the penalties for hit-and-run drivers in fatal accidents.

Miller’s son, Kevin, was killed in 2012 after being hit by a driver who fled the scene. It was suspected that the driver, Thomas W. Letteer Jr., 26, was driving under the influence at the time, however never faced charges of DUI because he was not caught until much later.

On June 12th, Miller was stopped because law enforcement spotted his vehicle traveling at night without headlights and unlit tail lights. At the time of the stop, Miller had this two other children in the vehicle, one of which was Kevin’s twin. It was later determined that Miller’s blood alcohol content was more than three times the legal limit at 0.27 percent.

Miller is set to appear on August 17th.

In addition to the penalties for the DUI, Miller is facing 100 hours of mandatory community service and a fine of at least $1,000 under Pennsylvania law.

California, on the other hand, is not as forgiving.

In California, if you are charged with a DUI under California Vehicle Code section 23152 and at the time of driving, you have a minor under the age of 14, you also face an enhancement to the DUI charge under California Vehicle Code section 23572.

In addition to any penalties given for a DUI conviction, if the enhancement is found to be true, the person faces an additional and consecutive 48 hours in a county jail for a first DUI conviction, 10 days for a second DUI conviction, 30 days for a third DUI conviction, or 90 days for a fourth or subsequent misdemeanor DUI conviction.

For other reasons, I’ve said that it is extremely important to hire an experienced California DUI when facing criminal charges. The same absolutely holds true for a California DUI charge with a child endangerment enhancement.

If an experienced California DUI attorney can successfully defend against the underlying DUI charge, the child endangerment enhancement cannot stick nor can a person be punished under it. This is true if the underlying California DUI charge is found to be untrue by a jury after a trial, the charges dismissed, or if the charge is reduced to what is known as a “California wet reckless.”

It should also be noted that drunk drivers who have children in the vehicle at the time of driving can also be charged under California Penal Code section 273(a), otherwise known as California’s child endangerment law. Child endangerment can be charged as either a felony or a misdemeanor when a person places a child under the age of 18 in a situation where his or her heath or welfare can be endangered. If charged with child endangerment, a person faces up to a year in county jail for a misdemeanor and up to six years in a California state prison for a felony.

If a person is convicted of a DUI and child endangerment under California Penal Code section 273(a), they, however, cannot face the DUI enhancement under California Vehicle Code section 23572.



Posted August 1, 2016, 9:35 am
Categories: dwi

Coming Your Way: Roadside Saliva Tests

I’ve posted in the past about the difficulties of testing for marijuana in drunk driving investigations.  See Does Presence of Marijuana in Blood Constitute Drunk Driving?, Identifying and Proving DUI Marijuana ("Stoned Driving") and Driving + Traces of Marijuana = DUI.   But John Ibanez and I have also posted about the increasing likelihood of roadside marijuana tests in the future. See Roadside Oral Swab Tests Coming? and California Proposes New Law to Allows Roadside Marijuana Testing.

The future is now….

Not Just Your Breath — Police Now Conducting Saliva Swabs to Check Drivers for Cannabis

Michigan, July 23 – Michigan State Police plan to implement one of the most invasive methods of drug testing in the country in a pilot program: saliva tests….Five counties will force their residents into becoming guinea pigs for what must be the worst thwarting of constitutional and privacy rights in recent years. Saliva-based tests will check drivers for cannabis, heroin, cocaine, and more…

However, (the saliva test) is highly problematic — impairment caused by THC can’t precisely be tested by blood, several studies have found. In fact, the Arizona Supreme Court unanimously ruled in November last year the presence of THC (tetrahydrocannabinol) — the psychoactive ingredient in cannabis — in the blood does not necessarily indicate impairment.

Granted, state laws about the presence of certain drugs and in what quantities vary widely, but using what amounts to unfounded ‘science’ to then create a law with even greater invasiveness marks quite the leap of logic…

Attorney Neil Rockind opposed Michigan’s saliva-based drug testing legislation, warning it would set “a dangerous precedent” in the state.

“The criminal justice system wants to take science and turn it into a fast, easy utility,” Rockind advised. “Science is neither fast nor easy.”…

Of course, scientific truth has never proven a deterrent to ever-more invasive criminal laws — most notably in the so-called "War on Drunk Driving".  See my post How to Overcome Scientific Facts: Pass a Law.

(Thanks to "Joe".)



Posted July 27, 2016, 9:54 am
Categories: dwi

OC Man Gets 7 Years for DUI with Injury

In April of 2015, Leonardo Morales was driving his Chevy Tahoe and exiting the 55 freeway in Costa Mesa when he collided into a tree on the off-ramp. According to California Highway Patrol, two officers patrolling the area spotted the flames that erupted immediately following the collision.

The officers who spotted the flames called in to dispatch for other officers to respond. Responding officers Daryl Hansend and Timothy Montoya found Morales on the floor, 22-year-old Kathy De Rosa in the front passenger seat, and a 2-year-old “running around and crying and pointing at the car,” said CHP Officer Florentino Olivera.

As the officers were attempting to extract De Rosa, they heard the cries of a baby on the floorboard of the rear driver’s side seat. The children, whose parents were Morales and De Rosa, were taken to Children’s Hospital Orange County. Morales and De Rosa were taken to Western Medical Center in Santa Ana.

Morales was later determined to have alcohol in his system and was subsequently arrested.

Both Morales and De Rosa had prior DUI convictions. In 2014, Morales pleaded guilty to misdemeanor driving under the influence and driving on a suspended license. In 2015, De Rosa pleaded guilty to misdemeanor driving under the influence, misdemeanor driving with a blood alcohol content of 0.08 percent or higher, and misdemeanor child endangerment since children were present in the vehicle when she was under the influence.

Last month, Morales pleaded guilty to driving under the influence of alcohol causing injury, driving with a blood alcohol of 0.08 percent or more causing injury, and two counts of child abuse and endangerment, all felonies. Additionally, Morales admitted sentencing enhancement allegations that he inflicted great bodily injury and great bodily injury on a child younger than five-years-old.

Morales was sentenced to seven years in prison just last week.

Unfortunately for Morales, a DUI may be elevated, and was in his case, to a felony when the DUI leads to the injury of another under California Vehicle Code 23153.

Although Morales was sentenced to seven years, he was originally facing two, three, or four years in a California State Prison, an additional and consecutive three to six years in prison for each other person who suffered great bodily injury, a “strike” on his record under California’s Three Strikes Law, up to $5,000 in fines, and 18 or 30 month DUI program, restitution to the victim or victims, a Habitual Traffic Offender (HTO) status with the California DMV for three years, and a five year revocation of driving privileges.

DUI with injury can also be charged as a misdemeanor. Although it was highly unlikely in Morales’s case given the facts, it is possible. If originally charged as a felony, alternatively a plea deal could involve reducing the charge to a misdemeanor. As a misdemeanor, the penalties include informal summary probation for three to five years, up to a year in county jail, up to $5,000 in fines, a three, nine, 18, or 30-month DUI program, restitution to the victim or victims, and a one or three year suspension of driving privileges.

For this reason, it is extremely important to hire a competent and experienced California DUI attorney to negotiate the best plea deal possible or, if the prosecutors unwilling to budge, fight the case through trial and achieve a not guilty verdict.



Posted July 25, 2016, 2:23 pm
Categories: dwi

California’s DUI Education Programs

When a person is convicted of a California DUI, they face a number of penalties one of which is to attend a court-approved DUI program. The most common of inquiries regarding the programs have to do with their duration. The length of the required program depends on the individual facts and circumstances of the case.

I would be remiss if I first did not explain that the names of each program relate to the legislative bill that created the program.

When a person under the age of 18 is convicted of a California DUI, they may be required to attend AB-803. AB-803 is a 12-hour program that is attended over the course of six weeks.

A “wet reckless” conviction is a reduction from an original DUI charge. As such, it may allow for only a 12-hour program called SB-1176 which taken over six weeks. It should be noted that a reduction to a wet reckless will not automatically call for the SB-1176 program. It may be that a longer program will be required by the court. Furthermore, the California DMV will also require at least a three month program before it will reinstate driving privileges following a DUI suspension.

A three-month, 30-hour program called AB-541 is typically required for a first-time DUI or wet reckless reduction assuming that the facts are not particularly aggravating. However, if the DUI case involves a crash or a blood alcohol content of 0.08 percent to 0.14 percent.

If, however, a first time California DUI involves a blood alcohol content between 0.15 percent and 0.19 percent, a person could be required to attend AB-762. AB-762 is a six month program usually to be attended once a week for two hours.

When a first-time California DUI involves particularly aggravating circumstances such as a vehicle collision or a blood alcohol of 0.20 percent or more, the court may require a nine-month DUI program called AB-1353. AB-1353 usually consists of 60 hours of class time.

If a person is convicted of a second or more DUI or wet reckless within a ten-year period, they face a multiple-offender program called SB-38. SB-38 is an 18-month program. Since SB-38 is a rather lengthy course, the court will likely require several progress reports throughout the 18-month period.

Although highly unusual, the court can impose the longest of the California DUI programs. SB1365 is a 30-month program and is usually required when a person suffers two or more California DUI related convictions within ten years or when the case involves extremely aggravating facts such as an extremely high BAC level. SB1365 is only offered in Los Angeles County and Stanislaus County.

It is important to note that there is no hard and fast rule to know exactly which California DUI program will be required. It really will depend on the circumstances and facts surrounding the case, the discretion of the court, and the ability of your DUI attorney. This is why it is extremely important to hire a competent DUI attorney to fight for the shortest program, possibly even no program.



Posted July 18, 2016, 7:04 pm
Categories: dwi

Forced Catheterization in DUI Arrests Continues

So you’re driving home after a dinner…and you’re pulled over by the police. The officer asks you if you’ve been drinking, and when you reply that you have not, he asks you to step out of the car and gives you a field sobriety test.. He then administers a portable breath test.  When the results indicate no alcohol in your system, he tells you that he suspects you are under the influence of some type of drug and arrests you.

The officer then drives you to a nearby medical facility and tells you that you have to give him a urine sample.  Angry for having been wrongfully arrested, and believing you have a right to refuse, you decline.  

What happens next?  Well, it could get painful….

Police Use Catheters, Force to Collect Urine Samples

Pierre, SD.  July 5 —  Police in South Dakota are collecting urine samples from uncooperative suspects through the use of force and catheters, a procedure the state’s top prosecutor says is legal but is criticized by others as unnecessarily invasive and a potential constitutional violation…

It’s unclear how widespread the practice of forced catheterization is in South Dakota. Attorney General Marty Jackley said in an interview that the practice is permitted with a signed court order under state law, and he cited several cases that supported the legality of the practice.

The attorney general said law enforcement would prefer not to collect urine samples by force, but that ultimately it’s up to suspects if they don’t want to cooperate.

“I don’t think anyone wants to go through that methodology,” Jackley said…

Police always take the person to a hospital if they are going to take a forced urine sample, said Tim Whalen, a Lake Andes attorney who has represented a couple of clients who have had urine samples taken without permission. Health care workers at the Wagner and Platte hospitals conduct the procedure on a regular basis, he said.

“They don’t anesthetize them,” Whalen said. “There’s a lot of screaming and hollering.”…

Do you think this practice is limited to South Dakota?  Take a look at some of my earlier posts, such as Catheter Forced Up Penis After Arrest (Washington), Another Weapon on the War on Drunk Driving: Forced Catheterization (Indiana) and DUI Suspect Forced to Have Penis Catheterized (Utah).    



Posted July 12, 2016, 12:06 pm
Categories: dwi

Failing the Field Sobriety Tests without Being Drunk

Field sobriety tests and DUI stops go hand in hand. In fact, field sobriety tests are the things that my clients most closely associate with a DUI stop. Yet, very few people know that they are optional. Because most people mistakenly believe that they are mandatory, they take them and “fail” even though they may not even be under the influence.

So how does a person fail the field sobriety tests while without even being under the influence?

Law enforcement agencies in California and throughout the country use a number of field sobriety tests to gauge a person’s coordination, balance, and simple motor skills. The National Highway Traffic Safety Administration has approved three field sobriety tests as “standardized.” These test include the Horizontal Gaze Nystagmus (HGN) Test, the Walk-and-Turn Test, and the One-Leg Stand Test. However, police officers also use non-approved field sobriety tests to gather the probable cause necessary to make a DUI arrest. Those tests include the Rhomberg Balance Test, the Finger-to-Nose Test, and the Finger Tap Test.

Although field sobriety tests are intended to gauge a person’s coordination, balance, and simple motor skills after having consumed alcohol, standardized or not, field sobriety test can be unreliable for a number of reasons.


We all know that driving tired is dangerous. However, while it may be dangerous, it is not illegal. When a person is tired, they exhibit many of the same symptoms of intoxication. Poor coordination, lack of balance, and trouble with motor skills are symptoms of both tiredness and intoxication. Whether the symptoms come from tiredness or intoxication, they can cause a person to fail field sobriety tests. What’s worse is that when a person is tired, they also display other symptoms of intoxication that officers often look for during a DUI stop; bloodshot water eyes and slurred speech.

Physical Problems:

Many people experience physical problems or disabilities which may affect how a person performs on field sobriety tests. Problems such as knee or back pain would make it difficult to perform the physical requirements of field sobriety tests.

People who are older or over weight, may have trouble performing the field sobriety tests for the same reasons.

Balance Problems:

Many times people are suspected of driving drunk following a vehicle collision and are often given field sobriety tests shortly after the collision. Poor performance on the field sobriety tests is attributed to intoxication rather than the after-effects of a vehicle collision.

Without even knowing it, many people suffer from inner ear problems. The inner ear contains a small organ called the labyrinth that helps people maintain balance. When the labyrinth is disrupted, so too is that person’s balance. Some of the things that can disrupt the labyrinth include infections and illness, head trauma, age, and tumors, to name a few.


Have you ever been pulled over? We you nervous? My guess is that you answered yes to both questions. It goes without saying that people are nervous and stressed when they get pulled over. When people are nervous and stressed, they have difficulty concentrating. Unfortunately, concentration is a key component in completing the field sobriety tests. Officers will “fail” a person if they cannot follow instructions in performing the field sobriety tests even though it was due to a lack of concentration, not intoxication.

Officer Interpretation:

Much of the time, officers have already made up their minds that a person is driving under the influence when they make the DUI stop. This pre-conceived notion in conjunction with a psychological phenomenon called the “confirmation bias” causes the officer to interpret field sobriety test performance as “failing” regardless of how the person actually performs.




Posted July 11, 2016, 12:40 pm
Categories: dwi

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