State Supreme Court: “No Reliable Scientific Test for Marijuana Impairment”

It is, of course, illegal to drive a vehicle while impaired by the effects of marijuana.  The continuing problem, however, is:  How do you prove that a driver is, in fact, under the influence of marijuana?

Law enforcement currently relies primarily upon the opinions of police officers as to whether a suspect is unable to safely operate a vehicle due to marijuana impairment.  The primary tool used to arrive at this opinion is the same as for alcohol impairment: field sobriety tests.  These highly subjective roadside "tests", administered and interpreted by a police officer with little training, is coming under increasing scrutiny — as reflected in yesterday’s decision by the Massachusetts Supreme Court:
 

Court: Roadside Drunken Driving Tests Not Valid for Pot

Boston, MA.  Sept 19 – The highest court in Massachusetts has ruled that field sobriety tests typically used in drunken driving cases cannot be used as conclusive evidence that a motorist was operating under the influence of marijuana.

The Supreme Judicial Court on Tuesday said police officers could testify only to their observations about how a person performed during a roadside test.

But they would not be allowed to testify as to whether a person passed or failed such a test or offer their own opinions about whether a driver was too high to drive.

The justices said there is currently no reliable scientific test for marijuana impairment.

Adult use of recreational marijuana is now legal in Massachusetts, though the court noted it’s still illegal to drive while high on pot.


Absent evidence of impairment based upon field sobriety tests, the only other evidence (independent of a police officer’s subjective opinion), is a blood test.  This, however, has been proven to be highly unreliable.  See, for example, Can DUI Marijuana Be Detected or Measured?, How Much Marijuana Does It Take to Impair Driving? and New Study: Minimal Impairment from Marijuana.

(Thanks to Joe)

 

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Posted September 20, 2017, 8:14 am
Categories: dwi

Can Personal Breathalyzers Prevent Drunk Driving?

How many people would think twice about getting behind the wheel after having a few drinks knowing that they were above the legal limit? My guess is a lot. No longer must a person guess whether they are over or under the legal limit if they have their own personal breathalyzer.

So can a personal breathalyzer prevent a DUI? I don’t see why not.

Breathalyzers are so readily available nowadays that, in addition to the standard multiple-use breathalyzer, they have developed single-use disposable breathalyzers and breathalyzer apps for the smartphone.

As you can imagine, the range in the quality and price of personal breathalyzers is quite large. Costs will vary between $15 and several hundred dollars. Breathalyzers under $50, and those coming on key chains have questionable accuracy from the start and accuracy continues to decrease after multiple uses.

Unlike novelty breathalyzers, quality breathalyzers will be backed by the Food and Drug Administration (FDA). This means that the FDA conducts research to confirm that the breathalyzer does what its literature says it does.

Just because I believe that personal breathalyzers can prevent a DUI, it doesn’t mean that they are 100% accurate. Almost all quality breathalyzers, like those the police use, require calibration after repeated use to ensure accuracy. Some products allow for owners to calibrate themselves and some require that the breathalyzer be sent to the manufacturer for calibration. Heavily used and non-calibrated breathalyzers will likely not be accurate.

It is possible for a person’s blood alcohol content to continue to rise after a breathalyzer reading, especially if they’ve only recently stopped drinking. Therefore, it is also possible for a person to have a blood alcohol content of 0.07 when they leave the bar (and when they test themselves) and a 0.09 after they’ve been driving for a while. If that is the case, you can still be arrested and charged for a California DUI.

Lastly, a person does not necessarily need to be above a 0.08 blood alcohol content to be arrested and charged with a California DUI. A person can be arrested and charged with a California DUI if they are above a 0.08 percent blood alcohol content or if they are “under the influence.” In other words, you can be a 0.07 percent, but if an officer determines that you cannot safely operate a vehicle as a sober person could, you can still be arrested and charged with a California DUI.  A breathalyzer may determine if you are under the legal limit, but it cannot determine whether you are “under the influence.”

Although I can’t imagine some DUI’s not being prevented with personal breathalyzers, the Colorado Department of Transportation wants to be sure. They are providing personal breathalyzers to people with prior DUI’s in certain counties.

Those who participate in the program have agreed to actually use the breathalyzer and complete a survey. At the end of the program and when the survey is completed, participants can keep the breathalyzer.

You can be sure that when the Colorado Department of Transportation releases the results of this experiment, you can be sure that I’ll update you with that information.  

 

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Posted September 14, 2017, 6:12 pm
Categories: dwi

Drunk Driver Incriminates Herself on Facebook

Sometimes clients or potential clients send me messages on public forums like Facebook. Shockingly, the messages include incriminating statements or even admissions of guilt. I have to remind them that the internet is like Las Vegas in that what goes on the internet, stays on the internet and that it can be seen by anyone, including the police and prosecutors.

A Michigan woman found this out the hard way when she posted about her DUI collision on social media.

The woman was driving under the influence of alcohol when she collided into another vehicle. Following the collision, she fled the scene to a nearby hotel which had a computer and she immediately began posting about the incident.

Officers tracked her down to the hotel. The front desk attendant told the officers that the woman had come in, said that she had been in a collision, and that she had been drinking.

The officers then then tracked down the computer that the woman had been using. The woman had closed neither Facebook nor the Facebook messages that she had sent a friend. Lo and behold, there was a message from the woman to her friend detailing the DUI-accident.

A later breath test revealed that the woman had a blood alcohol content of 0.12 percent. It was also discovered that her license was expired. She was booked on charges of driving under the influence, operating a vehicle with an expired license, and leaving the scene of an accident causing injury.

It wouldn’t surprise me if the Facebook message will be used against the woman in court.

Ok, so the officers in this instance didn’t discover the incriminating social media information as you might’ve expected, namely scanning pages hoping to come across incriminating information. That doesn’t change the point I’m trying to make.

Keep your mouth shut…and your fingers off the computer.  

The Fifth Amendment exists for a reason and is useless unless it is exercised. It doesn’t matter whether you’re guilty or innocent. Exercising your right to remain silent is about protecting yourself and your rights.

Not only will statements made to police be used against someone in a DUI case, or any criminal case for that matter, but also the information they post on social media.

Being a criminal defense attorney for close to eight years now, I’ve known prosecutors and law enforcement agents to search Facebook and other social media platforms for information that might incriminate people. If found, that information is often used as evidence in a criminal case against the person.

If you are arrested on suspicion of driving under the influence, simply tell the officers that you respectfully decline to answer any questions without a lawyer present. Bear in mind that officers do not need to read you the Miranda Rights before they start asking question during a DUI stop. If you are arrested and charged, do not discuss the matter with anyone, either online or in person, to anyone but your attorney.

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Posted September 11, 2017, 2:21 pm
Categories: dwi

Cop Arrests Sober Drivers on Hunch they are Stoned

This past week, I came across a video on Facebook of a news report on a Georgia police officer who had been arresting sober drivers on suspicion of driving under the influence of marijuana. After posting the video to my own Facebook page, I decided to do some research.

Apparently, Cobb County, Georgia police officer Tracy Carroll made headlines in May of this year when a number of his DUI of marijuana cases were dismissed after it was discovered that those he arrested were stone-cold sober.

The video of Carroll’s arrest of Katelyn Ebner can be seen here: http://interactive.tegna-media.com/video/embed/embed.html?id=2594976&type=video&title=RAW%20-%20Katelyn%20Ebner%20dashcam&site=85&playerid=6918249996581&dfpid=32805352&dfpposition=Video_prestream_external%C2%A7ion=home

Ebner not only spent the night in jail, but spent thousands of dollars trying to prove that she was innocent even though a blood test revealed that she did not have any illegal substances in her system.

Carroll, a “drug recognition expert,” can be seen and heard having the following conversation with Ebner:

Officer Carrol: “I’m going to ask you a question, okay? When was the last time you smoked marijuana?”

Ebner: “Oh, I don’t do that. I can give you a drug test right now.”

Officer Carroll: “You don’t smoke marijuana?”

Ebner: “I do not, no.”

Officer Carroll: “Okay. Well, you’re showing me indicators that you have been smoking marijuana, okay?”

I wonder what exactly those indicators were that Officer Carroll had to go through such intensive training on to identify.

The International Association of the Chiefs of Police give the title of “drug recognition expert” to officers who have completed training on being able to identify when a person is under the influence of drugs based solely on their observations.

Officer Carroll’s not-so-accurate crystal ball also landed Princess Mbamara in jail on suspicion of driving under the influence of marijuana when, in fact, she too was sober.

Mbamara’s arrest can be seen here: http://interactive.tegna-media.com/video/embed/embed.html?id=2594904&type=video&title=RAW%20-%20Princess%20Mbamara%20dashcam&site=85&playerid=6918249996581&dfpid=32805352&dfpposition=Video_prestream_external%C2%A7ion=home

Princess Mbamara: “You’re arresting me because you think I smoke marijuana?”

Officer Carroll: “I think you’re impaired by cannabis, yes, ma’am.”

Princess Mbamara: “Sir, I don’t smoke weed! Is there a way you can test me right now?”

“I remember my lawyer trying to talk about a deal…I was like, ‘I’m not taking a deal. I didn’t do anything! I want more than just a deal – I want more than just a dismissal; I want my life back. Can you reverse time? If you can go back in time, then that’s what I really want,’” said Mbamara.

If you are as infuriated as I was when I watched these videos, you’ll be even more infuriated to know that Mothers Against Drunk Driving (MADD) actually awarded Carroll and other officers for the number of DUI arrests they made. Forget about the fact that a number of Carroll’s arrestees were, in fact, innocent. Who knows how many others weren’t as lucky as Ebner or Mbamara. An arrest means nothing without a conviction. Remember that old phrase, “innocent until proven guilty?” MADD doesn’t care about that as they continue to incentivize officers arresting people who may not actually be driving under the influence.

And let’s go back to that “training” to become an “drug recognition expert.” Clearly, it’s a load of expletive, notwithstanding Cobb County’s outrageous claim that the training makes the officer’s determination more reliable than a blood or urine test. Let’s be honest, the officer’s “determination” is no more than a hunch.

Let me be perfectly clear: An officer’s hunch that a person is under the influence of drugs does not amount to the legally required probable cause needed to make an arrest. Arresting someone because of an officer’s hunch is an abuse of power.

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Posted September 5, 2017, 12:10 pm
Categories: dwi

California Drunk Driver Faces Homicide Charges for Killing Officer

A California driver is being held on homicide charges for allegedly driving under the influences and striking an off-duty Modesto Police Department sergeant who was riding his bike.

According to investigators, 38-year-old Sgt. Michael Pershall was riding his bicycle on Tuesday evening when he was struck from behind by a vehicle. The vehicle then crashed into a fire hydrant. The driver of the vehicle, 32-year-old Matthew Gibbs of Modesto, California, was subsequently arrested on suspicion of driving under the influence.

Gibbs was booked into the Stanislaus County Jail and is being held without bail.

Court records show that Gibbs was arrested for a misdemeanor DUI in 2015. That case, however, was dismissed.

Gibbs is facing a homicide charge as well as two charges of DUI causing injury.

Homicide merely refers to the killing of another human being and encompasses murder charges, voluntary manslaughter charges, and involuntary manslaughter charges. It is still unclear exactly what homicide charge Gibbs faces.

Prior to 1981, a person who killed someone while driving under the influence could not be charged and convicted of murder. However, the landmark case of People v. Watson changed that.

California Penal Code section 187(a) provides that “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” Malice can be expressed or implied, and implied malice is present when the circumstances attending the killing show an abandoned and malignant heart.

So what does that mean?

Simply put, implied malice is when a person knowingly engages in an act that is dangerous to human life with a conscious disregard for human life.

The court in Watson found that if the facts surrounding the DUI support a finding of “implied malice,” second degree murder can be charged. In other words, if a person engages in driving under the influence when they know that it is dangerous to human life to do so, and they kill someone, they can be charged with murder.   

Now the question becomes, “Did the person know it was dangerous to human life to drive drunk?”

While we all know that it’s dangerous to drive drunk, since Watson, courts started expressly advising people who have been convicted of DUI, on the record, that it is, in fact, dangerous to drive drunk. This was not because the court actually thought that the defendant didn’t know it, but rather to ensure that the prosecutor could charge murder instead of manslaughter upon a subsequent DUI causing the death of someone.

Gibbs was only arrested for a prior DUI, but never convicted. Therefore, there’s a good chance that judge never gave Gibbs the “Watson advisement.” Thus, if the prosecutor wants to charge Gibbs with murder, they must find some other way to prove that Gibbs knew it was dangerous to drive while under the influence and that he ignored that danger.

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Posted August 25, 2017, 6:20 am
Categories: dwi

Drunk Driving on an ATV

A little over a week ago, two drivers were arrested for driving their all-terrain vehicles while under the influence of alcohol.

George Mooshian, 47, and Randy Hoisington, 55, both of Newport, New Hampshire were driving their ATV’s while under the influence of alcohol when Mooshian drove his ATV off of the trail and into a tree. Hoisington, who was following behind Mooshian, attempted to avoid colliding into Hoisington and rolled his ATV.

Both ATV operators were flown to the hospital for serious injuries.

Fish and Game officials responded to the incident and determined that speed and alcohol were contributing factors in both collisions. Also, neither driver was wearing a helmet at the time of the collisions.

Mooshian and Hoisington were arrested on suspicion of operating a OHRV (off-highway recreational vehicle), which is another name for an all-terrain vehicle.

Although this particular incident happened in another state, someone in California can also be charged with a California DUI for operating an ATV while intoxicated.

For those who take to the dunes or off-road trails on their ATVs, it is not uncommon to pack a cooler of beers as refreshments. To the surprise of many riders, if the beer is consumed before hopping aboard the ATV, it could land them in jail on California DUI charges.

For purposes of California DUI law, an ATV is a motor vehicle. Although California DUI law requires that a person drive a “vehicle,” California Vehicle Code Section 670 defines a “vehicle” as “a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”

Because ATV’s are considered vehicles, drunk drivers of ATV’s are subject to the same penalties as those who are arrested for a California DUI in their vehicle; probation, up to 6 months in jail, up to $1,000 in fines, and other possible penalties.

Does it matter if the drunk ATV driver is not on a public road way? Unfortunately, no.

Off-road trails and sand dunes are considered public roadways for the purposes of California DUI law. The California Court of Appeals in the case of People v. Malvitz concluded that the legislative intent of California DUI laws was that they extend beyond the public roadways to anywhere in California including private off-road trails or dunes.

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Posted August 12, 2017, 3:54 pm
Categories: dwi

Can DUI Marijuana Be Detected or Measured?

I’ve posted in the past on the difficulties law enforcement faces in detecting impairment from marijuana while driving — both subjectively (symptoms, field sobriety tests and the officer’s opinion) and objectively (analysis of blood or other bodily substances).  See, for example, Identifying and Proving DUI Marijuana ("Stoned Driving"), Can Breathalyzers Measure Marijuana?New Efforts to Push Roadside DUI Marijuana Test and San Diego Begins Using Mouth Swabs to Detect Drugged Drivers. There is even disagreement among scientists as to how much marijuana must be ingested to become impaired, and how the metabolism (absorption and elimination) of marijuana functions in any individual — for example, how long the active metabolites remain in the blood. See How Much Does It Take to Impair Driving? and New Study: Minimal Impairment From Marijuana.

The following excerpts from a segment of a recent public radio presentation does an excellent job of laying out the difficulties in detecting marijuana impairment and measuring levels of active THC (delta-9-tetrahydrocannabinol) in the blood.  


Scientists Still Seek a Reliable DUI Test for Marijuana

July 30, 2017.  NPR  – Despite the increasingly legal use of cannabis in many states, cops still don’t have the equivalent of a reliable alcohol breathalyzer or blood test — a chemically based way of estimating what the drug is doing in the brain. Though a blood test exists that can detect some of marijuana’s components, there is no widely accepted, standardized amount in the breath or blood that gives police or courts or anyone else a good sense of who is impaired…

A number of scientists nationally are working hard to create just such a chemical test and standard — something to replace the behavioral indicators that cops have to base their judgments on now…

Turns out it can be a lot harder to chemically determine from a blood or breath test that someone is high than to determine from such a test that they’re drunk.

Ethanol, the chemical in alcoholic drinks that dulls thinking and reflexes is small and dissolves in water. Because humans are mostly water, it gets distributed fairly quickly and easily throughout the body and is usually cleared within a matter of hours. But THC, the main chemical in cannabis that produces some of the same symptoms, dissolves in fat. That means the length of time it lingers in the body can differ from person to person even more than alcohol — influenced by things like gender, amount of body fat, frequency of use, and the method and type of cannabis product consumed.

In one study, researchers had 30 frequent marijuana users stay at a research facility for a month without any access to drugs of any sort and repeatedly tested their blood for evidence of cannabis.

"And it shocked everyone, including ourselves, that we could measure, in some of these individuals, THC in the blood for 30 days," says Marilyn Huestis, a toxicologist with the University of Maryland School of Medicine who recently retired from leading a lab at the National Institute on Drug Abuse.

The participants’ bodies had built up stores of THC that were continuing to slowly leech out, even though they had abstained from using marijuana for a full month. In some of those who regularly smoked large amounts of pot, researchers could measure blood THC above the 5-nanogram level for several days after they had stopped smoking.

Conversely, another study showed that people who weren’t regular consumers could smoke a joint right in front of researchers and yet show no evidence of cannabis in their blood.

So, in addition to being invasive and cumbersome, the blood test can be misleading and a poor indicator of whatever is happening in the brain…


The NPR segment went on to discuss the difficulties police officers have in judging whether a person who has consumed marijuana was impaired.  After law enforcement training seminars involving volunteers who had smoked different amounts of marijuana, the program concluded:


Right now, these officer’s opinions loom large. If they decide you’re driving high, you’re going to jail. But at the end of the day, they’re just making educated guesses. Two different officers could watch the same person doing the same sobriety test and make different decisions on whether to arrest. In previous courses, officers had decided that a volunteer was impaired when in fact the volunteer hadn’t smoked at all.   

So, just like the THC blood test, the judgments officers make can also yield false positives and negatives….


An increasing number of states are simply throwing up their hands and, in effect, deciding that actual impairment is not necessary: the crime is in driving with an arbitrary amount of THC in the blood — even if there is no actual impairment at all.  

This follows what the federal government imposed on the states a few years ago: a new crime of driving with 0.08% blood-alcohol, to overcome the difficulties of having to prove the driver was actually impaired — despite the proven fact that many people are not impaired at that level or higher.  In alcohol cases, however, it is at least possible to measure alcohol levels, and roughly determine absorption and elimination times.

But changing the crime of driving while impaired by marijuana to one of having an arbitrary amount in the system makes arrest and conviction much easier for police and prosecutors, right?  And isn’t that the important thing?
 

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Posted August 9, 2017, 9:45 am
Categories: dwi

DUI with Keys in the Ignition but No Driving?

Not only do I practice DUI defense and write these posts on DUI-related topics, but I also teach law which sometimes includes teaching students what is required for a DUI. Students are often surprised when I tell them that, in California, driving must occur for a person to be arrested, charged, and convicted of a California DUI.

States are split on whether a person can get a DUI for merely having their keys in the ignition. States that don’t require that the defendant actually drive are called “dominion and control” states. Fortunately, California is not one of those states.

In states that have “dominion and control” DUI laws, if a person is intoxicated and has dominion and control of their vehicle with the mere ability to drive, they can be arrested, charged, and convicted of that state’s DUI laws. California, on the other hand, requires that the defendant actually drive the 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. While no movement is insufficient for a DUI, the courts have held that even a “slight movement” is enough to meet the requirement that the defendant drove the vehicle.

Therefore, in California, a person cannot get a DUI for merely having the keys in the ignition. The officers and prosecutor would need evidence, in addition to the keys being in the ignition, that the person voluntarily moved the vehicle.

When there is no direct evidence that the defendant drove, such as the officer witnessing the defendant driving, proof that the defendant drove can be established through circumstantial evidence and inferences.

For example, if a person is on the shoulder of the freeway as the sole occupant of a vehicle with the keys in the ignition and they are under the influence or have a blood alcohol content of 0.08 percent or higher, the prosecutor and jury can infer that there was no other way to get to shoulder of the freeway and there was no one other person who could have driven there.

Contrast that with a scenario in which the defendant is found under the influence or with a blood alcohol content of 0.08 percent or higher in their vehicle which is in their driveway and the keys are in the ignition. Here, there is no other circumstantial evidence to create the inference that the defendant actually drove the vehicle.

So, just because you can’t be arrested, charged, and convicted of a DUI with just the keys in the ignition, doesn’t mean that a you should be drunk in a vehicle with keys in the ignition. Don’t put it past law enforcement and prosecutors to try to establish that a person drove even if ever so slightly.

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Posted August 4, 2017, 6:29 pm
Categories: dwi

Teen Who Livestreamed Drunk Driving Collision Pleads Not Guilty

You may have already seen the video. A California teen livestreamed herself driving drunk and crashing the vehicle that she was driving. The collision killed her younger sister. The teen driver, Obdulia Sanchez, pleaded not guilty to gross vehicular manslaughter and number of other felony offenses this past Wednesday.

18-year-old Sanchez of Stockton, California was filming herself behind the wheel of a 2003 Buick with her 14-year-old sister, Jacqueline and another 14-year-old girl in the back seats. The video showed Sanchez dancing to music as she was driving moments before the collision. The accident itself was caught on the camera as the footage shows the inside of the vehicle as it rolled. Moments later, Sanchez shows her sister’s body with fatal head injuries.

“Hey, everybody, if I go to f***ing jail for life, you already know why,” Sanchez told viewers of the livestream. “My sister is f***ing dying. Look, I f***ing love my sister to death. I don’t give a f***. Man, we about to die. This is the last thing I wanted to happen to us, but it just did. Jacqueline, please wake up.”

Neither girl in the back seat were wearing seatbelts and both were ejected. Manuela Seja, the surviving passenger suffered severe injuries to her right leg.

It was later determined that Sanchez’s blood alcohol content was 0.10 percent.

According to the District Attorney’s Office, Sanchez was charged with felony vehicular manslaughter with gross negligence, felony manslaughter while intoxicated, two counts of felony driving under the influence resulting in injury and two counts of felony driving with a blood alcohol content of 0.08 percent or more causing injury.

“The behavior demonstrated both prior to and after the incident, as documented by the defendant’s own recording, is disturbing and shocking,” Deputy District Attorney Harold Nutt said in a statement. “The Merced County district attorney’s office will do everything in its power to see that justice is done in this matter.”

On Wednesday, Sanchez appeared on video for her arraignment where her public defender, Ramnik Samrao pleaded not guilty to all counts on her behalf.

After the hearing, Samrao told reporters that Sanchez “feels absolutely terrible.” Although Sanchez admitted to killing her sister in the video, Samrao maintains that it is unclear whether a crime was committed. “We don’t know that she was drunk, that’s the allegation,” he said.

Sanchez is being held on $560,000 bail and, if convicted, faces up to 13 years and eight months in a California state prison.

I understand how the video can make it easy to rush to judgment about Sanchez or what her fate should be. However, we must to remind ourselves that one of the cornerstones of our criminal justice system is the notion that everyone is innocent until proven guilty. If Sanchez is guilty, the system needs to take its course before she is, in fact, deemed guilty. Then, and only then, can she be punished for what she did.

 

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Posted July 27, 2017, 8:22 pm
Categories: dwi

Driving Drunk….in Your Own Driveway?

In the latest news from the front lines of the "War on Drunk Driving"….


Suspected Drunken Driver Can Be Busted in Own Driveway 

Detroit, MI.  July 25 – The Michigan Supreme Court says a driveway is no refuge for a drunken driver.

The court says Northville authorities could charge Gino Rea with drunken driving, even if his car never left the driveway. The court says a driveway is “generally accessible to motor vehicles” under state law, even if on private property.

Police went to Rea’s home three times one day in 2014 to respond to noise complaints. At one point, an officer saw him drive out of the garage and pull back in. His blood-alcohol level was three times the legal limit.


The next thing you know they’ll be arresting people for DUI on bicycles and wheelchairs.  Oh, right, they’re already doing that.  See, for example, Felony Bicycle DUI and DUI in a Wheelchair
 

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Posted July 27, 2017, 8:22 am
Categories: dwi

DUI-E is here

Jon Ibanez and I have posted in the past about the dangers of "distracted driving" — that is, driving while using a cell phone, reading a map, putting on makeup, etc.  See, for example, Jon’s recent post Is Distracted Driving as Dangerous as Drunk Driving?.  And over 12 years ago I commented in Drunk Drivers vs Distracted Drivers on a wide range of research concerning the relative dangers of using cell phones while driving, such as:


A detailed study on the effects of cell phone use on driving was conducted by researchers at the University of Utah, and reported in a paper entitled Fatal Distraction? A Comparison of the Cell-Phone Driver and the Drunk Driver given at the Second International Driving Symposium on Human Factors in Driving Assessment, Training and Design (July 2003). Using a simulator, the researchers measured how subjects reacted to vehicles braking in front of them…The conclusion of the researchers: Drivers on cell phones showed greater impairment, less responsive behavior and more accidents than drunk drivers. 


Yet, our legislators’ continuing fixation with alcohol — largely fueled by MADD’s political influence — has resulted in ignoring the ultimate goal of saving human life. 

This appears to finally be changing….


Washington’s New DUI-E Law Takes Effect Sunday

Spokane, WA.  July 18 – ….The DUI-E law, for driving under the influence of electronics, outlaws holding a cell phone at any time while driving, unless you’re calling 9-1-1 in an emergency. The law even prohibits picking up the phone at stoplights.  The first ticket for an DUI-E will cost you $136. Get a second ticket within five years, and it’ll cost $234. The new law also tickets drivers $99 for grooming, smoking, eating or reading while behind the wheel. (Governor) Inslee says that in many cases a distracted driver is more dangerous than a drunk driver.

"When you are driving with a cell phone, you are a more dangerous driver than if you’re driving drunk with a .08 alcohol level," said Governor Inslee. He continued by saying this is a situation we deal with on a daily basis.


While this is encouraging, the news article continues with an observation by law enforcement that highlights the drunk vs distracted double standard:
 

Spokane County Sheriff’s deputy Craig Chamberlain says the new law isn’t meant to punish people.  "The bottom line with the new changes in this law is that we want folks to be safe on the roadway."


So…the new distracted driving laws aren’t meant to punish people — only to make the roads safe?  Then why do our drunk driving laws continue to be focused on punishment — of admittedly "less dangerous" drivers?  
   

(Thanks to Joe.)
 

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Posted July 25, 2017, 8:50 am
Categories: dwi

Miranda Warnings and the California DUI

An officer pulls over a person and begins asking questions. “Where are you going?” “Where are you coming from?” “Have you had anything to drink?”

The driver says, “I’m going home from the bar and I had two beers.” Boom. The next thing that the driver knows is that they’re getting arrested and only then did the officer read the Miranda Warnings to the driver.

Why did the officer not read the driver the Miranda Warnings before they arrested him or her? And more importantly, can this be used to help the driver’s DUI case?

All statements given to law enforcement must be voluntarily given, even those given during a DUI stop. The United States Supreme Court in the landmark case of Arizona v. Miranda said that a statement cannot be voluntarily given if a person doesn’t know they have a right not to say anything under the 5th Amendment. Therefore, in order for a statement to be voluntarily given, a person must be made aware that they have a right to remain silent.

Thus, was we have the Miranda Warnings.  

So, when must law enforcement actually read a person their Miranda Warnings?

Courts have held that an officer must read a person their Miranda Warnings before a “custodial interrogation.” This means after an arrest and before an interrogation.

When a person is stopped on suspicion of a DUI or even a traffic violation that leads to a DUI investigation, the person is not arrested even though they may be temporarily detained. And inevitably the officer is going to ask questions after stopping the person.

Now, the person has the right not to speak to the officers or answer their questions. But the officer’s duty to advise the driver of the Miranda Warnings has not yet been triggered because the person is not yet under arrest.

Questions asked during this time are considered merely preliminary in nature. And yes, any answers given by the driver during this time are fair game for officers and prosecutors to use in a DUI case against the driver.

It would be a different story if, after the DUI stop, the driver is arrested, but not given Miranda Warnings. If the officer then proceeds to ask the driver questions and the driver answers, those answers would be in violation of Miranda and thus in violation of the 5th Amendment.

So whether it’s before a driver is arrested or after with Miranda Warnings given, a person never has to talk to officers or answer questions. The 5th Amendment right to remain silent exists whether the Miranda Warnings are given or not. Use it! When stopped on suspicion of a California DUI, simply respond to any questions with, “I respectfully decline to answer any questions under the 5th Amendment. Am I under arrest or am I free to leave?”

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Posted July 20, 2017, 8:39 am
Categories: dwi

Bill to Help Veterans Avoid a California DUI

A new California Senate bill would allow veterans to avoid a California DUI conviction with a treatment diversion program.

Senate Bill 725 would expand a current military diversion program. The bill, if passed, would provide veterans with the opportunity to receive treatment for issues stemming from their service and which often leads them to drink and drive. If the treatment program is completed successfully, veterans could have their case dismissed and avoid a California DUI conviction

To qualify, veterans must have been diagnosed with post-traumatic stress disorder, traumatic brain injury, military sexual trauma or other conditions related to their service.

The Legislative Counsel’s Digest on the bill states, “This bill would…specify that a misdemeanor offense for which a defendant [veteran] may be placed in a pretrial diversion program…includes a misdemeanor violation of driving under the influence or driving under the influence and causing bodily injury. The bill would not limit the authority of the Department of Motor Vehicles to take administrative action concerning the driving privileges of a person arrested for a violation of those provisions.”

Advocates, myself included, argue that the bill’s intent is rehabilitative and deals with the underlying causes of driving drunk.

“We want to get those people into treatment as early as possible. We don’t want them going out jeopardizing future victims,” said the executive director of the California Veterans Legal Task Force in San Diego. “Everybody on both sides of this thing is pro public safety.”

However, not all are fans including district attorneys and other prosecuting agencies.

“We’re very much pro-veteran and pro-treatment, but we want it to be balanced with the needs of public safety,” prosecutor Harrison Kennedy told NBC 7.

Among their primary complaints are that the bill does not address restitution to victims of DUI related collisions which cause injury and that the bill does not limit the number of times that a veteran offender can utilize the program.

“This creates potential for a dangerous cycle of diversion that jeopardizes the safety of our streets and highways,” said the California District Attorneys Association.

The bill does not affect the DMV’s ability to suspend a veteran offender’s license through the administrative action.

If the bill does not pass, veterans face the same consequences of a California DUI as the rest of the public; informal probation, a DUI program lasting three, six, or nine months, between $390 and $1,000 in fines and fees, possibly AA meetings, possibly a Mothers Against Drunk Driving lecture, possibly a hospital and morgue program, and possibly even jail.

The bill easily passed through the Assembly public safety committee last week and will soon be voted on by the full Assembly.

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Posted July 6, 2017, 12:31 pm
Categories: dwi

Avoid a 4th of July DUI

The 4th of July is the annual celebration of the day that the original thirteen colonies declared independence from Great Britain. On this day in 1776, delegates from the colonies formed the Continental Congress which drafted and adopted the Declaration of Independence and announced that the United States of America was its own country.

In fact, John Adams wrote that Independence Day “will be the most memorable epoch in the history of America. I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival. It ought to be commemorated as the day of deliverance, by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires, and illuminations, from one end of this continent to the other, from this time forward forever more.”

Amen!

And John Adams was right. The 4th of July is celebrated with pomp and parade…and now also fireworks, barbeques, and alcohol.

Although the holiday lands on a Tuesday this year, it’s not going to stop drunk drivers from hitting the roads nor is it going to stop law enforcement from taking to the streets in full force to catch those drunk drivers.

CHP’s “maximum enforcement period” will begin at 6pm on Friday evening and will conclude at 11:59pm on Tuesday night.

Last year during the enforcement period, CHP arrested 1,118 motorists statewide on suspicion of a California DUI and CHP investigated 35 traffic collisions in which people were killed. According to the National Highway Traffic Safety Association (NHTSA), between 2011 and 2015, a total of 751 people were killed in DUI related traffic collisions during the 4th of July enforcement period.

Don’t celebrate America’s independence by losing your own with jail. Plan ahead to avoid a 4th of July DUI.

Appoint a designated driver. Make sure that the designated driver remains sober. Often is the case that “designated drivers” just don’t drink as much as their passengers. This is not a designated driver, but someone who runs the risk of getting arrested for drunk driving themselves.

Use alternative means of transportation. We live in a time where a trolley is not the only way to get somewhere without driving. Take a taxi…if you can get one. Good luck with that. Use Uber or Lyft or another ridesharing app. Although a little more expensive, they more available and a little nicer than a cab.

Stay the night. Unless you want to be arrested for drunk in public, don’t try this one at the bar you go to. However, if you attend a 4th of July party, ask the host if you can crash on the couch.

Don’t drink. This may not be the most appealing option if you want to partake in the festivities. However, it is the only surefire way to avoid a California DUI if you plan on driving this 4th of July.

 

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Posted June 29, 2017, 8:51 pm
Categories: dwi

Is a New .05% Law Coming to Your State?

On January 15th of last year, the National Highway Traffic Safety Board (NHTSA) issued the following news release:


Feds Want to Lower the Legal Limit to One Drink

Washington, DC. Jan. 15 – The National Transportation Safety Board wants to decrease the legal driving limit to one drink, lowering the legal limit on blood-alcohol content to 0.05 “or even lower.”…

The agency issued the recommendation while admitting that “the amount consumed and crash risk is not well understood.”

“We need more and better data to understand the scope of the problem and the effectiveness of countermeasures,” they said….

A 0.05 BAC level would reduce the number of drinks an average-weight man of 180 pounds could have to two, according to Blood Alcohol Calculator. Women could only have one drink before they exceeded the limit. A 100-pound woman reaches .05 BAC with just one drink, but two drinks would put any woman under 220 pounds at or above the government’s desired limit.

Under the current level of 0.08, an average weight man can have four drinks until reaching the limit.


On the next day, I posted the following on this blog:


To give all of this some context, let me offer a history of this focus on the lowering of blood-alcohol limits rather than on the more important issue of alcohol-caused impairment….

The original drunk driving laws were simple and fair: Don’t drive under the influence of alcohol (DUI). Then, many years ago, law enforcement came up with crude devices to measure alcohol on the breath of drunk driving suspects. But what did, say, a .13% blood-alcohol concentration (BAC) mean? They turned to the American Medical Association which, in 1938, created a "Committee to Study Problems of Motor Vehicle Accidents". At the same time, the National Safety Council set up a "Committee on Tests for Intoxication".

After some study, these two groups came up with their findings: a driver with .15% BAC or higher could be presumed to be "under the influence"; those under .15% could not. That’s right: .15%. And that recommendation lasted for 22 years. But prosecutors and certain groups of "concerned mothers" were not happy with the low DUI arrest and conviction rates.

Under increasing political pressure, the committees "revisited" the question in 1960 and agreed to lower the presumed level of intoxication to .10%. Had the human body changed in 22 years? Had the AMA been negligent in their earlier studies? Or were politics and law once again trumping scientific truth?

Well, the arrest and conviction rates shot up, but there were still too many people escaping the DUI net. Then MADD was formed. Soon after, legislation began appearing in many states that created a second crime, in addition to driving under the influence: driving with a BAC of .10% or higher.

This new crime did not require the driver to be affected by alcohol: even if sober, he would be guilty if his blood-alcohol was .10%. In effect, it completely ignored the questions of intoxication, driving impairment and individual tolerance to alcohol. And, despite questions of double jeopardy, the individual could be charged and even convicted of both the traditional DUI and the new .10% crimes! This gave police and prosecutors a powerful new weapon, and drunk driving arrests/convictions jumped once again.

This was not good enough. Under increasing pressure from an ever more powerful MADD, in 1990 four states lowered the blood-alcohol level in DUI cases to .08%; others soon followed and, ten years later, federal politicians (with one eye on MADD) passed an appropriations bill in effect coercing all states into adopting the new .08% BAC standard.


Since I wrote this, three months ago Utah enacted a new law lowering the blood-alcohol level drunk driving to .05%. See Jon Ibanez’ DUIblog post Utah Lawmakers Vote to Lower State’s BAC Limit to 0.05%.

Interestingly, on June 17th — shortly after the new .05% law was enacted — the Salt Lake City Tribune published the following comments from the original founder of MADD, Candy Lightner:


Founder of MADD Says Utah’s New Drunk Driving Law is an Unhealthy Distraction

Salt Lake City, Ut.  June 17 – While drunk driving remains a serious concern, other threats are mounting on our roadways. According to a recent report from the Governors Highway Safety Association and the Foundation for Advancing Alcohol Responsibility, 43 percent of drivers involved in fatal crashes tested positive for some sort of drug, legal or illegal. And with the rise of smartphones and other gadgets, people are distracted more than ever while driving.

As the founder of Mothers Against Drunk Driving (MADD) I can attest that there is a new kind of madness on the roads. And new approaches are needed to save lives.

Unfortunately, the necessary debate on how to solve these new challenges isn’t happening in earnest. The traffic safety community is distracted by an issue that will do little to save lives: lowering the drunk driving arrest threshold from .08 to .05.

Back in the early years at MADD we focused on getting serious drunk drivers off the road…In the more than 35 years since MADD’s founding, we have fought drunk driving ferociously and saved countless lives in the process.

But today, the pendulum has swung too far in the other direction — with government agencies pushing states to arrest people for having little to drink before driving instead of pursuing strategies to tackle serious distraction and impairment. Anyone who works in traffic safety knows that most highway deaths are not caused by drivers with low blood alcohol content levels, but are the result of drivers with substance abuse disorders. Focusing finite resources on casual drinkers instead of drug and alcohol abusers is a miscalculation with deadly consequences…

 
Maybe it’s time for the decades-old "War on Drunk Driving" to redirect its fixation away from alcohol and towards the real problem today:  drugs and distracted driving….  
 

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Posted June 27, 2017, 10:13 am
Categories: dwi

Orange County Man Sentenced to 4 Years for 10th California DUI

53-year-old Derek Stacy Haskayne from Placentia was sentenced to four years in a California state prison for this 10th, that’s right 10th, DUI since 2011.

This past Tuesday, Haskayne pleaded guilty to driving with a blood alcohol content above 0.08 percent and driving under the influence, both as felonies. His blood alcohol content was 0.11 percent. It would be his 10th DUI conviction.

Haskayne was arrested for his first California DUI back in October of 2011. For that offense, he was sentenced to the standard for a first time DUI; three years of informal probation and a first-time DUI offender program.

Less than a year later, Haskayne had tallied up five more DUI arrests.

According to his attorney, Marlon Stapleton, Haskayne would post bail and pick up a new DUI arrest before the previous cases could resolve. At one point, five different cases were pending at the same time.

“He went through some really bad times when he picked up most of them,” said Stapleton.

Around the same time of his first DUI, Haskayne’s wife of 20 years had left him and records show that she later filed a restraining order against him stating that he was a “severe alcoholic” and that she feared for the safety of their young son.

The first six cases were eventually resolved when the District Attorney’s Office consolidated them and charged him with multiple felonies. In 2013, Haskayne pleaded guilty and was sentenced to a year in jail with five years of formal probation.

During this first jail stint, Haskayne was allowed to enroll in the Orange County Sheriff’s Department’s community work program allowing him to do work for the county during the day and spend nights at home.

However, less than four months after his guilty plea, Haskayne was picked up on his seventh DUI arrest while he was still technically serving his jail sentence. For that, he was sentenced to two years in prison and was released in October of 2014.

In June of the following year, a Laguna Beach Police officer spotted Haskayne lane straddling who then failed to yield when the officer tried pulling him over. Haskayne kept going for about half a mile before he crashed into a cement light pole. Officers found a prescription bottle containing GHB. At the time, Haskayne was in a rehab facility, but was not being tested for GHB.

“Despite any success the offender has demonstrated under supervision, he has shown by his recent arrest that he has substituted his alcohol addiction with another substance that is not detected by standard drug screening,” according to a probation report. “It is unknown if he had a relapse or has been going through the motions finding alternative methods to numb his pain, which he has been open about.”

Haskayne was sentenced to three years in prison for the June 2015 case, but was given 280 days credit for time served while he was in custody pending the outcome.

In 2016, Haskayne crashed in Placentia, California and was arrested on his ninth DUI.

And that brings us to Haskayne’s to the current (and hopefully his last) case which makes number ten. On June 20th, Haskayne accepted a plea deal from Orange County Superior Court Judge Roger Robbins, over the district attorney’s objection, and was sentenced to four years in prison with credit for 286 days. He was also ordered to pay restitution in the amount of $15,272.54.

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Posted June 23, 2017, 6:28 pm
Categories: dwi

Two DUI’s in Less than Three Hours

A Wisconsin man was arrested twice in about two and a half hours for driving under the influence according to Ashwaubenon, Wisconsin Public Safety. What’s more, he’s only 18 years old.

18-year-old Preston Bierhals was on his way home from a graduation party last week when he lost control of his vehicle and struck a light pole. Bierhals told responding officers that he was trying to make a phone call when he lost control of his car.

His blood alcohol content was later determined to be 0.157 percent.

At the time, Bierhals’s license was suspended.

“The legal limit for him is zero, but he was still above the 0.08, he was over 0.10 actually both times,” said Capt. Jody Crocker.

Bierhals was booked for “operating while intoxicated” (OWI), which is the Wisconsin equivalent of California’s “driving under the influence” (DUI).

Instead of keeping Bierhals to sober up, officers released him to someone who signed a Responsibility Agreement not to allow him to drive a vehicle.

“They signed an affidavit that says to us that they will take that responsibility in lieu of this person sitting in jail for the next 12 hours. Here of course, that didn’t work,” said Capt. Crocker.

Why didn’t it work? Well, because less than three hours later, an officer working traffic detail for a triathlon that morning spotted Bierhals driving and recognized him from the arrest just hours prior.

The officer stopped Bierhals once again and administered field sobriety tests to which Bierhals failed again. And again he was arrested on suspicion of OWI.

This time, Bierhals’s blood alcohol content was a 0.121. This is consistent with the average rate of alcohol metabolism (burn-off) of 0.015 percent per hour, assuming no more alcohol was consumed since the first arrest.

In Wisconsin, prosecutors cannot file charges for a second drunk driving offense until the citation Bierhals received for the first OWI is resolved.

According to Capt. Crocker, law enforcement is looking into whether charges should be filed against the person whom Bierhals was released to.

Some of you may be thinking, “What could happen to someone like that?”

Well, here in California a minor who is caught driving with alcohol in their system can face several charges and penalties.

California Vehicle Code section 23136 makes it illegal for a minor to have a blood alcohol content of 0.01 percent or greater while driving. This is knowns as California’s “Zero Tolerance” law for underage drivers. Under this law, a minor faces a one-year suspension of their driver’s license.

California Vehicle Code section 23140 makes it illegal for a minor to have a blood alcohol content of 0.05 percent or greater while driving. Unlike section 23136, this section is an infraction which can result in fines of up to $100 and a one-year suspension of their driver’s license.

However, in Bierhals’s case, had it occurred here in California, prosecutors would have likely charged him with the standard adult DUI under California Vehicle Code section 23152 (driving under the influence and driving with a blood alcohol content of 0.08 percent or greater). A violation of section 23152 is a misdemeanor which carries a three to nine month DUI program, three years of summary probation, up to $1000 in fines, up to six months in jail, and a six-month suspension of driving privileges.

Of course, Bierhals is facing the penalties for a second-time DUI as well. A second time DUI, here in California will also be charged as a misdemeanor, but this time, he’s facing between 96 hours and one year in jail, an 18-month DUI program, and two-year suspension of driving privileges.

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Posted June 15, 2017, 7:47 pm
Categories: dwi

Can Police Go Off of an Anonymous DUI Tip?

I am currently representing a person for a California DUI who was arrested after an anonymous tipster informed law enforcement that a possible drunk driver was on the road. Such a situation often raises the question, “Can law enforcement arrest someone based on an anonymous tip when the officers themselves have not witnessed any conduct that would lead them to believe a driver was driving under the influence?”

Unfortunately, the United States Supreme Court recently held that law enforcement can go off of an anonymous tip of a potential drunk driver in the case of Navarette v. California _____ U.S. _____ (Docket No. 12-9490)(2014).

In August 2008, a California Highway Patrol dispatcher received a call from a motorist who had been run off the Highway 1 near Fort Bragg by someone driving a pickup truck. The anonymous caller provided the license plate number of the pickup. A short time later, CHP spotted the pickup and pulled it over. As the CHP officers approached, they smelled marijuana and discovered four bags of it in the bed of the pickup.

The occupants of the pickup were identified as brothers, Lorenzo and Jose Navarette. The brothers plead guilty to transporting marijuana after they unsuccessfully attempted to challenge the constitutionality of the search. Both were sentenced to 90 days in jail.

The First District Court of Appeal in San Francisco relied on the 2006 California Supreme Court ruling of People v. Wells (2006) 38 Cal.App.4th 1078,  in upholding the conviction. The Court in that case said that “the grave risks posed by an intoxicated highway driver” justifies a brief investigatory stop. It found that there are certain dangers alleged in anonymous tips that are so great, such as a person carrying a bomb, which would justify a search even without a showing of reliability. The court went on to say that a “drunk driver is not at all unlike a bomb, and a mobile one at that.”

In its 3-0 ruling, the appellate court said, “The report that the [Navarettes’] vehicle had run someone off the road sufficiently demonstrated an ongoing danger to other motorists to justify the stop without direct corroboration of the vehicle’s illegal activity.”

The case was appealed to the United States Supreme Court which held that an anonymous tip can give law enforcement the authority to pull someone over on suspicion of driving under the influence.

The Court held that “under appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop,’” quoting Alabama v. White (1990) 496 U.S. 325, 327.

In finding “sufficient indicia of reliability,” the court relied on 1.) the fact that the caller claimed eyewitness knowledge of dangerous driving, 2.) the fact that the tip was made contemporaneously with the incident, and 3.) the fact that the caller used 911 to make the tip likely knowing that the call could be traced.

According to the court, if the tip bears “sufficient indicia of reliability,” officers need not observe driving which would give rise to suspicion that a person was driving under the influence or even that the driver committed a traffic violation. They only need the unverified and unsupported anonymous tip.  

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Posted June 8, 2017, 11:12 am
Categories: dwi

Do I have to Take a Breath Test?

You heard me say a couple of weeks ago that breathalyzers are inaccurate and, as a result, lawyers can challenge the results of a particular breathalyzer. Lawyers, however, cannot challenge breathalyzers generally even though they are inaccurate.

This begs the question: Do you have to take a breathalyzer test?

Like many things in law, the answer is that it depends. In California, there are two different “breathalyzer” tests. One test is required by law, while the other is not.

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 California Vehicle Code is referring to the roadside breathalyzer, called a preliminary alcohol screening test (PAS test), that officers use to obtain the evidence they need to make a DUI arrest. As an officer makes a stop, whether the officer suspects a DUI or not, they don’t have the evidence needed to arrest the driver on suspicion of a DUI. To obtain that evidence, the officer may ask the driver questions, the officer may have the driver perform field sobriety tests, and the officer may ask the driver to submit to a PAS test. In fact, the PAS test is considered a field sobriety test.

Like the field sobriety tests, the PAS test is optional. Also like the field sobriety tests, a driver should not submit to the PAS test.

In fact, the investigating officer must advise the driver that the PAS test is, in fact, 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 a driver tells the officer they consumed alcohol or the driver performs and fail the field sobriety tests or the driver provides a PAS sample that shows the presence of alcohol, the driver will likely be arrested on suspicion of a California DUI.

Once the driver is arrested, the California Vehicle Code requires that the driver submit to a “chemical test,” which can either be a breathalyzer test or a blood test. This is called California’s “implied consent law.”

California Vehicle Code section 23612(a)(1)(A) states, “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 can legally drive in California, you have impliedly consented to a chemical test if you are lawfully arrested on suspicion of a DUI.

Unlike the PAS test, if you are arrested for a DUI and you do not want to provide a blood sample, the chemical breath test is not optional.  

In fact, refusing the chemical test can lead to increased penalties such as a longer DUI school, a longer license suspension, and even jail time.

To sum up, the pre-arrest PAS test is optional and you should always politely decline this test. A post-arrest chemical breath test is required provided the suspect opts not to provide a blood sample.

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Posted June 1, 2017, 10:04 am
Categories: dwi

Don’t Laugh at DUI Victims

A Michigan woman learned not to mock DUI victims the hard way; she was thrown in jail.

Amanda Kosal, 25, was in court and waiting to be sentenced for a DUI-related collision that killed Jerome Zirker, a father of five. While Zirker’s sister was giving the court a victim impact statement in court, Kosal’s mother, Donna, and Donna’s boyfriend could be heard laughing in the audience of the courtroom.

Judge Quiana Lillard heard the laughing and kicked Donna’s boyfriend out of the courtroom calling him a clown.

“It’s time for him to go … Whoever can sit here at a tragic moment like this and laugh and smile when somebody has lost a family member, I mean the entire time that Mr. Zirker’s sister was speaking, that clown, and that’s what I am going to call him, a clown, was sitting there smiling and laughing,” said Judge Lillard.

While Donna followed her boyfriend out of the courtroom, Judge Lillard said to her, “You can go too because if you don’t know how to act, you can go to jail, so leave.”

Donna could be heard saying something as she stepped out of the courtroom. Almost immediately after leaving the courtroom, Judge Lillard ordered her bailiff to bring Donna back into the courtroom where she was given 93 days in jail for contempt of court.

“Take her, she’s going in the back,” the judge said to the bailiffs.

Then Judge Lillard addressed the rest of the courtroom audience saying, “Anybody else wanna go? You can go too.”

“These are very serious matters. I understand that you all are very upset because your loved one is going to prison, but guess what, she’s going to prison for the choices that she made. These people are here grieving, saddened because a senseless act took away their loved one and you’re sitting here acting like it’s a joke?”

After spending the night in jail, Donna apologized to Judge Lillard the following morning saying, “I deeply apologize for what I did. I was under a lot of stress.”

Judge Lillard took pity on Donna and reduced her 93 days in jail to 92 days and was given credit for the night she spent in jail. She was then released.

“What you have to understand is as hard as this is for you to see your baby going to prison, imagine what that family feels like when their child is dead. I hope that you learned a valuable lesson from this,” said Judge Lillard.

Amanda Kosal, Donna’s daughter, was ultimately sentenced to three to 15 years in prison for the deadly DUI collision that killed Zirker. Kosal admitted that she was drunk when she veered into oncoming traffic colliding with Zirker’s SUV, killing him and severely injuring his fiancée, Brittany Johnson.

I represent DUI defendants like Kosal every day. I also represent people who have been charged with contempt of court. But that doesn’t mean that I condone either Kosal or her mother’s actions. In fact, I find them reprehensible.

The video of the incident can be found here:

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Posted May 26, 2017, 7:54 pm
Categories: dwi

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