Former New England Patriot and Los Angeles Raider star, Brian Holloway, is suing a Florida bar after Holloway’s son was killed in a DUI related collision after leaving the bar.
Max Holloway, son of Brian Holloway, frequented Panini’s Bar and Grill in Lutz, Florida. On October 26, 2016, Max Holloway, was at Panini’s drinking until 2:30 in the morning at which time he left in his vehicle.
Not far from his condo, Max lost control of his vehicle and crashed into a nearby home. He was killed in the collision.
Under Florida law, a person or a business can be held liable for injuries or damages caused by a habitual alcohol drinker whom was served by that person or business.
Laws like Florida’s are called “dram shop laws.”
Not to say that the bar was right to continue to serve Max Holloway, but to hold them liable for the decision he made to drive while under the influence seems to be rather unfair.
Fortunately, California sees it the same.
While other states such as Florida may hold a bar liable for injuries caused by a drunk driving customer, in California it is the customer’s willful decision to drink and then drive which is the cause of any subsequent DUI collision. Thus, in California, bars and restaurants are shielded from liability when a customer over drinks, drives away, and causes injury or damage.
California’s “Dram Shop Laws” (California Civil Code section 1714) read as follows:
(b) It is the intent of the Legislature to . . . reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.
(c) Except as provided in subdivision (d), no social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.
(d) Nothing in subdivision (c) shall preclude a claim against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person under 21 years of age, in which case, notwithstanding subdivision (b), the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.
As you can see, the laws are different if the customer is under the age of 21. It is the responsibility of bar to ensure that their customers are of legal drinking age before serving them alcohol. People under the age of 21 are legally deemed incapable of making good decisions regarding alcohol use…like the decision not to drive after drinking at a bar.
While California’s law differ from other states with respect to civil liability, like Florida, a bar may be held criminally liable if they serve alcohol to an “obviously intoxicated person.”
According to California Business and Professions Code section 25602(a), “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.”
We pride ourselves in this country on our Constitution and the protections it gives us from the abuses of Big Government. Perhaps most prominent of these rights is the "presumption of innocence", and the associated right not to have our freedoms or property taken without due process of law.
Except in drunk driving cases…
As I’ve written ad nauseum in the past, there is clearly a DUI Exception to the Constitution in our criminal justice system — and has been for many years. See, for example, The Disappearing Right to Jury Trials…in DUI Cases, Another DUI Exception to the Constitution and The DUI Exception Continues.
If you need any examples of this, just consider the following news article published online this morning….
Federal Appeals Court Upholds Ferrari Confiscation
Suffolk County, NY. Jan. 13 – The Second Circuit US Court of Appeals upheld the government’s confiscation of James B. Ferrari’s Ferrari in a ruling last week. Officials in Suffolk County, New York had grabbed the 2003 Ferrari Modena coupe, valued at $95,000, after Ferrari was stopped and accused of driving under the influence of alcohol (DUI) on May 26, 2009.
A police officer saw the Ferrari allegedly reaching speeds over 100 MPH on South Country Road in Bellport. Ferrari was arrested and his Ferrari confiscated under the state’s drunk driving statute. Ferrari’s attorney argued the Due Process clause of the Constitution required the exotic automobile be returned after his client posted a bond — at least while the charges were being litigated in court. At that point, Ferrari had not be found guilty of any crime. Ferrari’s attorney insisted that it was the county’s burden to prove the seizure was the only possible remedy to the situation, and a judge and jury both agreed. They ordered the county to pay $95,000 to Ferrari to compensate for the loss of his automobile.
A three-judge appellate panel overturned that judgment in last week’s decision, pointing to Ferrari’s long and sordid history of serious driving offenses, including past DUIs…
"Indeed, if the ultimate forfeiture of a car may validly serve the purpose of preventing this forfeited item of property from being further used as an instrumentality of crime, it is not evident why retention pendente lite [i.e. while litigation is pending] cannot serve, in at least some circumstances, a similar purpose," Judge Debra Ann Livingston wrote for the Second Circuit…
So before the defendant was ever convicted of any crime, his car (not incidentally worth a lot of money to local government authorities) was confiscated by the government. Maybe I’m missing something, but isn’t there a presumption of guilt being applied here? And isn’t the appellate judge basically saying, "Yes, you are presumed not to have been driving drunk — and we’re going to confiscate your car so that you don’t do it again"?
(Thanks to Joe.)
As many of you now know, California passed proposition 64 this past November making recreational marijuana use and possession legal. According to Senator Jerry Hill, D-San Mateo, and Assemblyman Evan Low, D-Campbell, proposition 64 contains a loophole that they intend to close.
Last week, the legislators introduced Senate Bill 65 which will criminalize smoking marijuana while driving. Although Proposition 64 legalized the recreational use and possession of marijuana, it still made it illegal to have an open container of marijuana in a vehicle. Proposition 64 did not, however, address the use of marijuana while driving according to Hill and Low.
If you recall from previous posts, Hill has been known to introduce legislation aimed at preventing drunk driving. Last year he passed a law requiring ignition interlock devices for convicted drunk drivers who wished to reinstate their licenses.
“I have a real passion for solving our impaired driving in California from substance abuse,” Hill said. “I don’t want to go in a positive direction on one end and open up the door for deaths on the other end.”
One complaint that opponents have to Senate Bill 65 is that it also bans consumption of cannabidiol, the component of marijuana which is often used by those suffering from chronic pain or to alleviate the symptoms associated with cancer. Cannabidiol does not contain THC (tetrahydrocannabinol), which is the chemical in marijuana that causes impairment.
As I see it, another problem with Senate Bill 65, if passed, is that if a person is arrested for driving while smoking marijuana, they will also inevitably be arrested on suspicion of driving under the influence of marijuana. While a person may have been caught smoking while driving, it doesn’t necessarily mean that they are “under the influence” of marijuana.
To be under the influence of marijuana, the person’s use of marijuana caused their mental or physical abilities to become impaired such that they can no longer drive a vehicle with the same caution of a sober person, using ordinary care, under similar circumstances.
While police can utilize field sobriety tests, if the person agrees, to assess whether motor skills are impaired, there is no way to determine how “high” a person is after smoking marijuana. As I’ve said in many previous posts, this is different from alcohol where these is a correlation between a person’s blood alcohol content and impairment. No such correlation exists with marijuana.
Therefore, if Senate Bill 65 is passed, a person arrested for smoking while driving not only faces misdemeanor charges under that law, but they can also inevitably expect DUI of marijuana charges as well.
You can be sure I’ll be keeping my eyes on the progress of this one.
The surreal "War on Drunk Driving" never ceases to amaze….
In their frantic desire to win votes, satisfy MADD, meet arrest quotas and make money, politicians, cops, prosecutors and judges fall over themselves trying to look tough on DUI. One ridiculous example of this is expanding the entire concept of "driving a motor vehicle under the influence" to include operating anything that moves on a street, sidewalk or parking lot. A few of my past posts reflect this: DUI on a Scooter, DUI in a Wheelchair?, Drunk Driving on a Lawn Mower, DUI – While Walking a Bike, DUI…in a Lounge Chair and Drunk Driving…on a Horse.
Every once in a while, however, some court comes along and courageously announces that "The emperor has no clothes"….
Drunken Driver of a Wheelchair Was a Pedestrian, Appellate Court Rules
Lincoln County, OR. Dec. 30, 2016 – A man convicted of drunkenly driving his motorized wheelchair should be considered a pedestrian rather than a driver, the Oregon Court of Appeals ruled Thursday, reversing and acquitting him.
James Richard Greene was charged with DUI in Lincoln County, for a 2012 incident in which he hit the side of a moving truck while he crossed the street in a crosswalk…
At his two-day jury trial, Greene’s attorney moved for acquittal, calling Greene a pedestrian and not a driver. Judge Paulette Sanders denied the motion. Greene appealed and on Thursday the three-judge panel reversed, concluding that “the trial court erred in denying defendant’s motion for a judgment of acquittal.”
“We are persuaded that the dichotomy that pervades the vehicle code between pedestrians and operators of vehicles decisively evinces a legislative intention not to subject people in motorized wheelchairs to the DUII statutes when they are traveling as pedestrians in crosswalks,” Presiding Judge Rex Armstrong wrote for the unanimous panel…
Nonetheless, the appeals court found the state’s interpretation of the DUI statute “plausible,” because of the broad way “vehicle” can be interpreted. But it concluded that the Legislature did not intend to treat a person as both a pedestrian and a driver, and Greene was not subject to the vehicle code.
One wonders if sanity will prevail…or if the prosecutor will appeal this ruling — and win before the Oregon Supreme Court based on "the broad way ‘vehicle’ can be interpreted" to include wheelchairs. Really?!
In my previous post Driving Under the Influence of…Caffeine?, I reported on pending criminal charges against a citizen for driving under the influence of …yes, coffee. This was after an ABC agent (California Alcohol Beverage Control) was apparently upset when she claims to have been cut off by the "erratic" driver and she stopped and arrested him.
Subsequent blood tests showed no alcohol or drugs of any kind in his system. Zero. Despite this, the Solano County D.A. filed DUI charges against the driver. He has, of course, consistently refused to plead guilty and has demanded a jury trial.
Yesterday, after almost a year-and-a-half, the D.A. finally dismissed the DUI charges….
DA Drops DUI Charge for Man Who Tested Positive for Caffeine
Solano County, CA. Dec. 30 — The Solano County District Attorney’s Office decided Wednesday to drop a DUI charge against a Fairfield man who only tested positive for caffeine.
The charges were dropped more than 16 months after Joseph Schwab, 36, was pulled over on Interstate 680 near Gold Hill Road as he drove to his Fairfield home.
"After further consideration, without a confirmatory test of the specific drug in the defendant’s system that impaired his ability to drive, we do not believe we can prove the charge beyond a reasonable doubt," District Attorney Krishna Abrams said Wednesday in a news release…
I wonder why, after almost a year-and-a-half, the D.A. suddenly decided to dismiss the charges? Could it possibly have been the embarrassing media attention in the last few days?
Just when you thought the "War on Drunk Driving" could not get any crazier…..
California Man Fights DUI Charge for Driving Under Influence of Caffeine
San Francisco, CA. Dec. 24 - Caffeine may be the “nootropic” brain drug of choice in Silicon Valley, but an hour’s drive north in Solano County, California, the stimulant could get you charged with driving under the influence.
That is according to defense attorney Stacey Barrett, speaking on behalf of her client, Joseph Schwab. After being pulled over on 5 August 2015, Schwab was charged by the Solano County district attorney with misdemeanor driving under the influence of a drug.
Almost 18 months later, Schwab is preparing to go to trial. The only evidence the DA has provided of his intoxication is a blood test showing the presence of caffeine.
Schwab was driving home from work when he was pulled over by an agent from the California department of alcoholic beverage control, who was driving an unmarked vehicle. The agent said Schwab had cut her off and was driving erratically.
The 36-year-old union glazier was given a breathalyzer test which showed a 0.00% blood alcohol level, his attorney said. He was booked into county jail and had his blood drawn, but the resulting toxicology report came back negative for benzodiazepines, cocaine, opiates, THC, carisoprodol (a muscle relaxant), methamphetamine/MDMA, oxycodone, and zolpidem…
“It’s really stupid,” said Jeffrey Zehnder, a forensic toxicologist who frequently testifies in court cases. Over 41 years, Zehnder said, he had never seen a prosecution for driving under the influence of caffeine…
California vehicle code defines a “drug” as any substance besides alcohol that could affect a person in a manner that would “impair, to an appreciable degree” his ability to drive normally.
Making that case with caffeine would be difficult, Zehnder said, because the prosecutor would have to show that impaired driving was specifically caused by the caffeine and not any other circumstances.
“There are no studies that demonstrate that driving is impaired by caffeine, and they don’t do the studies, because no one cares about caffeine,” he said.
So how could this case possibly have been filed by the prosecutor — not to mention arrested to begin with? And how could it possibly be going to trial? Does the prosecution seriously believe that coffee is intoxicating? Is law enforcement running out of drunk drivers to arrest? Does Solano County government really need the money from fines that badly?
Or is there a simpler explanation? Let’s take a second look at the story…..
Schwab was driving home from work when he was pulled over by an agent from the California department of alcoholic beverage control, who was driving an unmarked vehicle. The agent said Schwab had cut her off and was driving erratically.
Hmmm….Maybe the arresting "alcohol beverage control" agent was simply suffering from a case of "road rage" — and abused her legal authority?
As I’ve mentioned in past posts, there are a number of problems with trying to determine whether a driver is under the influence of marijuana. See, for example, Marijuana-Impaired Driving: A Prosecutor’s Nightmare?, New Study: Minimal Driving Impairment From Marijuana, California Proposes New Law to Allow Roadside Marijuana Tests, Is a Marijuana Breathalyzer in the Offing? Primary among these problems are:
1. Marijuana cannot be detected or measured on a breath machine. It can be measured with blood tests, but there is almost always a delay — often hours — in obtaining a blood sample. Result: due to continuing metabolism of marijuana in the body, the level at the time of testing may be significantly higher or lower than at the time of driving
2. Unlike alcohol which dissipates after several hours, THC (the active ingredient in marijuana) can stay in a person’s system for days or even weeks after smoking or eating. Even though they are no longer affecting the driver, they will be still detected and reported as marijuana in the blood.
3. There are no recognized scientific studies establishing at what level of THC in the blood a person’s driving ability is impaired.
A solution to one of these problems would be the development of a breath machine which could accurately measure marijuana on the breath — particularly if this could be done quickly at the scene of the arrest. But no such device exists….yet:
Marijuana Breathalyzers to Test California Pot Users for Pot Use
Los Angeles, CA. Sept. 14 – An Oakland-based company has developed a marijuana breathalyzer for distribution across police stations in the U.S. to begin a nationwide test to see if they can monitor people operating motor vehicles while under the influence of pot, and drivers in California were among the first to be tested…
The marijuana breathalyzer – which had some help in development by the University of California’s chemistry department – is able to detect THC on people’s breath after they’ve consumed edible pot products as well as alcohol.
Hound Labs plans to roll their product out nationwide upon further testing to validate the technology’s results.
Until it’s perfected, police will have to continue relying on testing saliva, urine, and blood to measure marijuana in the system, which can show the presence of drugs days after the user is actually under the influence.
Some police have already shown their support for the breathalyzer, including Lompoc Police Chief Patrick Walsh, who says he plans on issuing the device to at least six of his departments over the next six months…
Ok, so maybe they will be able to detect and even measure the amount of THC in the blood from testing the breath. But how does this solve the problem of inactive THC still remaining in the blood from smoking days or weeks earlier? And what good is it to know the amount of THC in the breath if there is still no scientific evidence of the amount necessary to impair driving ability?
I’m a huge fan of England’s top flight soccer league, the English Premier League. While my team is Chelsea F.C. (go Blues!), I keep up with other players and teams. And like many other die-hard fans of the English Premier League, I was surprised when one of the league’s best players was caught driving drunk. Why was I surprised that Yaya Touré, of Manchester City F.C., was caught driving drunk? Because he is known for refusing alcohol due to his Muslim religion.
Touré was charged in late November for an incident in which he was pulled over by police for driving with passengers while having a blood alcohol content of twice the legal limit in England of 0.08 percent.
So if Touré doesn’t drink alcohol, how did he get caught driving under the influence? Touré believes that his drink was spike at the party that he had left.
“Over the last two weeks there has been some confusion as to why I was charged with drink driving, as it is well known that I am a Muslim and do not drink,” said Touré on his website. “I have always refused alcohol. Anyone who knows me or follows football will have seen me refuse champagne for Man of the Match performances because of my commitment to my religion.”
Although Touré did not dispute the charges and was ultimately sentenced to a license suspension and a whopping £54,000 fine, he explained to the court that he had not intentionally consumed alcohol.
According to The Telegraph who was present in court for Touré’s sentencing, Touré “told magistrates he had no idea he had been drinking, even though he conceded his Diet Coke tasted odd, and although he felt ‘tired’ he had not suspected he was tipsy.
“He told the court that he had been to a house party where he had poured himself what he thought was Diet Coke from a jug, but later discovered it was mixed with brandy.
“He had been the ‘designated driver’ on the night of the party and drove his car with passengers in it, claiming he just felt tired, despite being double the drink-drive limit.
“He told the court he thought his drink tasted different but only later found out he had been pouring himself a pre-mixed drink.”
Did Touré have to accept responsibility if he unknowingly became intoxicated and then got behind the wheel?
At least here in California, possibly not.
The California jury instruction CALCRIM 3427 states, “A person is involuntarily intoxicated if he or she unknowingly ingested some intoxicating liquor, drug, or other substance, or if his or her intoxication is caused by the force, duress, fraud, or trickery of someone else, for whatever purpose [without the fault on the part of the intoxicated person].” A person who has been involuntary intoxicated cannot be convicted of a crime according to California Penal Code section 24 which states, “All persons are capable of committing crimes except…[p]ersons who committed the act charged without being conscious thereof.”
Touré would have to prove that he became intoxicated through no fault of his own. For example, the defense is not available if he intended to drink alcohol, but someone spiked his drink with more alcohol than you knew of. This might also mean that he had no reason to believe that the drink was spiked or that he had no reason to believe he was intoxicated when he decided to drive.
Based on his statement, he didn’t intent to drink alcohol, however he may have had reason to believe his drink was spiked.
However, the California Court of Appeals in People v. Scott (1983) 146 Cal.App.3d 823, has held that the mistake of fact defense can be based on involuntary intoxication. The mistake of fact defense can be used if you act under an honest and reasonable mistake of fact and commit a crime. This does not apply if you are mistaken of the law. For example, you cannot use the defense if you mistakenly believe the law prohibited you from driving with a .10 or above instead of .08 or above BAC, and you have a .09 BAC. On the other hand, if you honestly and reasonably, but mistakenly believe that you have not ingested any intoxicating substances, you may be able to use the mistake of fact defense.
In April of 2015 I wrote about Assembly Bill 1356, written by Assemblyman Tom Lackey from Palmdale, California, which would have allowed law enforcement to use a device similar to a breathalyzer that could detect the presence of marijuana and a number of other drugs in a driver’s system.
That bill however, failed to pass the Assembly Public Safety Committee the following May because of reliability concerns.
However, with the passing of Proposition 64 which allowed the use of recreational marijuana in California, Lackey who is a former sergeant with the California Highway Patrol, has introduced a new bill similar to that of the failed AB1356.
The newly proposed Assembly Bill 6 would allow tests using saliva samples taken from drivers suspected of driving under the influence. The test would let the officer know whether a driver has recently used a number of drugs including marijuana.
“The ballot initiative passed this year to legalize marijuana will result in more marijuana consumers on our state’s highways and roads,” Lackey said in a statement. “It is imperative that we invest in a broad spectrum of technologies and research to best identify marijuana-impaired drivers.”
The measure is supported by Chief Ken Corney, president of the California Police Chiefs Assn.
“Our federal partners have demonstrated the efficacy of oral fluid testing, and we look forward to utilizing the technology at a state level,” Corney said in a statement.
While the current devices referred to by Corney tests for the presence of drugs, it does not test for drug quantity nor impairment of the driver.
There is an established correlation between blood alcohol content, specifically the legal limit of 0.08 percent, and alcohol impairment. Unlike alcohol, however, there is no such correlation between the presence of drugs and impairment. In other words, a person can have traces of drug in their system without being impaired by that drug.
Marijuana, for example, can stay in a person’s system for weeks following the smoking or ingesting of the marijuana and well after the person was intoxicated or stoned. The purpose of DUI laws is to prevent impaired driving, not to punish sober and unintoxicated people merely because they ingested drugs at some point in the past.
It is unclear how the presence of a drug may affect the subsequent arrest or DUI case since presence doesn’t necessarily mean impairment. Until we can establish a correlation with drugs including marijuana like we have with alcohol, namely the correlation between quantity and impairment, we shouldn’t be using pushing for laws like this.
Assembly Bill 6 will be brought up for a vote early next year.
Many people know that a California DUI is a “priorable” offense. This means that if a person is arrested and convicted of a subsequent California DUI within ten years, the penalties by operation of law increase.
Generally, a first-time California DUI conviction carries three to five years of summary (informal) probation, up to six months in jail, between $390 and $1,000 in fines, completion of a court-approved three month DUI program, and a six-month license suspension.
A second-time California DUI conviction carries three to five years of summary probation, a minimum of 96 hours to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court-approved 18 month DUI program, and a two-year license suspension.
A third-time California DUI conviction carries three to five years of summary probation, a minimum of 120 days to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court approved 30-month DUI program, and a three-year license revocation.
With this understanding, the question arises: Can a prior out-of-state DUI conviction be used to make a current California DUI a “second offense” and allow the court to increase the penalties?
It depends on whether the facts in the prior out-of-state DUI case would have constituted a DUI in California, under California law.
For example, Florida’s DUI law reads, “A person is guilty of the offense of driving under the influence… if the person is driving or in actual physical control of a vehicle within this state and…[t]he person is under the influence of alcoholic beverages…when affected to the extent that the person’s normal faculties are impaired…”
The wording of Florida’s statute may prohibit a past Florida conviction from being used to make a California DUI a “second offense” for two reasons.
The first problem is that Florida’s statute requires that a person impaired “to the extent that the person’s normal faculties are impaired.” This standard is less strict than California. California requires that a person be impaired to an appreciable degree. Thus, a person may be deemed impaired under Florida’s standard, but not necessarily under California’s.
The second problem is that Florida’s statute also requires that someone drive or is “in actual physical control of a vehicle.” This makes Florida what is called a “dominion and control state.” A person can have dominion and control over a vehicle by simply being in the driver’s seat. California’s DUI law, on the other hand, requires that a person actually drive the vehicle. Therefore, a person can be convicted under Florida’s DUI law by sitting in the driver’s seat while intoxicated. However, someone sitting in the driver’s seat while intoxicated cannot be convicted under California’s DUI law.
Therefore, if a person was convicted five years ago in Florida for a DUI under Florida law because they were found drunk in the driver’s seat of their vehicle, but not driving, that conviction cannot be used to make a current California DUI a “second offense” to increase the penalties because California DUI law requires that the person actually drive the vehicle.
If, however, that same person was pulled over after driving and are convicted of a Florida DUI, that prior Florida DUI conviction can be used to make the current California DUI a “second” offense.
An Indiana man was recently arrested on suspicion of driving under the influence. It was later discovered that he was on his way to the Indianapolis airport. The man, identified as Robert Harris III, is a commercial pilot.
According to police, Harris’ eyes were bloodshot, his speech was slurred, and he had trouble with coordination. In fact, according to court documents, field sobriety tests could not be completed because Harris almost fell over while trying to walk. It was later determined that his blood alcohol content was 0.29 percent.
It is unclear if Harris was scheduled to fly that evening and the airline for which Harris was employed refused to comment on the matter.
While federal regulations require that pilots follow an 8-hour “bottle to throttle” rule, some airlines require a 12-hour period between a pilot’s last drink and flight. Also, according to the Federal Aviation Administration, a pilot must report an alcohol-related conviction, suspension, revocation, and/or failed breath test within 60 days.
Since federal aviation regulations do not require a person to hold a driver’s license to fly a plane, the arrest and a subsequent conviction for driving under the influence does not necessarily preclude piloting aircraft following the arrest and/or conviction.
“The FAA (Federal Aviation Administration) does not hesitate to act aggressively when pilots violate the alcohol and drug provisions of the Federal Aviation Regulations,” said FAA spokesperson Elizabeth Cory. “Airlines are required to have random testing programs in place.”
“The FAA evaluates these cases on an individual basis, which could affect the pilot’s certificate eligibility,” said Cory.
Not surprisingly, this did not settle well with Mothers Against Drunk Driving (MADD).
“I would have assumed the FAA would have similar sanctions to the state of Indiana and withholding their license to operate a motor vehicle whether that’s a plane or car,” said MADD spokesperson Lael Hill. “It’s a little bit concerning knowing someone accused of a crime and is allegedly drinking and driving and could have their driver’s license taken away and not their pilot’s license or certificate.”
Hypothetically, had Harris had been on his way to the airport to fly, what would have happened had he flown an airplane under the influence?
First off, the California Vehicle Code does not apply to aircraft. Rather, crewmembers of civil aircrafts, including pilots, are governed by the FAA. Title 14 of the Code of Federal Regulations section 91.17 states that, “no person may act or attempt to act as a crewmember of a civil aircraft within 8 hours after drinking alcohol, while under the influence of alcohol, while using any drug that affects the person’s faculties in any way contrary to safety, or while having an alcohol concentration [BAC] of 0.04 or greater in a blood or breath specimen.”
Furthermore, the FAA requires random alcohol screenings of pilots and are subject to an implied consent law similar to California’s DUI implied consent law.
Similarly, California Public Utility Code section 21407 reads, “It is unlawful for any person to operate an aircraft in the air, or on the ground or water in a careless or reckless manner so as to endanger the life or property of another. In any proceeding charging operation of aircraft in violation of this section, the court in determining whether the operation was careless or reckless shall consider the standards for safe operation of aircraft prescribed by federal statutes or regulations governing aeronautics.”
California penalties for a first time FUI include a county jail sentence of 30 days to six months, and/or a fine of $250 to $1,000. Federal penalties, on the other hand, are far more severe and can include up to 15 years in federal prison and up to $250,000.
The West Virginia Supreme Court reversed a lower court’s decision and ruled that people can be arrested and convicted of driving under the influence even if it occurred on private property and have their licenses revoked.
The case stems from an incident in 2012 when a man by the name of Joshua Beckett crashed an ATV in a field on the farm owned by his family. Following the collision, Beckett was taken to the hospital where it was discovered that his blood alcohol content was 0.17 percent. He was subsequently charged with driving under the influence.
A magistrate dismissed the DUI case, but an administrative judge upheld a prior revocation of Beckett’s driver’s license for 45 days notwithstanding Beckett’s argument that there was no evidence that he drove on a public street or highway.
Beckett appealed the decision to the Monroe County Circuit Court. There, the circuit court judge ruled that because Beckett’s “actions did not occur on land open to public use,” the administrative judge did not have jurisdiction to revoke his license.
The Division of Motor Vehicles’ commissioner who originally revoked Beckett’s license appealed the decision to the West Virginia Supreme Court.
“The Legislature’s definition of the phrase ‘in this State’ … extends the reach of our driving-under-the-influence laws to any individual driving a vehicle within the physical boundaries of West Virginia, even if the vehicle is driven only upon private property not open to the general public,” Chief Justice Menis Ketchum who wrote a portion of the majority opinion. “The Legislature chose to structure our DUI statutes to regulate the condition of the driver, not the locale in which the driving is taking place. Thus, the Legislature expressed its plain intent to prohibit an intoxicated person from driving a vehicle anywhere in West Virginia, whether on public roads or across private land.”
The decision and its rationale mirrors that which the law here in California.
Division 11 of the California Vehicle Code sets forth the “rules of the road,” if you will, which includes California’s laws against driving with a 0.08 blood alcohol content or higher and driving while under the influence. California Vehicle Code section 21001 states, “The provisions of [Division 11] refer exclusively to the operation of vehicles upon the highways, unless a different place is specifically referred to.” The Code then goes on to state, “[t]he provisions of this chapter apply to vehicles upon the highways and elsewhere throughout the State unless expressly provided otherwise.”
Prior to 1982 the vehicle code made it illegal to drive drunk “upon a highway or upon other than a highway areas in which are open to the general public.” However, in 1982, the legislature deleted the language referring to the locations upon which a person could be arrested and ultimately convicted of drunk driving.
The California Court of Appeals in People v. Malvitz relied on the earlier version of the California Vehicle Code to help clarify the issue. The Court concluded that the “statute that prohibited driving under the influence of alcohol and/or any drug has emerged unencumbered with any language restricting its reach.”
In other words, the Court concluded that it was the intent of the legislature that, in deleting the portion of the statute which referred to location, the law which prohibits drunk driving should extend to anywhere in California where drunk drivers pose a threat included public highways as well private property.
Furthermore, California Vehicle Code section 23215 states, “[law enforcement] may, but shall not be required to, provide patrol or enforce the provisions of [California’s DUI law] for offenses which occur other than upon a highway.”
Whether you’re in West Virginia or in California, it is illegal to drive under the influence on public roads as well as on private property.
A person is arrested on suspicion of driving under the influence here in California. They are booked and released with a citation when law enforcement believes they have sobered up. The citation includes a court location and a date upon which the person must appear for their arraignment. About a month goes by and the person appears on the date indicated on the citation, but is surprised to learn that their case is not on the court’s calendar. They are given a slip proving that they appeared and told to keep their eyes open for a notification in the mail from the prosecutor’s office letting them know that charges have been filed.
After this scenario plays out, two questions arise from clients; 1.) Is this common? and 2.) How long do I have to wait?
Let’s tackle the first question.
When law enforcement gives the citation to the person who has been arrested on suspicion of driving under the influence, they don’t actually know that the case will be filed on the date indicated in the citation. Typically, the date is set at least a month, sometimes several months, in advance. This gives law enforcement and prosecutor time to do several things before the court date.
Following, the arrest the officers must prepare the police report on the DUI arrest. This includes the actual written report, the interview of witnesses, the examination of evidence, and the preparation of any video footage.
Once the law enforcement agency completes its report, their file is sent to the prosecuting agency. Here in Southern California, the prosecuting agency is usually a City Attorney or a District Attorney. The prosecuting agency then reviews the file which was given to them by the arresting law enforcement agency and determines if there is enough evidence to file charges.
Often is the case that, by the time this process is complete, the date written on the bottom of the citation has come and gone. Once the prosecutor has all of the information they need and actually make the decision to file California DUI charges, they’ll issue a notification to the person letting them know that charges have been filed and give them a new court date.
So, to answer the first question, unfortunately the answer is yes, it is common and more common than people know.
On to the second question; “How long does the prosecutor have to file the charges?” In other words, how long must a person have to anxiously wait for those charges to be filed?
California Penal Code section 802 states, “Except as provided in subdivision (b), (c), or (d), prosecution for an offense not punishable by death or imprisonment in the state prison shall be commenced within one year after commission of the offense.” Subsections (b), (c), and (d) are not applicable to DUI cases.
Therefore, the prosecutor has one year from the date of arrest to file misdemeanor DUI charges. This is what is called a “statute of limitations.”
Unfortunately, many people mistakenly believe that because the prosecutor hasn’t filed charges by the date on the citation, that the prosecutor has forgotten or that the case just simply and magically disappears. Not so. They have a year.
Additionally, people whom DUI charges have been filed against them within that year, but fail to go to court for years afterwards are also mistaken in believing that they can’t face charges because it is past the statute of limitations. As long as the charges were filed within that year, the charges remain and the person likely has a warrant out for their arrest.
At least in my experience, prosecutors very rarely “forget” to file charges. While it may be common for the date on the citation to come and go, it is not common for that year to come and go without charges being filed. It’s not a matter of if, it’s a matter of when.
A few weeks ago, I wrote about how California DUI law could be affected generally should voters pass Proposition 64 this coming November.
If you haven’t read it, here’s the gist:
If Prop. 64 is approved, California would legalize 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.
While THC is the psychoactive component of marijuana that is detected in cases of DUI of marijuana, there is no way to determine how impaired someone is regardless of how much THC is in their system Unlike alcohol, there is not an established correlation between THC and impairment. As a result, a number of companies are racing to create a roadside test to determine impairment of marijuana rather than just presence of THC.
If Prop. 64 passes, there are many more questions that need answering. One of these questions is whether we will see more marijuana-DUI traffic collisions.
The Los Angeles Times consulted with Beau Kilmer, senior researcher at RAND Corp. specializing in drug policy and co-author of the book “Marijuana Legalization” to ask the very same question.
The Los Angeles Times made mention of the fact that AAA announced last week that it was opposing efforts to legalize marijuana in California and Maine citing statistics showing an increase in marijuana related fatal collisions in Washington, a recreational marijuana state. While AAA opposed Prop. 64, it also conceded, “While the data analyzed for the study did not include enough information to determine which driver was at fault in a given crash.”
To this Kilmer responded, “The bulk of the research suggests that driving drunk is worse than driving stoned, but driving stoned is worse than driving sober. The research suggests that when people are under the influence of both marijuana and alcohol, it does increase the probability of getting into a crash.”
But, he added, “If you are going to be objective about this and you really want to know how marijuana legalization is going to affect traffic safety, you don’t just look at the number of people in crashes who are testing positive for THC. You want to look at total crashes and total accidents. It might be the case that yeah, more people are driving stoned, but some of them are now less likely to drive drunk.”
Kilmer added that the studies are not definitive.
Kilmer’s statements are correct in that, if we are to be objective about this, we can’t just look at AAA’s cited statistic. Just because a person has THC in their system at the time of a collision does not mean that the person is driving under the influence. What’s more, it may be that the amount DUI of alcohol related collisions have reduced since the legalization of recreational marijuana in Washington.
Most of the time, officers don’t know that a person is actually drunk when they pull that person over. You can bet, however, that they’re suspicious. It’s not just the commission of a traffic violation itself that gives them suspicion. It could very well be a number of things.
So what do officers look for when spotting a suspected drunk driver?
Because people who are under the influence have trouble with vision and balance, they often have trouble driving in a straight line. This means that they may weave through traffic, cannot stay in their own lane, drift, straddle one side of a lane, swerve, and/or make wide turns. The California Court of Appeals has held that “pronounced weaving within a lane provides an officer with reasonable cause to stop a vehicle on suspicion of driving under the influence where such weaving continues for a substantial distance.”
Drivers who are under the influence also often have trouble gauging speed and distances. As a result, many drunk drivers have trouble stopping their vehicles as a sober person would. This includes stopping their vehicle too far from a curb or a stop sign as well as stopping their vehicle too suddenly.
Similarly, drunk drivers may also have trouble accelerating and often accelerate abruptly rather than gradually. They might also have trouble maintaining a consistent speed. Now it would be unreasonable to expect a person to maintain the speed perfectly, however the speed of drunk drivers often fluctuates more drastically than one might reasonably expect of a sober driver.
What I’ve mentioned are what officers look for, but what about what they listen for? I’m not talking about the sound of drunk drivers. I’m talking about anonymous tips from callers who may suspect that a person is driving under the influence. Can an officer use an anonymous tip to help him or her “spot” a drunk driver?
In the recent case of Navarette v. California, the United States Supreme Court held that an anonymous tip can give law enforcement the authority to pull someone over on suspicion of driving under the influence. This is true even though it is impossible to verify the reliability of the tip and the officer has not witnessed any driving that would indicate intoxication.
Like I said at the beginning of this post, these are the things that give officers the authority to pull someone over with only the suspicion that they may be driving under the influence. These things alone, however, are not enough to give the office the probable cause to arrest the person on suspicion of driving under the influence.
Once pulled over for the reasons mentioned above, the officer can substantiate their suspicion that the driver is under the influence with their own observations in making the stop. These are the pieces of information that have become as common in DUI police reports as the officer’s name, namely the smell of alcohol, the slurring of words, and the bloodshot and watery eyes of the driver. The officer can then further substantiate their suspicion and produce the probable cause needed to make the DUI arrest if the driver agrees to and fails field sobriety tests and/or produces a pre-arrest breathalyzer result above a 0.08 blood alcohol content.
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.
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.”
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?
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.
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.