Can a DUI Attorney Challenge Breathalyzer Results?

When people think of a DUI stop, two things immediately come to mind; the field sobriety tests and the breathalyzer. I can tell you without going into much detail here that field sobriety tests are designed for failure. If you would like more details, see many of the previous articles I’ve written on the fallacies of field sobriety tests.

But what about the breathalyzer? Are they inaccurate as well and can the results of a breathalyzer be challenged?

A number of studies have shown that breathalyzers are often inaccurate. That too is a discussion for a different time. But the more important question, since breathalyzers are generally inaccurate, is whether a breathalyzer result can be challenged in court.

Unfortunately, the California Supreme Court in 2013 ruled that, although breathalyzers are generally inaccurate, scientific evidence challenging the accuracy of breathalyzers in California is not admissible as evidence in DUI trials.

The ruling stems from the 2007 DUI stop of Terry Vangelder. Vangelder was stopped for speeding in San Diego. Although having admitted to consuming some alcohol, Vangelder passed field sobriety tests. Vangelder then agreed to a preliminary screening alcohol test (an optional roadside breathalyzer) which indicated that Vangelder’s blood alcohol content was 0.086 percent. Based on that, Vangelder was arrested and transported to the police station where he submitted to a chemical breath test (a required post-arrest breathalyzer). This breath test showed a blood alcohol content of 0.08 percent. Vangelder then submitted to a blood test which indicated that his blood alcohol content of 0.087 percent.

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

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

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

Unfortunately, the California Supreme Court sided with Goldsmith.

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

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

Sounds to me like the Supreme Court is willfully ignoring science simply because the legislature was well intentioned. Sounds like flawed logic.

While people can no longer challenge the accuracy of breathalyzers in general, people who are suspected of DUI in California can still challenge the accuracy of the particular breathalyzer used in their case.

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Posted May 21, 2017, 3:47 pm
Categories: dwi

Texalyzer to Help Cops Crack Down on Distracted Driving

You heard me right. Not a breathalyzer, but a texalyzer. A new device has been developed that could help law enforcement determine whether a person was using a cell phone at the time a traffic collision occurred.

Just as a breathalyzer can help determine whether alcohol in a person’s system played a part in a traffic collision, the texalyzer can help law enforcement and prosecutors determine whether a driver’s texting possibly played a part in a traffic collision.

By connecting the phone via a cord to the device, law enforcement would be able to know what apps were open and in use with a time stamp.

Lawmakers in New York and several other cities are considering allowing law enforcement to use the device to crack down on texting while driving. It is currently illegal in California to “drive a motor vehicle while holding and operating a handheld wireless telephone.” This provision includes texting while driving.

Cellebrite is the company behind the device and has been working with Ben Lieberman of New Castle, N.Y. whose son was killed in a 2011 car crash.

The driver who collided with the car whom Lieberman’s son was a passenger originally told law enforcement that he had fall asleep behind the wheel which led his car veering into oncoming traffic.

Law enforcement could not check the driver’s phone to see if he was lying without a warrant.

"We often hear, ‘just get a warrant’ or ‘just get the phone records.’ … The implication is that the warrant is like filling out some minor form," said Leiberman. "It’s not. In New York, it involves a D.A. and a judge. Imagine getting a D.A. and a judge involved in every breathalyzer that’s administered, every sobriety test that’s administered."

Leiberman was able to eventually get the phone records through a civil lawsuit which showed that the driver had been texting before the collision.

Privacy advocate groups have concerns with the device which is still in development.

"Distracted driving is a serious concern, but this bill gives police power to take and search our phones after almost every fender-bender," says Rashida Richardson, legislative counsel for the New York Civil Liberties Union. "This is a concern because our phones have some of our most personal and private information — so we’re certain that if this law is enforced as it is proposed, it will not only violate people’s privacy rights, but also civil liberties."

The bill that Richardson is referring to is New York Senate Bill S2306 which provides for the field testing of mobile telephone and portable electronic device usage while driving after an accident or collision.

Recent studies have shown that distracted driving, like texting while driving, is just as dangerous a drunk driving.

A new study by the Cambridge Mobile Telematics, a leader in smartphone-centric telematics, is one such study.

Some of the study’s key findings included: Distracted driving occurred during 52 percent of trips that resulted in a crash; on drives that involved a crash, the average duration of distraction was 135 seconds; phone distraction lasts for two minutes or more on 20 percent of drives with distraction, and often occurs at high speeds; the worst 10 percent of distracted drivers are 2.3 times more likely to be in a crash than the average driver, and 5.8 times more likely than the best 10 percent of distracted drivers.

You can be sure we’ll be keeping our eyes and ears open for whether law enforcement usage of such a device gains any traction here in California.

 

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Posted May 10, 2017, 7:42 pm
Categories: dwi

Do Drugged Drivers Cause More Traffic Deaths than Drunk Drivers?

The increase in DUI of drugs has led some to ask whether drugged drivers cause more fatal traffic collisions than drunk drivers. At least according to a new study, the answer is yes.

The Governors Highway Safety Association (GHSA) and the Foundation for Advancing Alcohol Responsibility, a nonprofit funded by alcohol distillers, released a report in April of this year that found in 2015, drivers killed in vehicle collisions were more likely to be under the influence of drugs than alcohol. This was the first recorded time where it is suggested that drugged driving is responsible for more traffic fatalities than drunk driving.

“Drug impaired driving is increasing,” said Jim Hedlund a private consultant from Ithaca, New York who conducted the study for the Governors Highway Safety Association. “We have new data that show drugs are more prevalent to drivers than alcohol is for the first time.”

The study showed that 43 percent of drivers tested in fatal vehicle collisions in the United States had used either a legal or illegal drug. According to the study, 37 percent of drivers tested had a blood alcohol content above the legal limit of 0.08 percent.

Marijuana was the most common drug detected. 9.3 percent of drivers who had their blood tested had amphetamines in their system and in many cases, drivers had multiple drugs in their system.

While the result of the study may be accurate, those who are suggesting that the results indicate that drugged driving causes more traffic fatalities than drunk driving is somewhat misleading.

The presence of alcohol in a person’s system does not necessarily mean that they are under the influence. However, the legislature has created a per se blood alcohol content limit of 0.08 because science has shown that the mental or physical abilities of those with a blood alcohol content of 0.08 are likely so impaired that they can no longer operate a vehicle with the caution of a sober person, using ordinary case, under similar circumstances.

Thus, while the study only tested whether drivers had a 0.08 percent blood alcohol content or higher and not actual impairment, we know that if the driver had a blood alcohol content of 0.08 percent or higher, they were also likely impaired.

Therefore, to conclude that more drugged drivers cause fatal vehicle collisions than drunk drivers is inaccurate. In other words, we cannot compare driving statistics of those with a blood alcohol content of 0.08 percent and those with drugs in their system.

Furthermore, drugs such as marijuana can stay in a person’s system for far longer than alcohol, sometimes for up to weeks at a time. Therefore, the likelihood of drugs being present in a person’s system, whether they used recently or not, is far higher than the likelihood of alcohol being present in a person’s system.

For once, Mothers Against Drunk Driving (MADD) and I actually agree on something.

Like myself, MADD officials questioned the methodology of the results, noting that there is no scientifically agreed level of impairment with drugs such as marijuana.

Another of MADD’s concerns is that the study is leading people to believe that the country is doing better than we have been in terms of drunk driving.

“There is no way you can say drugs have overtaken alcohol as the biggest killer on the highway,” said J.T. Griffin, chief government affairs officer at MADD. “The data is not anywhere close to being in a way that would suggest that … We’re doing a lot of good things on drunk driving, but the public needs to understand this problem is not solved.”

According to NORML, with whom I tend to agree, the study merely reflects the increased detection of drugs and alcohol, but does not reflect any direct connection to fatal vehicle collisions.

 

 

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Posted May 4, 2017, 1:15 pm
Categories: dwi

Hospitals Have to Call Police if Patient’s Blood Test Shows .08% Alcohol?

Imagine that you’ve had a nice evening out, highlighted by a fine dinner accompanied by a glass of wine.  On your way home from the restaurant, however, you and your companion are rear-ended by another vehicle.  Minutes later, an ambulance arrives and takes you to a nearby hospital.  You are examined and treated in the emergency room.

Soon after the attending physician is finished, you are released — and promptly arrested by waiting police officers for DUI.

Unknown to you, the hospital had called the police and reported that blood tests taken as part of your medical examination revealed a blood-alcohol level over .08%.

They can’t do that, you say?  This isn’t a police state?  Consider a recent court decision from Oregon where exactly this situation happened…and continues to happen:


Feds Force Hospitals to Report Alleged DUI Patients to Police

Portland, OR.  April 27 – This month, an Oregon Appeals court agreed with a district court ruling which forces first responders to become state actors.

"Oregon statue 676.260 says a health care facility “shall notify” a law enforcement officer in the course of treatment when a person’s blood alcohol level exceeds .08 percent or their blood contains a controlled substance."…

"As part of defendant’s medical treatment, hospital staff had drawn a sample of his blood and tested it, ascertaining that his BAC was .333 percent. After defendant refused to consent to a blood draw, Trooper Dunlap did not seek a warrant for a blood draw. Nor did he ask hospital staff for the results of the blood test. However, pursuant to their duty under ORS 676.260, hospital staff verbally disclosed to Dunlap that defendant’s BAC was .333 percent and Dunlap included that information in his police report."…

The District court ruled that police couldn’t violate a person’s Constitutional rights because it was the hospital that informed the police.

"After a hearing, the trial court denied defendant’s motion, concluding, as relevant here, that the hospital’s disclosure of defendant’s BAC test result to Dunlap did not violate defendant’s constitutional rights because it did not constitute state action."

"We need not, and do not, consider whether the fact that OR S676.260 required the hospital staff to disclose defendant’s BAC to law enforcement means that the disclosure constituted state action."…


In other words, it would have been a violation of the driver’s constitutional rights if a governmental agency had reported the test results.  But the hospital was a private organization, and so there was no "state action" involved.  Yet, it was a state law that forced that private organization to report the test and the results to the police.


(Thanks to Joe.)
 

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Posted May 3, 2017, 9:50 am
Categories: dwi

Man Found Asleep in Car in OC High School Arrested DUI

The Orange County Sheriff’s Department found an intoxicated man asleep inside of his parked vehicle which was located in the middle of Aliso Niguel High School.

According to the Lt. Dan Dwyer of the Orange County Sheriff’s Department, Alexander Nixon, 23, of Las Vegas was arrested last week on suspicion of driving under the influence of alcohol when he was found asleep in his 2014 Dodge sedan which was parked inside of Aliso Niguel High School in Orange County.

Upon waking Nixon, officers suspected that he was under the influence. Nixon then told officers that he had been drinking before attempting to drive home. Nixon also told officers that he thought that he was in a parking lot in Santa Ana.

Nixon field sobriety tests and was subsequently arrested on suspicion of a California DUI.

Although law enforcement said that the car was located in a back lot of the school, media photographs of the scene showed the car inside of an enclosed walkway leading to an outside seating area.

Had Nixon not confessed to driving, his situation raises an interesting question: Can prosecutors prove that a person drove (which is required for a California DUI) if the person was not seen driving, but their vehicle could have only reached its location through driving?

To be arrested, charged, and convicted of a California DUI, the prosecutor needs to prove that the defendant actually drove the vehicle. And California Courts have held that even slight movement will suffice to meet this requirement.

Movement of the vehicle can be proven through circumstantial evidence, meaning evidence that creates an inference of vehicle movement.

Such was the case in People v. Wilson (1985) 176 Cal.App.3d Supp. 1. The defendant in that case was found asleep in his car which was blocking the 60 freeway in Los Angeles.

The court concluded that “there was ample evidence from which the jury could have inferred that the defendant had been driving his vehicle on the public highway at a time when he was intoxication. From the combination of circumstances – defendant’s sitting in a vehicle in the center of the street–behind the wheel–engine running–lights on, it can be inferred that defendant must have placed himself in such position, and that he accomplished this by driving the car to the place at which he was found.”

The defendant in Wilson argued that it was possible that a friend drove him to the location and placed him in the driver’s seat. He also argued it was possible that the car was already in that position, he intended to drive it, but fell asleep before he could do so.

The Court rejected the defendant’s arguments stating, “It seems unlikely that in either situation the car would have been left parked in the middle of the street, straddling the traffic lanes and facing generally at right angles to the street. Suffice it to say that the jury apparently discarded these possibilities as being unreasonable and adopted the more likely deduction that defendant had driven himself to the area and was then unable to continue."

With that in mind, it seems unlikely prosecutors would even need Nixon’s confession that he drove to convict him of a California DUI. How else would his car have ended up in the middle of a high school?

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Posted April 27, 2017, 6:05 pm
Categories: dwi

How Do I Choose the Right California DUI Attorney?

It goes without saying that the day a person is arrested on suspicion of a California DUI is very often the worst day of that person’s life. As the handcuffs are being slapped around the wrists, thoughts flood the mind of the person who has just been arrested for a California DUI: How long will I be under arrest? What will happen in court? What am I facing?

Fortunately, people don’t have to do it on their own. The legal system is complex to say the least and should never be tackled by the person facing the charges. Most lawyers have spent at least four years at an undergraduate university then three years at law school. Then, lawyers must pass the scrutiny of the bar exam, which in California is the most difficult in the country, before they can actually practice law.

Ok, so lawyers have a lot of education under their belt. How does a person tell if a lawyer is qualified and right for their case?

The first step is research. You don’t buy the first car you see at the dealership. With so much at stake, why would you hire the first attorney you talk to? Ask family and friends if they know a lawyer. You’d be hard pressed to not find anyone who hasn’t used a lawyer in the past. Check user-based rating websites like Avvo.com or Yelp.com to see what others have said about a lawyer’s services. Lastly, check the California Bar Association’s website at Calbar.org to check if a lawyer has had any disciplinary action taken against them for misconduct.

After a lawyer becomes licensed to practice law, they are legally allowed to practice any and all areas of law, but this does not necessarily mean that they are qualified to practice any area of law. Many lawyers are known as “general practitioners.” General practitioners practice everything from personal injury law to real estate law to estate planning and possibly even criminal defense, which may include DUI law. While the law, in general, is complicated, DUI law is complicated in its own right. Understanding the nuances of DUI law and the science involved is crucial in defending a DUI case. If I’m hiring an attorney to represent me for a DUI, I want a lawyer who defends DUI cases day in and day out, not a lawyer who may defend a DUI case every couple of months.

Although many of don’t like to say it, but we, by the nature of our profession, are also salespeople. We need to convince people to hire us to represent them. Unfortunately, the reputation of salespeople runs true with many attorneys as well. Some lawyers will tell you what you want to hear to make the sale. They might claim that they can help because the case is a “slam dunk.” I have been practicing DUI defense for some time now and I can tell you firsthand that no case is a slam dunk. In fact, very few things in law are black and white. DUI defense lawyers don’t know the facts of the case, other than what the potential client tells them, until the first court date. In fact, many times what the potential client tells the lawyer is very different than what is in the police report. Therefore, when a person contacts a lawyer for the purpose of hiring them for representation in a California DUI case, the lawyer lacks the information necessary to predict the outcome of a case. Furthermore, it is actually illegal for a lawyer to guarantee an outcome.

It’s no surprise that lawyers can be expensive. But remind yourself that you’re paying for someone with the experience to help you make it through one of the most difficult times of your life. Make your decision to hire a lawyer based on experience, not cost. Fees for California DUI lawyers range from $1000 to $10,000. DUI defense lawyers almost always charge flat fees, not hourly fees. Often, the price of a DUI lawyer corresponds with their experience and what is included in the service. Sometimes, however, it isn’t. Make sure that you’re getting what you’re paying for.

I can’t say it enough. Hiring a lawyer is an extremely important decision and one that can have lasting effects on your life. Do your research and find the right California DUI attorney.

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Posted April 20, 2017, 5:19 pm
Categories: dwi

The DMV and License Suspension After a California DUI

When a person is arrested on suspicion of driving under the influence of alcohol, their license is usually taken and the officers give the driver a “pink slip.” The pink slip is a temporary license which will allow them to drive…at least for 10 days.

The officer should inform the driver that they have 10 days to contact the DMV to schedule a hearing to try and save their driving privileges. However, in the confusion and anxiety of the DUI arrest, many people forget or ignore the instruction. The 10 days lapse and, much to the surprise of many of my clients, their license is suspended even though their court case hasn’t concluded or in some instances, hasn’t even begun.

A DUI of alcohol triggers two separate actions; a California DMV “administrative per se” (APS) action and a criminal court case.

After 10 days from the date of arrest, the DMV will automatically suspend a person’s license for four months unless the person or their attorney schedules a hearing with the DMV. If a hearing is scheduled within 10 days, the DMV will “stay” or postpone the suspension pending the outcome of the hearing.

The DMV hearing is to determine 1.) whether the officer had reasonable cause to believe the driver was driving under the influence, 2.) whether the driver was lawfully arrested, and 3.) whether the driver had a blood alcohol content of 0.08 percent or higher.

Once again, this process is separate and distinct from what happens in court.

If the driver or their attorney schedules a hearing with the DMV within the 10 days, and the suspension is “stayed,” the hearing itself presents an uphill battle. By “uphill,” I mean completely stacked against the driver.

Since the DMV is not a court, the standard of proof needed to suspend a person’s license is much lower than what is needed to convict a person or a crime. A prosecutor in a criminal case must prove beyond a reasonable doubt that the driver was either 0.08 percent blood alcohol content or “under the influence.” A DMV hearing officer must only prove more likely than not that the driver was either a 0.08 percent blood alcohol content or that they refused the chemical test.

The DMV, the same agency which is trying to sustain the suspension, is the agency which conducts the hearing. The DMV hearing officer, who is a DMV employee, conducts the hearing. The hearing officer can object to the driver’s evidence. The hearing officer can rule on his own objection. Finally, the hearing officer decides if he or she wins. And they almost always do.

Hearsay statements, which are generally excluded from court cases because the person making the statement cannot be cross examined, are admissible in DMV hearings. Most of the time, arresting officers are absent from DMV hearings. If a driver wishes to cross examine the arresting officer who wrote the report, he or she must subpoena the officer at his own cost. This includes paying for the officer’s salary for the time that they attend the hearing.

The DMV hearing officer, who, like a judge, determines the outcome of the DMV hearing is merely a DMV employee with no background in law. In fact, according to the DMV’s employment eligibility requirements, a hearing officer does not even need to have a college degree.

Although unlikely, if the DMV hearing is won by the driver, they save their license from a four-month suspension, but they still face the criminal case in court.

I won’t go into what can happen in court for a California DUI case. Just read one of many previous posts on what to expect out of the court case.

If the driver pleads to a DUI or is convicted after a trial, the court will notify the DMV of the conviction triggering yet another suspension called a “mandatory action.” The mandatory action suspension is a six-month suspension, but the driver gets credit for any time spent on the four-month DMV-triggered suspension. In other words, the driver should serve no more than six months of a suspension.

This information is only the tip of the proverbial iceberg. It only applies to a first-time DUI without aggravating circumstances such as a chemical test refusal. Clearly, the complexity of not just the court case, but the DMV action as well, is yet another reason to let an experienced DUI defense attorney do the heavy lifting.

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Posted April 13, 2017, 3:52 pm
Categories: dwi

Is Distracted Driving as Dangerous as Drunk Driving?

I’ll be the first one to say that drunk driving is extremely dangerous, not just to the person driving under the influence, but also for the public as a whole. And it is that last part that has led to the hypervigilance in condemning drunk driving and demonizing people who make the mistake of driving under the influence.

What I find perplexing is the absence of the same hypervigilance and condemnation for other actions while driving which are similar in nature to drunk driving, namely distracted driving. Not speaking about DUI incidences which actually cause injury, the public’s distain toward drunk driving stems from the drivers’ disregard that their actions are putting the public in danger. Couldn’t the same be said for texting while driving, eating while driving, or even driving while tired? These actions are similar in nature to driving under the influence; a person doing something while driving which they know can harm themselves or others.

So what makes drunk driving so much worse? Nearly every person who holds the belief that drunk driving is worse, at least with whom I’ve talked to, believe that diving after drinking is more dangerous that distracted driving.

Well a new study by the Cambridge Mobile Telematics, a leader in smartphone-centric telematics, suggests that distracted driving is as dangerous as drunk driving.

Cambridge Mobile Telematics’s web apps measured driving behaviors for hundreds of thousands of drivers in six categories; phone use while driving, excessive speed, braking, acceleration, cornering and time of driving.

Some of the study’s key findings included: Distracted driving occurred during 52 percent of trips that resulted in a crash; on drives that involved a crash, the average duration of distraction was 135 seconds; phone distraction lasts for two minutes or more on 20 percent of drives with distraction, and often occurs at high speeds; the worst 10 percent of distracted drivers are 2.3 times more likely to be in a crash than the average driver, and 5.8 times more likely than the best 10 percent of distracted drivers.

“Distracted driving due to smartphone use is intuitively blamed for the increase in road crashes and claims,” said Hari Balakrishnan, Chief Technology Officer of Cambridge Mobile Telematics. “What’s less intuitive is that smartphones hold the solution to the problem they created. Drivers now have access to tools that analyze their driving and achieve real behavioral change through immediate and ongoing feedback.”

According to the Center for Disease Control and Prevention, alcohol impaired driving crashes account for nearly one third of all traffic-related deaths in the United States. Drugs other than alcohol, both legal and illegal, are involved in about 16 percent of motor vehicle crashes.

“This data makes it clear that distracted driving is one of the most urgent public safety problems facing our communities today,” said Balakrishnan. “With April being Distracted Driving Awareness Month, it’s important to take a critical look at how we can most effectively reduce the danger that drivers face. By harnessing the very technology that threatens driver safety, and using it to help drivers understand and improve their behavior, we’re making the world safer by the day.”

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Posted April 6, 2017, 7:18 am
Categories: dwi

In California it is Actually Illegal to Drive While Addicted

Most people know that in California, a person cannot drive with a blood alcohol content of 0.08 percent or more. Some know that, additionally, a person can be charged separately with “driving under the influence” if the officer observed facts that would lead a prosecutor to believe that the person couldn’t drive like a sober person regardless of their blood alcohol content. But few people, however, are aware of California’s least known DUI law.

It is actually illegal in California to drive a vehicle while addicted to a drug.

Under California Vehicle Code section 23152(c), “[i]t is unlawful for any person who is addicted to the use of any drug to drive a vehicle.”

When I first learned that this law existed, I asked myself the same questions that you’re probably asking yourself right now: If an addict is not under the influence at the time of driving, how can still be prosecuted for a DUI? Shouldn’t the law only punish those who actually pose a risk to the roads because of current intoxication?

In 1965, the California Supreme Court justified the law in the case of People v. O’Neil.

In looking at the legislative intent in drafting the law, the court concluded, “when an individual has reached the point that his body reacts physically to the termination of drug administration, he has become ‘addicted’ within the meaning and purpose of [23152(c)]. Although physical dependency or the abstinence syndrome is but one of the characteristics of addiction, it is of crucial import in light of the purpose of [23152(c)] since it renders the individual a potential danger on the highway.”

Although it’s a stretch, the court concluded that a person who is an addict and going through withdrawals can be a danger to the roads. So if that’s the case, can a person who is an addict, but not going through withdrawals, still be arrested, charged, and convicted? According to the California Supreme Court, yes.

“The prosecution need not prove that the individual was actually in a state of withdrawal while driving the vehicle. The prosecution’s burden is to show (1) that the defendant has become ‘emotionally dependent’ on the drug in the sense that he experiences a compulsive need to continue its use, (2) that he has developed a ‘tolerance’ to its effects and hence requires larger and more potent doses, and (3) that he has become ‘physically dependent’ so as to suffer withdrawal symptoms if he is deprived of his dosage.”

Although this section of the vehicle code is rarely enforced, California technically can continue to punish drivers who are addicted to a drug even though they may not be, at the time of driving, under the influence of a drug.

Apparently some parts of the California Vehicle Code like this section doesn’t exist to protect the public from unsafe drivers, but rather punish people with arbitrary labels who can and do drive safe.

 

 

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Posted March 30, 2017, 9:58 am
Categories: dwi

San Diego Begins Using Mouth Swabs to Detect Drugged Drivers

I’ve been writing for some time now that roadside drug tests for suspected DUI of drugs stops are not far off. The increase in drug usage and the growing acceptance of marijuana has law enforcement agencies and law makers clamoring for a device that can quickly and accurately test whether drivers are under the influence of drugs. While current devices are not quite yet capable of telling law enforcement how intoxicated a driver might be, they can say whether a driver has drugs in their system. And San Diego became the latest city to use such devices roadside.

Last week, San Diego police began using roadside oral swabs to test drivers for the presence of marijuana, cocaine, methamphetamine, amphetamine, methadone, opiates, and benzodiazepines. The oral swabs cannot, however, test the amount of drugs in the driver’s system nor can it test for the driver’s level of intoxication.

The inability to test for quantity of drug or intoxication is legally important because, under California law, a person can only be arrested, charged, and convicted of a California DUI if they are “under the influence of a drug.” This means that a person’s physical or mental disabilities are impaired to such a degree that they no longer have the ability to drive with the caution characteristic or a sober person of ordinary prudence under the same or similar circumstances.

With the swab test only able to indicate the presence of one of the drugs listed above, a prosecutor must still prove that a person was not driving with the care of that of a sober person. This is done with officer testimony of poor driving patterns, failure of field sobriety tests, and visual symptoms of drug impairment.

Although many, including Mothers Against Drunk Driving, often forget, the mere presence of drugs in a driver’s system does not necessarily mean that they are driving under the influence. Tetrahydrocannabinol (THC), the active component in marijuana, for example, can stay in a person’s system for up to several weeks after the smoking or ingestion of marijuana. While, the THC may still be present, the person may no longer be “under the influence.”

San Diego began using the oral swab test, called Dräger 5000, after officials met with authorities in Colorado which legalized recreational marijuana in 2014.

Under San Diego protocol, law enforcement will only request the oral swab after they suspect that the driver might be under the influence of a drug. And before that, the officer must have probable cause to even stop the driver in the first place.

Like the preliminary screening alcohol test (PAS) test in DUI of alcohol cases, the oral swab test is also optional. And like the PAS test, it is never suggested that a driver voluntarily submit to the test. Never give law enforcement and prosecutors any more information than they already have.

Only after a person is arrested must they submit to a chemical test and if law enforcement suspects that a person was driving under the influence of a drug, they’ll have to take a blood test.

According to a study by the California Office of Traffic Safety, 38 percent of drivers killed in vehicle collisions during 2014 tested positive for either legal or illegal drugs. This is up six percent from 2013. While this may seem like a high number, testing positive does not necessarily mean that those drivers were actually under the influence and impaired by a drug.

Although drugged driving is and will always be a problem, we can’t continue to arrest people for driving for the mere presence of drugs in their system because presence does not mean impairment.

 

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Posted March 23, 2017, 5:08 pm
Categories: dwi

Utah Lawmakers Vote to Lower State’s BAC Limit to 0.05

Utah could soon have the lowest blood alcohol content limit in the country after the state’s lawmakers voted to lower the threshold for driving to 0.05 percent.

Currently in California, as well as the rest of the country, the legal blood alcohol limit that a person can have in their system is less than 0.08 percent.

In 2013, the National Transportation Safety Board (NTSB) voted to recommend that states lower their blood alcohol limits to 0.05 percent and cited studies that have shown that impairment can occur with a blood alcohol content of 0.05 percent. And now it seems as though Utah has taken up their recommendation.

The new law, which was sponsored by Rep. Norm Thurston, was advanced on the proposition that a lower blood alcohol content could lower incidences of drunk driving.

“The .08 sends a false message … it’s kind of a game — how much can I drink and still stay under the .08?" said Rep. Kelly Miles. “So this will benefit those because now the message is, ‘I shouldn’t drink anything and drive.’ This will send a message to the nation, but I think the message is ‘you are welcome to come here to Utah, you are welcome to drink, but then please make arrangements for a ride.”

Not all of Utah’s lawmakers were on board.

“I don’t think there’s enough data out there that would suggest that lowering the limit would reduce alcohol-related traffic fatalities,” said Rep. Gage Froerer, noting that texting while driving and distracted driving resulted in more deaths than drunk driving. “No one can dispute the validity of not drinking and driving — that’s a given. But the question comes down to personal freedoms, rights and enforcement. Our efforts are better spent on education and informing the public.”

The change in law begs the question, “How many drinks does it take to get to a blood alcohol content of 0.05 percent?”

The California DMV provides very general chart of for guidance on how many drinks it takes to get to certain blood alcohol contents. I emphasize that the chart is only for guidance. A number of factors will affect how many drinks will get a person to 0.8 and 0.05.

A 160-pound male who has two drinks in an hour will have a blood alcohol content around 0.07 to 0.08 percent. One drink will put the same 160-pound male between 0.04 and 0.05 percent.

A 140-pound female who has two drinks in an hour will have a blood alcohol content around 0.09 percent. One drink will put the same 140-pound female around 0.05 percent.

Across the chart, the difference between getting a DUI in Utah, if the law is passed, and the rest of the country including California is about one drink in an hour. And no, it does not matter what type of drink it is. 1.5 ounces of 80 proof liquor, 12 ounces of 5% beer, and 5 ounces of 12% wine all have about the same amount of alcohol and all count as one drink. 

If Utah’s governor, Gary Herbert, signs the bill, the new law would take effect on December 20, 2018. Just in time for the New Year’s celebrations.

 

 

 

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Posted March 15, 2017, 4:49 pm
Categories: dwi

Can I Expunge a California DUI Conviction?

A very common question people have when they are arrested on suspicion of a California DUI is, “Will this be on my criminal record and, if so, for how long?”

Unfortunately, if the person is convicted, the answer is “yes and forever.” But that doesn’t mean that all hope is lost.

I should clarify before I move on that the arrest will also be on the record, but an arrest, unlike a conviction, cannot be used against you if you were never convicted. Remember, everyone is innocent until proven guilty and if a conviction never occurred, then the person is still innocent. Simply put, an arrest means nothing without a conviction and employers cannot inquire about an arrest nor can they use an arrest as a reason not to hire you.

Having said that, a conviction is different because a conviction means that a person was found guilty of a crime such as a DUI. Convictions can be and are often used by employers as a reason not to hire someone.

When people hear the word “expungement” they think of a clearing of the record, and erasing if you will. However, the term “expungement” is somewhat of a misnomer in California because a DUI conviction, or any criminal conviction for that matter, will not be erased from your record.

California Penal Code section 1203.4 provides, “In any case in which a defendant has fulfilled the conditions of probation…or in any case in which a court, in its discretion and the interest of justice, determines that a defendant should be granted relief under this section, the defendant shall…be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; of, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and…he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted…”

In short, this means that, following the completion of probation, a person can petition to withdraw their guilty plea, no contest plea, or guilty verdict following a trial and the court retroactively dismisses the case.

Although the conviction is not erased from the record, it will now show up as having been dismissed by the court. Cases that are dismissed don’t result in convictions. So, if a person successfully petitions the court for an expungement of a California DUI, they no longer need to disclose the conviction on most employment applications because the conviction was dismissed.

I said that a person need not disclose expunged convictions for most employers because there are some exceptions to the disclosure rule. The conviction must still be disclosed when applying for a government position, a state license, public office, or for contracting with the state lottery. If this is the case, however, a person can then say that the conviction was dismissed under Penal Code section 1203.4 after they have disclosed it.

People make mistakes and sometimes that mistake is the decision to drive while under the influence. Mistakes shouldn’t haunt people for the rest of their lives. If you’ve been convicted of a California DUI and you have completed probation, contact a California DUI attorney about expunging the DUI conviction.

 

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Posted March 8, 2017, 4:34 pm
Categories: dwi

California Lawmakers Seek to Create Drugged Driving Task Force

With the legalization of recreational marijuana in California, lawmakers are pushing efforts to pass new legislation regarding marijuana, particularly when it comes driving after marijuana use. Tom Lackey (R-Palmdale), who is no stranger to introducing anti-DUI laws in California, has introduced a bill that would create a drugged driving taskforce under the supervision of the Commissioner of the California Highway Patrol.

“The bill, AB-6, is a reasonable approach forward to address our fight against drugged driving,” Lackey told the Los Angeles Times. “The urgency of this should be very clear to all of us.”

The bill, which was proposed by the California Police Chiefs Association and introduced by Lackey, if approved, would add a completely new section to the current California Vehicle Code.

The Legislative Counsel’s Digest for the bill says the following:

“This bill would require the commissioner to appoint, and serve as the chair of, a drugged driving task force, with specified membership, to develop recommendations for best practices, protocols, proposed legislation, and other policies that will address the issue of driving under the influence of drugs, including prescription drugs. The bill would also require the task force to examine the use of technology, including field testing technologies, to identify drivers under the influence of drugs, and would authorize the task force to conduct pilot programs using those technologies. The bill would require the task force to report to the Legislature its policy recommendations and the steps that state agencies are taking regarding drugged driving.”

The task force would include representatives from local law enforcement, prosecutors, various representatives from the marijuana industry, representatives from the pharmaceutical industry, representatives from the Office of Traffic Safety, representatives from the National Highway Traffic Safety Association, and licensed physicians.

The Assembly Public Safety Committee unanimously recommended the bill after a hearing in which Karen Smith, a teacher from Antelope Valley, provided emotional testimony about how her husband had been killed a driver who was under the influence of marijuana.

“He was just 56 years old. We had been married for 34 years,” said Smith. “It was all wiped out in just one second by a person who chose to drive under the influence of THC.”

There’s no question that marijuana affects driving ability. Exactly how and to what degree, is up for debate. What is certain however, is that there is a very important difference between being under the influence of marijuana and having THC in your system, and the task force, if AB-6 passes, had better understand the difference.

It is well known that the "per se" limit for how much alcohol can be in a person’s system is 0.08 percent blood alcohol content. With alcohol, there is a fairly strong correlation between blood alcohol content and intoxication. In other words, there is a high probability that a person with a 0.08 blood alcohol content is feeling the effects of alcohol intoxication such that they cannot operate a vehicle as a reasonable and sober person would.

The same cannot be said about the intoxicating effects of marijuana use and the amount of THC in a person’s blood. Unlike alcohol, THC is fat soluble which means that it leaves the body at a much slower rate. In fact, chronic users of marijuana can have THC in their blood weeks after use. Therefore, someone who has smoked marijuana three weeks ago can still be arrested in states with a "per se" THC limit even though they are no longer under the influence of marijuana and perfectly sober.

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Posted March 3, 2017, 4:08 pm
Categories: dwi

Paying for Your Own DUI Arrest

So let’s say you are at a friend’s party and some of you are passing around a joint.  Suddenly, the police show up at the front door.  After conducting an investigation, they arrest you for possession of marijuana.  You later plead guilty, and are sentenced to pay a fine and are put on probation for three years..

Oh yes, and the court orders you to pay for the cost of the police investigation — $500.  

No way, you say?  Well, you would be right….unless maybe it was a DUI you had been arrested for.   In a typical example of the double standard applied to drunk driving cases (see The DUI Exception to the Constitution), some states are permitting or even requiring a defendant convicted of driving under the influence to pay for the investigation and arrest in his own case. 

Fortunately, not all courts are buying into this double standard:


Iowa Supreme Court Nullifies DUI Arrest Fees

Des Moines, IA.  Jan 20 – Driving under the influence (DUI) is a serious crime carrying court-imposed penalties that typically cost those convicted around $10,000. Officials in Scott County, Iowa decided they could get some of that money for themselves by directly billing DUI suspects for the "emergency response" provided by police. The practice ended Friday with the Iowa Supreme Court declaring it unlawful…

…Davenport Police Officer Michael Stegall pulled over Homer Christner, spending two hours conducting roadside sobriety tests and booking him in the county jail. So before the court had sentenced Christner, the city billed the man for the officer’s time at the rate of $61 per hour, plus $36 for the two hours that his police squad car was out of service.


At least they didn’t bill him for room and board before he bailed out.  Or maybe that’s coming next….
 

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Posted March 3, 2017, 9:54 am
Categories: dwi

Could Extending Last Call in California Increase DUI Incidences?

Many people know Nevada, particularly Las Vegas, as the obvious exception to widely accepted last call time of 2 a.m. and some know that a few states such as New York, Hawaii, and Alaska have later last calls than 2 a.m. California’s last call is 2 a.m. One senator hopes to extend the last call in certain California cities such as Los Angeles to 4 a.m.

Just to be clear before I move on, “last call” refers to the last time for which a bar or restaurant can sell alcohol to patrons.

The bill, which was introduced by Sen. Scott Wiener and entitled Let Our Communities Adjust Late Night Act, would allow municipalities to extend last call to 4 a.m. with the approval of the California Department of Alcoholic Beverage Control. The bill provides the flexibility to allow an extension of last call to certain cities or “specific areas” of a town. It also would allow an extension only on certain days of the week or only on specific holidays.

A similar bill by Sen Mark Leno was rejected in 2013 by the Senate Committee on Governmental Organization.

Not so surprisingly, Mothers Against Drunk Driving (MADD) are opposed to extending the last call time just as they were back in 2013.

"MADD supports uniform closing times for establishments that serve alcohol to avoid creating the dangerous possibility that patrons will bar-hop for that one last drink — a dangerous scenario that all too often increases the risk of drunk driving," national spokeswoman for the group, Becky Iannotta, said in an email to LA Weekly.

According to Weiner, the extra two hours would provide an enormous amount of extra revenue to the hospitality industry in California. In a statement Weiner said that the law would allow cities to “benefit economically and culturally from a strong nightlife presence.”

Amongst the supporters of the bill is the California Restaurant Association and the California Music & Culture Association.

“Nightlife is a major economic and cultural driver in California,” said the California Music & Culture Association’s co-chair, Ben Bleiman, in a statement. “This bill represents a crucial opportunity for California’s cities and towns to choose to join the ranks of those across the country and the world offering truly world-class nightlife for their residents and visitors.”

The group Taxpayers for Improving Public Safety argued in 2013, when Sen. Leno attempted to introduce his bill, that staggering the last call times in California would lessen the burden on law enforcement and public transportation because not all bargoers and drunks would be hitting the streets at the same time.

 

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Posted February 23, 2017, 11:15 am
Categories: dwi

How Much Marijuana Does It Take to Impair Driving?

A number of posts on this blog have addressed the problems encountered in trying to measure levels of marijuana — or, more accurately the active ingredient Tetrahydrocannabinol ("THC") — in the blood of a person when he was driving.  See, for example, Oregon Legislative Study Criticizes "Per Se" DUI Marijuana Laws and Marijuana Legalization and the California DUI.   

More importantly, these and other posts have also raised the related but unanswered question:  How much marijuana in the human body does it take to render a driver unable to safely operate a motor vehicle in the manner of a sober person (the rough definition of "driving under the influence" or "driving while intoxicated")?  See New Efforts to Push Roadside Marijuana DUI Test

The following excerpts from a recent article in The Atlantic, entitled "When Are You Too Stoned To Drive?", provide an excellent analysis of these important issues: 


…We take for granted that not being able to walk a straight line or stand on one leg means that you’re drunk, and that being drunk means it’s unacceptably dangerous to drive. But there is no clear scientific consensus when it comes to smoking pot and driving. And few of the tools police officers have long relied on to determine whether a driver is too drunk to drive, like a breathalyzer, exist for marijuana…

Most (but not all) studies find that using pot impairs one’s ability to drive. However, overall, the impairment appears to be modest—akin to driving with a blood alcohol level of between .01 and .05, which is legal in all states. (The much greater risk is in combining pot with alcohol.) The increased crash risk with pot alone “is so small you can compare it to driving in darkness compared to driving in daylight,” says University of Oslo political scientist Rune Elvik, who conducted several major meta-analyses evaluating the risk of drugged driving…

When it comes to alcohol, science and the courts have long established a direct line between number of drinks, blood alcohol level, and crash risk. As one goes up, so do the others. Not so for pot. Scientists can’t say with confidence how much pot, in what concentration, used in what period of time, will reliably make someone “high.”…

Blood levels of THC—tetrahydrocannabinol, the chemical component of pot that makes you high—spike quickly after smoking and then decline rapidly in the hours afterwards, during the window when a smoker would feel most high. What’s more, regular smokers could have THC in their blood for days or weeks after smoking, when they are clearly no longer high.

Still, laws in 18 states tie drugged driving charges to whether drivers have THC (or related compounds) in their blood. Some states prohibit driving with any amount, and some specify a threshold modeled after the .08 limit states use for blood alcohol. But the lag time between being pulled over and being transported to a hospital for a blood draw—on average, more than two hours—can lead to false negatives, while the tolerance developed by regular users (and the tendency for THC to stick around in their bloodstreams) can lead to false positives. This is why, researchers say, blood THC laws make little sense… 


Scientific facts, however, have never prevented politicians from passing expedient and politically-popular laws, or police and prosecutors from enforcing them. 
 

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Posted February 20, 2017, 11:28 am
Categories: dwi

Rare Disorder Causes DUI without Drinking

A woman, who requested to be called Sara to maintain confidentiality and protect her legal career, was arrested in 2015 for driving under the influence when she collided with a parked vehicle. It was later determined that she had a blood alcohol content of 0.10 percent. Sara had been arrested for DUI before back when she was an admitted alcoholic. This time, however, was different. Sara, now a recovering alcoholic for nearly ten years, only drank orange juice.

Sara drank orange juice and lots of it, sometimes up to a gallon per day. That orange juice, however, might as well have been alcohol for Sara.

Sara suffers from auto-brewery syndrome. Yes, that is an actual medical condition albeit an extremely rare one. Auto-brewery syndrome causes a person’s body to produce extremely high levels of yeast in the digestive track. If you know anything about how beer is made, you’ll know that yeast eats the sugar that is extracted from boiling grains and then releases carbon dioxide and alcohol. See where I’m going? The yeast in Sara’s system ate the sugars from the orange juice and produced alcohol in Sara causing her to be intoxicated without having a sip of alcohol.

Shortly after she was diagnosed last July, Sara accepted a plea deal for a reduced charge of reckless driving with probation.

Sara estimates that she spent $25,000 fighting the drunk driving charge, with expenses including attorney fees and a privately commissioned polygraph test. She says she chose to take a deal rather than go to trial because a conviction could have been career-ending.

“As soon as I stopped the orange juice, I was fine,” said Sara. “I don’t even tell anyone [about the disorder] because you can almost see them rolling their eyes.”

In 2014, a New York judge dismissed the DUI charge of a woman who was pulled over after a motorist noticed her driving poorly. After police arrived, it was determined that the woman had a whopping 0.33 percent blood alcohol content.

Another characteristic of the disorder is an unusually high tolerance to the alcohol in their system.

The woman’s lawyer hired two physician assistants and a breathalyzer specialist to evaluate the woman over a 12-hour period. They found that the woman’s BAC was double the legal limit at 9:15 AM. At 6 PM, it was triple, and at 8:30 PM, it was four times higher. This was around the same time when the police pulled the woman over for DUI. In other words, her body was producing alcohol consistently throughout the day. Oddly, however, the woman did not exhibit any signs of intoxication until her blood alcohol content reach between 0.30 and 0.40 percent where she would feel dizzy.

Normal people with a blood alcohol content that high are usually unconscious at a minimum, some would be suffering from alcohol poisoning.

“My client does suffer from an extremely unusual condition, and we conducted very extensive medical research and presented our findings to the judge,” said the woman’s defense attorney, Joseph A. Marusak. “To my knowledge, this is the first time a DWI case has ever been dismissed on this basis in New York State, and as far as I can tell, it may be the first time in the country.”

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Posted February 10, 2017, 7:26 pm
Categories: dwi

When Does a California DUI Become a Felony?

Generally, when a person is arrested on suspicion of driving under the influence in California, it is a misdemeanor charge. Misdemeanors are punishable by no more than a year in jail. Sometimes, however, a California DUI can be charged as a felony, meaning that it can be punishable by more than a year in jail.

So when does a California DUI become a felony?

The first way that a California DUI can become a felony is if a drunk driver causes death or injury. California Vehicle Code section 23153 makes it unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, or with a blood alcohol content of 0.08 percent or higher to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.

A California DUI causing injury is known as a “wobbler.” This means that it can be charged as either a misdemeanor or a felony. Whether a prosecutor charges a violation of California Vehicle Code section 23153 as a misdemeanor or a felony depends on several considerations such as the level of intoxication, the seriousness of the injury, the defendant’s prior criminal history, and any other aggravating factors.

If a drunk driver causes the death of someone and the drunk driver has not suffered any prior DUI convictions, the defendant will more likely be charged with vehicular manslaughter while intoxicated or gross vehicular manslaughter while intoxicated under the California Penal Code.

However, if a DUI results in a death and the defendant has suffered a prior DUI conviction within ten years, they can and most likely will be charged with second degree murder. This is known as the “Watson Murder Rule.” In short, the court’s view is that, because the person suffered prior convictions, they knew it was dangerous, yet they did it anyways knowing the risk to life.

The second way that a California DUI can be a felony is when a person has suffered three prior DUI convictions within the past ten years. Priorable DUI charges include driving under the influence (California Vehicle Code section 23152), driving under the influence with injury (California Vehicle Code section 23153), wet-reckless (California Vehicle Code section 23103.5), and out-of-state convictions that qualify as a priorable conviction. Out-of-state DUI convictions qualify as a prior DUI if they would be considered a DUI had the arrest occurred in California.

To prove priorable convictions the prosecutor may use court records from the prior cases as well as Department of Motor Vehicle records. The prosecutor may also use “expunged” (California Penal Code section 1203.4 dismissal) priors in enhancing a DUI charge if the conviction occurred within the 10-year period.

Lastly, a California DUI can become a felony if a person suffered a prior felony DUI within ten years. The priorable felony offense can be a conviction of California Vehicle Code section 23152 (fourth or more DUI), California Vehicle Code section 23153 (DUI causing death or injury), California Penal Code section 192 (vehicular manslaughter), or California Penal Code section 191.5 (vehicular manslaughter while intoxicated or gross vehicular manslaughter while intoxicated).

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Posted February 3, 2017, 1:55 pm
Categories: dwi

Oregon Legislative Study Critcizes “Per Se” DUI Marijuana Laws

As I’ve posted often in the recent past, with the increasing use — and legalization — of marijuana, legislators and law enforcement are falling over themselves trying to come up with answers to many uncomfortable questions, such as:


Does marijuana, in fact, impair driving ability?

How does an officer detect recent use of marijuana in the field? 

How do you measure the amount of active marijuana (THC) in the body at the time of driving?

At what level of active ingredients in the body is a person impaired? 

How long do measurable amounts of marijuana stay in the body?

If impairment levels cannot be determined, is there an illegal per se level that can be used, such as .08% with alcohol? 


And as I’ve posted in the past, there are no accepted satisfactory answers to these and related questions.  See, for example, California Law Attempts to Prevent Marijuana Use While Driving, Is it Possible to Prove "Driving Under the Influence of Drugs? and Legal Defenses to a California DUI of Marijuana.  

Unlike with alcohol, the various states have taken a variety of different approaches to criminalizing marijuana and driving.  See What Are Your State’s Drugged Driving Laws?   One recent and growing approach is to simply create so-called "per se" laws which criminalize driving with specific levels of THC in the blood, regardless of impairment.  This was recently considered by the Oregon Legislature, resulting in the following Oregon House Bill Legislative Report, excerpts of which follow:


Salem, OR.  Dec. 31 —  …While Colorado and Washington, the first states to legalize recreational marijuana, instituted a per se THC blood concentration limit of 5 ng/ml, Oregon did not. Instead, Oregon relies on evaluations by Drug Recognition Experts (DRE) to assess drivers for intoxication if they have already passed a breathalyzer test (i.e. have blood alcohol content below 0.08)….

Differences in how the body processes marijuana as compared to alcohol makes accurate detection of THC concentration and its intoxicating effect significantly more difficult. It is especially difficult to detect recent use of marijuana in the field… 

Due to restrictions on cannabis research and limited data, it is difficult to make definitive statements about the risk of THC-intoxicated driving. The body of evidence that does exist indicates that while attitudes towards driving after marijuana use are considerably more relaxed than in the case of alcohol, the risk of crashes while driving under the influence of THC is lower than drunk driving. Little evidence exists to compel a significant change in status quo policy or institute a per se intoxication standard for THC.


While the confusion, floundering and passage of inconsistent laws continue, so do the arrests and convictions of innocent drivers. 
 

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Posted January 31, 2017, 6:30 pm
Categories: dwi

Oregon Legislative Study Criticizes “Per Se” DUI Marijuana Laws

As I’ve posted often in the recent past, with the increasing use — and legalization — of marijuana, legislators and law enforcement are falling over themselves trying to come up with answers to many uncomfortable questions, such as:


Does marijuana, in fact, impair driving ability?

How does an officer detect recent use of marijuana in the field? 

How do you measure the amount of active marijuana (THC) in the body at the time of driving?

At what level of active ingredients in the body is a person impaired? 

How long do measurable amounts of marijuana stay in the body?

If impairment levels cannot be determined, is there an illegal per se level that can be used, such as .08% with alcohol? 


And as I’ve posted in the past, there are no accepted satisfactory answers to these and related questions.  See, for example, California Law Attempts to Prevent Marijuana Use While Driving, Is it Possible to Prove "Driving Under the Influence of Drugs? and Legal Defenses to a California DUI of Marijuana.  

Unlike with alcohol, the various states have taken a variety of different approaches to criminalizing marijuana and driving.  See What Are Your State’s Drugged Driving Laws?   One recent and growing approach is to simply create so-called "per se" laws which criminalize driving with specific levels of THC in the blood, regardless of impairment.  This was recently considered by the Oregon Legislature, resulting in the following Oregon House Bill Legislative Report, excerpts of which follow:


Salem, OR.  Dec. 31 —  …While Colorado and Washington, the first states to legalize recreational marijuana, instituted a per se THC blood concentration limit of 5 ng/ml, Oregon did not. Instead, Oregon relies on evaluations by Drug Recognition Experts (DRE) to assess drivers for intoxication if they have already passed a breathalyzer test (i.e. have blood alcohol content below 0.08)….

Differences in how the body processes marijuana as compared to alcohol makes accurate detection of THC concentration and its intoxicating effect significantly more difficult. It is especially difficult to detect recent use of marijuana in the field… 

Due to restrictions on cannabis research and limited data, it is difficult to make definitive statements about the risk of THC-intoxicated driving. The body of evidence that does exist indicates that while attitudes towards driving after marijuana use are considerably more relaxed than in the case of alcohol, the risk of crashes while driving under the influence of THC is lower than drunk driving. Little evidence exists to compel a significant change in status quo policy or institute a per se intoxication standard for THC.


While the confusion, floundering and passage of inconsistent laws continue, so do the arrests and convictions of innocent drivers. 
 

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Posted January 31, 2017, 6:30 pm
Categories: dwi

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