A new California Senate bill would allow veterans to avoid a California DUI conviction with a treatment diversion program.
Senate Bill 725 would expand a current military diversion program. The bill, if passed, would provide veterans with the opportunity to receive treatment for issues stemming from their service and which often leads them to drink and drive. If the treatment program is completed successfully, veterans could have their case dismissed and avoid a California DUI conviction
To qualify, veterans must have been diagnosed with post-traumatic stress disorder, traumatic brain injury, military sexual trauma or other conditions related to their service.
The Legislative Counsel’s Digest on the bill states, “This bill would…specify that a misdemeanor offense for which a defendant [veteran] may be placed in a pretrial diversion program…includes a misdemeanor violation of driving under the influence or driving under the influence and causing bodily injury. The bill would not limit the authority of the Department of Motor Vehicles to take administrative action concerning the driving privileges of a person arrested for a violation of those provisions.”
Advocates, myself included, argue that the bill’s intent is rehabilitative and deals with the underlying causes of driving drunk.
“We want to get those people into treatment as early as possible. We don’t want them going out jeopardizing future victims,” said the executive director of the California Veterans Legal Task Force in San Diego. “Everybody on both sides of this thing is pro public safety.”
However, not all are fans including district attorneys and other prosecuting agencies.
“We’re very much pro-veteran and pro-treatment, but we want it to be balanced with the needs of public safety,” prosecutor Harrison Kennedy told NBC 7.
Among their primary complaints are that the bill does not address restitution to victims of DUI related collisions which cause injury and that the bill does not limit the number of times that a veteran offender can utilize the program.
“This creates potential for a dangerous cycle of diversion that jeopardizes the safety of our streets and highways,” said the California District Attorneys Association.
The bill does not affect the DMV’s ability to suspend a veteran offender’s license through the administrative action.
If the bill does not pass, veterans face the same consequences of a California DUI as the rest of the public; informal probation, a DUI program lasting three, six, or nine months, between $390 and $1,000 in fines and fees, possibly AA meetings, possibly a Mothers Against Drunk Driving lecture, possibly a hospital and morgue program, and possibly even jail.
The bill easily passed through the Assembly public safety committee last week and will soon be voted on by the full Assembly.
The 4th of July is the annual celebration of the day that the original thirteen colonies declared independence from Great Britain. On this day in 1776, delegates from the colonies formed the Continental Congress which drafted and adopted the Declaration of Independence and announced that the United States of America was its own country.
In fact, John Adams wrote that Independence Day “will be the most memorable epoch in the history of America. I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival. It ought to be commemorated as the day of deliverance, by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires, and illuminations, from one end of this continent to the other, from this time forward forever more.”
And John Adams was right. The 4th of July is celebrated with pomp and parade…and now also fireworks, barbeques, and alcohol.
Although the holiday lands on a Tuesday this year, it’s not going to stop drunk drivers from hitting the roads nor is it going to stop law enforcement from taking to the streets in full force to catch those drunk drivers.
CHP’s “maximum enforcement period” will begin at 6pm on Friday evening and will conclude at 11:59pm on Tuesday night.
Last year during the enforcement period, CHP arrested 1,118 motorists statewide on suspicion of a California DUI and CHP investigated 35 traffic collisions in which people were killed. According to the National Highway Traffic Safety Association (NHTSA), between 2011 and 2015, a total of 751 people were killed in DUI related traffic collisions during the 4th of July enforcement period.
Don’t celebrate America’s independence by losing your own with jail. Plan ahead to avoid a 4th of July DUI.
Appoint a designated driver. Make sure that the designated driver remains sober. Often is the case that “designated drivers” just don’t drink as much as their passengers. This is not a designated driver, but someone who runs the risk of getting arrested for drunk driving themselves.
Use alternative means of transportation. We live in a time where a trolley is not the only way to get somewhere without driving. Take a taxi…if you can get one. Good luck with that. Use Uber or Lyft or another ridesharing app. Although a little more expensive, they more available and a little nicer than a cab.
Stay the night. Unless you want to be arrested for drunk in public, don’t try this one at the bar you go to. However, if you attend a 4th of July party, ask the host if you can crash on the couch.
Don’t drink. This may not be the most appealing option if you want to partake in the festivities. However, it is the only surefire way to avoid a California DUI if you plan on driving this 4th of July.
On January 15th of last year, the National Highway Traffic Safety Board (NHTSA) issued the following news release:
Feds Want to Lower the Legal Limit to One Drink
Washington, DC. Jan. 15 – The National Transportation Safety Board wants to decrease the legal driving limit to one drink, lowering the legal limit on blood-alcohol content to 0.05 “or even lower.”…
The agency issued the recommendation while admitting that “the amount consumed and crash risk is not well understood.”
“We need more and better data to understand the scope of the problem and the effectiveness of countermeasures,” they said….
A 0.05 BAC level would reduce the number of drinks an average-weight man of 180 pounds could have to two, according to Blood Alcohol Calculator. Women could only have one drink before they exceeded the limit. A 100-pound woman reaches .05 BAC with just one drink, but two drinks would put any woman under 220 pounds at or above the government’s desired limit.
Under the current level of 0.08, an average weight man can have four drinks until reaching the limit.
On the next day, I posted the following on this blog:
To give all of this some context, let me offer a history of this focus on the lowering of blood-alcohol limits rather than on the more important issue of alcohol-caused impairment….
The original drunk driving laws were simple and fair: Don’t drive under the influence of alcohol (DUI). Then, many years ago, law enforcement came up with crude devices to measure alcohol on the breath of drunk driving suspects. But what did, say, a .13% blood-alcohol concentration (BAC) mean? They turned to the American Medical Association which, in 1938, created a "Committee to Study Problems of Motor Vehicle Accidents". At the same time, the National Safety Council set up a "Committee on Tests for Intoxication".
After some study, these two groups came up with their findings: a driver with .15% BAC or higher could be presumed to be "under the influence"; those under .15% could not. That’s right: .15%. And that recommendation lasted for 22 years. But prosecutors and certain groups of "concerned mothers" were not happy with the low DUI arrest and conviction rates.
Under increasing political pressure, the committees "revisited" the question in 1960 and agreed to lower the presumed level of intoxication to .10%. Had the human body changed in 22 years? Had the AMA been negligent in their earlier studies? Or were politics and law once again trumping scientific truth?
Well, the arrest and conviction rates shot up, but there were still too many people escaping the DUI net. Then MADD was formed. Soon after, legislation began appearing in many states that created a second crime, in addition to driving under the influence: driving with a BAC of .10% or higher.
This new crime did not require the driver to be affected by alcohol: even if sober, he would be guilty if his blood-alcohol was .10%. In effect, it completely ignored the questions of intoxication, driving impairment and individual tolerance to alcohol. And, despite questions of double jeopardy, the individual could be charged and even convicted of both the traditional DUI and the new .10% crimes! This gave police and prosecutors a powerful new weapon, and drunk driving arrests/convictions jumped once again.
This was not good enough. Under increasing pressure from an ever more powerful MADD, in 1990 four states lowered the blood-alcohol level in DUI cases to .08%; others soon followed and, ten years later, federal politicians (with one eye on MADD) passed an appropriations bill in effect coercing all states into adopting the new .08% BAC standard.
Since I wrote this, three months ago Utah enacted a new law lowering the blood-alcohol level drunk driving to .05%. See Jon Ibanez’ DUIblog post Utah Lawmakers Vote to Lower State’s BAC Limit to 0.05%.
Interestingly, on June 17th — shortly after the new .05% law was enacted — the Salt Lake City Tribune published the following comments from the original founder of MADD, Candy Lightner:
Founder of MADD Says Utah’s New Drunk Driving Law is an Unhealthy Distraction
Salt Lake City, Ut. June 17 – While drunk driving remains a serious concern, other threats are mounting on our roadways. According to a recent report from the Governors Highway Safety Association and the Foundation for Advancing Alcohol Responsibility, 43 percent of drivers involved in fatal crashes tested positive for some sort of drug, legal or illegal. And with the rise of smartphones and other gadgets, people are distracted more than ever while driving.
As the founder of Mothers Against Drunk Driving (MADD) I can attest that there is a new kind of madness on the roads. And new approaches are needed to save lives.
Unfortunately, the necessary debate on how to solve these new challenges isn’t happening in earnest. The traffic safety community is distracted by an issue that will do little to save lives: lowering the drunk driving arrest threshold from .08 to .05.
Back in the early years at MADD we focused on getting serious drunk drivers off the road…In the more than 35 years since MADD’s founding, we have fought drunk driving ferociously and saved countless lives in the process.
But today, the pendulum has swung too far in the other direction — with government agencies pushing states to arrest people for having little to drink before driving instead of pursuing strategies to tackle serious distraction and impairment. Anyone who works in traffic safety knows that most highway deaths are not caused by drivers with low blood alcohol content levels, but are the result of drivers with substance abuse disorders. Focusing finite resources on casual drinkers instead of drug and alcohol abusers is a miscalculation with deadly consequences…
Maybe it’s time for the decades-old "War on Drunk Driving" to redirect its fixation away from alcohol and towards the real problem today: drugs and distracted driving….
53-year-old Derek Stacy Haskayne from Placentia was sentenced to four years in a California state prison for this 10th, that’s right 10th, DUI since 2011.
This past Tuesday, Haskayne pleaded guilty to driving with a blood alcohol content above 0.08 percent and driving under the influence, both as felonies. His blood alcohol content was 0.11 percent. It would be his 10th DUI conviction.
Haskayne was arrested for his first California DUI back in October of 2011. For that offense, he was sentenced to the standard for a first time DUI; three years of informal probation and a first-time DUI offender program.
Less than a year later, Haskayne had tallied up five more DUI arrests.
According to his attorney, Marlon Stapleton, Haskayne would post bail and pick up a new DUI arrest before the previous cases could resolve. At one point, five different cases were pending at the same time.
“He went through some really bad times when he picked up most of them,” said Stapleton.
Around the same time of his first DUI, Haskayne’s wife of 20 years had left him and records show that she later filed a restraining order against him stating that he was a “severe alcoholic” and that she feared for the safety of their young son.
The first six cases were eventually resolved when the District Attorney’s Office consolidated them and charged him with multiple felonies. In 2013, Haskayne pleaded guilty and was sentenced to a year in jail with five years of formal probation.
During this first jail stint, Haskayne was allowed to enroll in the Orange County Sheriff’s Department’s community work program allowing him to do work for the county during the day and spend nights at home.
However, less than four months after his guilty plea, Haskayne was picked up on his seventh DUI arrest while he was still technically serving his jail sentence. For that, he was sentenced to two years in prison and was released in October of 2014.
In June of the following year, a Laguna Beach Police officer spotted Haskayne lane straddling who then failed to yield when the officer tried pulling him over. Haskayne kept going for about half a mile before he crashed into a cement light pole. Officers found a prescription bottle containing GHB. At the time, Haskayne was in a rehab facility, but was not being tested for GHB.
“Despite any success the offender has demonstrated under supervision, he has shown by his recent arrest that he has substituted his alcohol addiction with another substance that is not detected by standard drug screening,” according to a probation report. “It is unknown if he had a relapse or has been going through the motions finding alternative methods to numb his pain, which he has been open about.”
Haskayne was sentenced to three years in prison for the June 2015 case, but was given 280 days credit for time served while he was in custody pending the outcome.
In 2016, Haskayne crashed in Placentia, California and was arrested on his ninth DUI.
And that brings us to Haskayne’s to the current (and hopefully his last) case which makes number ten. On June 20th, Haskayne accepted a plea deal from Orange County Superior Court Judge Roger Robbins, over the district attorney’s objection, and was sentenced to four years in prison with credit for 286 days. He was also ordered to pay restitution in the amount of $15,272.54.
A Wisconsin man was arrested twice in about two and a half hours for driving under the influence according to Ashwaubenon, Wisconsin Public Safety. What’s more, he’s only 18 years old.
18-year-old Preston Bierhals was on his way home from a graduation party last week when he lost control of his vehicle and struck a light pole. Bierhals told responding officers that he was trying to make a phone call when he lost control of his car.
His blood alcohol content was later determined to be 0.157 percent.
At the time, Bierhals’s license was suspended.
“The legal limit for him is zero, but he was still above the 0.08, he was over 0.10 actually both times,” said Capt. Jody Crocker.
Bierhals was booked for “operating while intoxicated” (OWI), which is the Wisconsin equivalent of California’s “driving under the influence” (DUI).
Instead of keeping Bierhals to sober up, officers released him to someone who signed a Responsibility Agreement not to allow him to drive a vehicle.
“They signed an affidavit that says to us that they will take that responsibility in lieu of this person sitting in jail for the next 12 hours. Here of course, that didn’t work,” said Capt. Crocker.
Why didn’t it work? Well, because less than three hours later, an officer working traffic detail for a triathlon that morning spotted Bierhals driving and recognized him from the arrest just hours prior.
The officer stopped Bierhals once again and administered field sobriety tests to which Bierhals failed again. And again he was arrested on suspicion of OWI.
This time, Bierhals’s blood alcohol content was a 0.121. This is consistent with the average rate of alcohol metabolism (burn-off) of 0.015 percent per hour, assuming no more alcohol was consumed since the first arrest.
In Wisconsin, prosecutors cannot file charges for a second drunk driving offense until the citation Bierhals received for the first OWI is resolved.
According to Capt. Crocker, law enforcement is looking into whether charges should be filed against the person whom Bierhals was released to.
Some of you may be thinking, “What could happen to someone like that?”
Well, here in California a minor who is caught driving with alcohol in their system can face several charges and penalties.
California Vehicle Code section 23136 makes it illegal for a minor to have a blood alcohol content of 0.01 percent or greater while driving. This is knowns as California’s “Zero Tolerance” law for underage drivers. Under this law, a minor faces a one-year suspension of their driver’s license.
California Vehicle Code section 23140 makes it illegal for a minor to have a blood alcohol content of 0.05 percent or greater while driving. Unlike section 23136, this section is an infraction which can result in fines of up to $100 and a one-year suspension of their driver’s license.
However, in Bierhals’s case, had it occurred here in California, prosecutors would have likely charged him with the standard adult DUI under California Vehicle Code section 23152 (driving under the influence and driving with a blood alcohol content of 0.08 percent or greater). A violation of section 23152 is a misdemeanor which carries a three to nine month DUI program, three years of summary probation, up to $1000 in fines, up to six months in jail, and a six-month suspension of driving privileges.
Of course, Bierhals is facing the penalties for a second-time DUI as well. A second time DUI, here in California will also be charged as a misdemeanor, but this time, he’s facing between 96 hours and one year in jail, an 18-month DUI program, and two-year suspension of driving privileges.
I am currently representing a person for a California DUI who was arrested after an anonymous tipster informed law enforcement that a possible drunk driver was on the road. Such a situation often raises the question, “Can law enforcement arrest someone based on an anonymous tip when the officers themselves have not witnessed any conduct that would lead them to believe a driver was driving under the influence?”
Unfortunately, the United States Supreme Court recently held that law enforcement can go off of an anonymous tip of a potential drunk driver in the case of Navarette v. California _____ U.S. _____ (Docket No. 12-9490)(2014).
In August 2008, a California Highway Patrol dispatcher received a call from a motorist who had been run off the Highway 1 near Fort Bragg by someone driving a pickup truck. The anonymous caller provided the license plate number of the pickup. A short time later, CHP spotted the pickup and pulled it over. As the CHP officers approached, they smelled marijuana and discovered four bags of it in the bed of the pickup.
The occupants of the pickup were identified as brothers, Lorenzo and Jose Navarette. The brothers plead guilty to transporting marijuana after they unsuccessfully attempted to challenge the constitutionality of the search. Both were sentenced to 90 days in jail.
The First District Court of Appeal in San Francisco relied on the 2006 California Supreme Court ruling of People v. Wells (2006) 38 Cal.App.4th 1078, in upholding the conviction. The Court in that case said that “the grave risks posed by an intoxicated highway driver” justifies a brief investigatory stop. It found that there are certain dangers alleged in anonymous tips that are so great, such as a person carrying a bomb, which would justify a search even without a showing of reliability. The court went on to say that a “drunk driver is not at all unlike a bomb, and a mobile one at that.”
In its 3-0 ruling, the appellate court said, “The report that the [Navarettes’] vehicle had run someone off the road sufficiently demonstrated an ongoing danger to other motorists to justify the stop without direct corroboration of the vehicle’s illegal activity.”
The case was appealed to the United States Supreme Court which held that an anonymous tip can give law enforcement the authority to pull someone over on suspicion of driving under the influence.
The Court held that “under appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop,’” quoting Alabama v. White (1990) 496 U.S. 325, 327.
In finding “sufficient indicia of reliability,” the court relied on 1.) the fact that the caller claimed eyewitness knowledge of dangerous driving, 2.) the fact that the tip was made contemporaneously with the incident, and 3.) the fact that the caller used 911 to make the tip likely knowing that the call could be traced.
According to the court, if the tip bears “sufficient indicia of reliability,” officers need not observe driving which would give rise to suspicion that a person was driving under the influence or even that the driver committed a traffic violation. They only need the unverified and unsupported anonymous tip.
You heard me say a couple of weeks ago that breathalyzers are inaccurate and, as a result, lawyers can challenge the results of a particular breathalyzer. Lawyers, however, cannot challenge breathalyzers generally even though they are inaccurate.
This begs the question: Do you have to take a breathalyzer test?
Like many things in law, the answer is that it depends. In California, there are two different “breathalyzer” tests. One test is required by law, while the other is not.
According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”
The California Vehicle Code is referring to the roadside breathalyzer, called a preliminary alcohol screening test (PAS test), that officers use to obtain the evidence they need to make a DUI arrest. As an officer makes a stop, whether the officer suspects a DUI or not, they don’t have the evidence needed to arrest the driver on suspicion of a DUI. To obtain that evidence, the officer may ask the driver questions, the officer may have the driver perform field sobriety tests, and the officer may ask the driver to submit to a PAS test. In fact, the PAS test is considered a field sobriety test.
Like the field sobriety tests, the PAS test is optional. Also like the field sobriety tests, a driver should not submit to the PAS test.
In fact, the investigating officer must advise the driver that the PAS test is, in fact, optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”
If a driver tells the officer they consumed alcohol or the driver performs and fail the field sobriety tests or the driver provides a PAS sample that shows the presence of alcohol, the driver will likely be arrested on suspicion of a California DUI.
Once the driver is arrested, the California Vehicle Code requires that the driver submit to a “chemical test,” which can either be a breathalyzer test or a blood test. This is called California’s “implied consent law.”
California Vehicle Code section 23612(a)(1)(A) states, “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”
In other words, if you can legally drive in California, you have impliedly consented to a chemical test if you are lawfully arrested on suspicion of a DUI.
Unlike the PAS test, if you are arrested for a DUI and you do not want to provide a blood sample, the chemical breath test is not optional.
In fact, refusing the chemical test can lead to increased penalties such as a longer DUI school, a longer license suspension, and even jail time.
To sum up, the pre-arrest PAS test is optional and you should always politely decline this test. A post-arrest chemical breath test is required provided the suspect opts not to provide a blood sample.
A Michigan woman learned not to mock DUI victims the hard way; she was thrown in jail.
Amanda Kosal, 25, was in court and waiting to be sentenced for a DUI-related collision that killed Jerome Zirker, a father of five. While Zirker’s sister was giving the court a victim impact statement in court, Kosal’s mother, Donna, and Donna’s boyfriend could be heard laughing in the audience of the courtroom.
Judge Quiana Lillard heard the laughing and kicked Donna’s boyfriend out of the courtroom calling him a clown.
“It’s time for him to go … Whoever can sit here at a tragic moment like this and laugh and smile when somebody has lost a family member, I mean the entire time that Mr. Zirker’s sister was speaking, that clown, and that’s what I am going to call him, a clown, was sitting there smiling and laughing,” said Judge Lillard.
While Donna followed her boyfriend out of the courtroom, Judge Lillard said to her, “You can go too because if you don’t know how to act, you can go to jail, so leave.”
Donna could be heard saying something as she stepped out of the courtroom. Almost immediately after leaving the courtroom, Judge Lillard ordered her bailiff to bring Donna back into the courtroom where she was given 93 days in jail for contempt of court.
“Take her, she’s going in the back,” the judge said to the bailiffs.
Then Judge Lillard addressed the rest of the courtroom audience saying, “Anybody else wanna go? You can go too.”
“These are very serious matters. I understand that you all are very upset because your loved one is going to prison, but guess what, she’s going to prison for the choices that she made. These people are here grieving, saddened because a senseless act took away their loved one and you’re sitting here acting like it’s a joke?”
After spending the night in jail, Donna apologized to Judge Lillard the following morning saying, “I deeply apologize for what I did. I was under a lot of stress.”
Judge Lillard took pity on Donna and reduced her 93 days in jail to 92 days and was given credit for the night she spent in jail. She was then released.
“What you have to understand is as hard as this is for you to see your baby going to prison, imagine what that family feels like when their child is dead. I hope that you learned a valuable lesson from this,” said Judge Lillard.
Amanda Kosal, Donna’s daughter, was ultimately sentenced to three to 15 years in prison for the deadly DUI collision that killed Zirker. Kosal admitted that she was drunk when she veered into oncoming traffic colliding with Zirker’s SUV, killing him and severely injuring his fiancée, Brittany Johnson.
I represent DUI defendants like Kosal every day. I also represent people who have been charged with contempt of court. But that doesn’t mean that I condone either Kosal or her mother’s actions. In fact, I find them reprehensible.
The video of the incident can be found here:
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.
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.
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.
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.)
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?
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.
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.
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.”
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.
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.
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.
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.