Drunk Driving on St. Patrick’s Day

Posted by Jon Ibanez on March 15th, 2018

It’s that time of year again when the green beer flows like wine, corned beef and cabbage are consumed for breakfast, lunch, and dinner, and failing to wear something green can lead to unwanted pinches. Yup, I’m talking about St. Patrick’s Day. While most Americans celebrate Irish heritage on March 17th, the day actually commemorates the arrival of Christianity in Ireland as well as marks the death of the holiday’s namesake, Saint Patrick, the patron saint of Ireland.

Synonymous with the holiday is the consumption of copious amounts of alcohol, be it the green beer mentioned above, an Irish coffee (coffee with Irish whiskey and Irish cream), an “Irish Car-Bomb” (dropping a shot of ½ Irish whiskey and ½ shot of Irish cream into a ¾ pint of Guinness), or just a good-old frosty pint of the Irish dry stout, Guinness.

Needless to say, law enforcement is well aware that people will be drinking excessively, especially since St. Patrick’s Day falls on a Saturday this year. Consequently, they will be out in full-force to nab drunk drivers from the streets. Expect saturation patrols and DUI checkpoints in high traffic areas.

“Don’t let a day of celebration turn into a day of tragedy. If you drive impaired, you risk your life and the lives of others on the road,” California Highway Patrol Commissioner Warren Stanley said in a statement. “Plan ahead before the party begins by designating a sober driver or making arrangements for a taxi or ride-hailing service.”

According to CHP, last year saw three people killed and 66 people injured in DUI-related collisions in California on St. Patrick’s Day. What’s more, CHP arrested 148 people on suspicion of driving under the influence. 

Don’t count on Irish luck to get you out of a DUI should you hop behind the wheel after having one too many green beers. There are somethings that you can do to make sure that stay out of jail on St. Patrick’s Day.

Appoint a designated driver. It’s not enough, however, to merely appoint the DD. You need make sure that they remain sober. Being a designated driver means actually remaining sober, not just drinking less that their passengers. There have been several instances this past year where designated drivers have been arrested on suspicion of driving under the influence.

If neither you nor your friends are willing to be a designated driver, consider public transportation. This includes taxi cabs and busses as well as ride-sharing apps like Uber and Lyft. Be aware, however, that getting a cab, Uber, or Lyft might be as difficult as finding a four-leafed clover since St. Patrick’s Day is one of the busiest days of the year for cab, Uber, and Lyft drivers.

Lastly, as unappealing as it might be, the only surefire way to avoid a DUI is to not drink if you plan to drive this St. Patrick’s Day.

Elevating a California DUI to a Felony

Posted by Jon Ibanez on March 8th, 2018

The vast majority of California DUI’s are misdemeanors, which means by law a person cannot serve more than a year in jail. And most people who are convicted of a California misdemeanor DUI will never serve that much time, if any at all. However, if a person is arrested, charged, and convicted of a felony DUI, they most certainly will be facing jail, possibly even prison time.

So how does a California DUI get elevated to a felony?

The first way that a California DUI can get elevated to a felony is if the person has suffered three prior DUI-related convictions within the past 10 years. Prior DUI-related convictions include driving under the influence (California Vehicle Code section 23152), driving under the influence with injury (California Vehicle Code section 23153), reckless driving involving alcohol (“wet-reckless”) (California Vehicle Code section 23103.5), and out-of-state convictions that qualify as a priorable conviction. An out-of-state DUI conviction will qualify as a prior DUI in California if it would be considered a DUI had the arrest occurred in California.

A prosecutor can introduce court records from prior cases as well as DMV records to prove the prior DUI convictions. It should also be noted that the prosecutor may also use “expunged” prior DUI-related convictions as way to elevate the current DUI as long as it occurred within the 10-year period.

The second and most common way that a DUI gets elevated from a misdemeanor to a felony is when a DUI results in the injury of another person. California Vehicle Code section 23153 makes it illegal 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. Simply put, this means that the driver was under the influence of alcohol or drugs, they broke a law or acted in a negligent manner and caused injury to another person.

Although DUI with injury is a “wobbler,” meaning it can be charged as either a felony or a misdemeanor, it will almost always be charged as a felony. In fact, I’ve seen prosecutors file DUI’s as felonies when the victim suffered a chipped tooth, a broken finger, and even soft tissue damage. A skilled DUI attorney may be able to negotiate the DUI down to a misdemeanor. However, whether the prosecutor is willing to file or reduce the charge to a misdemeanor will depend on several considerations including, but not limited to, the seriousness of the injury, the level of intoxication, and prior criminal history.

If a person drives under the influence and, as a result, causes the death of another person, they may be charged with either manslaughter, which can be a wobbler depending on the specific Vehicle Code section being alleged, or murder, which is a felony.

A DUI resulting in death will be charged as manslaughter if the driver has not suffered any prior DUI-related convictions. If, however, the driver has suffered a prior DUI-related conviction, they will likely be charged with second degree murder under California’s “Watson Murder Rule.” Under Watson, the California Supreme allowed murder to be charged in a subsequent DUI resulting in death because the driver was made aware of the dangers of drunk driving after having been sentenced on the prior DUI. It is almost as if the court is saying, “We warned you, you did it anyways, and now look at what happened.”

Last, but not least, a California DUI can become a felony if a person suffered any prior felony DUI within ten years. The priorable felony offense can be a conviction of any of those listed above; California Vehicle Code section 23152 (fourth or more DUI), California Vehicle Code section 23153 (DUI causing 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).

Drivers Under 21 Could Lose License for a Year for Marijuana DUI

Posted by Jon Ibanez on February 26th, 2018

A new California bill could see drivers under the age of 21 lose their driver’s license for a year if they are caught behind the wheel with marijuana in their system.

State Senator Jerry Hill (D-San Mateo), who has been behind several DUI-related bills, proposed the law so that the state would have the same “zero tolerance” policy for marijuana as it does for alcohol when the driver is under the age of 21.

California’s current “zero tolerance” law, under Vehicle Code section 23136, prohibits drivers under the age of 21 from having any alcohol in their systems. If a driver under the age of 21 tests positive for any alcohol in their system, their driver’s license will be suspended for one year through the DMV, but the matter is not considered criminal. Drivers under the age of 21 who have a blood alcohol content of 0.05 percent or higher, however, can be charged with Vehicle Code section 23140 which is an infraction with a $100 fine, a possible alcohol education class, and the one-year suspension through the DMV. Lastly, a driver under the age of 21 can also be charged with the standard DUI charges under Vehicle Code section 23152 that adults face when they are driving under the influence.

“This bill will save lives by making it illegal for drivers under age 21 to drive under the influence of marijuana, just like current law for alcohol,” Hill said in a statement.

It should be made clear, notwithstanding Hill’s statement, that the law would target the presence of marijuana in the driver’s system, not whether the underage driver was “under the influence” of marijuana.

Currently, there is no reliable way to determine exactly how intoxicated or under the influence someone is as a result of marijuana ingestion even though the psychoactive component of marijuana (delta-9-tetrahydrocannabinol or “THC”) might be present in a person system. A person could have smoked marijuana weeks ago and, while the intoxicating effects have long since passed, the THC may still be detectable in the person’s blood.

Hill foresees law enforcement officers being able to use oral swabs to determine if marijuana has been consumed recently. Although, local law enforcement has experimented with such devices recently, the LA Times reported that no such product has yet been approved for use by California law enforcement agencies.

“We don’t have a device in the field to measure impairment of cannabis,” Richard Desmond, an assistant chief for the California Highway Patrol, told legislators this week.

“[The bill] will do nothing to make the roads safer, nor to reduce youth drug abuse,” Dale Gieringer, director of California NORML (National Organization for the Reform of Marijuana Laws), told the San Francisco Chronicle. “What it will do is encourage cops to conduct random screenings of young drivers without any evidence of dangerous driving and grab their licenses for no good reason.”

Although the proposed law requires that law enforcement have reasonable suspicion that the driver might have marijuana in their system before they forcibly test them, I would not put it past some (maybe many) law enforcement officers to fabricate the reasonable suspicion so that they can conduct random screenings as Gieringer suggests.

Fortunately, the bill provides an exemption for drivers under 21 who use medical marijuana if the officer determines that they are not impaired.


Virginia May Soon Allow Drunk Driving on Private Property

Posted by Jon Ibanez on February 22nd, 2018

A Virginia bill, if passed, would allow drunk driving on private property within that state.

The bill, introduced by Virginia Republican Senator Richard Stuart, would change Virginia’s current DUI law to decriminalize drunk driving on private property. Current Virginia law does not differentiate between private and public property when a person is driving under the influence. If passed, the legislation would include in Virginia’s DUI law the language, “This section shall not apply to any person driving or operating a motor vehicle on his own residential property or the curtilage thereof.”

The bill has already passed the State Senate by a vote of 37-3. The bill will now go to the House of Delegates for consideration.

To supporters of the bill, it’s more about being able to do what you want on your own property more than it is about being able to drive drunk.

“I really don’t think it has to do with whether or not people want to be able to drink and drive. They just don’t want to be interfered with on their private property,” said Dana Schrad with the Virginia Association of Chiefs of Polices. “From a law enforcement perspective, we’re very much concerned that we’re sending the wrong message to young people that there would be an acceptable time to drink and drive, that it’s okay, and how do you let them know that that doesn’t translate to public roadways?”

Unsurprisingly, not everyone is on board.

“Is a driver with a .14 BAC (blood alcohol content) operating a motor vehicle across Kings Dominion’s parking lot any less of a threat than if he or she were similarly doing so on a neighboring roadway?” asked Kurt Erickson, president and CEO of the nonprofit Washington Regional Alcohol Program. “Inasmuch, the bill throws Virginia down the slippery slope of bifurcating the state’s DUI laws, effectively communicating that it’s okay to drive drunk here, but not there – a dangerous precedent.”

In California, as it is with most states, drunk driving remains illegal on both private and public property.

The California Vehicle Code states that laws including a California DUI “apply to vehicles upon the highways and elsewhere throughout the State unless expressly provided otherwise.”

In 1992 Ronald Dean Arnold Malvitz was arrested for a California DUI while in a privately locked storage facility and sought to challenge California’s law arguing that it didn’t apply to him since he was on private property.

The California Court of Appeals ruled against Malvitz by looking at the legislative history of California’s DUI law.

Prior to 1982, the California Vehicle Code made it illegal to drive drunk “upon a highway or upon other than a highway areas in which are open to the general public.” However, in 1982, the legislature deleted the language referring to the locations upon which a person could be arrested and ultimately convicted of drunk driving.

The Court concluded that the “statute that prohibited driving under the influence of alcohol and/or any drug has emerged unencumbered with any language restricting its reach.”

In other words, the Court concluded that it was the intent of the legislature that, in deleting the portion of the statute which referred to location, the law which prohibits drunk driving should extend to anywhere in California where drunk drivers pose a threat included public highways as well private property.

In addition to the Malvitz ruling, California Vehicle Code section 23215 states, “[law enforcement] may, but shall not be required to, provide patrol or enforce the provisions of [California’s DUI law] for offenses which occur other than upon a highway.”

While drunk driving on private property may soon be allowed in Virginia, I don’t think California will follow suit any time soon.

Do BAC Limits Discriminate Against Alcoholics?

Posted by Jon Ibanez on February 15th, 2018

A Texas man who was convicted of a fourth DUI claimed that blood alcohol content limits discriminate against alcoholics.

Ralph Alfred Friesenhahn of San Antonio was convicted of his fourth DUI in 2016 and was sentenced to four years in prison after he rolled his vehicle outside of San Antonio, Texas. A later blood test revealed that Friesenhahn’s blood alcohol content was 0.29 percent, more than three times the legal limit of 0.08 percent.

Although some states are considering lowering the legal limit to 0.05 percent, all states currently have a limit of 0.08 percent.

At trial, Friesenhahn’s attorney motioned the court to dismiss the indictment against Friesenhahn arguing that the state’s legal limit discriminated against alcoholics. Not surprisingly, the judge denied the request and Friesenhahn was convicted of felony driving while intoxicated, the Texas equivalent to California’s “driving under the influence,” and was sentenced to four years in prison due to his prior convictions.

Friesenhahn’s attorney appealed the conviction, once again arguing that the state’s blood alcohol content limit of 0.08 percent discriminated against alcoholics in violation of the right to equal protection guaranteed under the United States Constitution and Texas Constitution. Specifically, she argued that the legal limit ignored the “protected class of alcoholics,” who have a high tolerance to alcohol, to be prosecuted for DUI charges when there is no indication that the alcohol impaired their ability to safely drive a vehicle even though they might be over the legal limit.

Sammy McCrary, chief of the felony division for the Comal County District Attorney’s Office argued that it’s absurd to suggest that the law treats alcoholics differently.

“You’re not being punished for being an alcoholic. It’s the driving that’s the problem,” McCrary said. “It’s making the decision to get into a 3,000-pound vehicle … after drinking.”

The Austin-based 3rd Court of Appeals agreed with McCrary with an opinion issued last week.

In denying that Friesenhahn and other alcoholics fall within a “protected class,” the court said that Texas law “provides two alternative definitions of intoxication. The first involves the loss of the normal use of mental or physical faculties; the second involves an alcohol concentration of at least 0.08…The alternative definitions are presented disjunctively…indicating that only one must be satisfied to establish that a person is legally intoxicated. Further, these alternative definitions apply to all persons charged with an intoxication offense…Thus, the alcohol concentration definition of intoxicated allows for a finding of intoxication based on an alcohol concentration of 0.08 or more without showing the loss of mental or physical faculties – whether the defendant is an alcoholic or not. Therefore, there is no classification in the statute that treats any persons, including [Friesenhahn’s] defined ‘class’ of alcoholics, differently than similarly situated persons: the 0.08 alcohol concentration level applies to all offenders prosecuted for DWI.”

In short, the court said that since the law treats all persons equally, there can be no violation of equal protection.

Let Friesenhahn’s case serve as a reminder that, while you may not be “impaired” when driving your vehicle, as long as you’re over the legal limit of 0.08 percent blood alcohol content, you’re putting yourself at risk of a DUI arrest, charge, and possible conviction.