Booze Is Good for You!

Posted by Lawrence Taylor on April 18th, 2018

It’s true!  Recent scientific research, some of it funded by our government, is on the path to finding that drinking alcohol is actually quite healthy!

Hmmm.  Maybe we should take a second look at this latest research into the health benefits of alcohol….


Alcohol Companies Are Funding Research to Convince You Drinking Is Healthy

April 14.  Huffington Post –  Officials at the government agency tasked with studying the health effects of alcohol aggressively courted alcohol executives to fund a $100 million clinical trial on “moderate drinking,” according to recently published investigations by The New York Times, Wired and Stat

The executives complied, according to the Times, with the understanding that this research would probably conclude alcohol is safe and lowers the risk of disease.

Together, these reports paint a disturbing picture about the way alcohol companies are trying to influence scientific understanding, and thus public perception, of alcohol as a health tonic…

Alcohol executives were allowed to help pick the scientists and preview the trial’s design, reports the Times, while Wired reported on how dependent the National Institutes of Health’s National Institute on Alcohol Abuse and Alcoholism (NIAAA) is on industry funding to complete the expensive, long-term study. Finally, Stat has a story about how scientists who published unflattering research about the alcohol industry were verbally abused by NIAAA officials and cut off from funding.


I seem to recall that “scientific research” (funded by the tobacco industry with government support) has already concluded that smoking cigarettes was not addictive.  It’s certainly heart-warming to know that science, government and industry is so reliable and concerned with our well-being….


(Thanks to Joe.)

The California DUI-Triggered License Suspension

Posted by Jon Ibanez on April 13th, 2018

Without a doubt, one of the most confusing aspects of a California DUI case is how the DUI arrest and conviction affects a person’s driving privileges. When does it take effect? How long does it last? Am I eligible for a restricted license? What complicates matters further is that whenever a person is arrested for a DUI, there is the possibility of two separate license suspensions.

To help understand the suspension process, it makes sense to discuss it chronologically.

When a person is arrested in California on suspicion of a first-time DUI, the arresting officer usually takes their license. In return, the officer provides the driver with a “pink slip.” The pink slip is a temporary license which allows the person to drive temporarily.

When the officer gives the pink slip to the driver, the officer should also advise the driver that they have only 10 days to contact the DMV to request a hearing and request a “stay” of the suspension pending the outcome of the hearing. If the hearing is not requested, the driver’s license will automatically be suspended for four months through the DMV’s “administrative per se” action after 10 days.

If the hearing is requested, the DMV will set the hearing date anywhere from a month two several months from the date of arrest. Assuming that the stay was also requested, the driver will be able to drive pending the outcome of the hearing.

The purpose of 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.

Prior to the hearing date, the DMV will send the driver or their attorney a packet of information which contains the evidence that the DMV is using to make the determinations in the previous paragraph. As if disproving those determinations wasn’t difficult enough, even with a lawyer to argue on the driver’s behalf at the hearing, the hearings are unfairly one-sided 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 of a crime in criminal court. 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 hearing officer, who is a DMV employee, runs the hearing. The hearing officer can object to the driver’s evidence and rule on his or her own objection. Finally, the hearing officer decides if he or she wins. And they almost always do. In this sense, the hearing officer acts as both the prosecutor and the judge.

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.

Lastly, 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.

Suffice it to say, a majority of DMV hearings are lost, thus triggering the four-month “APS” suspension.

If, however, the DMV hearing is won, the driver will save themselves from the four-month “APS” suspension, but they will still face a court-triggered suspension if they are convicted of a DUI in the criminal action against them.

You can read any number of my previous posts on the inner workings of DUI criminal court case. This post is about the license suspension and how the criminal DUI case affects driving privileges. As such I will not go into the details of the DUI criminal case.

If, after all is said and done in the DUI criminal case, the driver pleads guilty (or no contest) or is convicted after trial, the court will notify the DMV that the driver has been convicted of the DUI. When the DMV becomes aware of the DUI conviction, a six-month “mandatory action” suspension will become effective. The driver, however, will get credit against the six-month mandatory action suspension for any time spent on the four-month APS suspension.

For example, a driver is arrested in January and loses the DMV hearing in February. The driver serves the four-month suspension and gets their license back in June. Then in July, the driver is convicted of a DUI, thus triggering the six-month suspension. Since the driver already served the four-month suspension, they will only need to serve another two months.

As you can see, the license suspension is no simple process, and I haven’t even begun to discuss cases that are not your run-of-the-mill first-time DUI cases.

Without going into too much detail, here are some basics for other, slightly more complicated scenarios:

A second-time DUI carries a one-year APS suspension and the mandatory action suspension is two years. A third-time DUI carries a one-year APS suspension and a three-year mandatory action suspension. A driver who refuses the mandatory chemical test following a DUI arrest faces a one-year APS suspension and the driver can face additional criminal penalties.

Lung Condition Causes Woman to Fail Breathalyzer

Posted by Jon Ibanez on April 5th, 2018

According to the American Lung Association, Chronic Obstructive Pulmonary Disease, commonly referred to as COPD, which includes chronic bronchitis and emphysema, is a chronic lung disease that makes it difficult to breathe. And according to the World Health Organization, COPD affects 65 million people worldwide. COPD, however, affected one Canadian woman in an unexpected way; it caused her to fail a breathalyzer.

Connie McLean, a 64-year-old woman from New Brunswick, Canada, who suffers from COPD, said that the condition can make everyday living difficult.

“When I’m carrying in wood, I can only carry in a couple sticks at a time and I usually have to stop and get some air before I go and get some more,” she said last week. “And shoveling is even worse.”

Early last month, McLean was pulled over by local law enforcement. The officer asked her if she had been drinking. McLean responded that she had a beer that afternoon. At that point, the officer produced a breathalyzer to try and determine her blood alcohol content.

As a result of the COPD, McLean could not produce a strong enough of a breath sample to provide a breathalyzer reading.

“I tried several times, but due to COPD and mucous in my airway I wasn’t successful,” she said. “And he just almost hollered, ‘You’re not trying, you’re under arrest and you’re going to jail.’”

McLean was charged with refusing to comply with the breathalyzer test which resulted in her vehicle being impounded for 30 days and her driver’s license being suspended for 90 days.

“It makes perfect sense to us that if you have severe COPD that it would be impossible to exhale for any length of time,” said Henry Roberts of COPD Canada. “I would hope the police would show some compassion to people who have difficulty breathing.”

McLean has a court date next month and intends on fighting the charge.

McLean’s predicament is not an unusual one, even here in the United States. Often, people are unable to provide a sufficient breath test for a number of health-related reasons. Breathalyzers require deep lung air, known as alveolar air, to be able to produce a blood alcohol content reading. If a person does not advise an officer of the health issue that might prevent them from providing alveolar air, the officer may believe that the person is deliberately trying to provide a sufficient breath sample.

California courts have found that an inference can be made that a person is deliberately attempting to avoid providing a sufficient breath sample if the facts permit. If such an inference is made, the court treats it as a refusal.

Fortunately, here in California, a driver is not required to give a breath sample for a roadside breathalyzer, commonly referred to as a “preliminary alcohol screening” test or “PAS” test. Refusing it will not result in additional penalties with either the court or the DMV. In fact, many DUI attorneys like myself recommend politely refusing the PAS test.

Of more importance, however, is the mandatory “chemical test” under California’s “implied consent law.” Under the implied consent law, a driver must submit to a chemical test once they are lawfully arrested on suspicion of a DUI. The chemical test can be either a breath or a blood test. Only for a refusal of the chemical test, not the PAS test, may a driver be punished.

Here in the California, a refusal of a chemical test can result in jail time, a longer DUI program, and/or a longer license suspension.

Let’s hope that reason prevails in the Canadian courts for McLean’s sake.

 

Thanks to my student, David Hong, for sending me this story!

San Clemente Woman Faces DUI Vehicular Manslaughter Charges After OC Crash

Posted by Jon Ibanez on March 29th, 2018

A few weeks ago, I posted on the different ways that a DUI can be charged as a felony. One of the ways is if a DUI-related collision causes death or injury to another person. Additionally, if the DUI leads to the death of someone, the driver could also be facing felony vehicular manslaughter charges, possibly even second degree murder charges.

27-year-old Bani Duarte, of San Clemente, found this out the hard way when her Hyundai Sonata rear-ended a Toyota causing it to burst into flames. Three of the occupants were killed and one seriously injured.

In the early morning hours of Thursday, March 29th, a Toyota carrying four Las Vegas residents was stopped at Pacific Coast Highway and Magnolia Street in Huntington Beach. That’s when Duarte collided with the vehicle causing it to burst into flames.

Alex Martinez, 20, of Huntington Beach, witnessed the collision and described the incident with the OC Register.

“Martinez…was in a car with his friends returning from the gym when they saw the woman’s white vehicle swerving, at times speeding and hitting sidewalks.

‘She went to the far right side of the lane and hit the sidewalk really bad and that’s when we decided to call the cops,’ Martinez said Thursday.

“He told police he believed it was a drunken driver going northbound on Pacific Coast Highway. He and his friends followed the woman’s car until it stopped on metered parking by Orange Street.

“Martinez and his friends pulled up to Duarte and asked if she was okay, he said.

“‘I told her she hit two sidewalks back there and she said “Really? No way,”’ he said. Martinez’s friends offered her a ride home. She turned them down and soon was off driving again.

“As she approached Magnolia Street, he said, there was a red car stopped in a middle lane of the intersection. She braked, but then sped up and hit the car which immediately caught fire, Martinez said.

“Martinez said he and his friends reported the crash to police and saw someone leave the red car. He described the male as appearing to be unhurt.

“‘I think he was in shock because he walked towards us all confused, not really knowing what just happened,’ he said. ‘So he sat down and we asked him if there were other people in the car and he said there was three more in the car.’

“‘The car was already in flames and the backseat doors were just crushed by the impact.’

“Martinez said he and his friends and some others who stopped at the crash tried to help but couldn’t get to the people inside. Firefighters extinguished the blaze as Duarte remained in her car after the crash, he said.

“‘I felt powerless and guilty,’ Martinez said.

“He said he was told by officers on scene that the fatalities appeared to be teenagers. Some social media posts have also indicated the victims were young people visiting the area for Spring Break. Huntington Beach police did not release information about the ages or identifies of the victims.

“Martinez described the experience as traumatizing.

“‘Such young people dying in the worst possible way.’ Martinez said. ‘They had their whole life ahead of them and for it to be taken away by a drunk driver is just awful.’”

News outlets have reported that the victims were Las Vegas high school students on spring break. The victims have also since been identified as AJ Rossi, Dylan Mack, and Brooke Hawley. The injured passenger was identified as Alexis Vargas.

Duarte will certainly be facing felony DUI with injury charges and vehicular manslaughter charges. It is unclear, however, whether Duarte will be facing murder charges. Prosecutors will increase the charges to murder if Duarte has previously been convicted of a DUI-related conviction.

I’ll take this opportunity to remind readers that it is easy to jump to conclusions about the guilt of Duarte (and all DUI defendants for that matter), especially given the facts of the incident. However, the law requires that we presume that people are innocent until they are proven guilty beyond a reasonable doubt by a prosecutor or until they accept a plea deal. If Duarte is, in fact, guilty, I am not defending her actions, I am merely reiterating one of the most fundamental canons of American criminal law.  And if she is guilty of what she is being accused of, then she will be punished within the confines of the law.

Should California Have a Legal Limit for DUI of Marijuana?

Posted by Jon Ibanez on March 23rd, 2018

Prop. 64 is in full swing here in California. While medicinal marijuana has been legal in California since 1996, recreational marijuana is now available for adults who are at least 21-years-old, subject to certain limitations. Up to an ounce of marijuana can be purchased per day and consumed in private locations. The private location cannot, however, be in a vehicle whether you are the driver or the passenger. More importantly for us, a person still cannot drive while under the influence of marijuana.

To be legally under the influence of marijuana a person’s mental or physical abilities are impaired to a degree that they can no longer drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstance.

This definition of impairment is the same for a DUI of alcohol as well. However, with a DUI of alcohol, a person need not be under the influence as long as they have a blood alcohol content of at least 0.08 percent at the time of driving. The purpose behind this rule is that science has established a strong correlation between a blood alcohol content of 0.08 percent or higher and the definition of impairment spelled out above.

Alcohol, which is water-soluble, is absorbed and eliminated from the body relatively quickly. In most circumstances, if a person consumes alcohol during an evening of drinking, the alcohol should be eliminated by the following morning.

The same, however, cannot be said of marijuana. When someone consumes marijuana, the “high” comes from tetrahydrocannabinol (THC) and can last several hours. THC is fat-soluble and can stay in a person’s system for weeks, possibly longer, even though the “high” has long since worn off. As such, there’s little to no correlation between the amount of THC in a person’s system and whether they meet the definition of being under the influence stated above.

Notwithstanding the lack of a correlation between the amount of THC in a person’s system and degree of impairment, Washington State, which has also legalized recreational marijuana, set a limit of 5 nanograms of THC per milliliter of blood in a person’s system.

Lt. Rob Sharpe, who works for the Washington State Patrol’s impaired driving unit, told the Los Angeles Times he believes establishing a legal limit for pot is a necessity.

“If I don’t know how much marijuana I can consume and safely drive, how can I be held to a standard that it’s unsafe to drive?” he asked.

The problem with Washington’s “per se” limit is that a regular user of marijuana can have 5 nanograms of THC per milliliter of blood weeks after having consumed marijuana.

It doesn’t take a lawyer or a judge to tell you that the purpose of DUI laws, whether they’re for DUI of alcohol or DUI of marijuana, is to protect the driver and the public as a whole from impaired driving because that is what’s dangerous. And now that marijuana is legal in both California and Washington, as well as a number of other states, it is no different than alcohol. Like alcohol, a person should be free to consume something that they are legally allowed to consume without fear of being arrested for a DUI days or weeks later.

To have a per se limit for THC, as Washington does, would allow law enforcement to arrest someone for a DUI of marijuana weeks after they have consumed marijuana even though they are no longer impaired. It would be the same as if law enforcement arrested someone for a DUI of alcohol weeks after a night of drinking when they haven’t had a drop of alcohol since that night.

Should there be a per se legal limit for marijuana? Absolutely not, at least not until science can determine how impaired someone is when they’ve consumed marijuana.