Archive for March, 2018

Drunk Driving on St. Patrick’s Day

Thursday, 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

Thursday, 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).