Murder Conviction for a DUI Fatality

Monday, July 14th, 2014

A Southern California man was sentenced to 34 years to life in a California State prison last week for a 2012 DUI that led to the death of two Caltrans workers. Amongst other charges, Yocio Jonathan Gomez was convicted of second degree murder.

Gomez, 25, was driving a Ford Explorer 90 miles an hour through a construction zone in Torrance in the early morning hours of July 22, 2012. According to the Los Angeles County District Attorney’s Office, Gomez lost control of his vehicle which struck another SUV. The SUV spun out of control striking Caltrans workers, Ricardo Zamora, 58, and Ramon Lopez, 56, killing both. A third worker was also injured.

It was later determined that Gomez’s blood alcohol content was 0.21 percent. Gomez was charged with and subsequently convicted of second degree murder.

A conviction of second degree murder for a DUI related fatality such Gomez’s always raises questions, especially amongst students of mine. How can someone, who doesn’t intend to kill anyone, be charged with murder?

Gomez’s conviction of second degree murder turned on one very significant fact: it wasn’t his first DUI.

Prior to 1981, a person who killed another in the course of driving under the influence could not be charged and convicted of murder. However, the landmark case of People v. Watson (1981) 30 Cal.3d 290, changed all of that.

California Penal Code section 187(a) provides that “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” Section 188 provides that malice can either be expressed or implied and implied malice is present “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

What does that mean?

According to People v. Phillips, (1966) 64 Cal.2d 574, 587, second degree murder based on implied malice has been committed when a person does “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”

With this foundation, the Watson court found that if the facts surrounding the DUI support a finding of “implied malice,” second degree murder can be charged. If the facts surrounding the DUI only support a finding of “gross negligence,” only vehicular manslaughter may be charged.  

The difference between implied malice and gross negligence is wafer thin. Gross negligence occurs when a person acts in a reckless way that creates a high risk of death or great bodily injury and a reasonable person would have known that acting in that way would create such a risk.

How does the prosecutor prove that a person acted with implied malice rather than gross negligence?

Since Watson, courts began expressly advising convicted DUI defendants that it is extremely dangerous to human life to drive while under the influence of alcohol or drugs or both and if the defendant continues to do so and, as a result of their driving, someone is killed, they can be charged with murder.

In other words, it’s the court’s way of telling someone, “You’ve done it once, now consider yourself warned. If you do it again, it’s no longer reckless, it’s a conscious disregard for human life.”

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Proposed “Gun Violence Restraining Order” Could Affect DUI Offenders

Monday, June 2nd, 2014

In the wake of the tragic shootings last weekend at UC Santa Barbara, two Democrats in California’s State Assembly have announced their plans to introduce a new gun control measure which could prohibit those who have been convicted of a DUI from owning and carrying a gun.

The “gun violence restraining order,” proposed by Nancy Skinner (D-Berkeley) and Das Williams (D-Santa Barbara), would create a system where a legal gun owner can have their guns confiscated if a family member believes they have a mental health problem that the state is not aware of. The “restraining order” could be issued upon gun owners who have passed NICS background checks, registered their firearms with the state, and have not broken any laws.

The idea for the “gun violence restraining order” is part of a recommendation from the Consortium for Risk-Based Firearm Policy which also suggests firearm prohibitions for other “risk factors” including “drug or alcohol use (linked to DUI convictions or misdemeanors involving a controlled substance).”

I won’t comment on the “restraining order” as it applies to those who have been identified by family members as having mental health problems, although I do have my opinions.

However, when it comes to prohibiting those who have suffered from a DUI conviction from owning a gun, I have an issue that I will express.

This isn’t the first time that legislators have attempted to place gun ownership restrictions on DUI offenders.

Last year, Democratic Sen. Lois Wolk of Davis introduced SB 755, a bill which would have prevented some DUI offenders from having guns for a period of 10 years. Fortunately, California Governor Jerry Brown vetoed the bill saying, “I am not persuaded that it is necessary to prohibit gun ownership on the basis of crimes that are non-felonies, non-violent and do not involve misuse of a firearm.”

Also last year, Connecticut Governor Dannel P. Malloy proposed a law that would ban DUI offenders from owning a firearm. Supported by Connecticut democratic senator Martin Looney, the proposed law was intended to prohibit possession of firearms by people who have demonstrated “irresponsible behavior” and a “willingness to break the law.”

I’ve never been the biggest advocate for gun rights, but the suggestion that a DUI offense is a “risk factor” which should prevent someone from owning a gun is absurd.

The Consortium’s recommendation for a prohibition on gun ownership targets groups at heightened risk of violence. According to the Consortium, that includes individuals convicted of two or more DUIs in a five-year period. What is it about a DUI that’s violent? Taking into account DUIs which involve injuries or death, the “violence” involved unintended violence which has nothing to do with the propensity to misuse a gun.

Currently, certain convictions can prevent individuals from possessing a firearm. However, those convictions at least have a causal link to potential future gun violence. Driving under the influence, however, does not.

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California DWI – Driving While Addicted

Monday, May 19th, 2014

Believe it or not, it is a crime in California to drive while being addicted to drugs or alcohol.

Lesser known California Vehicle Code section 23152(c) provides: “It is unlawful for any person who is addicted to the use of any drug to drive a vehicle.”

You may be asking yourself the same thing I did when I first read it. Huh?

The “huh?” was the reactionary expression of two other questions: What’s the purpose? And who is an addict?

In the 1965 case of People v. O’Neil, the California Supreme Court addressed both of these issues by looking at the legislative intent of 23152(c). The court determined that “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.”

While the court focused on the theory that an addict going through withdrawals can pose a risk to the roads, it said that a person need not be going through withdrawals to be arrested, charged, and convicted of California’s driving while addicted law.

“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.”

So let’s get this straight. You can be charged with a crime if you’re addicted to drugs or alcohol even if you’re not intoxicated or you’re not going through withdrawals. So then that begs the question: What’s the point?

Unfortunately, the California Supreme Court has yet to answer that question.

Fortunately, however, the law does not apply to those who are participating in a narcotic treatment program.

Well it’s nice to know that the law only protects those who are receiving treatment for their disease, but not those who aren’t.

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California Legislature Kills Zero-Tolerance Marijuana DUI Law

Monday, May 12th, 2014

In early April, I wrote about the terrible idea that was AB 2500.

Introduced by Assemblyman Jim Frazier, the original bill would have changed California’s current DUI law making it unlawful for a person to drive with any detectable amount of marijuana in the system. The legislation was later amended to set a limit of two nanograms of THC per milliliter of blood. The law also sought to make it illegal to drive with any trace of any other controlled substance in the system.

Whew! You can all let out a collective sigh of relief because the proposed law was killed in the California legislature.

AB 2500 was defeated by the Assembly Public Safety Committee by a vote of 4-2.

I hate to beat a dead horse, but I simply can’t say it enough. We cannot punish sober drivers merely because they may have smoked marijuana a day, a month, or a week ago.

Unlike alcohol, THC stays in a user’s system for up to weeks at a time even though the intoxicating effects of the marijuana may only last a couple of hours. And unlike the established relationship between blood-alcohol levels and impairment, THC in the blood does not necessarily correlate to impairment. In fact, the National Highway Traffic Safety Administration has said, “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects.”

In late April, the Arizona Supreme Court struck down an Arizona law similar to California’s proposed AB 2500, and rightly so.

Arizona’s high court reaffirmed the trial court’s correct decision to toss the case of Hrach Shilgevorkyan who had been arrested for driving under the influence after a blood test detected the presence of marijuana.

“For example, at oral argument the State acknowledged that, under its reading of the statute, if a metabolite could be detected five years after ingesting a proscribed drug, a driver who tested positive for trace elements of a non-impairing substance could be prosecuted,” said the court in supporting its opinion.

The Court went on to conclude, "Because the legislature intended to prevent impaired driving, we hold that the 'metabolite' reference in [the law] is limited to any of a proscribed substance's metabolites that are capable of causing impairment . . . Drivers cannot be convicted of the . . . offense based merely on the presence of a non-impairing metabolite that may reflect the prior usage of marijuana.”

Let’s hope the California Supreme Court never has to make such an obvious decision.

But you just never know. Frazier’s response to his bill’s failure? “I have eleven more years” to continue working on the bill.

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“Lane Straddling” as the Precursor to a DUI Stop

Wednesday, April 30th, 2014

In my last post, I mentioned that officers often indicate that the basis for a DUI stop is the observation of a vehicle swerving. Forget about the DUI for a moment. Can the officer initiate a traffic stop for swerving within a lane, often called lane-straddling?

The stopping of a vehicle by law enforcement is a “seizure” and, as such, must adhere to the strictures of the 4th Amendment of the Constitution. The 4th Amendment prohibits unreasonable searches and seizures. To be “reasonable” under the 4th Amendment, the officers must have a reason for the stop. If the officer observes the vehicle violate a traffic law and bases the stop on the violation of the traffic law, the 4th Amendment requirements are usually met.

Is there a traffic law for swerving? Yes.

California Vehicle Code §21658(a), provides, “A vehicle shall be driven as nearly as practical within a single lane and shall not be moved from the lane until such a movement can be made with reasonable safety.”

But what does it mean to drive “as nearly as practical within a single lane?” Does it mean that we cannot have our tires touch the painted lines until we intend on safely merging into an adjacent lane? Fortunately, according to the 9th Circuit Court of Appeals, no.

In U.S. v. Colin, 314 F.3d 439, the 9th Circuit Court of Appeals dealt with this very issue. The arresting officer observed defendant drift onto the solid white fog line of the far side of the right lane for about ten seconds. The defendant’s vehicle then drifted to the left side of the right lane, signaled a lane change, and moved into the left lane. The officer then observed the vehicle drift to the left side of the left lane where its left wheels traveled along the solid yellow line for approximately ten seconds. The defendant’s vehicle then returned to the center of the left lane, signaled a lane change, and moved into the right lane.

Can you picture it?

The arresting officer then pulled the defendant over for possible violations of California Vehicle Code §21658(a) for lane straddling and DUI.

The court held that the officer’s stop was illegal, stating,  “Touching a dividing line, even if a small portion of the body of the car veers into a neighboring lane, satisfies the state’s requirement that that a driver drive as ‘nearly as practical within a single lane’… It is reasonable that a driver with no cars abreast of him might veer slightly within his lane or over the lane lines in the course of making a lane change to ensure that it is safe to do so. In sum, we conclude that the facts, taken together, support the conclusion that [the officer] lacked probable cause to stop [the defendants] for lane straddling.” Id. at 444-445.

It’s good to know that the Court recognizes that we are, after all, just humans who aren’t perfect.

It went on to say, “If a failure to follow a perfect vector down the highway or keeping one’s eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.” Id. at 447.

This is not to say that swerving within a lane cannot be indicative of driving under the influence.

It was articulated in People v. Perez, 221 Cal.Rptr. 776, 778, that “pronounced weaving within a lane provides an officer with reasonable cause to stop a vehicle on suspicion of driving under the influence where such weaving continues for a substantial distance.” (emphasis added).

While officers many times use the observation of swerving and lane straddling as the precursor to a DUI stop, the truth is they often don’t account for simple human error. How often have you inadvertently veered within your lane after a sneeze or while changing the radio station.  The law doesn’t require perfection and neither should officers.

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