Can Out-of-State Priors Increase a California DUI Sentence?

Monday, July 28th, 2014

If a person suffers a California DUI conviction, any subsequent California DUI conviction within a ten year period carries with it an increased punishment.

Generally a first-time California DUI conviction carries three to five years of summary (informal) probation, up to six months in jail, between $390 and $1,000 in fines, completion of a court-approved three month DUI program, and a six-month license suspension.

A second-time California DUI conviction carries three to five years of summary probation, a minimum of 96 hours to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court-approved 18 month DUI program, and a two-year license suspension.

A third-time California DUI conviction carries three to five years of summary probation, a minimum of 120 days to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court approved 30-month DUI program, and a three-year license revocation.

What if someone suffers, say, a Florida DUI conviction in 2007 and then gets arrested this year in California for DUI? Can the Florida conviction be used to increase the punishment in the California DUI conviction?

As the answer is with many legal questions: It depends.

It depends on whether the conduct that led to the Florida conviction (or any out-of-state conviction) meets the elements of a California DUI charge.

In Florida, the DUI statute reads:

“A person is guilty of the offense of driving under the influence… if the person is driving or in actual physical control of a vehicle within this state and…[t]he person is under the influence of alcoholic beverages…when affected to the extent that the person’s normal faculties are impaired…”

Florida’s statute requires that a person impaired “to the extent that the person’s normal faculties are impaired.” This standard is less strict than California. California requires that a person be impaired to an appreciable degree. Thus, a person may be deemed impaired under Florida’s standard, but not necessarily under California’s.

Florida’s statute also requires that someone drives or is “in actual physical control of a vehicle.” This makes Florida what is called a “dominion and control state.” A person can have dominion and control over a vehicle by simply being in the driver’s seat. California’s DUI law, on the other hand, requires that a person actually drive the vehicle. Therefore, a person can be convicted under Florida’s DUI law by sitting in the driver’s seat while intoxicated. However, someone sitting in the driver’s seat while intoxicated cannot be convicted under California’s DUI law.

Let’s put this into context as it relates to whether an out-of-state prior can be used to increase the punishment in a California DUI case.

In 2007, John Doe is arrested and convicted in Florida under Florida’s DUI law because he was drunk and unconscious in the driver’s seat of a parked vehicle. Seven years later (and within the 10 year “washout period”) in 2014, John Doe is arrested in California under California’s DUI law when he is spotted swerving on the highway by law enforcement.

Prosecutors will be unable to use John Doe’s Florida conviction to increase the penalties in his California case because the facts which gave rise to the Florida conviction would not meet the elements of California’s DUI law because California requires that a person actual drive the car.

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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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