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

Monday, 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.

 

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Teen Who Livestreamed DUI that Killed Her Sister Sentenced to More than Six Years in Prison

Thursday, February 8th, 2018

In July of last year, I wrote about then 18-year-old Obdulia Sanchez, who livestreamed her own DUI-related collision which killed her 14-year-old passenger sister. At the time, Sanchez pleaded not guilty to gross vehicular manslaughter and several other felony offenses. On January 24th, however, Sanchez withdrew her not guilty plea and entered a plea of no contest and just today was sentenced to six years and four months in prison.

In July of 2017, Sanchez, who was from Stockton, California, was livestreaming herself driving with her sister, Jacqueline and another 14-year-old in the back seats. Sanchez, who had been drinking, could be seen dancing to music with her hands off of the steering wheel moments before the fatal collision.

According to police, Sanchez veered onto the shoulder of a road and overcorrected causing her vehicle to flip several times. Sanchez’s video recorded the collision from the inside of the vehicle. When the car stopped rolling, Sanchez continued livestreaming the incident.

Neither Jacqueline nor the other passenger had been wearing seatbelts. Jacqueline was ejected from the vehicle and sustained fatal head injuries. The other passenger was also ejected and sustained severe injuries to her leg.

While standing over her sister’s body, Sanchez could be heard saying, “Hey, everybody, if I go to f***ing jail for life, you already know why. My sister is f***ing dying. Look, I f***ing love my sister to death. I don’t give a f***. Man, we about to die. This is the last thing I wanted to happen to us, but it just did. Jacqueline, please wake up.”

The livestream was recorded from Instagram and later reposted to Facebook by someone who had seen it.

Sanchez’s blood alcohol content was later determined to be 0.10 percent and she was subsequently charged with felony vehicular manslaughter with gross negligence, felony manslaughter while intoxicated, two counts of felony driving under the influence resulting in injury and two counts of felony driving with a blood alcohol content of 0.08 percent or more causing injury.

At her sentencing, Sanchez addressed the court saying that the moment she realized that her sister had died played “over and over in [her] head.”

“When I look at my mom’s face, I know she hates me,” Sanchez said. “I would hate myself too. I’m such a disappointment to my parents.”

Members of Sanchez’s family pleaded with the court to grant her probation. Sanchez’s public defender also requested probation arguing that prison time would further harm Sanchez who had a difficult childhood. Sanchez was sexually abused as an 11-year-old by a family friend. Two years later, she was abducted, sexually assaulted, and forced to use methamphetamine and alcohol which, according to her attorney, began her addiction to drugs and alcohol.

The district attorney, however, pushed for a 12-year prison sentence pointing to the “callousness” of the video following the crash.

Judge Ronald Hansen disagreed with both the district attorney and Sanchez’s attorney saying that both 12 years in prison and probation were inappropriate. In finding that Sanchez was not “callous,” but remorseful, he sentenced her to six years and four months in a California State Prison.

According to Sanchez’s attorney, with prop 57, Sanchez may get out of jail in 2020.

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Sobering Up by Sleeping in Your Car

Thursday, February 1st, 2018

It’s not an unlikely scenario when a person leaves a bar too drunk to drive and they decide to sleep in their car until they sober up. Kudos to the person for having the wherewithal to avoid driving when drunk. But if a law enforcement officers happens upon the sleeping bar patron, the question becomes whether they can be arrested, charged, and convicted of a California DUI.

Some states hold that a person can be arrested, charged, and convicted of a DUI if they are in “dominion and control” of their vehicle with the ability to drive the it, even though they may not have actually driven it.

Fortunately, California is not a “dominion and control” state, meaning that prosecutors here in California must prove that the person actually drove their vehicle.

The California Supreme Court in the case of Mercer v. Department of Motor Vehicles in 1991 held that the word “drive” in California’s DUI law means that the defendant volitionally and voluntarily moved the vehicle. The court has held that even a “slight movement” is enough to meet the requirement that the defendant drove the vehicle as long as it was voluntary.

Does this mean that a person who is sleeping in a car while under the influence can completely avoid criminal charges? No.

If a person is found sleeping in their car, it is likely that any arresting officer did not see the person drive. Therefore, there may not be any direct evidence for a prosecutor to prove that a person drove. A prosecutor, however, can use circumstantial evidence to prove that the person drove to where they were found while under the influence and then fell asleep.

For example, if an intoxicated person is sleeping in their vehicle in the middle of the road or at the scene of a collision (yes, it happens more often than you would think), then the prosecutor can raise those facts to create the inference that the person had driven. In other words, the prosecutor would argue that it is reasonable to infer that the defendant drove.

On the other hand, if those facts do not exist that would create the inference that the defendant drove then the prosecutor is going to have difficult time proving that the person actually drove the vehicle while being under the influence. This scenario presents itself from time to time as well. But the person may still be charged with another crime such as drunk in public.

In the 1966 case of People v. Belanger, officers found the intoxicated defendant asleep in his vehicle which was located in a parking lot. Although the facts in that case were not enough to create the inference that the defendant had driven to the location while under the influence because he could have driven there sober, drank, and then fell asleep, the officers did arrest the defendant for drunk in public.

The Court concluded that, in order to prevent the defendant from waking up and driving drunk, they needed to arrest him on suspicion of being drunk in public.

Bottom line is that no person should be in a vehicle when they’re intoxicated whether they’ve driven it or not. A prosecutor may still be able to prove a case for driving under the influence or, in the event that they cannot create the inference that person drove, the person is still facing drunk in public charges.

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Toddler Killed in Suspected DUI-Related Collision

Thursday, January 25th, 2018

“This accident was so violent, that even though it was a rear end accident, it injured everyone in the vehicle and also killed a one-year-old,” John Tyler of the California Highway Patrol said.

Tyler was referring to a collision that occurred this past weekend in Lemoore, California where 50-year-old Rodney Klamerus crashed into the back of a family’s Nissan. Three adults were in the Nissan along with one-year-old Liliana Valencia who was in her car seat.

All three adult passengers in the Nissan and Klamerus were transported to nearby hospitals. Valencia was transported to a hospital, but was later pronounced dead.

“We’re not sure exactly why, possibly due to his impairment, but he failed to slow down as this vehicle was ahead of him. And this vehicle turned northbound onto [Highway] 41, established itself in the lane, and was rear-ended shortly thereafter,” Tyler told KFSN.

Although investigators were unable to speak with Klamerus due to the severity of his injuries, he is facing several felony DUI charges which will likely include DUI-related homicide charges.

Homicide merely refers to the killing of another human being and encompasses murder charges, voluntary manslaughter charges, and involuntary manslaughter charges. It is still unclear exactly what homicide charge Klamerus faces.

Prior to 1981, a person who killed someone while driving under the influence could not be charged and convicted of murder. However, the landmark case of People v. Watson changed that.

California Penal Code section 187(a) provides that “Murder is the unlawful killing of a human being…with malice aforethought.” “Malice” refers to the deliberate intention to unlawfully kill someone else. However, malice can be also be “implied” and implied malice exists when a person knowingly engages in an act that is dangerous to human life and they engage the act with a conscious disregard for human life. It is almost as if the court is saying that the drunk driver might as well have intended to kill someone because they knew it was dangerous to drive drunk, yet they did it anyways.

The court in Watson found that if the facts surrounding the DUI support a finding of “implied malice,” second degree murder can be charged when the DUI led to the death of someone else. In other words, if a person engages in driving under the influence when they know that it is dangerous to human life to do so, and they kill someone, they can be charged with murder.  

Now the question becomes, “Did the person know it was dangerous to human life to drive drunk?”

While we all know that it’s dangerous to drive drunk, since Watson, courts started expressly advising people who have been convicted of DUI, on the record, that it is, in fact, dangerous to drive drunk. This was not because the court actually thought that the defendant didn’t know it, but rather to ensure that the prosecutor could charge murder instead of manslaughter upon a subsequent DUI causing the death of someone.

Whether Klamerus will be charged with murder or some lesser homicide charge will depend on whether prosecutors can prove that he expressly knew that, by driving drunk, he could kill someone, but decided to drive drunk anyways.

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Recreational Marijuana Laws and the California DUI

Sunday, January 7th, 2018

As predicted, California passed Proposition 64, otherwise known as The Adult Use of Marijuana Act, on November 8th 2016. This made it legal for people to possess and use marijuana recreationally in California. However, it wasn’t until January 1st of this year that recreational marijuana could be sold to consumers.  

So what does this mean for marijuana laws in California, including marijuana DUI laws?

Well, let’s start with the laws that aren’t related to a DUI of marijuana. Adults over the age of 21 can purchase and possess up to one ounce of marijuana and can grow up to six plants per household out of public view. People under the age of 18 can only purchase marijuana if they have their medical license.

Those who are able to possess marijuana cannot consume in public, even in areas where it is legal to smoke cigarettes. Some cities plan on allowing consumptions of marijuana at designated lounges. However, until then, smoking in public places can lead to fine of $100 to $250.

Just like alcohol, drivers cannot consume marijuana while driving. And any marijuana that is being transported in a car, must be in a sealed container in the trunk.

While marijuana laws have changed in many other respects, it is still illegal to drive while under the influence of marijuana.

California Vehicle Code section 23152(e) makes it illegal to drive a vehicle while under the influence of drugs including marijuana. Unlike California’s DUI of alcohol law, there is no legal limit for marijuana, or more specifically, tetrahydrocannabinol (THC) the psychoactive component of marijuana. Therefore, a person can only be arrested and convicted of a marijuana DUI if the ingestion of marijuana impairs a person’s ability to drive a vehicle as a sober person would under similar circumstances.

To prove that a person is driving under the influence of marijuana, a prosecutor can use officer observations of driving patterns, observations during the traffic stop, performance on field sobriety tests, and the presence of THC in any blood test done.

Since “under the influence” is an extremely subjective standard, it is often very difficult to prosecute DUI of marijuana cases. This is especially true if the driver refused to perform the field sobriety tests and/or the officer did not observe driving that would be indicative of someone who is under the influence of marijuana.

Law makers could seek some sort of per se limit for how much THC can be in a person’s blood while driving. Several states have set a per se limit of five nanograms of THC per milliliter of blood. Colorado, has set a five nanogram per milliliter of blood limit to allow for the presumption that a person is “under the influence.” Unfortunately, current per se limits for THC, are an inaccurate measure of how impaired a person is.

Unlike alcohol, THC is fat soluble and remains in a user’s system long after they have ingested the marijuana, sometimes by several weeks. This creates the possibility of being arrested with five nanograms of THC in the system weeks after a person has smoked marijuana and well after the “high” is gone. Yet, because the THC is present, a person can either be arrested or, in Colorado, presumed to be under the influence.

As tech companies are scrambling to be the first to develop a device that will allow law enforcement to test “how high someone is,” Assemblyman, Tom Lackey, who is a former sergeant with the California Highway Patrol, has introduced Assembly Bill 6 which would allow tests using saliva samples taken from drivers suspected of driving under the influence. The test would let the officer know whether a driver has recently used a number of drugs including marijuana.

“The ballot initiative passed [in 2016] to legalize marijuana will result in more marijuana consumers on our state’s highways and roads,” Lackey said in a statement. “It is imperative that we invest in a broad spectrum of technologies and research to best identify marijuana-impaired drivers.”

There is an established correlation between blood alcohol content, specifically the legal limit of 0.08 percent, and alcohol impairment. Unlike alcohol, however, there is no such correlation between the presence of drugs and impairment. In other words, a person can have traces of drug in their system without being impaired by that drug.

Marijuana, for example, can stay in a person’s system for weeks following the smoking or ingesting of the marijuana and well after the person was intoxicated or stoned. The purpose of DUI laws is to prevent impaired driving, not to punish sober and unintoxicated people merely because they ingested drugs at some point in the past.

Until we can establish a correlation with drugs including marijuana like we have with alcohol, namely the correlation between quantity and impairment, we shouldn’t be using pushing for laws like this.

Assembly Bill 6 will be brought up for a vote early this year.

Since it is perfectly legal to consume marijuana and have THC in your system, it is important to protect yourself from unwarranted DUI of marijuana charges. Do not say anything to the police. The 5th Amendment exists for a reason; use it. Politely refuse any field sobriety tests. Lastly, remember that you must submit to a chemical test after you have been arrested.

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