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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DUI DMV Hearing: Where’s the Due Process?

Wednesday, April 16th, 2014

I often tell my students that when they hear the phrase “due process” they should think of fairness. When it comes to criminal actions in a court of law, due process (at least in theory) is the cornerstone to the proceedings. Unfortunately, the same can’t be said for DMV hearings (Admin Per Se hearings) following a DUI arrest.

When a person is arrested on suspicion of a California DUI their license will be suspended by the California DMV if one of two things will happen:  1.) law enforcement takes a blood or breath test which indicates that the driver’s blood alcohol concentration level is 0.08 percent or more, or 2.) the driver refuses to complete either a blood or breath test. Due process provides that a driver has the right to request an administrative hearing to challenge the DMV’s evidence.

However, just because a driver is provided the right to a hearing does not mean that due process will be present at the hearing.

Imagine a criminal court case in which the defendant attends the hearing at the prosecutor’s office. During the hearing, prosecutor argues for a conviction. Immediately following the argument, the prosecutor throws on a robe, steps up to the judge’s bench, and rules on his own argument. Doesn’t sound fair, does it? It’ not, but that’s essentially what happens at a DMV Admin Per Se hearing.

The DMV, the same agency which is trying to sustain the suspension, is the agency which conducts the hearing. What’s more, the DMV hearing officer, who, believe it or not, is a DMV employee, conducts the hearing. (Starting to see a pattern?) The hearing officer can object to the driver’s evidence. The hearing officer can rule on his own objection. Finally, the hearing officer decides if he or she wins. They almost always do.

Forget about impartiality. Surely, the hearing officer must be someone versed in the law, perhaps a lawyer or someone holding a law degree. Think again. In fact, according to the DMV’s employment eligibility requirements, a hearing officer need not have a college degree!

Winning a DMV hearing is difficult for lawyers (although not impossible). Since the hearing is considered civil, there is no right to an attorney. What about those drivers who have to conduct the hearing themselves because they can’t afford an attorney? How difficult must it be for them to prevail in a hearing where the cards are already stacked against them?

Speaking of the hearing being civil, there’s much lower standard of proof that the hearing officer must meet before they can suspend your license. In a criminal court case, the prosecutor must prove beyond a reasonable doubt that a driver was driving with a BAC level of 0.08 percent or above. At the DMV hearing, the hearing officer only needs to prove more likely than not the driver had a BAC of 0.08 percent or more.

It is much easier for a hearing officer to meet this lower standard when they’re allowed to introduce hearsay police reports. Hearsay statements are generally excluded from court cases because the person making the statement cannot be cross examined. Not the case 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.

Loss of a driver’s license can have devastating consequences. One would think that with so much at stake, people would be afforded safeguards that would ensure fairness.  But where’s the fairness in any of this? Where’s the due process? 

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California Assemblyman Proposes Marijuana Zero-Tolerance DUI Standard

Friday, April 11th, 2014

We recently referred you to an American Bar Association Journal article in which Lawrence Taylor was interviewed about the difficulties of correlating traces of marijuana in the blood and intoxication. We also mentioned the use of zero-tolerance laws for marijuana by some states as a way to address issue. It seems that one California assemblyman looks to include California in that list of zero-tolerance states.

Currently, for a person to be convicted of a California marijuana DUI, it must be proven that they were “under the influence.” A person is under the influence when his or her physical or mental abilities are impaired to such a degree that he or she no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.

Assemblyman Jim Frazier recently introduced AB 2500. The bill, if passed, would change California’s current DUI law making it unlawful for a person to drive with any detectable amount of marijuana in the system. The law also seeks to make it illegal to drive with any trace of any other controlled substance in the system.

The proposed language of the law would read:

“It is unlawful for a person to drive a vehicle if his or her blood contains any detectable amount of delta-9-tetrahydrocannabinol of marijuana or any other drug classified in Schedule I, II, III, or IV under the California Uniform Substances Act (Division 10 (commencing with Section 11000) of the Health and Safety Code).”

The legislature rejected a similar bill introduced last year by Senator Lou Correa. Rightly so. Let’s hope they do the same to AB 2500.

Delta-9-tetrahydrocannabinol (THC) can remain in a person’s blood for up to weeks and longer after marijuana use, and well beyond the point at which a person cannot safely operate a vehicle. That doesn’t matter to those who support the proposed law. It seems they would be okay with punishing perfectly sober drivers simply because they ingested marijuana at some point in the last several weeks.

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When Are the Peak Periods for DUI Arrests?

Monday, April 7th, 2014

Interesting how incidents of drunk driving — and related law enforcement — increase at different times around the country.  Holidays are important, of course, but so is the weather…


Police Step Up DUI Saturation Patrols

Kansas City, Mo.  April 5 – Law enforcement agencies across the metro area will be cracking down on drunk drivers.

A sobriety checkpoint in Kansas City Friday netted 20 people on suspicion of driving under the influence.  With the Royals in town, the nice weather, and several parties and proms this weekend, authorities said people are getting out and having a few drinks.

"This is the time of year when we all start doing saturation patrols and DUI check lanes because, as we know, this is the time of year when people tend to do a little more partying on the weekends," said Master Deputy Tom Erickson, of the Johnson County Sheriff’s Office.

Police urge residents that if they do plan on drinking this weekend to designate a driver, call a cab or find another way home other than driving.

Here in sunny Southern California, however, the peak dates for drunk driving and DUI-related arrests would be holiday-related:  New Year's Eve, 4th of July, St. Patrick's Day and Cinco de Mayo.  But perhaps surprisingly, based upon my own DUI defense law firm's influx of new client calls over the years, the winner for #1 peak time of the year is….Super Bowl Sunday.
 

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Can I Find Out Where and When There Will Be Sobriety Checkpoints?

Wednesday, March 19th, 2014

As most of us are aware, this past 3-day St. Patrick's Day weekend was filled with parties, revelry…and DUI sobriety checkpoints.  As most of us are also aware, these can be irritating, frightening and/or cause traffic delays.

So, I've been asked repeatedly, is there any way I can find out where checkpoints are going to be held in my town?

Yes.  As the U.S. Supreme Court held in the landmark case of Michigan vs. Sitz, which established an exception to the Fourth Amendment for sobriety checkpoints.  See DUI Sobriety Checkpoints: Unconstitutional?  Police agencies, however, are required to publish advance notice of where and when they are to be held.  

Law Enforcement, of course, has been reluctant to tip off driver to this information.  Accordingly, many if not most agencies will publish the locations and times in the back pages of small local newspapers.  Fortunately, however, the internet has proven a valuable source for ferreting out this information.

So….how do you get this information?  Easy, if you are in California:  visit the "Sobriety Checkpoints" section of my law firm's popular DUI defense website.  Along with information about sobriety checkpoints generally, there are links to lists of checkpoints scheduled in most Southern California counties.
 

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