The California DUI-Triggered License Suspension

Friday, April 13th, 2018

Without a doubt, one of the most confusing aspects of a California DUI case is how the DUI arrest and conviction affects a person’s driving privileges. When does it take effect? How long does it last? Am I eligible for a restricted license? What complicates matters further is that whenever a person is arrested for a DUI, there is the possibility of two separate license suspensions.

To help understand the suspension process, it makes sense to discuss it chronologically.

When a person is arrested in California on suspicion of a first-time DUI, the arresting officer usually takes their license. In return, the officer provides the driver with a “pink slip.” The pink slip is a temporary license which allows the person to drive temporarily.

When the officer gives the pink slip to the driver, the officer should also advise the driver that they have only 10 days to contact the DMV to request a hearing and request a “stay” of the suspension pending the outcome of the hearing. If the hearing is not requested, the driver’s license will automatically be suspended for four months through the DMV’s “administrative per se” action after 10 days.

If the hearing is requested, the DMV will set the hearing date anywhere from a month two several months from the date of arrest. Assuming that the stay was also requested, the driver will be able to drive pending the outcome of the hearing.

The purpose of the DMV hearing is to determine 1.) whether the officer had reasonable cause to believe the driver was driving under the influence, 2.) whether the driver was lawfully arrested, and 3.) whether the driver had a blood alcohol content of 0.08 percent or higher.

Prior to the hearing date, the DMV will send the driver or their attorney a packet of information which contains the evidence that the DMV is using to make the determinations in the previous paragraph. As if disproving those determinations wasn’t difficult enough, even with a lawyer to argue on the driver’s behalf at the hearing, the hearings are unfairly one-sided against the driver.

Since the DMV is not a court, the standard of proof needed to suspend a person’s license is much lower than what is needed to convict a person of a crime in criminal court. A prosecutor in a criminal case must prove beyond a reasonable doubt that the driver was either 0.08 percent blood alcohol content or “under the influence.” A DMV hearing officer must only prove more likely than not that the driver was either a 0.08 percent blood alcohol content or that they refused the chemical test.

The DMV hearing officer, who is a DMV employee, runs the hearing. The hearing officer can object to the driver’s evidence and rule on his or her own objection. Finally, the hearing officer decides if he or she wins. And they almost always do. In this sense, the hearing officer acts as both the prosecutor and the judge.

Hearsay statements, which are generally excluded from court cases because the person making the statement cannot be cross examined, are admissible 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.

Lastly, the DMV hearing officer, who, like a judge, determines the outcome of the DMV hearing is merely a DMV employee with no background in law. In fact, according to the DMV’s employment eligibility requirements, a hearing officer does not even need to have a college degree.

Suffice it to say, a majority of DMV hearings are lost, thus triggering the four-month “APS” suspension.

If, however, the DMV hearing is won, the driver will save themselves from the four-month “APS” suspension, but they will still face a court-triggered suspension if they are convicted of a DUI in the criminal action against them.

You can read any number of my previous posts on the inner workings of DUI criminal court case. This post is about the license suspension and how the criminal DUI case affects driving privileges. As such I will not go into the details of the DUI criminal case.

If, after all is said and done in the DUI criminal case, the driver pleads guilty (or no contest) or is convicted after trial, the court will notify the DMV that the driver has been convicted of the DUI. When the DMV becomes aware of the DUI conviction, a six-month “mandatory action” suspension will become effective. The driver, however, will get credit against the six-month mandatory action suspension for any time spent on the four-month APS suspension.

For example, a driver is arrested in January and loses the DMV hearing in February. The driver serves the four-month suspension and gets their license back in June. Then in July, the driver is convicted of a DUI, thus triggering the six-month suspension. Since the driver already served the four-month suspension, they will only need to serve another two months.

As you can see, the license suspension is no simple process, and I haven’t even begun to discuss cases that are not your run-of-the-mill first-time DUI cases.

Without going into too much detail, here are some basics for other, slightly more complicated scenarios:

A second-time DUI carries a one-year APS suspension and the mandatory action suspension is two years. A third-time DUI carries a one-year APS suspension and a three-year mandatory action suspension. A driver who refuses the mandatory chemical test following a DUI arrest faces a one-year APS suspension and the driver can face additional criminal penalties.

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Lung Condition Causes Woman to Fail Breathalyzer

Thursday, April 5th, 2018

According to the American Lung Association, Chronic Obstructive Pulmonary Disease, commonly referred to as COPD, which includes chronic bronchitis and emphysema, is a chronic lung disease that makes it difficult to breathe. And according to the World Health Organization, COPD affects 65 million people worldwide. COPD, however, affected one Canadian woman in an unexpected way; it caused her to fail a breathalyzer.

Connie McLean, a 64-year-old woman from New Brunswick, Canada, who suffers from COPD, said that the condition can make everyday living difficult.

“When I’m carrying in wood, I can only carry in a couple sticks at a time and I usually have to stop and get some air before I go and get some more,” she said last week. “And shoveling is even worse.”

Early last month, McLean was pulled over by local law enforcement. The officer asked her if she had been drinking. McLean responded that she had a beer that afternoon. At that point, the officer produced a breathalyzer to try and determine her blood alcohol content.

As a result of the COPD, McLean could not produce a strong enough of a breath sample to provide a breathalyzer reading.

“I tried several times, but due to COPD and mucous in my airway I wasn’t successful,” she said. “And he just almost hollered, ‘You’re not trying, you’re under arrest and you’re going to jail.’”

McLean was charged with refusing to comply with the breathalyzer test which resulted in her vehicle being impounded for 30 days and her driver’s license being suspended for 90 days.

“It makes perfect sense to us that if you have severe COPD that it would be impossible to exhale for any length of time,” said Henry Roberts of COPD Canada. “I would hope the police would show some compassion to people who have difficulty breathing.”

McLean has a court date next month and intends on fighting the charge.

McLean’s predicament is not an unusual one, even here in the United States. Often, people are unable to provide a sufficient breath test for a number of health-related reasons. Breathalyzers require deep lung air, known as alveolar air, to be able to produce a blood alcohol content reading. If a person does not advise an officer of the health issue that might prevent them from providing alveolar air, the officer may believe that the person is deliberately trying to provide a sufficient breath sample.

California courts have found that an inference can be made that a person is deliberately attempting to avoid providing a sufficient breath sample if the facts permit. If such an inference is made, the court treats it as a refusal.

Fortunately, here in California, a driver is not required to give a breath sample for a roadside breathalyzer, commonly referred to as a “preliminary alcohol screening” test or “PAS” test. Refusing it will not result in additional penalties with either the court or the DMV. In fact, many DUI attorneys like myself recommend politely refusing the PAS test.

Of more importance, however, is the mandatory “chemical test” under California’s “implied consent law.” Under the implied consent law, a driver must submit to a chemical test once they are lawfully arrested on suspicion of a DUI. The chemical test can be either a breath or a blood test. Only for a refusal of the chemical test, not the PAS test, may a driver be punished.

Here in the California, a refusal of a chemical test can result in jail time, a longer DUI program, and/or a longer license suspension.

Let’s hope that reason prevails in the Canadian courts for McLean’s sake.

 

Thanks to my student, David Hong, for sending me this story!

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Should California Have a Legal Limit for DUI of Marijuana?

Friday, March 23rd, 2018

Prop. 64 is in full swing here in California. While medicinal marijuana has been legal in California since 1996, recreational marijuana is now available for adults who are at least 21-years-old, subject to certain limitations. Up to an ounce of marijuana can be purchased per day and consumed in private locations. The private location cannot, however, be in a vehicle whether you are the driver or the passenger. More importantly for us, a person still cannot drive while under the influence of marijuana.

To be legally under the influence of marijuana a person’s mental or physical abilities are impaired to a degree that they can no longer drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstance.

This definition of impairment is the same for a DUI of alcohol as well. However, with a DUI of alcohol, a person need not be under the influence as long as they have a blood alcohol content of at least 0.08 percent at the time of driving. The purpose behind this rule is that science has established a strong correlation between a blood alcohol content of 0.08 percent or higher and the definition of impairment spelled out above.

Alcohol, which is water-soluble, is absorbed and eliminated from the body relatively quickly. In most circumstances, if a person consumes alcohol during an evening of drinking, the alcohol should be eliminated by the following morning.

The same, however, cannot be said of marijuana. When someone consumes marijuana, the “high” comes from tetrahydrocannabinol (THC) and can last several hours. THC is fat-soluble and can stay in a person’s system for weeks, possibly longer, even though the “high” has long since worn off. As such, there’s little to no correlation between the amount of THC in a person’s system and whether they meet the definition of being under the influence stated above.

Notwithstanding the lack of a correlation between the amount of THC in a person’s system and degree of impairment, Washington State, which has also legalized recreational marijuana, set a limit of 5 nanograms of THC per milliliter of blood in a person’s system.

Lt. Rob Sharpe, who works for the Washington State Patrol’s impaired driving unit, told the Los Angeles Times he believes establishing a legal limit for pot is a necessity.

“If I don’t know how much marijuana I can consume and safely drive, how can I be held to a standard that it’s unsafe to drive?” he asked.

The problem with Washington’s “per se” limit is that a regular user of marijuana can have 5 nanograms of THC per milliliter of blood weeks after having consumed marijuana.

It doesn’t take a lawyer or a judge to tell you that the purpose of DUI laws, whether they’re for DUI of alcohol or DUI of marijuana, is to protect the driver and the public as a whole from impaired driving because that is what’s dangerous. And now that marijuana is legal in both California and Washington, as well as a number of other states, it is no different than alcohol. Like alcohol, a person should be free to consume something that they are legally allowed to consume without fear of being arrested for a DUI days or weeks later.

To have a per se limit for THC, as Washington does, would allow law enforcement to arrest someone for a DUI of marijuana weeks after they have consumed marijuana even though they are no longer impaired. It would be the same as if law enforcement arrested someone for a DUI of alcohol weeks after a night of drinking when they haven’t had a drop of alcohol since that night.

Should there be a per se legal limit for marijuana? Absolutely not, at least not until science can determine how impaired someone is when they’ve consumed marijuana.

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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.

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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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