DUI in a Driverless Car

Friday, October 13th, 2017

Driverless cars are so close to becoming a reality that just this past week, California published new draft rules that provide a clearer picture of how the driverless car industry will be regulated in the state.

Amongst the many proposed regulations that were drafted, which can be found on California’s DMV website here, is that driverless cars must comply with state and local driving laws.  Companies which sell the driverless vehicles to customers must make software updates available to comply with changes in traffic laws.

While the proposed regulations apply primarily to the manufacturers of the driverless vehicles and not necessarily on the owner of the driverless vehicle, it remains unclear how driverless cars will affect another state law that does apply to the owner and, dare I say it, driver of the driverless vehicle; the California DUI.  

As is, the California Vehicle Code’s DUI law makes it “unlawful for a person who is under the influence of any alcoholic beverage…[or] who has 0.08 percent or more…of alcohol in his or her blood to drive a vehicle.”

If driverless cars take to the streets of California in the next year, or possibly even months, the question becomes whether the word “drive” under California’s DUI law still applies. In other words, can a person still be charged, arrested, and convicted of a California DUI while using a driverless car?

At least one country says no.

Australia’s National Transport Comission (NTC) has released a report suggesting that applying drunk driving laws to driverless cars could discourage the use of driverless cars in general and when trying to get home safely after drinking:

Driving Drunk or on Drugs in a Driverless Car Should Be Legal, Expert Body Says

October 6, 2017, CNBC – People under the influence of drugs and alcohol should be able to use driverless cars without falling foul of the law, a regulatory body in Australia has suggested.

The National Transport Commission (NTC), an independent advisory body, said current laws could reduce the uptake of automated vehicles. One of those potential barriers could be any law that requires occupants of self-driving cars to comply with drink-driving laws.

"This would create a barrier to using a vehicle to safely drive home after drinking. Enabling people to use an automated vehicle to drive them home despite having consumed alcohol has the potential to improve road safety outcomes by reducing the incidence of drink-driving," the NTC said in a discussion paper released earlier this week.

"Legislative amendments could be made to exempt people who set a vehicle with high or full automation in motion from the drink- and drug-driving provisions."

The NTC does acknowledge a risk that could involve a person under the influence of drink or drugs choosing to take over the car. If that occurred, the body suggests that drink and drug driving offences would apply. But ultimately, a drunk person in a driverless car is similar to them being in a taxi, the NTC concludes.

"The application of an exemption is clear-cut for dedicated automated vehicles, which are not designed for a human driver. The occupants will always be passengers. The situation is analogous to a person instructing a taxi driver where to go," the paper said.

In many countries drugs are illegal and drink-driving laws differ between jurisdictions.

Australia has been pushing forward legislation to facilitate driverless cars over the past two years. In 2015, the first public self-driving car trials took place in South Australia, after laws were passed there to allow tests.

The NTC also recently released guidelines on driverless car tests across the entire country.

Analysts have forecast that automated vehicles could actually be a boon for the alcohol industry.

"Shared and autonomous vehicles could expand the total addressable market of alcoholic beverages while reducing the incidence of traffic fatalities and accidents," Morgan Stanley analyst Adam Jonas saidin a report last month.

Governments across the world are looking into the implications that driverless cars will have on the law and the insurance industry.

I’ve said it before and I’ll say it again. Anything that helps prevent drunk driving, I’m in favor of. If a driverless car can get people home safely after a night of drinking, then why wouldn’t we use them? But to apply DUI laws to those using driverless cars defeats the purpose of DUI laws in the first place, namely to punish and deter drunk driving. In fact, it may actually discourage people from choosing this new method from traveling, as the NTC’s report suggests.

 

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Can Personal Breathalyzers Prevent Drunk Driving?

Thursday, September 14th, 2017

How many people would think twice about getting behind the wheel after having a few drinks knowing that they were above the legal limit? My guess is a lot. No longer must a person guess whether they are over or under the legal limit if they have their own personal breathalyzer.

So can a personal breathalyzer prevent a DUI? I don’t see why not.

Breathalyzers are so readily available nowadays that, in addition to the standard multiple-use breathalyzer, they have developed single-use disposable breathalyzers and breathalyzer apps for the smartphone.

As you can imagine, the range in the quality and price of personal breathalyzers is quite large. Costs will vary between $15 and several hundred dollars. Breathalyzers under $50, and those coming on key chains have questionable accuracy from the start and accuracy continues to decrease after multiple uses.

Unlike novelty breathalyzers, quality breathalyzers will be backed by the Food and Drug Administration (FDA). This means that the FDA conducts research to confirm that the breathalyzer does what its literature says it does.

Just because I believe that personal breathalyzers can prevent a DUI, it doesn’t mean that they are 100% accurate. Almost all quality breathalyzers, like those the police use, require calibration after repeated use to ensure accuracy. Some products allow for owners to calibrate themselves and some require that the breathalyzer be sent to the manufacturer for calibration. Heavily used and non-calibrated breathalyzers will likely not be accurate.

It is possible for a person’s blood alcohol content to continue to rise after a breathalyzer reading, especially if they’ve only recently stopped drinking. Therefore, it is also possible for a person to have a blood alcohol content of 0.07 when they leave the bar (and when they test themselves) and a 0.09 after they’ve been driving for a while. If that is the case, you can still be arrested and charged for a California DUI.

Lastly, a person does not necessarily need to be above a 0.08 blood alcohol content to be arrested and charged with a California DUI. A person can be arrested and charged with a California DUI if they are above a 0.08 percent blood alcohol content or if they are “under the influence.” In other words, you can be a 0.07 percent, but if an officer determines that you cannot safely operate a vehicle as a sober person could, you can still be arrested and charged with a California DUI.  A breathalyzer may determine if you are under the legal limit, but it cannot determine whether you are “under the influence.”

Although I can’t imagine some DUI’s not being prevented with personal breathalyzers, the Colorado Department of Transportation wants to be sure. They are providing personal breathalyzers to people with prior DUI’s in certain counties.

Those who participate in the program have agreed to actually use the breathalyzer and complete a survey. At the end of the program and when the survey is completed, participants can keep the breathalyzer.

You can be sure that when the Colorado Department of Transportation releases the results of this experiment, you can be sure that I’ll update you with that information.  

 

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Drunk Driver Incriminates Herself on Facebook

Monday, September 11th, 2017

Sometimes clients or potential clients send me messages on public forums like Facebook. Shockingly, the messages include incriminating statements or even admissions of guilt. I have to remind them that the internet is like Las Vegas in that what goes on the internet, stays on the internet and that it can be seen by anyone, including the police and prosecutors.

A Michigan woman found this out the hard way when she posted about her DUI collision on social media.

The woman was driving under the influence of alcohol when she collided into another vehicle. Following the collision, she fled the scene to a nearby hotel which had a computer and she immediately began posting about the incident.

Officers tracked her down to the hotel. The front desk attendant told the officers that the woman had come in, said that she had been in a collision, and that she had been drinking.

The officers then then tracked down the computer that the woman had been using. The woman had closed neither Facebook nor the Facebook messages that she had sent a friend. Lo and behold, there was a message from the woman to her friend detailing the DUI-accident.

A later breath test revealed that the woman had a blood alcohol content of 0.12 percent. It was also discovered that her license was expired. She was booked on charges of driving under the influence, operating a vehicle with an expired license, and leaving the scene of an accident causing injury.

It wouldn’t surprise me if the Facebook message will be used against the woman in court.

Ok, so the officers in this instance didn’t discover the incriminating social media information as you might’ve expected, namely scanning pages hoping to come across incriminating information. That doesn’t change the point I’m trying to make.

Keep your mouth shut…and your fingers off the computer.  

The Fifth Amendment exists for a reason and is useless unless it is exercised. It doesn’t matter whether you’re guilty or innocent. Exercising your right to remain silent is about protecting yourself and your rights.

Not only will statements made to police be used against someone in a DUI case, or any criminal case for that matter, but also the information they post on social media.

Being a criminal defense attorney for close to eight years now, I’ve known prosecutors and law enforcement agents to search Facebook and other social media platforms for information that might incriminate people. If found, that information is often used as evidence in a criminal case against the person.

If you are arrested on suspicion of driving under the influence, simply tell the officers that you respectfully decline to answer any questions without a lawyer present. Bear in mind that officers do not need to read you the Miranda Rights before they start asking question during a DUI stop. If you are arrested and charged, do not discuss the matter with anyone, either online or in person, to anyone but your attorney.

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California Drunk Driver Faces Homicide Charges for Killing Officer

Friday, August 25th, 2017

A California driver is being held on homicide charges for allegedly driving under the influences and striking an off-duty Modesto Police Department sergeant who was riding his bike.

According to investigators, 38-year-old Sgt. Michael Pershall was riding his bicycle on Tuesday evening when he was struck from behind by a vehicle. The vehicle then crashed into a fire hydrant. The driver of the vehicle, 32-year-old Matthew Gibbs of Modesto, California, was subsequently arrested on suspicion of driving under the influence.

Gibbs was booked into the Stanislaus County Jail and is being held without bail.

Court records show that Gibbs was arrested for a misdemeanor DUI in 2015. That case, however, was dismissed.

Gibbs is facing a homicide charge as well as two charges of DUI causing injury.

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 Gibbs 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, or a fetus, with malice aforethought.” Malice can be expressed or implied, and implied malice is present when the circumstances attending the killing show an abandoned and malignant heart.

So what does that mean?

Simply put, implied malice is when a person knowingly engages in an act that is dangerous to human life with a conscious disregard for human life.

The court in Watson found that if the facts surrounding the DUI support a finding of “implied malice,” second degree murder can be charged. 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.

Gibbs was only arrested for a prior DUI, but never convicted. Therefore, there’s a good chance that judge never gave Gibbs the “Watson advisement.” Thus, if the prosecutor wants to charge Gibbs with murder, they must find some other way to prove that Gibbs knew it was dangerous to drive while under the influence and that he ignored that danger.

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DUI with Keys in the Ignition but No Driving?

Friday, August 4th, 2017

Not only do I practice DUI defense and write these posts on DUI-related topics, but I also teach law which sometimes includes teaching students what is required for a DUI. Students are often surprised when I tell them that, in California, driving must occur for a person to be arrested, charged, and convicted of a California DUI.

States are split on whether a person can get a DUI for merely having their keys in the ignition. States that don’t require that the defendant actually drive are called “dominion and control” states. Fortunately, California is not one of those states.

In states that have “dominion and control” DUI laws, if a person is intoxicated and has dominion and control of their vehicle with the mere ability to drive, they can be arrested, charged, and convicted of that state’s DUI laws. California, on the other hand, requires that the defendant actually drive the vehicle.

In 1991, the California Supreme Court in the case of Mercer v. Department of Motor Vehicles held that the word “drive” in California’s DUI law means that the defendant volitionally and voluntarily moved the vehicle. While no movement is insufficient for a DUI, the courts have held that even a “slight movement” is enough to meet the requirement that the defendant drove the vehicle.

Therefore, in California, a person cannot get a DUI for merely having the keys in the ignition. The officers and prosecutor would need evidence, in addition to the keys being in the ignition, that the person voluntarily moved the vehicle.

When there is no direct evidence that the defendant drove, such as the officer witnessing the defendant driving, proof that the defendant drove can be established through circumstantial evidence and inferences.

For example, if a person is on the shoulder of the freeway as the sole occupant of a vehicle with the keys in the ignition and they are under the influence or have a blood alcohol content of 0.08 percent or higher, the prosecutor and jury can infer that there was no other way to get to shoulder of the freeway and there was no one other person who could have driven there.

Contrast that with a scenario in which the defendant is found under the influence or with a blood alcohol content of 0.08 percent or higher in their vehicle which is in their driveway and the keys are in the ignition. Here, there is no other circumstantial evidence to create the inference that the defendant actually drove the vehicle.

So, just because you can’t be arrested, charged, and convicted of a DUI with just the keys in the ignition, doesn’t mean that a you should be drunk in a vehicle with keys in the ignition. Don’t put it past law enforcement and prosecutors to try to establish that a person drove even if ever so slightly.

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