DUI for Military Members

Posted by Jon Ibanez on August 26th, 2015

It’s not uncommon to see local servicemen and servicewomen on leave out at the bars. And it’s no wonder with California being the home of 32 military bases. Serviceman of servicewoman should be aware that their DUI, if they are arrested for one, may be treated differently than a civilian’s DUI. Additionally, they may face additional consequences from their commands.

Military bases are considered federal land. As such, crimes committed on military bases are subject to federal laws, not state laws.

The Code of Federal Regulations states that a person can be convicted of a DUI under federal law if they are 1.) Unable to safely operate a vehicle because they are under the influence of alcohol, drugs, or a combination of alcohol and drugs, 2.) They have a BAC is .10 grams or more of alcohol per 100 milliliters of blood, or .01 gram or more of alcohol per 210 liters of breath, or 3.) The person could be charged under the state law if the state law is more restrictive than the above standards. Although federal law governs the case, the Assimilative Crimes Act allows the court to impose the penalties from the state in which the military base is located.

As I mentioned, servicemen and servicewomen may also face additional penalties simply because they are military members. Whether the DUI occurred on a military base or not, military members may also be court martialed under the Uniform Code of Military Justice. A court martial may result in further penalties including suspension of favorable personnel actions, reduction in pay and rank, reprimand, denial of promotions and leaves, and possible dishonorable discharge.


Military members however may face non-judicial punishment, also known as NJP, under Article 15 of the Uniform Code of Military Justice which allows commanders to discipline military members without a court martial. Although an NJP is not a criminal conviction, it can result of in many of the same punishments as a court martial.

Furthermore, if a DUI conviction results in a license suspension, servicemen and service women will not be able to drive any military vehicles including, but not limited to, tanks, Humvees, or aircraft. 


Is There a Breathalyzer in Your Car’s Future?

Posted by Lawrence Taylor on August 25th, 2015

Do you think the dashboard in your new car is already filled with electronic gizmos?  You open the door, sit down and in front of you are a dazzling array of dials, buttons, analog and digital displays, screens, backup camera, audio options, ignition, Bluetooth, climate controls, ad nauseum.   

How about adding a breathalyzer to that dashboard?

Sen. Chuck Schumer Pushes High-Tech Solution to Drunk Driving

Wash, D.C.  Aug. 7 – Sen. Chuck Schumer is racing to install new technology in cars that could put a stop to drunk driving, saving up to 7,000 lives per year.

The Driver Alcohol Detection System for Safety — revealed last month by the National Highway Traffic Safety Administration — uses touch- and breath-based systems to detect if a driver has had too many drinks. If the systems detect that the driver’s blood alcohol level is above the legal limit, the car shuts down.

The high-tech solution has been in the works since 2008 through a partnership between the NHTSA and Automotive Coalition for Traffic Safety, but it won’t hit production for several years, researchers say. To speed up the process, Schumer is co-sponsoring a bill that would funnel $48 million in federal funding to the project over six years…

Presumably, these dashboard breathalyzers will not be options, but will be required by federal or state law — either as mandatory equipment on new cars, or as required additions to used cars.  This would probably be required by federal law or, as with the .08% blood-alcohol laws, by state laws passed under threat of withholding federal highway funds.

Sounds like a great idea, right? But what is never mentioned about these devices are the drawbacks:

      * Accuracy.  As with breathalyzers used in police stations, these machines have to be constantly calibrated

      * Reliability.  Police breathalyzers are in police stations; how reliable and accurate will one be subjected to bumpy roads and high-speed driving?

      * Fraud.  What’s to stop a driver from having his passenger or anyone else breath into the device?

      * Emergency situations.  What if there is a sudden emergency requiring immediate driving?

      * Maintenance.  How often, where and at what cost must the machines be maintained or repaired? 

      * Safety.  What happens if the breathalyzer malfunctions and shuts down the vehicle — on a freeway at 65 mph?

As I’ve mentioned repeatedly in the past, law enforcement breath-testing machines — even when maintained, calibrated and operated correctly — are inaccurate and unreliable.  See, for example, Breathalyzer Accuracy.      How accurate and reliable will a much smaller and cheaper version be that is mounted in a car driven for hours at varying speeds and road conditions?  


Boyfriend and Girlfriend Busted for DUI One Hour Apart

Posted by Jon Ibanez on August 13th, 2015

An hour is not enough time to sober up, at least not for Christopher McFarlane.

 McFarland was the passenger in his girlfriend’s car when she was pulled over after California Highway Patrol officers spotted her vehicle swerving in Santa Rosa, California. Anna Arthur was arrested for driving under the influence and McFarlane was, himself, too drunk to drive Arthur’s Honda home. McFarlane walked to Arthur’s house.

This guy wasn’t falling-down drunk, but was definitely over 0.08” percent, the legal limit for driving, said CHP officer Jonathan Sloat.

About an hour later and shortly after Arthur was booked into Sonoma County Jail, officers spotted a McFarlane driving a Jetta. McFarlane told officers that he was on his way to the jail to bail out Arthur.

McFarlane, apparently, had not yet sobered up because, according to Sloat, “The officers still noticed signs of intoxication, and McFarlane failed field sobriety tests.”

It was also determined that McFarlane was on probation and his license was suspended for a DUI conviction last year. As a result, not only was McFarlane booked on suspicion of a California DUI, he was also booked for violation of probation and driving on a suspended license.

McFarlane is going to need more than love to get him out of this jam. He’ll need a California DUI attorney. At least if both he and Arthur are convicted, they might be able to do their DUI classes together. 


Are MADD Awards to Officers for DUI Arrests Warranted?

Posted by Jon Ibanez on August 10th, 2015

Mothers Against Drunk Driving (MADD), the hyper-aggressive group that advocates for tougher laws on drunk driving, regularly awards local officers for the high number of DUI arrests they make in a given year. In fact just last month, several such awards were given in several California counties.

To be eligible for the MADD award, officers must arrest a minimum of 25 drunk drivers within a one year period.

“Officers Corey Baker and Kevin VanFleet were among several police officers from Ventura, Santa Barbara and San Luis Obispo counties who received the MADD Award,” said the Simi Valley Acorn. “Baker detected impairment in 82 drivers in 2014, and VanFleet made 36 arrests.”

According to The Californian, Monterey California Highway Patrol Officer Peter Avila was given the award for making 66 DUI arrests in 2014. This was more than any other CHP officer in the Monterey area in 2014.

To many, this seems like a good thing; awarding those who take drunk drivers off of the road. But the flaw in this is that just because a person was arrested does not necessarily mean that they are driving drunk.

So are these awards warranted?

An arrest means nothing without a conviction. Remember, we are all innocent until proven guilty. This necessarily means that a person was not driving drunk if and until they are proven to be driving drunk with a conviction.

As a DUI defense attorney, I can tell you first hand that many DUI arrests do not end up as DUI convictions.

Officers pretty regularly arrest people for DUI when there is not enough evidence for a conviction, sometimes when there is not even enough evidence for an arrest. Why might they do this? I hate to say it, but it’s because they can.

Take for example a recent case I had. My client was pulled over for speeding. What led the officer to believe that my client was possible DUI, I’ll never know. But my client was asked to perform field sobriety tests anyways. My client, of course, “failed” the field sobriety tests even though his blood alcohol content was determined to be 0.04 percent and well below the legal limit.

Although my client was arrested for a California DUI, he was not drunk. Fortunately, the prosecutor agreed and declined to file charges, but not before my client spent the night in jail and spent the money to hire me to represent him.

My client was not driving under the influence, yet his arresting officer received one arrest credit towards MADD’s award.

Do these awards incentivize officers to make illegal DUI arrests? I doubt it. Personally, I think officers would make such arrests whether the awards were given or not.

But, if you ask me, we’re rewarding the wrong action by the officer because many (and I mean many) DUI arrests are illegal arrests and many do not result in convictions. Not all people who are arrested for drunk driving are actually driving drunk.

U.S. Representative to Propose Legislation Requiring IIDs In All New Vehicles

Posted by Jon Ibanez on July 27th, 2015

U.S. Representative Kathleen Rice has announced that she will be introducing legislation that will require ignition interlock devices to be installed on all new vehicles coming off the production line of American automakers.

Recall that ignition interlock devices (IID) require the driver of a vehicle to provide a breath sample indicating a blood alcohol content below a specified limit before the driver can start the vehicle. Laws regarding the installation of ignition interlock devices vary widely amongst the states.

Here in California, generally, ignition interlock devices are not mandatory as part of a DUI sentence. They may, however, be ordered as part of a DUI sentence at the discretion of the judge and usually when the DUI involved aggravating circumstances such as a particularly high blood alcohol content or a chemical test refusal.

However, as of 2010, certain California counties became subject to a pilot program requiring the installation of ignition interlock devices to be installed for a first time DUI offense. California Vehicle Code section 23700 requires the five-month installation of ignition interlock devices for first-time DUI offenders in Alameda, Tulare, Sacramento, and Los Angeles.

 “Advancing the progress we’ve made combating drunk driving demands bold action,” said Representative Kathleen Rice. “It demands that we take a stand and say we refuse to keep letting drunk drivers take 10,000 lives each year. We refuse to keep seeing families torn apart when we know we can do more to prevent it. Strict enforcement is important, holding drunk drivers accountable is important, but we can and must do more to stop drunk drivers from ever hitting the road in the first place. That’s why I’m working on legislation to require ignition interlock devices in all new cars. This technology saves lives, it saves money, and I’m going to fight to make it standard equipment in American cars.”

To support her position, Rice cited a recent study conducted by researchers at the University of Michigan. According to the study, requiring interlock technology in all new vehicles would, over a 15 year implementation period, prevent an estimated 85 percent of drunk driving-related deaths and 84-89 percent of drunk driving-related nonfatal injuries. Also according to the study, preventing those deaths and injuries would save an estimated $343 billion over 15 years, and the cost of installing the technology would be recovered in the first three years.

These numbers however are based on the assumption that the cost of the device is $400 per vehicle and that the ignition interlock device operates accurately 100% of the time.

However, as with many components of a vehicle, very few function properly 100% of the time.

Rice also failed to mention, although acknowledged by the study itself, that “current devices are not technologically advanced enough for placement in all new vehicles, primarily due to slow reading times, the need for frequent calibrations, and mouthpiece care requirements.”

Not surprisingly, Representative Rice is a former prosecutor who has been named “[New York’s] toughest DWI prosecutor” by the New York Daily News and who recently received a Lifetime Achievement Award from Mothers Against Drunk Driving (MADD).

Ironically, not even over-zealous MADD supports Rice’s position. One of the questions posed on MADD’s website FAQ page is “Does MADD advocate for ignition interlocks in all cars?”

It’s response…

“No. MADD advocates requiring ignition interlocks only for convicted drunk drivers with an illegal blood alcohol concentration of .08 or greater.”