Breath or Blood Test After a California DUI Stop?

Posted by Jon Ibanez on October 19th, 2017

Let’s imagine a common DUI scenario.

A person is stopped on suspicion of a California DUI. The person stopped has read my many posts telling readers that the field sobriety tests are optional and should not be submitted to. So they politely decline the field sobriety tests. Then the officer requests an on-scene breathalyzer known as the “preliminary alcohol screening” test or PAS test. In addition to my posts reminding readers that this too is option, the officer also informs the driver that the PAS test is optional. So this too is politely declined by the driver. Lastly, the officer advises the driver that they are under arrest on suspicion of a California DUI and that, by law, they must submit to a chemical test which can either be a breath or a blood test.

Which test should the driver choose? Breath or blood?

The DUI blood test is much more accurate than the DUI breath test. The blood test is far less likely than a DUI breath test to produce a false reading. Another benefit of a DUI blood test is that the law requires that a sample of the blood is saved for future testing by the DUI suspect’s defense attorney. The defense attorney can have the sample tested by its own blood analyst to contradict the results of the prosecutor’s analyst. This is called a “blood split” and it is commonly used in DUI defense.

The blood test, however, is not infallible. See my previous post:

The Dirty Skin Defense

Since the blood test is more accurate, if a person knows that they have not had much to drink and they are fairly certain that they are under the legal limit of 0.08 percent, then a blood test might be the better option. On the other hand, the blood test might not be the best for someone who is clearly over the legal limit because it will be more difficult to dispute the test results.

 Unlike the blood test, the breath test is rather unreliable. Breath tests can provide false readings for several reasons. See Lawrence Taylor’s post:

Are Breathalyzers Accurate?

Although California DUI attorneys cannot dispute the reliability of breathalyzers as a whole during a DUI trial, they can provide evidence that the particular breathalyzer used in an individual case was inaccurate.

Unlike the blood test, the breath test may be a better option for someone who knows they are likely over the legal limit because it will be easier for a California DUI attorney to refute the results. However, many people who are actually under the legal limit may still test over the legal limit because of the same inaccuracies.

Simply put, if you are fairly confident that your blood alcohol content will below the legal limit of 0.08 percent, you’re probably better off opting for the blood test because it will accurately show that you were, in fact, under the legal limit. However, if you think there is a chance that you could be above the legal limit, you might be better off opting for a breath test so that your attorney can challenge the results if you test above the legal limit.

DUI in a Driverless Car

Posted by Jon Ibanez on 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.

 

Drunk Driver May Finally Lose License After 28th DUI Arrest

Posted by Jon Ibanez on October 6th, 2017

Danny Lee Bettcher of New York Mills, Minnesota, has been arrested for driving under the influence for the 28th time. Yes, that’s correct, 28th time.

This past week, an off-duty police officer spotted Bettcher drinking at a local Veterans of Foreign Wars (VFW) post. The off-duty officer notified authorities after he saw Bettcher leave the VFW post in his vehicle.

Authorities caught up with Bettcher and pulled him over after he ignored a stop sign and drove onto the highway at 10 mph while swerving. According to officers, Bettcher had bloodshot eyes and a beer can was located behind the passenger’s seat.

“I am way over. Take me to jail,” Bettcher told police after refusing to take a sobriety test, according to the criminal complaint.

According to Assistant County Attorney, Jacob Thomason, Bettcher could be sentenced up to seven years in prison.

Although Bettcher’s license was valid at the time of the arrest, it included “a restriction that any use of alcohol or drugs invalidates the license,” state Department of Public Safety spokeswoman Megan Leonard told the Star Tribune.

As of last week, a revocation of Bettcher’s license was pending.

Bettcher, who attributes his alcoholism to post-traumatic stress disorder following his military service, has already served four years behind bars for other DUI convictions and has been ordered to go to treatment at least 12 times.

So what would it have taken for Bettcher to have his license permanently revoked had he been in California?

The California license suspension can be rather complicated. Suffice it to say, on a first time DUI, a person faces a six-month suspension assuming the driver was over the age of 21, there was no refusal of the chemical test, and there were no injuries as a result of the DUI. You can read my previous posts about the nuances of a first-time DUI license suspension.

If, however, a person suffers a DUI and they have previously been convicted of a DUI within the past 10 years, then the suspension increases significantly.

A second DUI will trigger a two-year suspension and a third DUI will trigger a three-year suspension. If a driver suffers a fourth DUI within 10 years, they are facing a four-year suspension, but they may also be deemed a “habitual traffic offender” and can have their license revoked permanently.

Although Bettcher’s 27th DUI arrest occurred in 2010, it’s unclear whether any of his previous DUI’s occurred within a 10-year window.

I’m no mathematician, but at 64-years-old, as Bettcher was, I can’t imagine that the convictions could have been spaced out such that he would have been able to avoid the habitual traffic offender status and permanent revocation here in California.

California DUI with a High BAC

Posted by Jon Ibanez on September 29th, 2017

Many people know that the legal blood alcohol content limit is 0.08 percent and that if caught driving with a 0.08 percent or more, they will face the penalties associated with a DUI. Few people however know that if they are caught driving with a blood alcohol content that is much higher than the legal limit, they face additional penalties.

The mandatory minimum punishment for a first time DUI conviction in California is $390 plus penalties and assessments, which are like court taxes and will increase the overall amount to about $2,000, three years of summary (informal) probation, and a three-month DUI program called AB-541.

The first consequence of a driver having a high blood alcohol content, beyond the mandatory minimum penalties mentioned above, is that they must admit to having a high blood alcohol content. The prosecutor may include in the criminal complaint a “special allegation” that the driver’s blood alcohol content was high. In addition to pleading guilty to the DUI itself, as part of a plea deal, prosecutors often want the driver to admit on the record that the special allegation that their blood alcohol content was particularly high.

A driver may also be facing a longer DUI program. AB 762 is a six-month program and AB 1353 is a nine-month program and both can be offered as part of plea deal for an elevated blood alcohol content. There is an 18-month program called SB 38, but it is reserved for people who have been convicted of one or more California DUI’s within the past 10 years. 

Another additional penalty that a person faces after a California DUI conviction with a high blood alcohol content is the Mothers Against Drunk Driving Victim Impact Panel. According to Mother Against Drunk Driving (MADD), one of their main goals is to prevent recidivism of DUI offenses. In an attempt to accomplish this, MADD provides one-day presentations where convicted DUI offenders listen to the stories of people whose lives have been negatively affected by drunk driving. The speakers are usually victims of DUI-related collisions or relatives of those who were killed as the result of DUI-related collisions.

The prosecutor might also offer a Hospital and Morgue (HAM) program. The name is exactly what the program entails. The person convicted of the California DUI must visit with doctors at a hospital who address the dangers of driving drunk and experience the health consequences of driving drunk. Following the hospital visit, the person must visit a morgue where they view the bodies that are stored there and are confronted with the ultimate consequence of driving drunk and other risky behavior. After both the hospital and morgue components are completed, the person must write an essay reflecting on their experience, the lessons learned, and behavior moving forward.

Alcoholics Anonymous (AA) meetings might also be offered as an additional penalty when a BAC is particularly high. According to its own website, www.aa.org, “AA is an international fellowship of men and women who have a drinking problem…Membership is open to anyone who wants to do something about his or her drinking problem.” AA meetings are relatively easy to locate and are offered throughout the week at varying times. Since the meetings only typically last one hour to 90 minutes, the court usually requires at least 10 meetings. For extremely high BAC readings, a person may have to a significant amount of AA meetings.

Lastly, a person may actually have to serve jail time. Whether a prosecutor will want jail for an elevated BAC depends other aggravating factors surrounding the DUI, the county in which the DUI took place, and the courthouse itself. Although it is the most severe of the increased penalties and unlikely to be offered, it is possible.

A driver with a particularly high blood alcohol content may face one, all, or a combination of any of the abovementioned increased penalties. Other, less frequent penalties, such as a SCRAM device or an ignition interlock device, may also be included. Since these penalties are not mandatory, it is important to hire a California DUI attorney to possibly eliminate them as part of a DUI sentence.

 

 

State Supreme Court: “No Reliable Scientific Test for Marijuana Impairment”

Posted by Lawrence Taylor on September 20th, 2017

It is, of course, illegal to drive a vehicle while impaired by the effects of marijuana.  The continuing problem, however, is:  How do you prove that a driver is, in fact, under the influence of marijuana?

Law enforcement currently relies primarily upon the opinions of police officers as to whether a suspect is unable to safely operate a vehicle due to marijuana impairment.  The primary tool used to arrive at this opinion is the same as for alcohol impairment: field sobriety tests.  These highly subjective roadside "tests", administered and interpreted by a police officer with little training, is coming under increasing scrutiny — as reflected in yesterday’s decision by the Massachusetts Supreme Court:
 

Court: Roadside Drunken Driving Tests Not Valid for Pot

Boston, MA.  Sept 19 – The highest court in Massachusetts has ruled that field sobriety tests typically used in drunken driving cases cannot be used as conclusive evidence that a motorist was operating under the influence of marijuana.

The Supreme Judicial Court on Tuesday said police officers could testify only to their observations about how a person performed during a roadside test.

But they would not be allowed to testify as to whether a person passed or failed such a test or offer their own opinions about whether a driver was too high to drive.

The justices said there is currently no reliable scientific test for marijuana impairment.

Adult use of recreational marijuana is now legal in Massachusetts, though the court noted it’s still illegal to drive while high on pot.


Absent evidence of impairment based upon field sobriety tests, the only other evidence (independent of a police officer’s subjective opinion), is a blood test.  This, however, has been proven to be highly unreliable.  See, for example, Can DUI Marijuana Be Detected or Measured?, How Much Marijuana Does It Take to Impair Driving? and New Study: Minimal Impairment from Marijuana.

(Thanks to Joe)