Court Makes it Easier for DMV to Suspend License After a California DUI

Posted by Jon Ibanez on April 20th, 2015

As if it wasn’t easy enough for the DMV to suspend a driver’s license following a California DUI arrest. Recall my numerous posting on the uphill and one-sided process that is the DMV’s administrative per se hearing. Now the DMV can consider circumstantial evidence such as an officer’s observations in determining that a person had a blood alcohol content of 0.08 percent or more.

Ashley Jourdan Coffey was arrested on November 13th, 2011 after an officer spotted her swerving on the Costa Mesa (55) freeway. The officer determined that Coffey was intoxicated based on her red eyes, the smell of alcohol and her failure of field sobriety tests.

Coffey claimed that, although she was out at the bar because she had just turned 21, she had not consumed any alcohol.

After having trouble completing several breathalyzers, Coffey eventually took a blood test about an hour after she was pulled over. That test determined that her blood alcohol content was 0.08 percent. Another blood test done three minutes later showed that her blood alcohol content had risen to 0.09 percent. Her blood was again tested at a later time and determined to have a 0.95 percent blood alcohol content.

Coffey accepted a plea deal in her court case admitting to misdemeanor reckless driving. However, because the chemical test showed that Coffey had a blood alcohol content of 0.08 or above, Coffey faced a suspension of her license through the DMV.

At the DMV admin per se hearing, Coffey hired an expert to testify that Coffey’s blood alcohol content was rising at the time of her DUI arrest. The expert testified that since her blood alcohol content was 0.08 percent about an hour after the arrest, it must have been below the legal limit at the time she was driving.

Notwithstanding the expert testimony, the DMV hearing officer ruled against Coffey. The hearing officer rejected the expert testimony claiming that it was inconsistent with the officer’s testimony that indicated Coffey was above a 0.08 percent blood alcohol content.

So let’s make this perfectly clear. We have a hearing officer, who is not a lawyer or a judge or a scientist, disregarding an expert’s testimony which based on scientific fact. In fact, the DMV hearing officer doesn’t even need to have a bachelor’s degree, yet they are entrusted with determining the facts which they are the proponents of.

An appellate court sided with the DMV.

The California Supreme Court ruled that the circumstantial evidence that the officer provided was relevant to determining whether the Coffey was at a 0.08 percent blood alcohol content or above. It, however, cautioned against widely using the evidence to discredit expert testimony.

“This is basically the first case to say, ‘Yes, hearing officer, you can consider this evidence, but be careful not to go too far.’ It has to be reasonable, you can’t just exclude expert testimony,” said Coffey’s DUI defense attorney, Chad Maddox. “They said it should be look at on a case-by-case basis.”

Can Raising Taxes on Alcohol Reduce Drunk Driving Accidents?

Posted by Jon Ibanez on April 13th, 2015

A new study published in the American Journal of Public Health suggests that raising the taxes on alcohol could reduce the number of drunk driving related collisions.

Researchers from the University of Florida studied the results of a 2009 tax increase on alcohol in the state of Illinois. In that year, the state increased its excise tax on beer by 4.6 cents a gallon, on wine by 66 cents a gallon and on distilled spirits by $4.05 a gallon, or by 1 cent more that consumers pay per glass of beer or wine and nearly 5 cents more for a serving of spirits.

According to the researchers, alcohol-related traffic deaths in Illinois fell 26 percent. The decrease was higher among young people, at 37 percent. Fatal crashes involving alcohol-impaired and extremely drunk drivers fell 22 percent and 25 percent, respectively.

"Similar alcohol tax increases implemented across the country could prevent thousands of deaths from car crashes each year," Alexander Wagenaar, a professor in the Department of Health Outcomes and Policy at the University of Florida, said in a university news release. "If policymakers are looking to address dangerous drivers on our roads and reduce the number of fatalities, they should reverse the trend of allowing inflation to erode alcohol taxes.”

Wagenaar’s comments reflect the study’s observation that alcohol has become less expensive in recent years as the result of a decrease in alcohol tax rates. The study notes that having 10 or more drinks a day would have costs the average person approximately half of their disposable income in 1950. Modernly, however, having 10 or more drinks a day would cost the average person about three percent of their disposable income.

"This goes against the conventional wisdom of many economists, who assert that heavy drinkers are less responsive to tax changes, and has powerful implications for how we can keep our communities safer," said Wagenaar.

As with many studies, you have to ask yourself, “Is this a true cause and effect situation?”

U.S. News reported that David Ozgo, vice president for economic and strategic analysis for the Distilled Spirits Council of the United States, had the same question. According to Ozgo, fatal collisions involving alcohol were decreasing before the tax increase.

 “In fact, the largest annual decline over the last eight years occurred in 2008, the year before the tax rate changed,” he said. “Importantly, Illinois alcohol-related traffic fatalities declined faster than the national average before the tax increase and this has not been the case since the tax increase.”

Ozgo’s observation makes us wonder whether it really is the tax that is causing the decrease in DUI related fatalities in the state.

Think about the averages alcohol abuser. Is the rather trivial increase in alcohol taxes mentioned above really going to stop someone from purchasing the alcohol? Is it going to keep them from driving after drinking?

Warrantless Blood Draw Allowed because Cop Relied on Bad Law

Posted by Jon Ibanez on April 6th, 2015

A Kansas Court of Appeals ruled that a trial court incorrectly suppressed evidence because, although it was illegal for the officer to obtain it without a warrant, the officer acted in good faith in obtaining it.

Let’s put this into some context.

In 2008 Kansas enacted a law which allowed law enforcement to conduct a warrantless search in drawing blood from someone who was involved in an accident that resulted in serious injury or death. In other words, according to the law, the mere involvement in a traffic violation which led to injury or death constituted the probable cause to allow officers to obtain blood without a warrant to determine if the person was driving drunk.

See anything wrong?

A traffic violation resulting in injury or death does not, by itself, constitute probable cause that a person is driving drunk.

In State vs. Declerck, a 2014 case, the Kansas Supreme Court held the law to be “unconstitutional to the extent it requires a search and seizure absent probable cause the person was operating or attempting to operate a vehicle under the influence of drugs or alcohol.

“We are acutely aware the statute in question attempts to address the terrible toll impaired drivers inflict on our state’s highways, but we are reminded of the ‘truism that constitutional protections have costs,’” said the Declerck court citing the United State Supreme Court ‘s decision in Coy v. Iowa.

Let’s go back to our story.

In February of 2012, Troy Meitler was involved in an accident in Reno County, Kansas where a person was killed. A Kansas Highway Patrol trooper obtained blood from Meitler while he was unconscious and receiving emergency medical treatment. Meitler was charged with involuntary manslaughter, aggravated battery and driving under the influence of drugs.

The trial court judge, however, suppressed the blood evidence because the trooper did not have probable cause to believe Meitler. In suppressing the evidence, the trial court cited the Declerek decision.

Prosecutors appealed the trial court’s decision to suppress the blood evidence.

The Kansas Court of Appeals reversed the trial court’s decision. Two of three appellate judges held, “we are unable to conclude that on February 10, 2012 (the day of the accident), a reasonable law enforcement officer should have known that (the 2008 Kansas statute) was unconstitutional. The district court’s contrary legal conclusion finding that the good-faith exception did not apply in this case was error.”

The dissenting judge acknowledged that evidence generally could be admitted when police officers acted under an existing law that eventually is found to be unconstitutional. However, Judge Gordon Atcheson, cited the Supreme Court, in pointing out that an officer’s good faith reliance does not apply “if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws.”

“State legislatures may not override decisions of the United States Supreme Court construing federal constitutional rights by passing statutes designed to thwart those decisions and dilute those rights,” Atcheson wrote. “That is a fundamental precept of our system of governance integrating the dual sovereignty of state and federal authorities.”

Atcheson is exactly right. This, unfortunately, was lost on the majority of the court.

There is no question that the law was unconstitutional. And there’s no question that the officer was relying on it.

However, as I read about Meitler’s appeal, I wondered how we even got to this point. Shouldn’t those entrusted with creating laws that affect citizens so significantly have at least a fundamental understanding of the Constitution? One would think.

At the time the officer drew the blood, the law had not yet been officially deemed unconstitutional. So only slightly less culpable than the legislature is the trooper. As the authority who enforces the laws that the legislature enacts, I would like to think that the trooper questioned whether he actually had probable cause to believe that Meitler was under the influence. Although I doubt it.

Breathalyzers to be Installed in All New Cars?

Posted by Jon Ibanez on March 30th, 2015

Think of all of the things that could come with a new car when the salesman tells you that it is fully equipped. I bet you’re thinking of satellite radio, heated seats, dashboard navigation, and maybe park assistance. I’m sure you weren’t thinking of a pre-installed breathalyzer, the use of which is required to start the car; a permanent ignition interlock device if you will.

I’ve written in the past on Nissan’s high-tech, DUI-preventing smart car which contains several types of sensors that detects, amongst other things, the presence of alcohol on the driver.

A highly sensitive alcohol sensor built into the transmission shift knob is able to detect the presence of alcohol in the driver’s palm sweat when they grasp the knob. The transmission will lock, immobilizing the vehicle if the alcohol detected in the sweat meets a pre-designated level. The vehicle will also be equipped with sensors located in the driver’s and passenger’s seat to detect the presence of alcohol in the air. If alcohol is detected in the cabin of the vehicle, a voice alert will notify the driver and a message will appear on the navigation monitor.

Could such technology actually prevent DUIs? According a recent study in the American Journal of Public Health the answer is yes.

"Alcohol interlocks are used very effectively in all 50 states as a component of sentencing or as a condition for having a license reinstated after DUIs, but this only works for the drunk drivers caught by police and it doesn’t catch the people who choose to drive without a license to avoid having the interlock installed," said lead author Dr. Patrick Carter, an emergency physician with the University of Michigan Health System in Ann Arbor. "If we decided that every new car should have an alcohol ignition interlock that’s seamless to use for the driver and doesn’t take any time or effort, we suddenly have a way to significantly reduce fatalities and injuries that doesn’t rely solely on police."

Carter and his researchers used U.S. records on traffic accidents and fatalities from 2006 to 2010 to determine the number of incidents that were alcohol related. They then estimated how many of these incidents could be avoided in the future with the pre-installed ignition interlock devices on all new vehicles.

The researchers assumed that it would take 15 years to phase out older cars without pre-installed ignition interlock devices with new vehicles that are equipped with pre-installed ignition interlock devices.

Carter concluded that “over 15 years, 85% of crash fatalities and 84% to 88% of nonfatal injuries attributed to drinking drivers would be prevented." This amounts to 59,554 lives. They also estimate that this will save an estimated $342 billion in injury-related costs.

There’s no way to know how accurate Carter’s estimates are or will be if pre-installed ignition interlock devices become standardized in all new vehicles.

And although the study just dealt with projected effects of such technology, I still have several questions regarding the technology itself:

Will the pre-installed ignition interlock devices be as accurate in determining the BAC of a driver as a breath or blood test used by law enforcement (breathalyzer can fairly inaccurate)? Will the technology need to be regularly calibrated like breathalyzers used by law enforcement and current ignition interlock devices? Will data be stored such that it can later be used against a driver in a DUI case?

What is the True Cost of a First-Time California DUI?

Posted by Jon Ibanez on March 23rd, 2015

You may have seen the billboards a couple years ago warning motorists that a DUI can cost a person up to $16,000 total. I suspect that it has gone up since then. People have asked me whether this figure is accurate and what they can actually expect to spend after a first-time California DUI conviction. So let’s do the math.

Now I don’t say this next thing because I’m an attorney who is trying to solicit clients, but rather I’m saying it as an attorney who knows what to expect from the court process. Hire a lawyer. Attorneys have gone through three or more years of a law school, passed the unbelievably rigorous bar exam, and eventually become licensed to practice law in California for a reason. That reason is to go to court for people. Don’t think you can do it on your own.

Having said that, attorneys can cost between $1,000 and $10,000 depending on who they are, what their reputation is, and what their experience is. You can do your own math based on these figures. But of the attorney and law firms I know, I’d say a safe average is $3,500. This will usually cover a retainer up to, but not including trial. Those costs can be much more.

Upon conviction, the court will impose fines and fees. The statutory minimum for a first time DUI is $390 and the statutory maximum is $1,000. Fortunately for first-time California DUI offenders, the court usually imposes the minimum. Unfortunately, however, the court tacks on “penalties and assessments.” It is difficult to know exactly how much these penalties and assessments will amount to. In fact, today in court I heard a judge say that even he didn’t know how much amounted to. But, as a rule of thumb, I tell my clients to expect four to five times what the base fine is. So for the sake of our discussion, let’s say an even $1,700.

Most people convicted of a first-time California DUI will be required to take a three month DUI program. While people can choose from a number of programs with slightly different enrollment costs, a three month DUI program can cost a person around $575.

In Los Angeles, Alameda, Sacramento, and Tulare Counties, a person convicted of a first-time California DUI will be required to install an ignition interlock device in their vehicle for five months. On average, a person can expect to pay about $100 to have the device installed and about $2.50 per day to lease the device, have it maintained, and keep it calibrated. This amounts to about $325.

If a person’s vehicle is towed and stored at a yard, which is often the case following a California DUI arrest, that person can expect to pay about $350 to have it released.

Once a person is eligible to have their license reinstated by the California DMV, they will need to pay $125 to the DMV as a reinstatement fee.

However the single most expensive cost following a California DUI conviction is the increase in insurance premiums. In order to drive following a California DUI, the California DMV will require a person to file an SR-22 form. This document certifies to the DMV that, notwithstanding the DUI conviction, a person’s insurance company still insures them for California’s minimum requirements for automobile insurance liability coverage. The exact amount it costs to maintain the SR-22 is difficult to calculate because a number of factors such as age, gender, place of residence, and the rates of the particular insurance company.

Because the amounts of increased insurance premiums are difficult to calculate, I’ll use the figure used by the 2013 Automobile Club’s estimate for a 25 year old male over a 10 year period. This was the amount used when the Automobile Club announced that the total costs of a DUI were $16,000 in 2013. This amount was $10,154.

I’ll save you from doing the math. When you add all of these figure up it amount to $16,729.

This is about as rough as an estimate as we can get. Remember there are a number of other factors that contribute to the overall cost of a DUI. Having said that, this number can still be used as a guide to what a person can expect to pay following a first-time California DUI conviction.

I’ve said it before and I’ll say it again…

Before you head out for a night of drinking don’t turn your $50 bar tab into a $16,000 mistake.