DUI BLOG

Last month, Illinois became the 11^th state to legalize marijuana and since just a few weeks ago, we reminded our readers about The Basics of a California DUI, this may be a good time to also remind our readers that a DUI is not just about alcohol.

We tend to think about drunk driving only in terms of alcohol, primarily because it is the more dominant of legal substances that leads to a DUI. However, marijuana is also becoming more widespread and legal in recreational applications.

While marijuana may still be used by many for its medical properties, there has definitely been an increase in recreational use here in California, thus making DUI of marijuana more prevalent than it has been in the past.

California Vehicle Code section 23152 (f) states, “It is unlawful for a person who is under the influence of any drug to drive a vehicle.” “Any drug” includes those that are legal. The important factor here is “under the influence.” Although, prescription drugs and other legal drugs fall within this purview of “any drug,” a person must also have his or her mental or physical abilities impaired to such a degree that

he or she is unable to drive a vehicle with the caution of a sober person to be “under the influence.”

A recent survey by the AAA revealed that many Americans don’t believe that they will get caught when driving high on marijuana. An estimated 14.8 million Americans admitted to driving within one hour of using marijuana.

We have previously covered topics that have dealt with the insufficient methods of determining impairment, especially when it comes to the effects of THC and other drugs. This may add to the public’s belief that they may not get caught.

However, according to Executive Director of the AAA Foundation for Traffic Safety, Dr. David Yang, “Marijuana can significantly alter reaction times and impair a driver’s judgement. Yet, many drivers don’t consider marijuana-impaired driving as risky as other behaviors like driving drunk or talking on the phone while driving.”

While it is true that no research has proven an exact correlation between impairment and specific levels of THC, unlike how we can calculate a correlation between heightened BAC levels, law enforcement is taking measures to train their officers to better detect impaired drivers. It is only a matter of time before a more consistent method of determining marijuana-impairment will be developed. There are already scientists and researchers hard at work in attempting to create a breathalyzer-type test for determining THC levels and even impairment.

Even current alcohol-testing breathalyzers (used for both the roadside test and for the mandatory “chemical test”), which have been around for quite some time, are by no means perfect. Depending on the officers administering them, how they are administered, and how they’re maintained, breathalyzer results can be challenged by competent DUI attorneys.

While probable cause may seem harder to prove with marijuana, or other drugs, when compared to alcohol, it does not mean that you are not actually impaired. The AAA website summed it up nicely, “AAA recommends all motorists avoid driving while impaired by marijuana or any other drug (including alcohol) to avoid arrest and keep the roads safe. Just because a drug is legal does not mean it is safe to use while operating a motor vehicle. Drivers who get behind the wheel while impaired put themselves and others at risk.”

Many of us have heard the rumors of state agencies not being able to play nice with each other or failing to share important information through a central database as a way to more efficiently catch travelling criminals. Well, here is a story of an agency having received the information, but never utilizing it to its potential.

According to the Massachusetts Department of Transportation, the Registry of Motor Vehicles received, but never processed notifications that their Massachusetts drivers suffered out-of-state violations, including DUI.

Governor Charlie Baker was quoted, “The fact the RMV failed to act on information related to the driver responsible for this is deeply troubling and completely unacceptable.”

The unfortunate and sad part is that this lapse in process came to light as a result of the arrest of one Volodymyr Zhukovsky, who holds a Massachusetts commercial license and who was suspected of killing seven motorcyclists with his pickup truck and trailer in New Hampshire after crossing a double yellow line.

Zhukovsky was charged with operating under the influence and refusing to take a chemical test in Connecticut only a few months prior. The Massachusetts RMV was notified of the charge in May but never processed the incident which should have been enough to suspend his license. It was found that Zhukovsky also had drug and traffic related incidents on his record from six different states.

An internal review by the Massachusetts Department of Transportation, though preliminary, found issues with the processes for out-of-state violations of both commercial and personal driver’s licenses.

Many of the commercial license violations are automated. However, unless the information is entered automatically in a very specific way, the information must be entered manually. In the recent months, no employee was tasked to handle the manual notifications. It was also discovered that the notices that were sent via mail by other states were sorted, but never processed. Thousands of notices were found in a records room and being stored a whopping 53 bins. The past week has already seen hundreds of alcohol-related offenses that were serious enough to trigger a suspension in Massachusetts.

As of July 1^st, 655 new license suspensions had been processed, all alcohol-related violations, and more are expected as they continue to sift through the 53 bins of notifications.

It has been reported that the state is going to be running all Massachusetts driver’s licenses through a national database to make sure that all violations relating to that license are recorded in Massachusetts.

It is hard to imagine that no one caught on to the fact that the notifications were not being processed. In both the manual processing of electronic notifications, as well as the increasing pile of unsorted mail notifications, no one questioned anything.

In most circumstances, I imagine that the individuals who thought they lucked out in that their charge was never fully processed are going to see their insurance rates go up once the state’s records catch up to the most updated information. And this is quite minor in terms of consequences that are catching up to them. Unfortunately, there are those who we wished were processed earlier so as to prevent such tragedy as was the case with the seven motorcyclists in New Hampshire. Nothing will bring them back, but hopefully this incident will cause other agencies and other states to consider their current processes and make sure that their information is up to date and shared information is also taken into consideration and processed so as to prevent such fatalities in the future.

Yes, you read that title correctly. The United States Supreme Court just ruled that police can withdraw blood from an unconscious person suspected of driving under the influence.

Six years ago, police found Gerald Mitchell on a beach in Wisconsin and suspected he was intoxicated after a neighbor reported that he was drunk and suicidal. After being arrested, Mitchell was transported to a hospital. However, by the time he arrived at the hospital, he was unresponsive and law enforcement ordered hospital staff to draw his blood, which revealed a blood alcohol content of 0.22 percent.

Although Mitchell tried to exclude his blood alcohol content from evidence, he was denied and ultimately convicted of driving under the influence. After losing in the Wisconsin state courts, he appealed to the United States Supreme Court arguing that the withdrawal of his blood while he was unconscious without a warrant violated his 4^th Amendment right against unreasonable searches and seizures.

Justice Samuel Alito, writing for the majority which included Chief Justice John Roberts, Justice Stephen Breyer, Justice Brett Kavanaugh, and himself, concluded that the 4^th Amendment, generally, does require a warrant to conduct a search. However, he went on to say that there are exceptions to the warrant requirement including “exigent circumstances” where, as here, a warrantless blood withdraw was necessary to “prevent the imminent destruction of evidence.” Alito continued that the alcohol in a person’s system is “literally disappearing,” which justifies the need to obtain the evidence before taking the time for law enforcement to obtain a warrant.

“Indeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk,” Alito wrote. “It would be perverse if the more wanton behavior were rewarded — if the more harrowing threat were harder to punish.”

Alito also noted that the condition of a driver who is unconscious creates additional burdens on law enforcement since the driver will likely be taken to a hospital rather than the police station where a breath test can be administered.

“It would force them to choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value and all the compelling interest served by BAC limits,” he wrote. “This is just the kind of scenario for which the exigency rule was born – just the kind of grim dilemma it lives to dissolve.”

Justice Clarence Thomas concurred with the result, but not Alito’s rationale. Thomas maintained that since alcohol automatically leaves a person’s blood within a certain amount of time, police should be able to forcibly withdraw blood whether the driver is conscious or not.

Justice Sonia Sotomayor wrote a dissenting opinion that was joined by Justice Ruth Bader Ginsburg and Justice Elena Kagan. Sotomayor argued that Alito’s rationale had missed the point. Sotomayor emphasized that, in this case, law enforcement admitted that there was time to obtain a warrant for Mitchell’s blood, but that they didn’t because of “implied consent.” Implied consent, which exists here in California, is a law that a driver has impliedly agreed to a chemical test by mere virtue of having a driver’s license.

“Wisconsin has not once, in any of its briefing before this Court or the state courts, argued that exigent circumstances were present here,” Sotomayor wrote. “In fact, in the state proceedings, Wisconsin ‘conceded’ that the exigency exception does not justify the warrantless blood draw in this case.”

She went on to say, correctly so in my opinion, that, while “drunk driving poses significant dangers that Wisconsin and other States must be able to curb…the answer is clear: If there is time, get a warrant.”

Justice Neil Gorsuch dissented separately also taking issue with the fact that the case had been decided on grounds that were not the basis for the appeal; whether implied consent laws violate the 4^th Amendment.

“We took this case to decide whether Wisconsin drivers impliedly consent to blood alcohol tests thanks to a state statute,” Gorsuch wrote. “That law says that anyone driving in Wisconsin agrees — by the very act of driving — to testing under certain circumstances. But the Court today declines to answer the question presented. Instead, it upholds Wisconsin’s law on an entirely different ground—citing the exigent circumstances doctrine.”

Take a second to ask yourself what place you expect to be more private than any other place, including your home. I expect that the most prevalent answer is “our bodies.” Yet, for the place that we consider to be the most private, law enforcement does not need a warrant to intrude into it as long as we have a driver’s license.

Sound like a loophole for law enforcement? It is!

I am not saying that we shouldn’t be testing the blood of suspected drunk drivers. But the Constitution protects all of us, suspected drunk drivers included. And if the Constitution requires a warrant to search, especially the thing most of hold to be the most private, then law enforcement should have to get one.

It’s not like law enforcement is sending the warrant application by raven! How long (or difficult) would it really take to obtain a warrant? A few minutes if done digitally? Alito and the majority don’t seem to care as they continue to make it easier for law enforcement to violate constitutional rights.

Justice Sotomayor said it best. If there is time, get a warrant.

We often spend so much time talking about unique DUI-related topics, many of which discuss the complicated intricacies of DUI’s and DUI law, that we forget to go back and just remind our readers about the basics of a California DUI. Therefore, every so once in a while, I like to go back and just discuss the basics of a California DUI. Before I go any further, I’ll preface this post by saying that the below information is not for DUI’s where aggravating circumstances were present such as prior DUI convictions, collisions, injuries to third parties, an unusually high BAC, a refusal of a chemical test, and so on.

In order to be stopped and arrested on suspicion of a California DUI, officers need probable cause to believe that a person is driving under the influence. For an officer to have probable cause, they need to have reasonable and trustworthy facts that a person is driving under the influence. Officers obtain the probable cause needed to make a DUI arrest by observing poor driving patterns, observing signs of intoxication (slurred speech, smell of alcohol, bloodshot eyes), poor performance on field sobriety tests, and/or failure of a pre-arrest breathalyzer known as a “preliminary screening alcohol test” (PAS test).

A driver can limit the probable cause that the officers are looking for by taking steps to enforce their rights. If pulled over on suspicion of driving under the influence, the driver should not say anything to police except to invoke their 5^th Amendment right to remain silent and request an attorney. The field sobriety tests are optional and should not be performed. See any of our numerous articles on the inaccuracies of field sobriety tests. Lastly, the PAS test is also optional and also should not be taken. By limiting the probable cause, the driver will give their defense attorney the ability to argue that the arrest was illegal because the officer did not have the required probable cause to make the DUI arrest.

I should note that a driver will likely still be arrested whether they take measures to protect their rights or not. Again, the purpose of protecting your rights is to help with the DUI defense in court, not to prevent an arrest. I repeat, the officers will almost always still make the arrest.

Once arrested, the driver will be required to submit to a chemical test which can either be a breath or a blood test. Do not confuse this test with the roadside breathalyzer (PAS) test. The PAS test is optional. The chemical test is required, but is only required after a driver is lawfully arrested.

After the driver is arrested, they will be held until they sober up and released with a court date. In the time between the arrest and the court date, the law enforcement agency will send its police report to the appropriate prosecuting agency to make the decision about whether to file charges.

If a DUI is charged, it will typically be under California Vehicle Code section 23152(a) and/or 23512(b). Simply put, Vehicle Code 23152(a) makes it illegal to drive while under the influence of alcohol and Vehicle Code 23152(b) makes it illegal to drive with a blood alcohol content of 0.08 percent or higher. If a person is arrested having been suspected of driving while under the influence of an intoxicant other than alcohol, they will likely be charged with California Vehicle Code section 23152(e).

The filing of charges triggers a criminal case in the appropriate courthouse. The court will schedule a hearing called an arraignment. At arraignment, the DUI suspect, who is now a DUI defendant, will enter a plea, be advised of their rights, and the charges pending against them.

Following the arraignment, there may be several or no pretrial hearings to allow the prosecutor and any defense attorney, either private or a public defender, to assess the merits of the case and negotiate a plea deal. A plea deal may include a reduction in charges to a “wet reckless,” “dry reckless,” or some other lesser charge. It may also include a reduction in sentence.

If no deal can be reached, the case proceeds to a trial where the prosecutor will have to prove to a jury beyond a reasonable doubt that the DUI defendant drove a vehicle either under the influence of alcohol, under the influence of a drug, or with a blood alcohol content of 0.08 percent or higher.

If the jury finds the person not guilty, the DUI defendant will suffer no legal penalties. However, if the finds the person guilty, they face a minimum of three years of summary probation, a fine between $390 and $1,000 plus penalties and assessments, and a three-month drunk driving program known as AB-541, and up to six-month in county jail. Other penalties that a defendant might face are a longer DUI program, a longer probationary period, a hospital and morgue program, a Mothers Against Drunk Driving Victim Impact Panel, AA meetings, and a SCRAM device (alcohol detecting anklet).

I’ve only scratched the surface of the basics of a California DUI, and I haven’t even mentioned the DMV consequences of a DUI arrest and/or conviction, which, by itself, could take up several stand-alone articles. See any number of previous posts about the DMV consequences of a DUI.

Needless to say, just the basics of a DUI are extremely complicated. Factor in other intricacies not mentioned here and it goes without saying that a person who has been stopped, arrested, and charged with a DUI should absolutely not try to take on the system by themselves. Hire a qualified and experienced DUI attorney who knows the process inside and out, and who will give you the best chance at a favorable outcome.

In the years that President Trump has led from the Oval Office, there have been significant changes to former President Obama’s policies. One of the changes being to the Deferred Action for Childhood Arrivals program, better known by many as DACA. This program, which allowed children who were brought to the United States before the age of 16 by undocumented immigrant parents to apply for deferred status and remain in the United States, was formally rescinded by Trump in 2017.

Under the current policy, for a DACA-eligible immigrant to gain deferred status to continue to stay in this country, they cannot have a felony conviction, a significant misdemeanor conviction, or three or more misdemeanor convictions. They must also pose no threat to national security or public safety. These eligible immigrants are referred to as “Dreamers.” However, under the current policy, there was no path to legal residency or ultimately citizenship.

Democrats have authored a bill to be considered by the House that would affect the process of gaining permanent residency for Dreamers and the conditions that would disqualify them from completing the process. Part of the new bill allows Dreamers to be deported if they have a felony DUI offense, three or more misdemeanor offenses, or if their DUI record can be interpreted by the Secretary of Homeland Security to be a threat. Although this is the main focus of the bill, there is also a section in the bill that allows the Secretary of Homeland Security to grant waivers for undocumented immigrants in regards to up to two DUI misdemeanors being counted against them if they have not had similar convictions in the 10 years leading up to their application for legal status. On the flip side, the Secretary may also deny someone’s legal status with one DUI offense if that offense leads to the belief that the person can be considered a public threat.

Supporters of this bill feel that it would be hypocritical for Congress to hold the Dreamers to a different standard than themselves. There have been several members of Congress who have a history of DUI and, for them, apologies seemed to have sufficed to allow them to continue in their positions. Examples of current members include Texas Representative Kevin Brady who pled no contest to a DUI charge in 2005, Idaho Senator Mike Crapo who pled guilty to DUI in 2013, and former Rhode Island Representative Patrick Kennedy who pled guilty to DUI in 2006.

Opposition to the bill feels that this new bill does not consider the severity of DUI convictions. Ohio Representative Chabot was quoted, “We should not be passing laws which shield drunk drivers from removal or reward them for their dangerous conduct by fast tracking them to get a green card.”

Committee Chairman Jerrold Nadler of New York feels that “people make mistakes and laws and policy decisions should reflect that. [They are] no more or no less a public safety threat than a member of Congress who has a DUI conviction from several years ago.” Nadler continued, “This legislation is intended to recognize reality, that these people are Americans, that they are Americans in every sense except for a piece of paper, and to say, to imply, there’s one standard for members of Congress with a DUI conviction and another … where a single DUI can automatically expel them from the country is wrong.”

As an immigrant myself with permanent residency I agree that it does seem unfair to judge a person from a past DUI conviction when that mistake was just that; a mistake. Although I agree that society as a whole should be well aware of the seriousness and consequences of driving under the influence, setting a different standard for those children who had no say in coming into this country to begin with and have known no other home but this country, seems to be unfair. Obviously, if a Dreamer racks up multiple DUI, misdemeanor, or felony convictions, then at that point they would start to pose a threat to society, and the Secretary of the Department of Homeland Security might have cause to deny legal status. Whether the bill passes or not, let’s hope that even the prospect of the bill becoming law is enough to deter Dreamers from getting behind the wheel while under the influence.