DUI BLOG

I’ve been saying and writing about it for years; breathalyzers are inaccurate. Now, The New York Times, in a bombshell report confirmed exactly that.

According to the report, “The Times interviewed more than 100 lawyers, scientists, executives and police officers and reviewed tens of thousands of pages of court records, corporate filings, confidential emails and contracts. Together, they reveal the depth of a nationwide problem that has attracted only sporadic attention.”

With so much at stake, including jail, you’d think that there would be more than mere “sporadic attention.”

Yet, the report found numerous inconsistencies with maintenance procedures of breathalyzer machines, inconsistencies within the machines themselves, and an over reliance on inaccurate data produced by breathalyzers.

In Colorado, for example, police had continued using a chemical solution that had long been expired when prepping the machines. The expired solutions caused inaccurate results. In another example, a former manager created his own chemical solution inconsistent with the standard chemicals used in the solution.  In some instances, there were no standards on how to prepare and operate the machines.

The report also found that the manufacturing process of the breathalyzer machines also create inaccuracies. For example, testing revealed that some machines produced a result even though the software programed into the machine occurred. Some tests revealed that accuracy of reading was affected by external factors such as the temperature of a person’s breath, whether they’ve consumed breath mints, or whether they’ve recently brushed their teeth, to name a few.

Despite the known inaccuracies, breathalyzer machines continue to often be the deciding factor in a DUI conviction.

In 2013, the California Supreme Court held that, although breathalyzers are generally inaccurate, scientific evidence challenging the accuracy of breathalyzers in California is not admissible as evidence in DUI trials.

The holding comes from the 2007 DUI stop of Terry Vangelder. Vangelder was stopped for speeding in San Diego. Although having admitted to consuming some alcohol, Vangelder passed field sobriety tests. Vangelder then agreed to a preliminary screening alcohol test (an optional roadside breathalyzer) which indicated that Vangelder’s blood alcohol content was 0.086 percent. Based on that, Vangelder was arrested and transported to the police station where he submitted to a chemical breath test (a required post-arrest breathalyzer). This breath test showed a blood alcohol content of 0.08 percent. Vangelder then submitted to a blood test which indicated that his blood alcohol content of 0.087 percent.

At trial, Vangelder called Dr. Michael Hlastala, a leading authority on the inaccuracies of breathalyzers.

“They are (inaccurate),” Dr. Hlastala testified before the trial judge. “And primarily because the basic assumption that all of the manufacturers have used is that the breath that [is] measured is directly related to water in the lungs, which is directly related to what’s in the blood. And in recent years, we’ve learned that, in fact, that’s not the case.”

The judge however, did not allow the testimony and Vangelder was found guilty. Vangelder appealed and the appellate court reversed the decision in 2011. San Diego City Attorney, Jan Goldsmith, then appealed the appellate court decision arguing that such testimony would undermine California’s a per se law making it illegal to drive 0.08 percent blood alcohol content or higher.

Unfortunately, the California Supreme Court sided with Goldsmith.

“[T]he 1990 amendment of the per se offense was specifically designed to obviate the need for conversion of breath results into blood results — and it rendered irrelevant and inadmissible defense expert testimony regarding partition ratio variability among different individuals or at different times for the same individual,” Chief Justice Tani Gorre Cantil-Sakauye wrote for the court. “Whether or not that part of expired breath accurately reflects the alcohol that is present only in the alveolar region of the lungs, the statutorily proscribed amount of alcohol in expired breath corresponds to the statutorily proscribed amount of alcohol in blood, as established by the per se statute.”

The Court went on to say that, “Although Dr. Hlastala may hold scientifically based reservations concerning these legislative conclusions, we must defer to and honor the legislature’s reasonable determinations made in the course of its efforts to protect the safety and welfare of the public.”

Simply put, the California Supreme Court is willfully ignoring scientific evidence simply because the legislature was well-intentioned.

Although drivers can no longer challenge the accuracy of breathalyzers in general, a driver who has been arrested for a California DUI can still challenge the accuracy of the specific breathalyzer machine used on them.

In late August, a Montebello police lieutenant was taken into custody in San Bernardino County on suspicion of driving under the influence of drugs. He had previously been arrested on suspicion of driving under the influence of prescription drugs, although charges were never filed. The arrest serves as a reminder that someone can be arrested for a California DUI with drugs, both illegal and legal.

On August 21^st, Montebello Police Lt. Christopher Cervantes, 47, was arrested after police believe he rear-ended another car in the city of Montclair.

Neither Cervantes nor the other driver were injured in the collision, Cervantes was booked on suspicion of DUI at the San Bernardino County Jail, and he was subsequently placed on paid administrative leave.

In 2015, Cervantes was arrested following a collision with a tree in Diamond Bar. Although he tested positive for a combination of pain-relieving prescription drugs acetaminophen, butalbital, codeine, and morphine, the Los Angeles County District Attorney’s Office declined to file charges citing a lack of evidence.

In 2011, Cervantes was detained after resisting arrest at a San Diego hotel party where he falsely claimed to police that he was a federal agent. Charges were never filed for this arrest either.

“I’m aware of everything in his personnel file and as I was the one who promoted him, I was confident that he was a great candidate for promotion to lieutenant,” said Montebello Police Chief Brad Keller. Cervantes was promoted by Keller after

 Cervantes’s 2015 arrest.

As a high-ranking police officer, Cervantes should have been acutely aware that a person can still be arrested for driving under the influence of drugs, including prescription drugs. Many people, on the other hand, often believe that a DUI can only occur if a driver has alcohol in their system. Some people believe that a DUI can occur with only alcohol or illegal drugs, and because a drug might be legal, whether prescription or over-the-counter, a driver cannot get a DUI if they have legal drugs in their system.

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 illegal as well as legal, both prescription and over the counter.

The important consideration here is the phrase “under the influence.” Although, prescription drugs and other legal drugs fall within the definition 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.”

What kinds of medications can cause you to be under the influence? Tranquilizers, narcotic pain pills, sleep aids, antidepressants, cough medicines, antihistamines, and decongestants to name a few. And how might they cause you to be under the influence? Drowsiness, dizziness, nausea and vomiting, blurred vision, and confusion, to name a few. Kind of sounds like being drunk, doesn’t it?

A few years back, the AAA Foundation for Traffic Safety found that almost half of people 70 years old and above take up to five medications per day. Additionally, a survey from the foundation found that 72% of people 55 and over, the demographic most likely to take medications for chronic conditions, had no idea that their driving performance could be affected by their prescription medications.

Remember, a DUI does not just mean driving under the influence of alcohol, or even illegal drugs, but all drugs including prescription and over-the-counter drugs. If it is capable of affecting a person’s driving ability, then it’s best to wait until after a driving excursion is over.

If you’re anything like me, the speed with which technology is advancing is almost too much to keep up with. No doubt, while some technology is proving to be a detriment to society, like the diminishment of person-to-person interaction, other technology serves to benefit technology, like the various ways lives can be saved as a result of technology. Two law makers are hoping that new technology can stop drunk driving and save lives in the process.

Recall the post Can Alcohol Sensors in All Cars Eliminate Drunk Driving? where I discussed the prospect of introducing alcohol sensing technology into all new vehicles available for purchase.

Since then, as expected, alcohol sensing technology has advanced and Tom Udall, a democratic senator from New Mexico, and Rick Scott, a republican senator from Florida, have said in a recent interview with Reuters that they plan on introducing bi-partisan legislation making the technology a requirement for all new vehicles off the lot.

“This issue has a real urgency to it,” Udall said in an interview with Reuters. “The industry is often resistant to new mandates. We want their support but we need to do this whether or not we have it – lives are at stake.”

According to the National Highway Traffic Safety Administration (NHTSA), almost 30 people die in the United States as a result of drunk driving. In 2017, that amounted to 10,847 fatalities involving drunk driving.

The technology that Udall and Scott are referring to are devices implanted within a steering wheel or a push-button ignition that can detect the blood alcohol content of a driver through infrared lights shined through the driver’s finger tips. They are also looking at sensors that monitor a driver’s eye movement and breath. Whatever the method, should the technology detect a blood alcohol content higher than the legal limit, the driver will not be able to start their vehicle.

A similar bill has been introduced in the U.S. House of Representatives by Debbie Dingell, a Democrat, that would require setting rules for advanced vehicle alcohol detection devices by 2024.

The NHTSA has invested over $50 million spanning 10 years in similar technology to what Udall and Scott are seeking to implement. The technology is already undergoing limited field testing in Maryland and Virginia, according to Udall.

Earlier this year, Volvo announced plans to install cameras and sensors in its vehicles by the early 2020’s to monitor the driver for distractions, errors, and even drunk driving. And should the technology detect anything that could result in a collision, the vehicles internal system would limit the vehicle’s speed, alert the “Volvo on Call” assistance service, or slow down and parking the car.

Udall and Scott’s Reduce Impaired Driving for Everyone Act, or RIDE Act, can be read here.

A New Jersey man was stopped for a DUI in Hoboken, New Jersey after police found him intoxicated riding an “e-scooter;” the public scooters scattered across many cities that can be rented through a smartphone app.

Nicholas Cutrone, 26, was arrested this past weekend for DWI (the New Jersey equivalent of California’s “DUI”) for riding a e-scooter. According to police Cutrone was found “unsteady and staggering” when he unlocked the scooter and rode away.

“[Cutrone] was driving unsteady as he swayed back and forth appearing as if he was going to lose control at any moment,” said Detective Sgt. Jonathan Mecka.

Police say that Cutrone’s arrest marks the second drunk driving scooter arrest since the service was launched in spring.

As is the case with many cities here in Southern California, Lime e-scooters now sit on the corner of many busy intersections available to be rented to anyone with a credit card and a smartphone.

In August, a 45-year-old man because the first to be arrested for drunkenly operating an e-scooter in Hoboken after crashing, according to police.

Jeffrey English suffered multiple fractures to his face and mouth when he crashed his e-scooter between two cars. English “admitted to drinking a substantial amount of alcohol” before jumping off the scooter.

As I mentioned, e-scooters are already here in California, and I’m sure you’ve seen them around town. How do they work? Well, like many things today, there’s an app for it. Download the app onto your smartphone for one the scooter companies that offer their services in your area; Bird, Lime, Skip, Scoot, or Spin. Once downloaded, you can access a map that tells you where the nearest scooter is. Find the nearest scooter, enter your credit card number into the app, and scan the bar code on the scooter with your smartphone to unlock the scooter. Ride.

But can you ride after having a few drinks here in California?

California Vehicle Code section 21221 states in pertinent part, “Every person operating a motorized scooter upon a highway…is subject to all…provisions concerning driving under the influence of alcoholic beverages or drugs.”

Based on this language, it seems as though the California Legislature intended to treat e-scooter riders the same as traditional vehicle drivers the same, even when it comes to driving/riding under the influence.

However, section 21221.5 states in pertinent part, “[I]t is unlawful for any person to operate a motorized scooter upon a highway while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug…A conviction of a violation of this section shall be punishable by a fine of not more than two hundred and fifty dollars ($250).”

The conundrum here is that in the latter section, the penalty for a DUI on a scooter cannot, under the law, be more than $250. Additionally, California Penal Code section 19.8 states that “any violation which is an infraction is punishable by a fine not exceeding two hundred fifty dollars ($250). This necessarily means that a DUI on an electric scooter in California cannot be charged as anything more than an infraction with a penalty of nothing more than the $250 fine. In other words, a DUI on a scooter in California cannot be treated like a misdemeanor DUI. It cannot carry the same penalties as a DUI and, as an infraction, it will not appear on the rider’s criminal record.

Unfortunately, police and prosecutors in California have been only considering the first law mentioned above and treating DUIs on e-scooters the same as a DUI in a regular vehicle. For this reason, it is imperative to hire an experienced and knowledgeable California DUI attorney to argue the difference in laws between scooters and vehicles.

I recently had one of these cases. My client, the scooter rider, was originally charged with a misdemeanor DUI as though he had been driving a traditional vehicle. If convicted as a misdemeanor, my client was looking at three to five years of probation, an 18-month DUI course (because he had a prior conviction), fines and fees, and a probation violation for a previous DUI conviction, which could have very well led to jail time. However, after arguing that the language of the law only allowed for a fine of no more than a $250 fine, the case was dropped to an infraction with that $250 fine.

It should be noted that, before scooter renters are allowed to rent and ride the scooters, they are required to confirm that they will not ride while under the influence of alcohol or drugs.

According to a group of researchers at the University of California, Davis, people who have been convicted of a California DUI are at a higher risk for committing violent gun crimes.

Building upon prior research that suggested a correlation between alcohol and gun violence, researchers from the university monitored nearly 80,000 people who purchased guns between 2001 and 2013. They found that nearly three percent of gun purchasers with a prior California DUI conviction later committed a violent gun crime. Additionally, according to the researcher’s finding, which were published in the Journal of the American Medical Association, only 0.05 percent of people without any prior DUI conviction went on to later commit a violent gun crime.

Can DUI convictions help keep guns out of the hands of people prone to violence?

October 2, 2019. Los Angeles Times – Drinking and driving is already a deadly cocktail. New research finds that adding gun ownership to the mix heightens the risk for violent outcomes.

A study that set out to track about 80,000 legal gun purchasers in California found that handgun buyers with a DUI on their record were more likely to go on to be arrested for a violent crime. That was the case even if driving under the influence of alcohol was the only criminal conviction in his or her past.

In the roughly dozen years after purchasing a gun in 2001, Californians who had already been convicted of drunk driving were 2.5 times more likely than those with no DUI convictions to be arrested on suspicion of murder, rape, robbery or aggravated assault, according to the study published this week in JAMA Internal Medicine. If the range of violent offenses was broadened slightly to include crimes like stalking, harassment or child neglect, handgun buyers with a prior DUI were more than three times likelier than those with no DUI conviction to be arrested.

The new findings come as the California Assembly considers a bill that would revoke a person’s right to own a gun for 10 years if he or she has been convicted of two or three (depending on the offense) misdemeanors involving alcohol in a span of three years.

Senate Bill 55 was passed in May by a vote of 26 to 10. It is opposed by Gun Owners of California, a gun rights group, and by the American Civil Liberties Union, which argues the bill would disproportionately affect black people and fails to address the “root causes” of substance abuse and violent behavior.

Under California law, people who have a felony conviction can’t receive a gun license from the state. In addition, people with misdemeanor convictions for crimes involving violence, hate, the unlawful use of firearms and certain other things aren’t eligible to receive a license for 10 years. SB 55 would add convictions for public intoxication, disorderly conduct under the influence of alcohol, and drunk driving to that list.

The new research goes some way toward filling a gap in research that prompted then-Gov. Jerry Brown to veto an earlier version of the bill in 2013. In blocking the proposed law, Brown wrote that he was “not persuaded that it is necessary to bar gun ownership on the basis of crimes that are non-felonies, non-violent and do not involve misuse of a firearm.”

The study comes from researchers at UC Davis’s Violence Prevention Research Program. Its findings suggest that denying gun ownership rights to those with a history of drunk driving convictions would reduce violent crimes and might save lives. In 2017, 14,542 homicides and more than 400,000 violent victimizations involved the use of a firearm.

But the researchers did not draw a causal line between drunkenness and criminal violence. Although roughly a third of all firearms deaths in the United States are thought to have involved alcohol, these new findings do not suggest that alcohol itself prompts or predisposes a gun owner to victimize others.

Instead, they suggest that, across broad populations, many people who engage in risky behavior involving alcohol will also engage in the kinds of risky behavior that endanger other people’s lives. And in cases where heavy drinking and gun access are combined, impaired judgment might heighten the risk that an individual predisposed to violent behavior will act out.

In that sense, the new findings zero in on a subgroup of gun owners who may have driven some of the sobering findings of a 2011 study by Dr. Garen Wintemute, the director or the Violence Prevention Research Program and senior author of the new report.

Drawing from a survey of Americans’ risk behaviors, Wintemute found that gun owners in general were twice as likely as those who do not own guns to drink heavily, and 2.5 times more likely to get behind the wheel after having drunk, by their own admission, “perhaps too much.”

The new study makes clear that lawless behavior is not the norm among gun owners. The researchers were able to track 65,387 Californians between the ages of 21 and 49 who bought a handgun legally in 2001 and could still be found in the state in 2013. Of those overwhelmingly male and mostly white gun buyers, 1,495 — fewer than 2% — had a prior conviction on a drunk driving charge. And just over 14% of that small group of gun owners were arrested for violent crimes during the 12-year study period.

That is much higher than the 3% rate at which gun buyers with no DUI or other convictions went on to be arrested for a violent crime. (After adjusting for factors such as age, gender and ethnicity, the researchers found the risk for those with a prior DUI conviction was 2.5 to three times higher than those with no such conviction.)

In focusing on DUIs, “we’ve identified a risk factor for future violence among people who buy handguns, and the association is fairly strong — an almost threefold increase in risk,” said study leader Rose M.C. Kagawa, an assistant professor of emergency medicine at UC Davis.

At the same time, she acknowledged, the number of gun sales blocked by a measure like SB 55 would be small, as would the number of violent crimes prevented.

“It’s a bit of a balancing act,” Kagawa said.

Such reasoning riles Sam Paredes, executive director of Gun Owners of California.

Using past or present behavior as a predictor of future violent acts — “that whole concept is very difficult,” he said.

“You’re being stripped of your rights because someone believes you are a danger in the future?” Paredes said. “I cannot even contemplate what the future consequences of such a perspective could be. It’s not just guns. This could translate to all manner of things.”

A prior conviction for drunk driving seems to be a better predictor of future criminal violence than a prior conviction for other, non-alcohol-related, nonviolent misdemeanors, the study results suggest, but just by a little bit. Lawful buyers of handguns with a conviction like that on their rap sheet were more than twice as likely as buyers with squeaky clean records to be arrested for a violent crime over the next dozen years.

“These findings unmistakably support the pending California DUI convictions legislation,” according to an editorial that accompanied the study.

Though the number of potential wrongdoers barred from gun ownership “may seem small,” the broad adoption of such laws “has the potential to avert larger numbers of acts of firearm violence,” wrote the editorial authors, a trio of injury prevention experts from the University of Pennsylvania and Columbia University.

Adoption of a federal law like SB 55 — an unlikely prospect in the current Congress — would “decisively signal that, as a nation, we are as intolerant of mixing alcohol and firearms, so-called drunk firing, as we are of drunk driving,” they wrote.

As I’ve said in the past, while I’m not the biggest proponent of guns and gun ownership, it troubles me that legislators are attempting to use DUI convictions to prevent gun ownership.

Given the numbers, it is difficult to argue that there is at least some correlation. However, based on those same numbers, there are a lot of people out there who have been convicted of a California DUI that have not subsequently engaged in a violent act involving a firearm.

Surprisingly, I agree with Sam Paredes. Predicting future gun violence based on a weak, albeit real, relationship to a DUI conviction seems like a step too far. What’s more, stripping an entire class of people (who all made a mistake, but by no means are all at risk for future gun violence) of their constitutional right based on what a few within the class might do sometime in the future should not be law.