DUI BLOG

A man riding his horse during the Colusa County Fair Parade in Colusa, California, last Friday was arrested on suspicion of felony California DUI after his horse trampled a boy.

Armando Martinez Ruiz, a participant in the parade, was thrown from his horse after the horse bucked. As the horse ran away and through a group of spectators lining the parade route, it trampled an eight-year-old boy breaking his leg.

Officers found the horse and Ruiz was arrested on suspicion of felony DUI.

“In California, the same laws apply when riding horses as driving cars,” the Colusa Police Department said on its Facebook page.

This incident comes only a few months after a man was caught riding his horse on the 91 freeway in my hometown of Long Beach.

In that case, California Highway Patrol responded to a report that a man, later identified as Luis Alfredo Perez, had ridden his horse eastbound onto the 91 freeway. Officers found Perez after he exited the freeway in Bellflower.

It was later determined that the Perez’s blood alcohol content was 0.21/0.19 percent, more than double the legal limit, and he was arrested on suspicion of DUI.

Following Perez’s arrest, CHP took to Twitter saying, “No, you may not ride your horse on the freeway, and certainly not while intoxicated.” It included a picture of horse whose name was Guera and who was later released to Perez’s mother.

The Colusa Police Department was not wrong when it said that the same laws apply to horse riders as they do with drivers of motor vehicles.

According to California Vehicle Code section 21050, “Every person riding or driving an animal upon a highway has all of the rights and is subject to all of the duties applicable to the driver of a vehicle by this division…”

Since California DUI laws apply to the rider of a horse on a road, Perez was charged with a run-of-the-mill DUI. He faced fines between $390 and $1,000, three to five years of summary probation, a DUI program of up to nine months, and up to six months in county jail.

Ruiz, on the other hand, is facing felony DUI charges because someone was injured. Depending on the severity of the injury, someone can be charged with either a misdemeanor or a felony when their impaired driving injures someone other than the driver. And because Ruiz is being accused of felony DUI, he faces up to four years in prison, an additional (and consecutive) three to six years because broken bones can be considered “great bodily injury,” a “strike” under California’s Three Strikes Law, a fine between $1,015 and $5,000, and an 18 or 30 month DUI program.

I’ll leave you with a poem written by a dissenting Pennsylvania Supreme Court judge in a Pennsylvania case which held that a horse is not a vehicle for purposes of driving under the influence.

“A horse is a horse, of course, of course, but the Vehicle Code does not divorce its application from, perforce, a steed as my colleagues said. ‘It’s not vague,’ I’ll say until I’m hoarse, and whether a car, a truck or horse, this law applies with equal force, and I’d reverse instead.”

Memorial Day just past and summer is around the corner. Summer months mean beach trips, vacations, barbeques, 4^th of July, and this year, my personal favorite, the World Cup. Where there is fun to be had, law enforcement expects drunk and impaired driving. Many of the summer activities I just mentioned do, often, involve indulging in the alcoholic beverage, possibly even a little of the Mary Jane now that’s it’s legal here in California. One of law enforcement’s favorite weapons in their battle against impaired driving is the sobriety checkpoint.

The 4^th Amendment of the United States Constitution requires that officers have probable cause and a warrant before they can seize and/or search a person. Well, what is a checkpoint? It is certainly a seizure since the police are stopping people on the roads when they would otherwise be free to drive without interruption. It may be also a search if the law enforcement has drivers take a breathalyzer. So how can law enforcement do this without having a warrant?

In the 1987 case of Ingersoll v. Palmer, the California Supreme Court set forth guidelines to ensure the constitutionality of checkpoints in California. Those guidelines are as follows:

1. The decision to conduct checkpoint must be at the supervisory level.
2. There must be limits on the discretion of field officers.
3. Checkpoints must be maintained safely for both the officers and the motorists.
4. Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
5. The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
6. The checkpoint must show indicia of official nature of the roadblock.
7. Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.
8. Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.

Three years later in the case of Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop. In doing so, the court held that sobriety checkpoints were constitutional even though officers were technically violating the 4^th Amendment.

Now that we’ve determined that sobriety checkpoints are constitutional, I would be remiss if I did not tell you what your rights and obligations are, as the driver, should you happen to find yourself stopped at a sobriety checkpoint.

Based on the last of the Ingersoll v. Palmer requirements, checkpoints must be highly visible. As a result, drivers are often aware of the checkpoint before they drive up to it. Believe it or not, drivers are allowed to turn around so as to avoid the checkpoint. They, however, must do so without breaking any traffic laws such as making an illegal U-turn.

If you do not turn away, but rather pull up to the checkpoint, the officer might first ask you some questions such as: Where are you coming from? Where are you going? Have you had anything to drink?

The 5^th Amendment to the Constitution gives you the right not to say anything to law enforcement ever. And don’t! Invoke your right to remain silent by telling the officer, “I would like invoke my 5^th Amendment right and respectfully decline to answer any of your questions.” Now keep you mouth shut until given the opportunity to call your attorney.

Surely this is not going to sit well with the officer. They may, at that point, have the driver exit the car and request that they perform field sobriety tests. Drivers should absolutely decline to perform the field sobriety tests. They are an inaccurate indicator of intoxication, but fortunately they are optional. I and many other people would have trouble doing them sober.

At this point, the officer is likely fuming, but who cares? You are exercising your constitutional rights.

As a last-ditch effort, they may request that you take a roadside breathalyzer commonly referred to as a “PAS” (preliminary alcohol screening) test. Under California’s implied consent rule, as a driver, you must submit to a chemical test after you have been arrested on suspicion of a DUI. The key word is “after.” Therefore, when you happen upon a checkpoint and the officer requests that you to take the PAS test, you can legally refuse. If, however, the officer has arrested you on suspicion of DUI you must submit to either a blood test or a breath test.

This summer season be on the lookout for sobriety checkpoints. But should you find yourself about to drive through a checkpoint with no way to legally turn around, know your rights and use them. That’s what they’re there for.

A Sonoma man was found unconscious in his parked, running car by Petaluma police. Officers arrested the man, who had recently been convicted of a DUI, on suspicion of another DUI.

Joel Barrera, 34, was found asleep in his vehicle on May 22^nd by Petaluma police officers. Although the car was parked in the parking lot of a local park, the engine was running. After waking Barrera, officers determined that he was under the influence of alcohol with a blood alcohol content of almost twice the legal limit of 0.08 percent.

What’s more, officers found a semi-automatic handgun and a loaded magazine in his car and discovered that Barrera was already on probation for a DUI conviction out of Marin County for which his license was currently suspended.

Barrera was arrested on suspicion of driving under the influence, carrying a concealed gun in a vehicle, driving on a suspended license, and violating probation.

We’ll have to wait and see what happens to Barrera. But until then, you might be wondering how it is that someone can even be arrested on suspicion of driving under the influence if they weren’t even driving.

If a person is found sleeping in their car, as was the case with Barrera, it is likely that any arresting officer did not see the person drive. Therefore, there may not be any direct evidence for a prosecutor to prove that a person drove.

Just because law enforcement does not actually see a person drive under the influence doesn’t mean they can’t be found guilty of driving under the influence. A prosecutor can use circumstantial evidence to prove that a person drove to where they were found while under the influence and then fell asleep in their car.

For example, if an intoxicated person is sleeping in their vehicle in the middle of the road or at the scene of a collision (believe me, it happens more often than you would think), then the prosecutor can raise those facts to create the inference that the person had driven to those locations. In other words, the prosecutor may argue that, based on the surrounding circumstances, it is reasonable to infer that the defendant drove to the location where they were found even though there is no direct evidence that they drove there.

On the other hand, if those facts do not exist that would create the inference that the defendant drove then the prosecutor is going to have difficult time proving that the person actually drove the vehicle while being under the influence. This scenario presents itself from time to time as well. But the person may still be charged with another crime such as drunk in public.

In the 1966 case of People v. Belanger, officers found the intoxicated defendant asleep in his vehicle which was located in a parking lot. Although the facts in that case were not enough to create the inference that the defendant had driven to the location while under the influence because he could have driven there sober, drank, and then fell asleep, the officers did arrest the defendant for drunk in public.

The Court concluded that, in order to prevent the defendant from waking up and then drive away drunk, they needed to arrest him on suspicion of being drunk in public.

Needless to say, no person should be in a vehicle when they’re intoxicated whether they’ve driven or not. A prosecutor may still be able to successfully argue the person drove when, in fact, they didn’t. Furthermore, if a prosecutor cannot prove that the person drove, they may still be able to secure a conviction for some other crime such as drunk in public.

I am currently in the midst of a California DUI case where my client was under the age of 21 at the time of their arrest. At the beginning of their case, my client asked me what could happen to him. Unfortunately, it’s a common question as many people who are not legally allowed to drink are caught driving with alcohol in their systems.

As most of us know, the age at which someone is legally allowed to have alcohol is 21-years-old. Although the age of majority is 18, for purposes of this article, I’ll refer to a person under the age of 21 as a “minor.”

Under California Vehicle Code section 23136, otherwise known as California’s “Zero Tolerance” law, it is illegal for a minor to drive with a blood alcohol content of 0.01 percent or more in their system. It does not matter whether the alcohol in the minor’s system came from an alcoholic beverage or some other source like medicine. Nor does it matter whether the minor was “under the influence.” The minor cannot have any alcohol in their system while driving. Fortunately, however, a violation of Vehicle Code 23136 is non-criminal and only results in a one-year suspension of driving privileges through the California Department of Motor Vehicles.

Although not a criminal matter, a minor facing a suspension under California Vehicle Code section 23136 may still want to hire an attorney to fight the DMV suspension. In the event that a suspension cannot be avoided, the attorney can assist the minor obtain a “restricted license” to allow them to go to and from essential locations such as work, school, and the doctor’s office.

If, however, a minor is caught driving with a blood alcohol content of 0.05 percent or higher, they can be charged with an infraction under Vehicle Code section 23140. The penalty if someone is convicted of a violation of section 23140 is a one-year suspension of driving privileges, a fine of $100, and, if the person is over the age of 18, a mandatory alcohol education program of three months of more.

In addition to fighting the license suspension, as was the case with a violation of California’s Zero Tolerance law, a lawyer can help the minor fight the infraction under section 23140 using the same arguments commonly used in an adult DUI case.

If the minor is either under the influence of alcohol or caught driving with a 0.08 percent blood alcohol content or more in their system, a prosecutor can charge the minor with the standard DUI charges under California Vehicle Code sections 23152(a) and 23152(b) – misdemeanor driving under the influence and misdemeanor driving with a BAC of 0.08 percent, respectively.

A person, including a minor, is under the influence of alcohol if their physical or mental abilities are impaired to such a degree that they no longer have the ability to drive with the caution characteristics of a sober person of ordinary prudence under the same or similar circumstances.

In addition to being charged with driving while under the influence, a minor can also be charged with driving with a blood alcohol content of 0.08 percent or more.

The penalties for either standard DUI offenses under sections 23152(a) or 23152(b) include a criminal misdemeanor conviction (which remains on a person’s criminal record), suspension of driving privileges, three to five years of summary (informal) probation, a fine between $390 and $1,000, an alcohol education program of three, six, or nine months, up to six months in jail. The penalties can also include non-mandatory conditions such as a Mothers Against Drunk Driving Victim Impact Panel, a hospital and morgue program, or AA meetings.

It shouldn’t take me to tell you that if anyone, including a minor, is charged with the standard DUI offenses under Vehicle Codes 23152(a) and 23152(b), they should seek the assistance of a skilled California DUI attorney. There is too much as stake not to.

Houston police yesterday arrested Natalia Ortiz at El Muelle Seafood restaurant where she works as a bartender. Almost exactly two years ago, one of Ortiz’s customers left the restaurant under the influence of alcohol and crashed into another vehicle killing one of the occupants.

You might be asking why Ortiz is being arrested and charged for something her customer did. Well, it was later determined that Ortiz served the patron, Edin Palacios, a whopping eleven beers that night before he got behind the wheel.

After Palacios left the restaurant, a Houston police officer attempted to pull him over. Palacios attempted to flee from the officer, ran a red light, and collided with a Dodge Charger. 18-year-old Jocelynn Valero, an occupant of the Dodge Charger was killed on the scene. The other occupant survived, but suffered a broken pelvis, a lacerated liver, and other significant injuries. Valero and the other occupant, her date, we’re driving home from their high school prom.

Prosecutors later determined that Palacios’s blood alcohol content was 0.18 percent.

According to Ortiz’s charging documents, a review of the restaurant’s surveillance video showed Palacios was “obviously intoxicated,” and who “was observed having difficulty in balance and coordination, dropping items from his hand…[and] nearly stumbles while walking.”

The documents went on to say, “This behavior was exhibited in front of [Ortiz] as she knowingly and intentionally continued to serve and deliver beer to the intoxicated subject.”

In 2016, Houston saw 89 fatal DUI crashes, the most in the state of Texas according to the Texas Department of Public Safety. Valero’s death was one of 3,776 DUI-related fatalities in the state of Texas as a whole that year.

As a result of these unfortunate statistics, local prosecutors stepped up efforts to enforce laws prohibiting the over-serving of alcohol to obviously intoxicated bar and restaurant patrons.

“We’re not going after servers or bars that are conducting business legally, we’re going after people whose actions are criminal and negligent,” said Sean Teare, the prosecutor in charge of the Harris County District Attorney’s Vehicular Crimes Division. “When those actions result in the tragedies every day that we deal with on these roads, we’re going to come after them.”

Palacios was charged and convicted of felony murder. He was sentenced to 32 years in prison. Ortiz, on the other hand, has been charged with serving a drunk, a misdemeanor. We’ll be keeping our eyes on how her case plays out.

California has a law similar that which allowed the prosecutors in Ortiz’s case to charge her for over-serving Palacios.

According to California Business and Professions Code section 25602(a), “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.”