Monthly Archives: March 2015

Breathalyzers to be Installed in All New Cars?

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?

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.

Arrested for Refusing to Take a Breath Test

So what would you do if a cop came to your house and demanded to search your house?  You would probably ask him if he had a warrant, right?  And what if he tells you that he doesn’t have a search warrant, but he wants to look through your house anyway?  You’d probably refuse, wouldn’t you?

Ok, what if he then places you under arrest — for refusing to let him search your house?  And you’re then charged with — and convicted of — the crime of refusing to permit the officer to conduct that illegal search?  Not in America, right?

What if the cop wanted to search inside your body rather than inside your house?   

Minnesota Supreme Court Upholds Breath Test Refusal Law

Minneapolis, MN.  The Minnesota Supreme Court has upheld a state law making it illegal for suspected drunken drivers to refuse a breath test.

The high court rejected a man’s claim that the law violated due process by preventing him from refusing an unconstitutional, warrantless search….

The American Civil Liberties Union of Minnesota had submitted a brief arguing that it is unconstitutional to apply criminal penalties to drivers solely because they refused a search without a warrant. ACLU-MN executive director Charles Samuelson said his organization, which was not representing Bernard, was disappointed by the ruling. He said the court had set “a dangerous precedent.”

“Imagine if the police could charge us with a crime if we refused to allow them into our houses without a warrant,” Samuelson said in a statement. “People would be outraged.”

In 2013, the U.S. Supreme Court ruled that police usually must try to obtain a search warrant from a judge before ordering blood tests for drunken-driving suspects.

Welcome to "The DUI Exception to the Constitution".

Bar Cited After Customers Die in DUI Collision

Two bars in Cleveland, Ohio have been cited for serving customers alcohol who later crashed their vehicles and died, according to Fox8 Cleveland.

In September, 2014, 22-year old Brandyn Pino was ordered to leave Aces Depot, a bar in Olmsted Falls. Shortly after being kicked out, Pino crashed his vehicle a mile away from the bar where he died.

“They had no problem taking my son’s money, but then they throw him out and let him drive,” Cindy Pino, Brandyn’s mother, told Fox8 Cleveland. “Something needs to be done. Something has to be changed.”

A second bar, Dusty’s Tavern, is alleged to have over served 51-year old Joel Schwartz alcohol this past January. After leaving the bar, Schwartz crashed his vehicle two miles away and later died.

“Any time there is an administrative citation against a bar, it is forwarded to the Ohio Liquor Control Commission,” Greg Croft, Ohio Investigative Unit Agent in Charge told Fox8 Cleveland. “There will be a hearing and they can be fined, suspended, or even face a revocation.”

The Ohio Investigative Unit subsequently cited both bars.

“Liquor establishments are supposed to serve responsibly,” Croft said. “In the state of Ohio, the laws are pretty specific; you can’t serve past the point of intoxication.” The county prosecutor will also be reviewing the incidences to determine if criminal charges should be filed.

I can understand a bar being cited if they over serve a customer which leads to, say, alcohol poisoning. But, here, there is a disconnect between serving a person alcohol and a subsequent DUI collision. California law sees it the same way.

While other states such as Ohio may hold a bar liable for injuries caused by a drunk driving customer, in California it is the customer’s willful decision to drink and then drive which is the cause of any subsequent DUI collision. Thus, in California, bars and restaurants are shielded from liability when a customer over drinks, drives away, and causes injury or damage.

California’s “Dram Shop Laws” (California Civil Code section 1714) read as follows:

(b) It is the intent of the Legislature to . . . reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.

(c) Except as provided in subdivision (d), no social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.

(d) Nothing in subdivision (c) shall preclude a claim against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person under 21 years of age, in which case, notwithstanding subdivision (b), the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.

As you can see, the laws are different if the customer is under the age of 21. It is the responsibility of bar to ensure that their customers are of legal drinking age before serving them alcohol. People under the age of 21 are legally deemed incapable of making good decisions regarding alcohol use…like the decision not to drive after drinking at a bar.

While California’s law differ from other states with respect to civil liability, like Ohio, a bar may be held criminally liable if they serve alcohol to an “obviously intoxicated person.”

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."

Will I Have to Install an Ignition Interlock Device?

One of the more common questions I get when someone has been charged with a California DUI is whether they will need to install an ignition interlock device. Unfortunately the answer is not straight forward and depends on several things.

An ignition interlock device, in short, is a breathalyzer that is installed into the dash of a person’s vehicle that must be blown into before the vehicle can be started, but only if the breathalyzer does not detect alcohol.  Not only must the ignition interlock device be blown into before someone can start their vehicle, but it must also be blown into at random times throughout the drive.

There are a number of things that a person can be sentenced to following a DUI conviction, some of which are mandatory and some of which are imposed at the discretion of the judge. Amongst the discretionary terms of a California DUI sentence is the requirement that a person install an ignition interlock device.

However, if you are arrested and convicted of a California DUI in Los Angeles, Alameda, Tulare or Sacramento Counties, the installation of an ignition interlock device is mandatory following a license suspension and before a person can drive again.

As of January 1, 2010, Assembly Bill 91 became law and created a pilot program in those counties.

The law, California Vehicle Code section 23700, in part reads:

"Before a driver’s license may be issued, reissued, or returned to a person after a suspension…of that person’s driving privilege that requires the installation of an ignition interlock device…"

How long a person has to install an ignition interlock depends on how many prior DUI convictions the person has had. A first time offense carries a 5-month installation period. A second time offense carries a 12-month installation period. A third time offense carries a 24-month installation period. A fourth time offense carries a 36-month installation period.

If a person is required to install an ignition interlock device, they must certify to the California DMV that the device has been installed and they must take their vehicle to the provider of the ignition interlock device every 60 days for maintenance.

The law provides for an exception to the pilot program for those who do not own a car or otherwise have access to one. If that is the case, a person must complete and submit an “exemption form” to the California DMV. A person can then completely avoid the ignition interlock device by waiting out their suspension plus the period during which they would have had the ignition interlock device installed. If, however, the person obtains a vehicle in that time, they must have the ignition interlock device installed.

The pilot program is set to run to January 1, 2016. By July 1st of this year, the California DMV will report to the Legislature on the pilot program’s effectiveness in reducing repeat California DUI offenses. If the data from the pilot program indicates a reduction in repeat California DUI offenses, we may see the installation of an ignition interlock device as a requirement following a DUI conviction throughout California.