Monthly Archives: January 2016
Most people are unaware that many California DUI stops include two separate and distinct breath tests. And people are often confused about whether they must provide a breath sample to both or either test. It is admittedly confusing, and most people are surprised when I tell them that one of the breath tests is required and the other is not.
The two tests I am referring to are 1.) the preliminary alcohol screening test (PAS test), and 2.) the chemical breath test. While they are both “breathalyzer” tests, their distinction lies in when the DUI arrest is made.
According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”
Following a California DUI stop, but before a DUI arrest, an officer may request that the suspected drunk driver perform field sobriety tests which, most people know, includes the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test. What most people don’t know, however, is that the breathalyzer test requested by officers before an arrest is also a field sobriety test. This is the PAS test. And like the other field sobriety tests, the PAS test is optional.
The investigating officer must advise the DUI suspect that the PAS test is, in fact, optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”
Field sobriety tests, including the PAS test, are a means to determine if the officer has the required probable cause to arrest the DUI suspect for a California DUI.
If the officer has the requisite probable cause to make an arrest, whether through the field sobriety tests, the PAS test, or any other information, California’s Implied Consent Law kicks in. Herein lies the difference between a PAS test and a chemical test.
California Vehicle Code section 23612(a)(1)(A) sets forth the Implied Consent requirement. “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”
In other words, licensed California drivers have impliedly consented to provide a chemical test following a lawful DUI arrest.
The post-arrest chemical test can be either a breath test or a blood test. If a person opts against providing blood, they must provide a breath sample. And for this breath test, they will be taking a breathalyzer very much like the PAS test.
The short version of this article is this: A pre-arrest PAS test is optional and you should always politely decline this test. A post-arrest chemical breath test is required provided the suspect opts not to provide a blood sample and provided that the arrest was lawful.
Lawmakers in Indiana are considering whether their state’s application to own a gun license should include a question about whether the applicant has been convicted of misdemeanor driving under the influence.
Currently, the application used by Indiana State Police to grant licenses to carry a gun asks whether the applicant has previously been convicted of a DUI. Indiana Senate Bill 36, written by Sen. James Tomes, R-Wadesville, seeks to remove that question.
"All I was trying to do was just get the State Police to remove those words, ‘Including DUI? Not changing anything else," said Tomes. "State Police can still do these checks on handgun applications. Anybody in the system is gonna get pulled up. You’ve got domestic violence. You’ve got DUIs to the point where you’ve got a felony. You’re through."
Other who agreed with Tomes believed that misdemeanors should not be grounds for automatically refusing a permit, only felonies and domestic violence convictions.
Many of these who testified at a Judiciary Committee meeting on Wednesday, however, strongly disagreed with Tomes.
"Essentially what we’re saying is the combination of alcohol and access to handguns is a lethal combination in situations of domestic abuse," said Kathy Williams, a representative from The Indiana Coalition Against Domestic Violence. "And given the very mild nature of the existing statute, it is only a small stop gap.”
She also provided statistics from Indiana law enforcement agencies to show that up to 80 percent of their domestic violence cases involve alcohol abuse.
“Gun licenses are more than just pieces of paper," said Jody Madeira, a professor at Indiana University-Bloomington’s Maurer School of Law. "That paper conveys an important right. A right that a lot of people, including me in this room, want to uphold and protect the right to carry a handgun. But multiple studies as well as the Centers for Disease Control link alcohol abuse to gun violence.”
While I’m not the biggest fan of guns, it troubles me that legislators are using DUI convictions to prevent gun ownership.
Refer to my previous post: http://ltduiblog.wpengine.com/2015/11/23/not-all-drunk-drivers-are-alcoholics/
The flawed logic in Indiana’s inquiry into whether a person has suffered a DUI conviction is this: Many incidences of domestic violence involve alcohol abuse and if a person has suffered a DUI, they must have an alcohol problem. Therefore, they cannot and should not own a gun.
Once again we see the “False Cause Logical Fallacy;” A causes B when there is no causal relationship between the two, but merely a correlation.
A DUI conviction does not mean that the defendant has an alcohol problem. Nor does it mean that they will be involved in domestic violence. In fact, many people who have been convicted of a DUI are not regular drinkers nor are they heavy drinkers, but rather people who made a one-time mistake.
You’ve jest been arrested for a California DUI making it one of the worst nights of your life. As the officer fastens the handcuffs around your wrists and places you in the back of their squad car, you think to yourself, “How am I going to get out of this mess?”
The legal system is complicated, to say the least, and most people know that a lawyer is necessary help them at this time when they’re most vulnerable. So how does someone choose the right attorney to help them out of this legal mess?
The first thing a person should do when looking for the right DUI attorney is research. You don’t buy the first car you see at the dealership. With so much at stake, why would you hire the first attorney you come in contact with? Ask family and friends for referrals. You’d be hard pressed to not find anyone who hasn’t used a lawyer in the past. Check user-based rating websites like avvo.com or yelp.com to see what others who have used the lawyer’s services have said. Check the California Bar Association’s website at calbar.org to check to see if the lawyer whom you have researched has had any disciplinary action taken against them.
When attorneys become licensed to practice law, they are legally allowed to practice any area of law, but this does not necessarily mean that they are qualified to practice any area of law. Many lawyers are known as “general practitioners.” General practitioners practice everything from personal injury law to real estate law to estate planning and possibly criminal defense, which may include DUI law. While the law in general is complicated in and of itself, DUI law is complicated in its own right. Understanding the nuances of DUI law and the science involved is crucial in defending a DUI case. If I’m hiring an attorney to represent me for a DUI, I want a lawyer who defends DUI cases day in and day out, not a lawyer who may defend a DUI case every couple of months.
In doing your research, you will inevitably come across many lawyers willing to take your case on. Many of those attorneys will claim that they can help you because your case is a “slam dunk.” I have been practicing DUI for some time now and I can tell you firsthand that no case is a slam dunk. In fact, very few things in law are black and white. DUI defense lawyers don’t know the facts of the case, other than what the potential client tells them, until the first court date. In fact, many times what the potential client tells the lawyer is very different than what is in the police report. Therefore, when a person contacts a lawyer for the purpose of hiring them to represent them in a California DUI case, the lawyer lacks the information necessary to predict the outcome of a case. Furthermore, it is actually illegal for a lawyer to guarantee an outcome.
Make your decision to hire a lawyer based on experience, not cost. Fees for California DUI lawyers range from $1000 to $10,000. DUI defense lawyers almost always charge flat fees, not hourly fees. Often the price of a DUI lawyer corresponds with their experience and what is included in the service. Sometimes, however, it isn’t. Make sure that you’re getting what you’re paying for. After all, you are entrusting this person with representing you before a court of law.
While it may have been the worst night of your life, you don’t have to face subsequent criminal case alone. But make sure that the lawyer you’ve chosen to represent you for a California DUI is the right lawyer for you.
State laws currently criminalize driving a vehicle while "under the influence" of marijuana, just as they do for alcohol. And as I’ve commented in past posts, the evidence that marijuana usage impairs the ability to safely operate a motor vehicle — that is, "drunk driving" — is essentially non-existent. See Does Marijuana Affect Driving Ability?
A recent study, in fact, has confirmed this.
First of Its Kind Study Finds Virtually No Driving Impairment Under the Influence of Marijuana
The first study to analyze the effects of cannabis on driving performance found that it caused almost no impairment. The impairment that it did cause was similar to that observed under the influence of a legal alcohol limit.
Researchers at the University of Iowa’s National Advanced Driving Simulator carried out the study, sponsored by National Highway Traffic Safety Administration, National Institute of Drug Abuse, and the Office of National Drug Control Policy.
“Once in the simulator—a 1996 Malibu sedan mounted in a 24-feet diameter dome—the drivers were assessed on weaving within the lane, how often the car left the lane, and the speed of the weaving. Drivers with only alcohol in their systems showed impairment in all three areas while those strictly under the influence of vaporized cannabis only demonstrated problems weaving within the lane. Drivers with blood concentrations of 13.1 ug/L THC, or delta-9-tetrahydrocannabinol, the active ingredient in marijuana, showed increased weaving that was similar to those with a .08 breath alcohol concentration, the legal limit in most states."
The article went on to point out that there is no accurate way of determining impairment by chemical testing (as I’ve pointed out in previous posts, such as California Proposes New Law to Allow Roadside Marijuana Test).
Another important finding should deter any attempts to deploy instant roadside tests for THC-blood levels.
The study also found that analyzing a driver’s oral fluids can detect recent use of marijuana but is not a reliable measure of impairment.
“Everyone wants a Breathalyzer which works for alcohol because alcohol is metabolized in the lungs,” says Andrew Spurgin, a postdoctoral research fellow with the UI College of Pharmacy. “But for cannabis this isn’t as simple due to THC’s metabolic and chemical properties.”