Monthly Archives: April 2016
Typically, a California DUI of either alcohol or marijuana is charged as a misdemeanor when the DUI does not involve injuries to anyone other than the driver. Given the fact that alcohol impairs a person’s ability to operate a vehicle safely, it is entirely foreseeable and often the case that a person’s drunk driving leads to injuries of someone else. When a DUI causes injury to someone other than the driver, the DUI may be charged as a felony.
California Vehicle Code section 23153 makes is unlawful for a driver to be under the influence of alcohol and/or drugs, or have a blood alcohol content of 0.08 percent or more, engage in an act forbidden by law (typically a traffic violation other than the DUI itself), and the act causes injury to someone other than the driver.
A violation of California Vehicle Code section 23153 is what’s known as a “wobbler.” This means that it can be charged as either a felony or a misdemeanor.
If convicted of the misdemeanor 23153 charge, a driver can be sentenced to informal probation for three to five years, serve five days to one year in county jail, pay between $390-$5,000 in fines, attend DUI school, serve a one to three year suspension of their driver’s license, and pay restitution to person or persons injured. A misdemeanor is usually charged when the injuries are minimal.
However, if the injuries are substantial, the prosecutor will likely charge a felony. If a person is convicted of a felony 23153 charge, they can be sentenced to 16 months, two years or four years in a state prison, forced to pay between $1,015-$5,000 in fines, attend DUI school, serve a five year revocation of your driver’s license, and pay restitution to person or persons injured.
What’s more, if the injuries are substantial, which leads to felony charges, prosecutors can and will likely also allege a “great bodily injury” enhancement to the DUI charge. A conviction of the DUI with the enhancement will lead to an additional and consecutive three years in state prison for each additional person injured, and a “strike” on their record under California’s Three Strikes Law.
The Penal Code and California Jury Instruction defines “great bodily injury” as one which is significant or substantial physical injury and one which is more than minor of moderate harm. Needless to say, this doesn’t give much guidance on what is and what isn’t considered great bodily injury. This forces the court to determine which injuries are severe enough to consider “great bodily injury” on a case-by-case basis. However, I can tell you that the courts have interpreted it broadly to include injuries such as broken bones and severe bruising.
It goes without saying that a California DUI causing injury charge is extremely serious, by far more serious than a California DUI without injury. It may be that the injuries are in fact minor, but in my experience, prosecutors will allege the “great bodily injury” enhancement anyways. It takes a skilled California DUI attorney to argue that injuries were minor and possibly that the DUI with injury charge itself should be a misdemeanor or even dismissed.
Hours before the U.S. Supreme Court began hearing arguments as to whether refusing to submit to blood-alcohol testing could be criminally prosecuted (see my post yesterday, Supreme Court Dubious of Making Refusal to Give Blood Sample a Crime), the Idaho Supreme Court handed down the following decision:
Idaho Supreme Court Scales Back DUI Law
Boise, ID. April 20 – The Idaho Supreme Court earlier this month rejected the police practice of forcibly drawing blood from motorists suspected of driving under the influence of alcohol (DUI). In a 4 to 1 decision, the justices agreed that a local sheriff’s deputy should not have forced a blood test on Brant Lee Eversole after his April 16, 2011 arrest….
Eversole was convicted, but he appealed, winning last year before the state Court of Appeals. Then it was the prosecutors who appealed, asking the high court justices to re-instate the ability of police to draw blood from motorists by force. They cited Idaho’s implied consent law, which states that all motorists agree to be tested in the event that they are pulled over and accused of drunk driving.
The high court refused to accept this interpretation, insisting that the Fourth Amendment requires the use of a warrant for such a search…
Another state court rejecting forced blood draws and/or criminalizing refusal to consent. Is our justice system finally beginning to back off of "The DUI Exception to the Constitution"?
(Thanks to Joe.)
Is it a crime to refuse to submit to having your blood drawn without a search warrant if you are suspected of drunk driving? In some states, yes. But should it be?
The Hawaiian Supreme Court has held that a blood test was invalid in a DUI case where the defendant had consented because it was coerced: his consent consent was obtained by his fear that he would be criminally prosecuted if he did not consent. See State Supreme Court: Punishing Refusal to Submit to Blood Test Voids Consent. Two weeks earlier, a Minnesota Appellate Court had decided that a citizen cannot be convicted of refusing to consent to blood-alcohol testing absent a search warrant. See Is It a Crime to Refuse to Give Blood in a DUI Arrest?.
Confronted with the conflict among various states as to whether a DUI suspect could be criminally punished for refusing to incriminate himself with breath or blood testing, the United States Supreme Court recently decided to review the issue. See U.S. Supreme Court to Decide: Can Refusing a Breath/Blood Test Be a Crime?
Yesterday, the Supreme Court heard arguments on the issue. As the following excerpted article from The Washington Post indicates, the justices were dubious about this latest "DUI Exception to the Constitution":
High Court Expresses Doubts About Drunken Driving Laws
Wash., D.C. April 20 — The Supreme Court is expressing doubts about laws in at least a dozen states that make it a crime for people suspected of drunken driving to refuse to take alcohol tests.
The justices heard arguments Wednesday in three cases challenging North Dakota and Minnesota laws that criminalize a refusal to test for alcohol in a driver’s blood, breath or urine if police have not first obtained a search warrant.
Drivers prosecuted under those laws claim they violate the Constitution’s ban on unreasonable searches and seizures. State supreme courts in Minnesota and North Dakota upheld the laws.
The justices pressed lawyers representing the states on why they can’t simply require police to get a warrant every time police want a driver to take an alcohol test. Justice Stephen Breyer pointed to statistics showing that it takes an average of only five minutes to get a warrant over the phone in Wyoming and 15 minutes to get one in Montana.
Thomas McCarthy, the lawyer representing North Dakota, said the state “strikes a bargain” with drivers by making consent to alcohol tests a condition for the privilege of driving on state roads.
But Justice Anthony Kennedy said the states are asking for “an extraordinary exception” by making it a crime for people to assert their constitutional rights. He expressed frustration when McCarthy refused to answer repeated questions about why expedited warrants wouldn’t serve the state just as well….
Although it will undoubtedly be some time before a decision is rendered, it appears that the Court may finally be willing to abandon the "DUI exception" in this situation and recognize that criminally punishing a citizen for refusing to submit to testing — or to submit to testing in the face of criminal punishment — is a violation of the Constitution. Although I believe it is likely the Court will uphold criminalization for refusing to take a breath test, I’m hopeful they will see that punishing for refusing a blood draw without a warrant is a basic violation of a citizen’s constitutional right.
While we’ve been on the topic of DUI of marijuana, it only seemed appropriate to talk about some of the legal defenses that may be raised with this charge.
Just like with a DUI of alcohol, the officer must have probable cause to believe that you are driving while under the influence before he or she can arrest you. The officer has probable cause when they have apparent and trustworthy facts that would lead a reasonably intelligent and prudent person to believe that the driver is driving under the influence. The information that officers use to “find” probable cause is poor driving, the smell of marijuana, blood shot watery eyes, slowed speech, poor performance on field sobriety tests, and admissions by drivers that they have ingested marijuana. Only after a lawful arrest must a driver submit to a chemical test. If an officer makes an unlawful arrest because they didn’t have probable cause, the results of a chemical test showing the presence of marijuana should be inadmissible.
This is precisely why I always advise my clients to not say anything to law enforcement and decline field sobriety tests. Not only is it your right to do so, it preserves the argument that the arrest was unlawful and therefore evidence of marijuana use from a chemical test is inadmissible.
While the defense of an unlawful arrest applies to both DUI of alcohol and DUI of marijuana, there are a few defenses that are unique to a DUI of marijuana.
Unlike alcohol, Delta-9-tetrahydrocannabinol (THC), the psychoactive component of marijuana stays is a user’s system long after ingestion. Therefore, a person can test positive for THC well after the person smoked marijuana and well after the person was intoxicated, sometimes as much as weeks afterwards.
There is a strong correlation between blood alcohol content and intoxication. In other words, law enforcement knows that if a person has, for example, a blood alcohol content of 0.12 percent, it is highly likely that the person is intoxicated and unfit to drive a vehicle. The correlation between THC and intoxication, on the other hand, is not as clear. THC is measured in nanograms per milliliter of blood. For example, Colorado, which have legalized recreational marijuana, has made it illegal to drive with 5 nanograms of THC per milliliter of blood. A person, however, can have 5 nanograms of THC per milliliter of blood in their system weeks after smoking marijuana and certainly well after the person is unfit to drive. Therefore, there is the defense that you are not driving under the influence of marijuana even though you may have THC in your system.
Should California approve the roadside test to determine whether a person has ingested marijuana “recently,” prosecutors still need to prove that the use of marijuana actually impaired a person’s ability to drive to secure a DUI of marijuana conviction. If the driver refuses field sobriety tests, there’s not much evidence, other than the driving pattern, that a person’s ability to drive was impaired. Therefore, another realistic defense is that the person’s driving was not impaired even though they had recently smoked marijuana.
In any event, hiring a qualified California DUI attorney is essential to be able to successfully assert any of the aforementioned legal defenses to a California DUI of marijuana charge. As you can see, they are quite complex and I’ve only scratched the surface.
As you’ve seen in the previous post, it may not be too much longer before we see roadside oral swabs to test for the presence of marijuana and other drugs in addition to the current breathalyzer which tests for alcohol. The push for legislation targeting driving under the influence of marijuana comes at a time when recreation marijuana use in California may be legal in the near future.
Whether that day comes or not, law enforcement agencies throughout California are already on the lookout for DUI of marijuana. And when people get stopped and arrested on suspicion of driving under the influence of marijuana, one of the most common questions is: What are the penalties for a California marijuana DUI?
The mandatory punishment for a California marijuana DUI is the same to that of a DUI of alcohol. In fact, both are covered under section 23536 of California Vehicle Code which states, “If a person is convicted of a first violation of Section 23152 (DUI law for alcohol and marijuana), that person shall be punished by imprisonment in the county jail for not less than 96 hours, at least 48 hours of which shall be continuous, not more than six months, and by a fine of not less than three hundred ninety dollars ($390), nor more than one thousand dollars ($1,000).”
In addition to the jail and fines mentioned above, the court will also place the person on informal probation for a period of at least 3 years, require a three, six, or nine month DUI education program and the DMV will suspend a person’s driving privileges for a period of six months for a first-time conviction. Second-time or more convictions will may bring an 18 month program and a longer DUI education program.
While these penalties are mandatory, there are other penalties which a judge may impose on a person who has been convicted of a DUI of marijuana. These penalties are the same as the discretionary terms of a DUI of alcohol sentence.
The judge may impose a Mothers Against Drunk Driving Victim Impact Panel which is a one-day lecture hosted by MADD where victims of DUI-related accidents speak about how driving under the influence has affected their lives.
A person might be ordered to complete a Hospital and Morgue Program. I think the name of this punishment speaks for itself.
A judge might order a person to complete a number of Narcotics Anonymous meetings as a condition or probation.
The penalties mentioned above apply even if the marijuana they had consumed was medical marijuana. The law against driving while under the influence of drugs, which is California Vehicle Code section 23152(3), prohibits driving while under the influence of illegal drugs as well as prescription drugs and medical marijuana.
Lastly, it should be noted that it is also illegal to possess marijuana on your person or in your car under California’s Health and Safety Code and illegal to possess marijuana while driving under the California Vehicle Code. A conviction of either will add to any penalties received for a DUI of marijuana conviction. How much punishment, however, will depend on how much marijuana was in the person’s possession.