Monthly Archives: October 2016
A few weeks ago, I wrote about how California DUI law could be affected generally should voters pass Proposition 64 this coming November.
If you haven’t read it, here’s the gist:
If Prop. 64 is approved, California would legalize recreational marijuana this November 8th. As the sixth largest economy in the world and an already existing thriving medical marijuana market, it is estimated that the marijuana industry could become a $6 billion industry by 2020.
While THC is the psychoactive component of marijuana that is detected in cases of DUI of marijuana, there is no way to determine how impaired someone is regardless of how much THC is in their system Unlike alcohol, there is not an established correlation between THC and impairment. As a result, a number of companies are racing to create a roadside test to determine impairment of marijuana rather than just presence of THC.
If Prop. 64 passes, there are many more questions that need answering. One of these questions is whether we will see more marijuana-DUI traffic collisions.
The Los Angeles Times consulted with Beau Kilmer, senior researcher at RAND Corp. specializing in drug policy and co-author of the book “Marijuana Legalization” to ask the very same question.
The Los Angeles Times made mention of the fact that AAA announced last week that it was opposing efforts to legalize marijuana in California and Maine citing statistics showing an increase in marijuana related fatal collisions in Washington, a recreational marijuana state. While AAA opposed Prop. 64, it also conceded, “While the data analyzed for the study did not include enough information to determine which driver was at fault in a given crash.”
To this Kilmer responded, “The bulk of the research suggests that driving drunk is worse than driving stoned, but driving stoned is worse than driving sober. The research suggests that when people are under the influence of both marijuana and alcohol, it does increase the probability of getting into a crash.”
But, he added, “If you are going to be objective about this and you really want to know how marijuana legalization is going to affect traffic safety, you don’t just look at the number of people in crashes who are testing positive for THC. You want to look at total crashes and total accidents. It might be the case that yeah, more people are driving stoned, but some of them are now less likely to drive drunk.”
Kilmer added that the studies are not definitive.
Kilmer’s statements are correct in that, if we are to be objective about this, we can’t just look at AAA’s cited statistic. Just because a person has THC in their system at the time of a collision does not mean that the person is driving under the influence. What’s more, it may be that the amount DUI of alcohol related collisions have reduced since the legalization of recreational marijuana in Washington.
Most of the time, officers don’t know that a person is actually drunk when they pull that person over. You can bet, however, that they’re suspicious. It’s not just the commission of a traffic violation itself that gives them suspicion. It could very well be a number of things.
So what do officers look for when spotting a suspected drunk driver?
Because people who are under the influence have trouble with vision and balance, they often have trouble driving in a straight line. This means that they may weave through traffic, cannot stay in their own lane, drift, straddle one side of a lane, swerve, and/or make wide turns. The California Court of Appeals has held that “pronounced weaving within a lane provides an officer with reasonable cause to stop a vehicle on suspicion of driving under the influence where such weaving continues for a substantial distance.”
Drivers who are under the influence also often have trouble gauging speed and distances. As a result, many drunk drivers have trouble stopping their vehicles as a sober person would. This includes stopping their vehicle too far from a curb or a stop sign as well as stopping their vehicle too suddenly.
Similarly, drunk drivers may also have trouble accelerating and often accelerate abruptly rather than gradually. They might also have trouble maintaining a consistent speed. Now it would be unreasonable to expect a person to maintain the speed perfectly, however the speed of drunk drivers often fluctuates more drastically than one might reasonably expect of a sober driver.
What I’ve mentioned are what officers look for, but what about what they listen for? I’m not talking about the sound of drunk drivers. I’m talking about anonymous tips from callers who may suspect that a person is driving under the influence. Can an officer use an anonymous tip to help him or her “spot” a drunk driver?
In the recent case of Navarette v. California, the United States Supreme Court held that an anonymous tip can give law enforcement the authority to pull someone over on suspicion of driving under the influence. This is true even though it is impossible to verify the reliability of the tip and the officer has not witnessed any driving that would indicate intoxication.
Like I said at the beginning of this post, these are the things that give officers the authority to pull someone over with only the suspicion that they may be driving under the influence. These things alone, however, are not enough to give the office the probable cause to arrest the person on suspicion of driving under the influence.
Once pulled over for the reasons mentioned above, the officer can substantiate their suspicion that the driver is under the influence with their own observations in making the stop. These are the pieces of information that have become as common in DUI police reports as the officer’s name, namely the smell of alcohol, the slurring of words, and the bloodshot and watery eyes of the driver. The officer can then further substantiate their suspicion and produce the probable cause needed to make the DUI arrest if the driver agrees to and fails field sobriety tests and/or produces a pre-arrest breathalyzer result above a 0.08 blood alcohol content.
Whether you’ve had a drink or not, be mindful of what the prying eyes of law enforcement officers are looking for in spotting drunk drivers.
It goes without saying that the punishment for driving under the influence in California, and across the United States for that matter, continues to increase significantly thanks to the hypervigilance of Mothers Against Drunk Driving and like organizations.
So what are the current penalties for a California DUI conviction?
The following is a list of what a person can expect if arrested and convicted of a first-time California DUI. It should be noted that penalties and punishment increase beyond what is listed below when a person has suffered prior DUI convictions within 10 years. The following is what can be expected out of a first-time conviction only.
The first thing a person can expect are the fines and fees. The statutory minimum fine that a person must pay following a California DUI is $390. The maximum is $1,000. Absent aggravating circumstances such as a collision, a person can expect $390. However, in addition to the $390, a person can expect to pay “penalties and assessments,” which will bring the overall amount to about $2,000, give or take a few hundred. I can’t tell you exactly what “penalties and assessments” means. In fact, I’ve heard judges say that they don’t know what it means. Suffice it to say, they are akin to court taxes.
When convicted of a California DUI, a person will be placed on summary (informal) probation for a period of three to five years. Again, absent aggravating circumstances, a person should expect the lower term of three years. Informal probation simply means staying out of trouble and doing what the court ordered. This includes not picking up any new cases, DUI or otherwise, not driving without a valid license, and not driving with any measurable amount of alcohol in the system. During the probationary period, a person must also complete the terms associated with that probation. This includes paying all fines and fees, completing a DUI program, and completing any other conditions the court might order.
The last of the penalties that are required by law is the requirement that a person complete a DUI program. For a first-time California DUI, a person is facing a three-month, six-month, or nine-month program. Like the probation and fines, the longer programs are given when the facts surrounding the DUI include aggravating circumstance. Otherwise, a person can expect to complete the three-month program called AB-541.
The aforementioned are what a person can expect by law. There are, however, other penalties which are not mandated by law, but rather discretionary.
If arrested and convicted of a California DUI, a person can be ordered to complete a “Hospital and Morgue Program.” The program is self-explanatory and is, in my opinion, the most unpleasant of the penalties. Participants in this program must first visit the hospital and listen to doctors explain the negative consequences of drinking and driving. Then the person must visit the morgue or coroner’s office and view the bodies of victims of drunk driving. Following the completion of both the hospital component and the morgue component, the participant must write an essay on their experience.
Another discretionary punishment for a California DUI is a Mothers Against Drunk Driving Victim Impact Panel. This is a one-day lecture hosted by the group where victims of drunk drivers speak on the impact that driving under the influence has had on their lives.
The court may order a person to complete a number of Alcoholics Anonymous (AA) meetings. As many people know, AA meetings are hosted by the non-profit organization for the purpose of “stay[ing] sober and help[ing] other alcohols achieve sobriety.”
Lastly, the court can order a person convicted of a California DUI to install an ignition interlock device (IID). An ignition interlock device is essentially a breathalyzer that is installed into the ignition of a person’s vehicle. The device will not allow a person to start their vehicle unless they provide a breath sample free of alcohol. It should be noted that, by law, the DMV already requires the installation of an IID for five months in four California counties; Alameda, Tulare, Sacramento, and Los Angeles.
Again, this is what is commonly ordered and what can be expected. The courts have great discretion as to what can be given as punishment for a California DUI including the unexpected. Believe me, prosecutors are currently pushing for as much punishment as possible and this is precisely why it is extremely important to hire an experienced California DUI attorney if arrested on suspicion of a California DUI.
It’s not a common question, but one that I was asked about during a criminal law class that I teach: Is there such a thing as attempted DUI?
“When might this scenario present itself,” you might ask.
Imagine a scenario when a person is extremely drunk at a bar. After leaving the bar, the person enters their vehicle, but cannot start it because they are drunkenly using the wrong key. Unbeknownst to the person, a police officer was outside of the bar and witnessed the whole thing.
The officer can’t arrest the person for a DUI because in California, the law requires that the person actually drive their vehicle. But can the officer arrest the person for attempting to drive drunk?
In People v. Garcia, law enforcement found the defendant in her vehicle which was in the fast lane of the highway with the hazard lights on. As her vehicle began to roll backwards, the defendant unsuccessfully attempted to start the engine. She was, however, able to put the vehicle in park. Law enforcement observed the entire thing and arrested the defendant.
After the defendant was convicted, the court of appeals determined that the crime of “attempt” can be applied to a California DUI.
According to the California Penal Code, an “[a]ttempt requires a specific intent to commit the crime, and a direct but ineffectual act done towards its commission.”
Driving under the influence is, what is called, a “general intent” crime because it only requires that a person intend to commit the act of driving, but not necessarily driving while drunk. A “specific intent” crime, on the other hand, requires that a person intent to commit a crime. Theft, for example, is a specific intent crime because it requires that the person have the specific intent to steal the property of someone else. But very few people intend on driving while drunk. Rather, they intend to drive while they also happen to be drunk. It is subtle, but very important distinction.
The court in Garcia essentially ruled that an attempted California DUI is a specific intent crime. In other words, a person can specifically intend on attempting to commit the crime of driving under the influence, not just the act of driving. This ruling begs the question: If a person can specifically intend to attempt to drive while under the influence, then can the mere fact that they are drunk negate their specific intent to commit a crime?
This may sound a little confusing, so let me put it in other terms. Let’s say a person becomes so drunk that they “black out,” but are still conscious. That person then steals his neighbor’s lawn gnomes because, in his drunken state, he thinks it will be funny. If he is prosecuted for theft, the prosecutor would have to prove that the person had the mental state to specifically commit the crime of theft. This may be difficult for the prosecutor to do if the person was “blacked out” drunk.
So let’s recap. A California DUI is a general intent crime because a person doesn’t intent to drive under the influence. However, when they attempt to drive under the influence, but unsuccessfully do so, it is a specific intent crime where a prosecutor must prove that a person actually intended on committing a crime of attempted DUI. The intoxicating effects of alcohol consumption can serve to negate the specific intent needed to commit the crime of attempted DUI.
So where does that leave us? Unfortunately, I don’t know and I don’t think the court knows either.
The court in Garcia went on to say that it was “not unmindful that there might be some troublesome questions which will have to be resolved in a later case.”
We all know that if someone is arrested on suspicion of drunk driving, they will be required to take a breathalyzer test, usually later at the police station. And this test result will be the primary evidence used against him in a drunk driving case.
The first problem with this is that the amount of alcohol in the blood is constantly changing — either rising due to absorption from recent drinking or, more likely, falling due to metabolism of the alcohol.
The second problem is that it is only illegal to have a .08% blood-alcohol concentration at the time of driving — not later at the police station. And this breath test may not be given for an hour or two after the driving has ended — particularly in accident cases, where the police may not arrive for some time. So the prosecution has to try to estimate what the blood-alcohol level was when the suspect was driving based upon the later test.
The third problem is that because of this, for the test results to be admissible as evidence in court they have to have been obtained within a certain period of time — in California, for example, within three hours.
But what if there was a breath-testing device which could record what the blood-alcohol level was at the time the suspect is actually driving?
Flexible Wearable Electronic Skin Patch Offers New Way to Monitor Alcohol Levels
San Diego, CA. Aug. 2 – Engineers at the University of California San Diego have developed a flexible wearable sensor that can accurately measure a person’s blood alcohol level from sweat and transmit the data wirelessly to a laptop, smartphone or other mobile device. The device can be worn on the skin and could be used by doctors and police officers for continuous, non-invasive and real-time monitoring of blood alcohol content.
The device consists of a temporary tattoo — which sticks to the skin, induces sweat and electrochemically detects the alcohol level — and a portable flexible electronic circuit board, which is connected to the tattoo by a magnet and can communicate the information to a mobile device via Bluetooth…
Clearly, the government would be very interested in requiring anyone convicted of DUI to wear such a patch for the probationary period (commonly three years).
But what if that government decided to take the next step…..and require everyone to wear these skin patches — as a condition for driving any vehicle?