Monthly Archives: August 2017
A California driver is being held on homicide charges for allegedly driving under the influences and striking an off-duty Modesto Police Department sergeant who was riding his bike.
According to investigators, 38-year-old Sgt. Michael Pershall was riding his bicycle on Tuesday evening when he was struck from behind by a vehicle. The vehicle then crashed into a fire hydrant. The driver of the vehicle, 32-year-old Matthew Gibbs of Modesto, California, was subsequently arrested on suspicion of driving under the influence.
Gibbs was booked into the Stanislaus County Jail and is being held without bail.
Court records show that Gibbs was arrested for a misdemeanor DUI in 2015. That case, however, was dismissed.
Gibbs is facing a homicide charge as well as two charges of DUI causing injury.
Homicide merely refers to the killing of another human being and encompasses murder charges, voluntary manslaughter charges, and involuntary manslaughter charges. It is still unclear exactly what homicide charge Gibbs faces.
Prior to 1981, a person who killed someone while driving under the influence could not be charged and convicted of murder. However, the landmark case of People v. Watson changed that.
California Penal Code section 187(a) provides that “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” Malice can be expressed or implied, and implied malice is present when the circumstances attending the killing show an abandoned and malignant heart.
So what does that mean?
Simply put, implied malice is when a person knowingly engages in an act that is dangerous to human life with a conscious disregard for human life.
The court in Watson found that if the facts surrounding the DUI support a finding of “implied malice,” second degree murder can be charged. In other words, if a person engages in driving under the influence when they know that it is dangerous to human life to do so, and they kill someone, they can be charged with murder.
Now the question becomes, “Did the person know it was dangerous to human life to drive drunk?”
While we all know that it’s dangerous to drive drunk, since Watson, courts started expressly advising people who have been convicted of DUI, on the record, that it is, in fact, dangerous to drive drunk. This was not because the court actually thought that the defendant didn’t know it, but rather to ensure that the prosecutor could charge murder instead of manslaughter upon a subsequent DUI causing the death of someone.
Gibbs was only arrested for a prior DUI, but never convicted. Therefore, there’s a good chance that judge never gave Gibbs the “Watson advisement.” Thus, if the prosecutor wants to charge Gibbs with murder, they must find some other way to prove that Gibbs knew it was dangerous to drive while under the influence and that he ignored that danger.
A little over a week ago, two drivers were arrested for driving their all-terrain vehicles while under the influence of alcohol.
George Mooshian, 47, and Randy Hoisington, 55, both of Newport, New Hampshire were driving their ATV’s while under the influence of alcohol when Mooshian drove his ATV off of the trail and into a tree. Hoisington, who was following behind Mooshian, attempted to avoid colliding into Hoisington and rolled his ATV.
Both ATV operators were flown to the hospital for serious injuries.
Fish and Game officials responded to the incident and determined that speed and alcohol were contributing factors in both collisions. Also, neither driver was wearing a helmet at the time of the collisions.
Mooshian and Hoisington were arrested on suspicion of operating a OHRV (off-highway recreational vehicle), which is another name for an all-terrain vehicle.
Although this particular incident happened in another state, someone in California can also be charged with a California DUI for operating an ATV while intoxicated.
For those who take to the dunes or off-road trails on their ATVs, it is not uncommon to pack a cooler of beers as refreshments. To the surprise of many riders, if the beer is consumed before hopping aboard the ATV, it could land them in jail on California DUI charges.
For purposes of California DUI law, an ATV is a motor vehicle. Although California DUI law requires that a person drive a “vehicle,” California Vehicle Code Section 670 defines a “vehicle” as “a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”
Because ATV’s are considered vehicles, drunk drivers of ATV’s are subject to the same penalties as those who are arrested for a California DUI in their vehicle; probation, up to 6 months in jail, up to $1,000 in fines, and other possible penalties.
Does it matter if the drunk ATV driver is not on a public road way? Unfortunately, no.
Off-road trails and sand dunes are considered public roadways for the purposes of California DUI law. The California Court of Appeals in the case of People v. Malvitz concluded that the legislative intent of California DUI laws was that they extend beyond the public roadways to anywhere in California including private off-road trails or dunes.
I’ve posted in the past on the difficulties law enforcement faces in detecting impairment from marijuana while driving — both subjectively (symptoms, field sobriety tests and the officer’s opinion) and objectively (analysis of blood or other bodily substances). See, for example, Identifying and Proving DUI Marijuana ("Stoned Driving"), Can Breathalyzers Measure Marijuana?, New Efforts to Push Roadside DUI Marijuana Test and San Diego Begins Using Mouth Swabs to Detect Drugged Drivers. There is even disagreement among scientists as to how much marijuana must be ingested to become impaired, and how the metabolism (absorption and elimination) of marijuana functions in any individual — for example, how long the active metabolites remain in the blood. See How Much Does It Take to Impair Driving? and New Study: Minimal Impairment From Marijuana.
The following excerpts from a segment of a recent public radio presentation does an excellent job of laying out the difficulties in detecting marijuana impairment and measuring levels of active THC (delta-9-tetrahydrocannabinol) in the blood.
Scientists Still Seek a Reliable DUI Test for Marijuana
July 30, 2017. NPR – Despite the increasingly legal use of cannabis in many states, cops still don’t have the equivalent of a reliable alcohol breathalyzer or blood test — a chemically based way of estimating what the drug is doing in the brain. Though a blood test exists that can detect some of marijuana’s components, there is no widely accepted, standardized amount in the breath or blood that gives police or courts or anyone else a good sense of who is impaired…
A number of scientists nationally are working hard to create just such a chemical test and standard — something to replace the behavioral indicators that cops have to base their judgments on now…
Turns out it can be a lot harder to chemically determine from a blood or breath test that someone is high than to determine from such a test that they’re drunk.
Ethanol, the chemical in alcoholic drinks that dulls thinking and reflexes is small and dissolves in water. Because humans are mostly water, it gets distributed fairly quickly and easily throughout the body and is usually cleared within a matter of hours. But THC, the main chemical in cannabis that produces some of the same symptoms, dissolves in fat. That means the length of time it lingers in the body can differ from person to person even more than alcohol — influenced by things like gender, amount of body fat, frequency of use, and the method and type of cannabis product consumed.
In one study, researchers had 30 frequent marijuana users stay at a research facility for a month without any access to drugs of any sort and repeatedly tested their blood for evidence of cannabis.
"And it shocked everyone, including ourselves, that we could measure, in some of these individuals, THC in the blood for 30 days," says Marilyn Huestis, a toxicologist with the University of Maryland School of Medicine who recently retired from leading a lab at the National Institute on Drug Abuse.
The participants’ bodies had built up stores of THC that were continuing to slowly leech out, even though they had abstained from using marijuana for a full month. In some of those who regularly smoked large amounts of pot, researchers could measure blood THC above the 5-nanogram level for several days after they had stopped smoking.
Conversely, another study showed that people who weren’t regular consumers could smoke a joint right in front of researchers and yet show no evidence of cannabis in their blood.
So, in addition to being invasive and cumbersome, the blood test can be misleading and a poor indicator of whatever is happening in the brain…
The NPR segment went on to discuss the difficulties police officers have in judging whether a person who has consumed marijuana was impaired. After law enforcement training seminars involving volunteers who had smoked different amounts of marijuana, the program concluded:
Right now, these officer’s opinions loom large. If they decide you’re driving high, you’re going to jail. But at the end of the day, they’re just making educated guesses. Two different officers could watch the same person doing the same sobriety test and make different decisions on whether to arrest. In previous courses, officers had decided that a volunteer was impaired when in fact the volunteer hadn’t smoked at all.
So, just like the THC blood test, the judgments officers make can also yield false positives and negatives….
An increasing number of states are simply throwing up their hands and, in effect, deciding that actual impairment is not necessary: the crime is in driving with an arbitrary amount of THC in the blood — even if there is no actual impairment at all.
This follows what the federal government imposed on the states a few years ago: a new crime of driving with 0.08% blood-alcohol, to overcome the difficulties of having to prove the driver was actually impaired — despite the proven fact that many people are not impaired at that level or higher. In alcohol cases, however, it is at least possible to measure alcohol levels, and roughly determine absorption and elimination times.
But changing the crime of driving while impaired by marijuana to one of having an arbitrary amount in the system makes arrest and conviction much easier for police and prosecutors, right? And isn’t that the important thing?
Not only do I practice DUI defense and write these posts on DUI-related topics, but I also teach law which sometimes includes teaching students what is required for a DUI. Students are often surprised when I tell them that, in California, driving must occur for a person to be arrested, charged, and convicted of a California DUI.
States are split on whether a person can get a DUI for merely having their keys in the ignition. States that don’t require that the defendant actually drive are called “dominion and control” states. Fortunately, California is not one of those states.
In states that have “dominion and control” DUI laws, if a person is intoxicated and has dominion and control of their vehicle with the mere ability to drive, they can be arrested, charged, and convicted of that state’s DUI laws. California, on the other hand, requires that the defendant actually drive the vehicle.
In 1991, the California Supreme Court in the case of Mercer v. Department of Motor Vehicles held that the word “drive” in California’s DUI law means that the defendant volitionally and voluntarily moved the vehicle. While no movement is insufficient for a DUI, the courts have held that even a “slight movement” is enough to meet the requirement that the defendant drove the vehicle.
Therefore, in California, a person cannot get a DUI for merely having the keys in the ignition. The officers and prosecutor would need evidence, in addition to the keys being in the ignition, that the person voluntarily moved the vehicle.
When there is no direct evidence that the defendant drove, such as the officer witnessing the defendant driving, proof that the defendant drove can be established through circumstantial evidence and inferences.
For example, if a person is on the shoulder of the freeway as the sole occupant of a vehicle with the keys in the ignition and they are under the influence or have a blood alcohol content of 0.08 percent or higher, the prosecutor and jury can infer that there was no other way to get to shoulder of the freeway and there was no one other person who could have driven there.
Contrast that with a scenario in which the defendant is found under the influence or with a blood alcohol content of 0.08 percent or higher in their vehicle which is in their driveway and the keys are in the ignition. Here, there is no other circumstantial evidence to create the inference that the defendant actually drove the vehicle.
So, just because you can’t be arrested, charged, and convicted of a DUI with just the keys in the ignition, doesn’t mean that a you should be drunk in a vehicle with keys in the ignition. Don’t put it past law enforcement and prosecutors to try to establish that a person drove even if ever so slightly.