Archive for September, 2017

California DUI with a High BAC

Friday, September 29th, 2017

Many people know that the legal blood alcohol content limit is 0.08 percent and that if caught driving with a 0.08 percent or more, they will face the penalties associated with a DUI. Few people however know that if they are caught driving with a blood alcohol content that is much higher than the legal limit, they face additional penalties.

The mandatory minimum punishment for a first time DUI conviction in California is $390 plus penalties and assessments, which are like court taxes and will increase the overall amount to about $2,000, three years of summary (informal) probation, and a three-month DUI program called AB-541.

The first consequence of a driver having a high blood alcohol content, beyond the mandatory minimum penalties mentioned above, is that they must admit to having a high blood alcohol content. The prosecutor may include in the criminal complaint a “special allegation” that the driver’s blood alcohol content was high. In addition to pleading guilty to the DUI itself, as part of a plea deal, prosecutors often want the driver to admit on the record that the special allegation that their blood alcohol content was particularly high.

A driver may also be facing a longer DUI program. AB 762 is a six-month program and AB 1353 is a nine-month program and both can be offered as part of plea deal for an elevated blood alcohol content. There is an 18-month program called SB 38, but it is reserved for people who have been convicted of one or more California DUI’s within the past 10 years. 

Another additional penalty that a person faces after a California DUI conviction with a high blood alcohol content is the Mothers Against Drunk Driving Victim Impact Panel. According to Mother Against Drunk Driving (MADD), one of their main goals is to prevent recidivism of DUI offenses. In an attempt to accomplish this, MADD provides one-day presentations where convicted DUI offenders listen to the stories of people whose lives have been negatively affected by drunk driving. The speakers are usually victims of DUI-related collisions or relatives of those who were killed as the result of DUI-related collisions.

The prosecutor might also offer a Hospital and Morgue (HAM) program. The name is exactly what the program entails. The person convicted of the California DUI must visit with doctors at a hospital who address the dangers of driving drunk and experience the health consequences of driving drunk. Following the hospital visit, the person must visit a morgue where they view the bodies that are stored there and are confronted with the ultimate consequence of driving drunk and other risky behavior. After both the hospital and morgue components are completed, the person must write an essay reflecting on their experience, the lessons learned, and behavior moving forward.

Alcoholics Anonymous (AA) meetings might also be offered as an additional penalty when a BAC is particularly high. According to its own website, www.aa.org, “AA is an international fellowship of men and women who have a drinking problem…Membership is open to anyone who wants to do something about his or her drinking problem.” AA meetings are relatively easy to locate and are offered throughout the week at varying times. Since the meetings only typically last one hour to 90 minutes, the court usually requires at least 10 meetings. For extremely high BAC readings, a person may have to a significant amount of AA meetings.

Lastly, a person may actually have to serve jail time. Whether a prosecutor will want jail for an elevated BAC depends other aggravating factors surrounding the DUI, the county in which the DUI took place, and the courthouse itself. Although it is the most severe of the increased penalties and unlikely to be offered, it is possible.

A driver with a particularly high blood alcohol content may face one, all, or a combination of any of the abovementioned increased penalties. Other, less frequent penalties, such as a SCRAM device or an ignition interlock device, may also be included. Since these penalties are not mandatory, it is important to hire a California DUI attorney to possibly eliminate them as part of a DUI sentence.

 

 

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State Supreme Court: “No Reliable Scientific Test for Marijuana Impairment”

Wednesday, September 20th, 2017

It is, of course, illegal to drive a vehicle while impaired by the effects of marijuana.  The continuing problem, however, is:  How do you prove that a driver is, in fact, under the influence of marijuana?

Law enforcement currently relies primarily upon the opinions of police officers as to whether a suspect is unable to safely operate a vehicle due to marijuana impairment.  The primary tool used to arrive at this opinion is the same as for alcohol impairment: field sobriety tests.  These highly subjective roadside "tests", administered and interpreted by a police officer with little training, is coming under increasing scrutiny — as reflected in yesterday’s decision by the Massachusetts Supreme Court:
 

Court: Roadside Drunken Driving Tests Not Valid for Pot

Boston, MA.  Sept 19 – The highest court in Massachusetts has ruled that field sobriety tests typically used in drunken driving cases cannot be used as conclusive evidence that a motorist was operating under the influence of marijuana.

The Supreme Judicial Court on Tuesday said police officers could testify only to their observations about how a person performed during a roadside test.

But they would not be allowed to testify as to whether a person passed or failed such a test or offer their own opinions about whether a driver was too high to drive.

The justices said there is currently no reliable scientific test for marijuana impairment.

Adult use of recreational marijuana is now legal in Massachusetts, though the court noted it’s still illegal to drive while high on pot.


Absent evidence of impairment based upon field sobriety tests, the only other evidence (independent of a police officer’s subjective opinion), is a blood test.  This, however, has been proven to be highly unreliable.  See, for example, Can DUI Marijuana Be Detected or Measured?, How Much Marijuana Does It Take to Impair Driving? and New Study: Minimal Impairment from Marijuana.

(Thanks to Joe)

 

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Can Personal Breathalyzers Prevent Drunk Driving?

Thursday, September 14th, 2017

How many people would think twice about getting behind the wheel after having a few drinks knowing that they were above the legal limit? My guess is a lot. No longer must a person guess whether they are over or under the legal limit if they have their own personal breathalyzer.

So can a personal breathalyzer prevent a DUI? I don’t see why not.

Breathalyzers are so readily available nowadays that, in addition to the standard multiple-use breathalyzer, they have developed single-use disposable breathalyzers and breathalyzer apps for the smartphone.

As you can imagine, the range in the quality and price of personal breathalyzers is quite large. Costs will vary between $15 and several hundred dollars. Breathalyzers under $50, and those coming on key chains have questionable accuracy from the start and accuracy continues to decrease after multiple uses.

Unlike novelty breathalyzers, quality breathalyzers will be backed by the Food and Drug Administration (FDA). This means that the FDA conducts research to confirm that the breathalyzer does what its literature says it does.

Just because I believe that personal breathalyzers can prevent a DUI, it doesn’t mean that they are 100% accurate. Almost all quality breathalyzers, like those the police use, require calibration after repeated use to ensure accuracy. Some products allow for owners to calibrate themselves and some require that the breathalyzer be sent to the manufacturer for calibration. Heavily used and non-calibrated breathalyzers will likely not be accurate.

It is possible for a person’s blood alcohol content to continue to rise after a breathalyzer reading, especially if they’ve only recently stopped drinking. Therefore, it is also possible for a person to have a blood alcohol content of 0.07 when they leave the bar (and when they test themselves) and a 0.09 after they’ve been driving for a while. If that is the case, you can still be arrested and charged for a California DUI.

Lastly, a person does not necessarily need to be above a 0.08 blood alcohol content to be arrested and charged with a California DUI. A person can be arrested and charged with a California DUI if they are above a 0.08 percent blood alcohol content or if they are “under the influence.” In other words, you can be a 0.07 percent, but if an officer determines that you cannot safely operate a vehicle as a sober person could, you can still be arrested and charged with a California DUI.  A breathalyzer may determine if you are under the legal limit, but it cannot determine whether you are “under the influence.”

Although I can’t imagine some DUI’s not being prevented with personal breathalyzers, the Colorado Department of Transportation wants to be sure. They are providing personal breathalyzers to people with prior DUI’s in certain counties.

Those who participate in the program have agreed to actually use the breathalyzer and complete a survey. At the end of the program and when the survey is completed, participants can keep the breathalyzer.

You can be sure that when the Colorado Department of Transportation releases the results of this experiment, you can be sure that I’ll update you with that information.  

 

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Drunk Driver Incriminates Herself on Facebook

Monday, September 11th, 2017

Sometimes clients or potential clients send me messages on public forums like Facebook. Shockingly, the messages include incriminating statements or even admissions of guilt. I have to remind them that the internet is like Las Vegas in that what goes on the internet, stays on the internet and that it can be seen by anyone, including the police and prosecutors.

A Michigan woman found this out the hard way when she posted about her DUI collision on social media.

The woman was driving under the influence of alcohol when she collided into another vehicle. Following the collision, she fled the scene to a nearby hotel which had a computer and she immediately began posting about the incident.

Officers tracked her down to the hotel. The front desk attendant told the officers that the woman had come in, said that she had been in a collision, and that she had been drinking.

The officers then then tracked down the computer that the woman had been using. The woman had closed neither Facebook nor the Facebook messages that she had sent a friend. Lo and behold, there was a message from the woman to her friend detailing the DUI-accident.

A later breath test revealed that the woman had a blood alcohol content of 0.12 percent. It was also discovered that her license was expired. She was booked on charges of driving under the influence, operating a vehicle with an expired license, and leaving the scene of an accident causing injury.

It wouldn’t surprise me if the Facebook message will be used against the woman in court.

Ok, so the officers in this instance didn’t discover the incriminating social media information as you might’ve expected, namely scanning pages hoping to come across incriminating information. That doesn’t change the point I’m trying to make.

Keep your mouth shut…and your fingers off the computer.  

The Fifth Amendment exists for a reason and is useless unless it is exercised. It doesn’t matter whether you’re guilty or innocent. Exercising your right to remain silent is about protecting yourself and your rights.

Not only will statements made to police be used against someone in a DUI case, or any criminal case for that matter, but also the information they post on social media.

Being a criminal defense attorney for close to eight years now, I’ve known prosecutors and law enforcement agents to search Facebook and other social media platforms for information that might incriminate people. If found, that information is often used as evidence in a criminal case against the person.

If you are arrested on suspicion of driving under the influence, simply tell the officers that you respectfully decline to answer any questions without a lawyer present. Bear in mind that officers do not need to read you the Miranda Rights before they start asking question during a DUI stop. If you are arrested and charged, do not discuss the matter with anyone, either online or in person, to anyone but your attorney.

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Cop Arrests Sober Drivers on Hunch they are Stoned

Tuesday, September 5th, 2017

This past week, I came across a video on Facebook of a news report on a Georgia police officer who had been arresting sober drivers on suspicion of driving under the influence of marijuana. After posting the video to my own Facebook page, I decided to do some research.

Apparently, Cobb County, Georgia police officer Tracy Carroll made headlines in May of this year when a number of his DUI of marijuana cases were dismissed after it was discovered that those he arrested were stone-cold sober.

The video of Carroll’s arrest of Katelyn Ebner can be seen here: http://interactive.tegna-media.com/video/embed/embed.html?id=2594976&type=video&title=RAW%20-%20Katelyn%20Ebner%20dashcam&site=85&playerid=6918249996581&dfpid=32805352&dfpposition=Video_prestream_external%C2%A7ion=home

Ebner not only spent the night in jail, but spent thousands of dollars trying to prove that she was innocent even though a blood test revealed that she did not have any illegal substances in her system.

Carroll, a “drug recognition expert,” can be seen and heard having the following conversation with Ebner:

Officer Carrol: “I’m going to ask you a question, okay? When was the last time you smoked marijuana?”

Ebner: “Oh, I don’t do that. I can give you a drug test right now.”

Officer Carroll: “You don’t smoke marijuana?”

Ebner: “I do not, no.”

Officer Carroll: “Okay. Well, you’re showing me indicators that you have been smoking marijuana, okay?”

I wonder what exactly those indicators were that Officer Carroll had to go through such intensive training on to identify.

The International Association of the Chiefs of Police give the title of “drug recognition expert” to officers who have completed training on being able to identify when a person is under the influence of drugs based solely on their observations.

Officer Carroll’s not-so-accurate crystal ball also landed Princess Mbamara in jail on suspicion of driving under the influence of marijuana when, in fact, she too was sober.

Mbamara’s arrest can be seen here: http://interactive.tegna-media.com/video/embed/embed.html?id=2594904&type=video&title=RAW%20-%20Princess%20Mbamara%20dashcam&site=85&playerid=6918249996581&dfpid=32805352&dfpposition=Video_prestream_external%C2%A7ion=home

Princess Mbamara: “You’re arresting me because you think I smoke marijuana?”

Officer Carroll: “I think you’re impaired by cannabis, yes, ma’am.”

Princess Mbamara: “Sir, I don’t smoke weed! Is there a way you can test me right now?”

“I remember my lawyer trying to talk about a deal…I was like, ‘I’m not taking a deal. I didn’t do anything! I want more than just a deal – I want more than just a dismissal; I want my life back. Can you reverse time? If you can go back in time, then that’s what I really want,’” said Mbamara.

If you are as infuriated as I was when I watched these videos, you’ll be even more infuriated to know that Mothers Against Drunk Driving (MADD) actually awarded Carroll and other officers for the number of DUI arrests they made. Forget about the fact that a number of Carroll’s arrestees were, in fact, innocent. Who knows how many others weren’t as lucky as Ebner or Mbamara. An arrest means nothing without a conviction. Remember that old phrase, “innocent until proven guilty?” MADD doesn’t care about that as they continue to incentivize officers arresting people who may not actually be driving under the influence.

And let’s go back to that “training” to become an “drug recognition expert.” Clearly, it’s a load of expletive, notwithstanding Cobb County’s outrageous claim that the training makes the officer’s determination more reliable than a blood or urine test. Let’s be honest, the officer’s “determination” is no more than a hunch.

Let me be perfectly clear: An officer’s hunch that a person is under the influence of drugs does not amount to the legally required probable cause needed to make an arrest. Arresting someone because of an officer’s hunch is an abuse of power.

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