Monthly Archives: December 2017
California Law Could Give Free Ride if You’re Too Drunk to Drive
Most of us have done it at least once and most of us don’t want the responsibility of being designated driver. Unfortunately, unless someone is willing to pay for transportation, a designated driver is one of the few ways to avoid a DUI and get home safely. However, a new law could make designated drivers a thing of the pass by allowing alcohol manufacturers and sellers to provide free rides through ride-sharing apps to its customers.
Too drunk to drive? New California law could give you a free ride
December 25, 2017, The Sacramento Bee – It’s an all-too-familiar scene in Sacramento. A group of friends heads to midtown for a night of partying and drinking, but one friend has to miss out on the fun and stay sober to be the designated driver.
A new law that takes effect Jan. 1 may not only let everyone join in on the fun, but it’ll also mean more money for the bubbly.
Under Assembly Bill 711, alcohol manufacturers and licensed sellers can offer free or discounted rides to transport drinkers home safely through ride-sharing services, taxicabs or other ride providers.
Vouchers or codes can be given to alcohol sellers or directly to consumers, but cannot be offered as incentives to buy a company’s product. Current law restricts alcohol licensees from offering discounts of anything more than inconsequential value to consumers, though liquor and wine manufacturers have been temporarily allowed to pay for rides for people attending private, invitation-only events.
The measure, by Assemblyman Evan Low, D-Cupertino, would relax the rules to expand that program, allowing alcohol manufacturers to underwrite free or discounted rides in all cases.
Low noted that thousands attending the Super Bowl 50 in Santa Clara in 2016 didn’t have options to get home safely after drinking. Forty-four other states and the District of Columbia allow liquor manufacturers to pay for free or discounted rides, according to a legislative analysis of the bill.
The bill cleared the Legislature unanimously, and was supported by major beer manufacturers as well as ride-sharing company Lyft. Last year, Anheuser-Busch partnered with Lyft to offer rides home across 33 “safe ride” programs throughout the nation.
Katja Zastrow, vice president of Corporate Social Responsibility for Anheuser-Busch, said since teaming up with the ride-sharing service, the program has provided more than 64,000 rides. “Drunk driving is 100 percent preventable and offering safe rides is one way that we can have a real impact on reducing (it),” she said.
The bill was opposed by Alcohol Justice, a San Rafael-based nonprofit that lobbies against policy thought to promote the “alcohol industry’s harmful practices,” according to the group’s website.
Carson Benowitz-Fredericks, the organization’s research manager, said AB 711 could encourage people to drink more. Alcohol Justice says overconsumption of alcohol costs California $35 billion a year and causes 10,500 deaths annually.
“The idea that drunk driving is the only harm from alcohol is a real misunderstanding of alcohol harm,” Benowitz-Fredericks said.
The main concern from both Benowitz-Fredericks and the Rev. James Butler, the executive director of the California Council on Alcohol Problems, is that though the bill says the rides should be provided in order to get drinkers safely home, there is no real way to prevent consumers from using the free rides to go to another drinking spot.
“If they get free transportation, maybe instead of two beers they have six,” Butler said. “And when people overconsume alcohol, they make bad decisions.”
I’ve said it before and I’ll say it again: Anything that helps people get home safe after a night of drinking and avoid a DUI I’m in favor of, including this new law.
Can You Be Punished for Suspicion of Drunk Driving?
It has always been a cornerstone of the United States Constitution that a citizen is presumed to be innocent until proven guilty beyond a reasonable doubt. No citizen can be punished based merely upon a police officer’s suspicion that he or she has committed a criminal offense.
Except, perhaps, in drunk driving cases. See, for example, my posts DUI and the Presumption of Guilt and The DUI Exception to the Constitution.
In a recent example of this widely-prevailing view, consider a recent decision by the Oklahoma Supreme Court in the case of Hunsucker vs Fallin (December 20, 2017), as reported by TheNewspaper.com:
Oklahoma Supreme Court Slams DUI Law
Oklahoma City, OK. Dec. 27, 2017 — Oklahoma’s attempt to crack down on drunk driving went too far. In a ruling last week, the state Supreme Court declared the Impaired Driving Elimination Act violated the due process rights of motorists by, among other provisions, requiring police officers to tear up a driver’s license upon the mere suspicion that he might be impaired.A group of attorneys filed suit, arguing that it was unconstitutional for the government to seize and destroy someone’s property without even allowing a hearing to contest the license seizure — and the high court agreed.
“More than forty years ago the US Supreme Court explained that revocation of a driver’s license must conform to the Due Process Clause,” Justice James E. Edmondson wrote for the court. “The Due Process protection of the licenses was viewed not as a mere state-created interest, right, or privilege, but when drivers’ licenses are issued their continued possession may become essential in the pursuit of a livelihood and suspension of issued licenses thus involves state action that adjudicates important interests of the licensees.”…
The law in question also included a half-dozen other provisions criminalizing the refusal to take a breath test, regulating deferred prosecution programs and providing conditions for the use of ignition interlock devices. The court found the hodge-podge of provisions in the 82-page bill violated the state constitutional requirement that bills stick with a single topic.
Question: Why was it necessary for the state’s supreme court to tell the legislature and courts that seizing and destroying a citizen’s driver’s license based entirley upon a cop’s suspicions was a violation of the Constitution?
California’s Drive Sober or Get Pulled Over Campaign
As is the case every year around the holiday season, law enforcement is ramping up efforts to catch impaired drivers. California law enforcement agencies, including the Los Angeles Sheriff’s Department as well as the California Highway Patrol, are partnering with the California Office of Traffic Safety and the National Highway Traffic Safety Administration in the anti-DUI campaign "Drive Sober or Get Pulled Over."
From December 15th through January 1st, local law enforcement agencies will deploy an increased number of DUI checkpoints and saturation patrols throughout California in high risk locations.
“This holiday season, drivers will notice increased enforcement watching closely for anyone who is driving impaired,” said Los Angeles Sheriff Department Sergeant Robert Hill.
“It is vital that we keep our roads and travelers safe, not just at the holidays, but every day. With extra travelers on the roads, and people attending holiday parties, we will likely see an uptick in drunk driving,” Hill said. “We’ll be arresting anyone we catch breaking this life-saving law.”
Nationwide in 2016, 37,461 people were killed in motor vehicle traffic crashes, and 28 percent (10,497) died in crashes where a driver had a blood alcohol concentration (BAC) over the limit of .08. In California, 1,059 DUI deaths were reported at .08 or above.
Last year, CHP’s holiday "Maximum Enforcement Period," which ran from December 23rd to December 26th, saw 535 DUI arrests and 16 fatal collisions.
“Two simple words can keep your holiday festivities safe – plan ahead,” California Office or Traffic Safety Director Rhonda Craft said. “Before you head out to any celebration, plan how you are getting home safely. If you are drinking, that means knowing what sober driver or service you will be using.”
There are things that you can do to not become a statistic this holiday season.
People can download the Designated Driver VIP (DDVIP) free mobile app for Android or iPhone, which locates nearby bars and restaurants offering free incentives for the designated sober driver, from non-alcoholic drinks to appetizers and more. Just be sure that whomever has offered themselves up as the designated driver actually remains a sober designated driver. A designated driver who drinks, while they may have less than their passengers, is not a designated driver.
While some may still use public transportation to get home after drinking, others find it easier to just call an Uber or a Lyft right from their phone. Either way, with this many options to travel, there’s no excuse to get behind the wheel after drinking at a holiday party.
Although not the best option, if you do have a glass of wine at that holiday party and plan on driving home, maybe have with you a personal breathalyzer just to be safe. One wine or one beer or one drink might not put you over the limit of 0.08 percent blood alcohol content. However, a person can still be arrested, charged, and convicted of a DUI even if they’re below the legal limit as long as the alcohol affects their ability to drive. Having said that, some preventative measures, like knowing what your BAC is, are better than none.
And unfortunately, the least favorite option is the best option. The only way to have yourself a happy DUI-free holidays is refrain from drinking altogether. Egg nog without alcohol is just as good as egg nog with.
OC Judge Vacates DUI Sentence After Victim Seeks Harsher Sentence
In January of this year, a man by the name of Jorge Perez was driving under the influence of alcohol when he struck 20-year-old Cal State Fullerton student Jessica Weber as she was walking with her friends back to the dorms.
Perez drove through a red light and hit Weber with his left-side mirror. Perez then drove away before law enforcement arrived at the scene. Witnesses helped police track down Perez where he was later arrested. Meanwhile, Weber was left with broken bones in her back, hip, pelvis, and left arm.
Bonnie Masters-Weber, Jessica’s mother, had told the Orange County Deputy District Attorney who was assigned to the case that she wanted to be present for every hearing. Masters-Weber, who lives in Sacramento, was told by the prosecutor that there was no need for her to make the long trip for every hearing, but that they would inform her of when sentencing would take place.
Under the California Victim’s Bill or Rights Act of 2008, commonly known as Marcy’s Law, victims of crimes and their families have the right to be present during the criminal proceedings of the defendant and give a statement at the defendant’s sentencing.
According to the Orange County District Attorney’s Office, the prosecutor on the case “inadvertently failed to notify” Masters-Weber that Perez had accepted a two-year deal with the judge.
Unbeknownst to Masters-Weber, Perez was sentenced in October. Although the DA had been pushing for four years and four months in prison, Perez accepted an offer from the judge of two years in prison.
When the failure to notify the Weber family was discovered, prosecutors filed a motion for reconsideration of Perez’s sentence and Judge Scott Steiner ordered a hearing.
“The DA failed us,” said Masters-Weber at the hearing which took place last month. “It refused to acknowledge their violation of our constitutional rights.”
Judge Steiner agreed that the Weber and her family’s rights were violated and vacated Perez’s guilty plea.
“I am making the determination that it is proper in the interest of justice to vacate the guilty plea that was entered in this case,” ruled Judge Steiner.
Perez’s attorney disagreed with the ruling arguing that the court had considered letters of impact before it offered the two-year sentence to Perez.
With the guilty plea vacated, Perez’s initial not guilty plea effectively gets reinstated and Perez’s defense can continue to fight for a better offer or take the case to trial. Given the statements provided by Weber and her family, Judge Steiner told Perez’s defense that the new court offer would be four years and four months, the same as what the DA’s office had pushed for originally.
Susan Schroeder, the Orange County District Attorney’s chief of staff issued the following statement:
"The Orange County District Attorney’s Office (OCDA) is a leading enforcer of Marsy’s Law rights and takes its advocacy for crime victims seriously. In the case of People V. Jorge Perez, the OCDA was vigorously pursuing a sentence of 4 years and 4 months on charges of driving under the influence of alcohol causing bodily injury, driving with blood alcohol .08% or more causing bodily injury, hit and run with injury, driving on a suspended/revoked license, and a sentencing enhancement for inflicting great bodily injury."
"Early on in the case, the victim’s mother, Ms. Masters, had been working with a deputy district attorney, who is no longer with the office, who suggested she not make the long drive from northern California for each and every proceeding and that our office would notify her prior to the sentencing. A note was made in the file to contact her when the time came. The judge offered the defendant a two-year sentence, an offer that was not supported by the OCDA. The OCDA gave Ms. Masters’ prepared victim impact statement to the judge who considered it at the sentencing hearing on October 17, but inadvertently failed to notify Ms. Masters to be present."
"Once the error was discovered and prior to being contacted by the media, the OCDA initiated the process of getting the case put back on the calendar to remedy the situation so Ms. Masters may address the court personally. OCDA prosecutors strive for perfection and in this case, we fell short. We certainly understand why Ms. Masters is upset and we are working to correct our error."
In no way do I condone what Perez did and I want to be perfectly clear when say that Weber and her family should have had the opportunity to address the court. While it may be difficult for some to sympathize with, I’d be remiss if I did not point out another less-obvious inequity:
The prosecution fouls up and, as a result, gets exactly what they originally wanted; a more severe sentence.
Perez is due back in court later this month for a pretrial hearing.
Drunk Drivers Say Personal Breathalyzers Helped them Prevent Driving Drunk Again
This past August, the Colorado Department of Transportation gave 475 personal smartphone breathalyzers to people who had been convicted of a DUI. In addition to the obvious objective of preventing drunk driving, the Colorado Department of Transportation also wanted to see if, in fact, having the breathalyzer actually helped keep them from driving drunk again.
After recently surveying those people who were given breathalyzers, the Colorado Department of Transportation’s results showed that having a personal breathalyzer helped those people avoid driving drunk. In fact, a whopping 90 percent said that having a breathalyzer helped them avoid driving drunk and 94 percent said that they would recommend a personal breathalyzer to others who regularly drink alcohol.
The Colorado Department of Transportation teamed up with BACtrack, who created the smartphone breathalyzer, during the informal study. The breathalyzer is linked to a smartphone app through Bluetooth. If the user determines that they cannot legally drive, the smartphone app can order them a taxi or Uber.
I’ve written a few times on the benefits of purchasing a personal breathalyzer.
Like those handed out by the Colorado Department of Transportation, people can buy breathalyzers that can either be attached directly to a smartphone or connect to smartphone through Bluetooth and will run buyers between $100 and $150.
Other, less expensive, breathalyzers can come on keychains and can cost buyers as low as $15. Like many things, quality comes with price and the results of these novelty breathalyzers are questionable at best and decrease in accuracy after time.
Some breathalyzers are handheld and resemble those commonly associated with the breathalyzers used by law enforcement. Those breathalyzers range widely in terms of price and quality. Some come as low as $50 and some can go as high as a few hundred dollars. Obviously, the less expensive handheld breathalyzers have lower quality, but those more expensive handheld breathalyzers are the ones used by law enforcement because of their accuracy and may even be approved by the Food and Drug Administration (FDA). Law enforcement grade breathalyzers have an accuracy range of plus or minus 0.002 percent which means that if a person is a 0.08 percent, the breathalyzer results can range between 0.078 percent and 0.082 percent.
I purchased my own personal handheld breathalyzer to experience first-hand what I’ve been writing about. I didn’t break the bank, but I did spend $60 on the lower end of the legitimate handheld breathalyzers. After having a few drinks, I gave it a go. While I don’t know what my actual blood alcohol content was because different readings were provided, I can say that the multiple readings ranged by about 0.03 percent. In other words, using that range, a person could register between a 0.095 percent and 0.65 percent, or between a 0.18 percent and 0.12 percent, or between 0.26 and 0.23 percent. After a few months of use, the breathalyzer stopped working and I need to send it to the manufacturer.
While on the face of it, it might seem as though this range is too large to help drivers know whether they are okay to drive because if a person is actually at a 0.08 percent, the breathalyzer reading can show results as high as 0.095 percent and as low as 0.065 percent. Having said that, if a person knows that a breathalyzer is less than accurate and shows a blood alcohol content of 0.065 percent, they may know that they might actually be at a 0.08 percent and abstain from driving. And bear in mind that this is one of the less accurate handheld breathalyzers.
At a minimum, having a personal breathalyzer might help people bridge the gap between how a person perceives what their intoxication level is and what their blood alcohol content is. And while many breathalyzers might not provide an accurate reading, it might still prevent people from driving merely knowing that they are close to the limit. And knowing a range is certainly better than knowing nothing and making a stupid guess.