Monthly Archives: February 2018
A new California bill could see drivers under the age of 21 lose their driver’s license for a year if they are caught behind the wheel with marijuana in their system.
State Senator Jerry Hill (D-San Mateo), who has been behind several DUI-related bills, proposed the law so that the state would have the same “zero tolerance” policy for marijuana as it does for alcohol when the driver is under the age of 21.
California’s current “zero tolerance” law, under Vehicle Code section 23136, prohibits drivers under the age of 21 from having any alcohol in their systems. If a driver under the age of 21 tests positive for any alcohol in their system, their driver’s license will be suspended for one year through the DMV, but the matter is not considered criminal. Drivers under the age of 21 who have a blood alcohol content of 0.05 percent or higher, however, can be charged with Vehicle Code section 23140 which is an infraction with a $100 fine, a possible alcohol education class, and the one-year suspension through the DMV. Lastly, a driver under the age of 21 can also be charged with the standard DUI charges under Vehicle Code section 23152 that adults face when they are driving under the influence.
“This bill will save lives by making it illegal for drivers under age 21 to drive under the influence of marijuana, just like current law for alcohol,” Hill said in a statement.
It should be made clear, notwithstanding Hill’s statement, that the law would target the presence of marijuana in the driver’s system, not whether the underage driver was “under the influence” of marijuana.
Currently, there is no reliable way to determine exactly how intoxicated or under the influence someone is as a result of marijuana ingestion even though the psychoactive component of marijuana (delta-9-tetrahydrocannabinol or “THC”) might be present in a person system. A person could have smoked marijuana weeks ago and, while the intoxicating effects have long since passed, the THC may still be detectable in the person’s blood.
Hill foresees law enforcement officers being able to use oral swabs to determine if marijuana has been consumed recently. Although, local law enforcement has experimented with such devices recently, the LA Times reported that no such product has yet been approved for use by California law enforcement agencies.
“We don’t have a device in the field to measure impairment of cannabis,” Richard Desmond, an assistant chief for the California Highway Patrol, told legislators this week.
“[The bill] will do nothing to make the roads safer, nor to reduce youth drug abuse,” Dale Gieringer, director of California NORML (National Organization for the Reform of Marijuana Laws), told the San Francisco Chronicle. “What it will do is encourage cops to conduct random screenings of young drivers without any evidence of dangerous driving and grab their licenses for no good reason.”
Although the proposed law requires that law enforcement have reasonable suspicion that the driver might have marijuana in their system before they forcibly test them, I would not put it past some (maybe many) law enforcement officers to fabricate the reasonable suspicion so that they can conduct random screenings as Gieringer suggests.
Fortunately, the bill provides an exemption for drivers under 21 who use medical marijuana if the officer determines that they are not impaired.
A Virginia bill, if passed, would allow drunk driving on private property within that state.
The bill, introduced by Virginia Republican Senator Richard Stuart, would change Virginia’s current DUI law to decriminalize drunk driving on private property. Current Virginia law does not differentiate between private and public property when a person is driving under the influence. If passed, the legislation would include in Virginia’s DUI law the language, “This section shall not apply to any person driving or operating a motor vehicle on his own residential property or the curtilage thereof.”
The bill has already passed the State Senate by a vote of 37-3. The bill will now go to the House of Delegates for consideration.
To supporters of the bill, it’s more about being able to do what you want on your own property more than it is about being able to drive drunk.
“I really don’t think it has to do with whether or not people want to be able to drink and drive. They just don’t want to be interfered with on their private property,” said Dana Schrad with the Virginia Association of Chiefs of Polices. “From a law enforcement perspective, we’re very much concerned that we’re sending the wrong message to young people that there would be an acceptable time to drink and drive, that it’s okay, and how do you let them know that that doesn’t translate to public roadways?”
Unsurprisingly, not everyone is on board.
“Is a driver with a .14 BAC (blood alcohol content) operating a motor vehicle across Kings Dominion’s parking lot any less of a threat than if he or she were similarly doing so on a neighboring roadway?” asked Kurt Erickson, president and CEO of the nonprofit Washington Regional Alcohol Program. “Inasmuch, the bill throws Virginia down the slippery slope of bifurcating the state’s DUI laws, effectively communicating that it’s okay to drive drunk here, but not there – a dangerous precedent.”
In California, as it is with most states, drunk driving remains illegal on both private and public property.
The California Vehicle Code states that laws including a California DUI “apply to vehicles upon the highways and elsewhere throughout the State unless expressly provided otherwise.”
In 1992 Ronald Dean Arnold Malvitz was arrested for a California DUI while in a privately locked storage facility and sought to challenge California’s law arguing that it didn’t apply to him since he was on private property.
The California Court of Appeals ruled against Malvitz by looking at the legislative history of California’s DUI law.
Prior to 1982, the California Vehicle Code made it illegal to drive drunk “upon a highway or upon other than a highway areas in which are open to the general public.” However, in 1982, the legislature deleted the language referring to the locations upon which a person could be arrested and ultimately convicted of drunk driving.
The Court concluded that the “statute that prohibited driving under the influence of alcohol and/or any drug has emerged unencumbered with any language restricting its reach.”
In other words, the Court concluded that it was the intent of the legislature that, in deleting the portion of the statute which referred to location, the law which prohibits drunk driving should extend to anywhere in California where drunk drivers pose a threat included public highways as well private property.
In addition to the Malvitz ruling, California Vehicle Code section 23215 states, “[law enforcement] may, but shall not be required to, provide patrol or enforce the provisions of [California’s DUI law] for offenses which occur other than upon a highway.”
While drunk driving on private property may soon be allowed in Virginia, I don’t think California will follow suit any time soon.
A Texas man who was convicted of a fourth DUI claimed that blood alcohol content limits discriminate against alcoholics.
Ralph Alfred Friesenhahn of San Antonio was convicted of his fourth DUI in 2016 and was sentenced to four years in prison after he rolled his vehicle outside of San Antonio, Texas. A later blood test revealed that Friesenhahn’s blood alcohol content was 0.29 percent, more than three times the legal limit of 0.08 percent.
Although some states are considering lowering the legal limit to 0.05 percent, all states currently have a limit of 0.08 percent.
At trial, Friesenhahn’s attorney motioned the court to dismiss the indictment against Friesenhahn arguing that the state’s legal limit discriminated against alcoholics. Not surprisingly, the judge denied the request and Friesenhahn was convicted of felony driving while intoxicated, the Texas equivalent to California’s “driving under the influence,” and was sentenced to four years in prison due to his prior convictions.
Friesenhahn’s attorney appealed the conviction, once again arguing that the state’s blood alcohol content limit of 0.08 percent discriminated against alcoholics in violation of the right to equal protection guaranteed under the United States Constitution and Texas Constitution. Specifically, she argued that the legal limit ignored the “protected class of alcoholics,” who have a high tolerance to alcohol, to be prosecuted for DUI charges when there is no indication that the alcohol impaired their ability to safely drive a vehicle even though they might be over the legal limit.
Sammy McCrary, chief of the felony division for the Comal County District Attorney’s Office argued that it’s absurd to suggest that the law treats alcoholics differently.
“You’re not being punished for being an alcoholic. It’s the driving that’s the problem,” McCrary said. “It’s making the decision to get into a 3,000-pound vehicle … after drinking.”
The Austin-based 3rd Court of Appeals agreed with McCrary with an opinion issued last week.
In denying that Friesenhahn and other alcoholics fall within a “protected class,” the court said that Texas law “provides two alternative definitions of intoxication. The first involves the loss of the normal use of mental or physical faculties; the second involves an alcohol concentration of at least 0.08…The alternative definitions are presented disjunctively…indicating that only one must be satisfied to establish that a person is legally intoxicated. Further, these alternative definitions apply to all persons charged with an intoxication offense…Thus, the alcohol concentration definition of intoxicated allows for a finding of intoxication based on an alcohol concentration of 0.08 or more without showing the loss of mental or physical faculties – whether the defendant is an alcoholic or not. Therefore, there is no classification in the statute that treats any persons, including [Friesenhahn’s] defined ‘class’ of alcoholics, differently than similarly situated persons: the 0.08 alcohol concentration level applies to all offenders prosecuted for DWI.”
In short, the court said that since the law treats all persons equally, there can be no violation of equal protection.
Let Friesenhahn’s case serve as a reminder that, while you may not be “impaired” when driving your vehicle, as long as you’re over the legal limit of 0.08 percent blood alcohol content, you’re putting yourself at risk of a DUI arrest, charge, and possible conviction.
In July of last year, I wrote about then 18-year-old Obdulia Sanchez, who livestreamed her own DUI-related collision which killed her 14-year-old passenger sister. At the time, Sanchez pleaded not guilty to gross vehicular manslaughter and several other felony offenses. On January 24th, however, Sanchez withdrew her not guilty plea and entered a plea of no contest and just today was sentenced to six years and four months in prison.
In July of 2017, Sanchez, who was from Stockton, California, was livestreaming herself driving with her sister, Jacqueline and another 14-year-old in the back seats. Sanchez, who had been drinking, could be seen dancing to music with her hands off of the steering wheel moments before the fatal collision.
According to police, Sanchez veered onto the shoulder of a road and overcorrected causing her vehicle to flip several times. Sanchez’s video recorded the collision from the inside of the vehicle. When the car stopped rolling, Sanchez continued livestreaming the incident.
Neither Jacqueline nor the other passenger had been wearing seatbelts. Jacqueline was ejected from the vehicle and sustained fatal head injuries. The other passenger was also ejected and sustained severe injuries to her leg.
While standing over her sister’s body, Sanchez could be heard saying, “Hey, everybody, if I go to f***ing jail for life, you already know why. My sister is f***ing dying. Look, I f***ing love my sister to death. I don’t give a f***. Man, we about to die. This is the last thing I wanted to happen to us, but it just did. Jacqueline, please wake up.”
The livestream was recorded from Instagram and later reposted to Facebook by someone who had seen it.
Sanchez’s blood alcohol content was later determined to be 0.10 percent and she was subsequently charged with felony vehicular manslaughter with gross negligence, felony manslaughter while intoxicated, two counts of felony driving under the influence resulting in injury and two counts of felony driving with a blood alcohol content of 0.08 percent or more causing injury.
At her sentencing, Sanchez addressed the court saying that the moment she realized that her sister had died played “over and over in [her] head.”
“When I look at my mom’s face, I know she hates me,” Sanchez said. “I would hate myself too. I’m such a disappointment to my parents.”
Members of Sanchez’s family pleaded with the court to grant her probation. Sanchez’s public defender also requested probation arguing that prison time would further harm Sanchez who had a difficult childhood. Sanchez was sexually abused as an 11-year-old by a family friend. Two years later, she was abducted, sexually assaulted, and forced to use methamphetamine and alcohol which, according to her attorney, began her addiction to drugs and alcohol.
The district attorney, however, pushed for a 12-year prison sentence pointing to the “callousness” of the video following the crash.
Judge Ronald Hansen disagreed with both the district attorney and Sanchez’s attorney saying that both 12 years in prison and probation were inappropriate. In finding that Sanchez was not “callous,” but remorseful, he sentenced her to six years and four months in a California State Prison.
According to Sanchez’s attorney, with prop 57, Sanchez may get out of jail in 2020.
It’s not an unlikely scenario when a person leaves a bar too drunk to drive and they decide to sleep in their car until they sober up. Kudos to the person for having the wherewithal to avoid driving when drunk. But if a law enforcement officers happens upon the sleeping bar patron, the question becomes whether they can be arrested, charged, and convicted of a California DUI.
Some states hold that a person can be arrested, charged, and convicted of a DUI if they are in “dominion and control” of their vehicle with the ability to drive the it, even though they may not have actually driven it.
Fortunately, California is not a “dominion and control” state, meaning that prosecutors here in California must prove that the person actually drove their vehicle.
The California Supreme Court in the case of Mercer v. Department of Motor Vehicles in 1991 held that the word “drive” in California’s DUI law means that the defendant volitionally and voluntarily moved the vehicle. The court has held that even a “slight movement” is enough to meet the requirement that the defendant drove the vehicle as long as it was voluntary.
Does this mean that a person who is sleeping in a car while under the influence can completely avoid criminal charges? No.
If a person is found sleeping in their car, it is likely that any arresting officer did not see the person drive. Therefore, there may not be any direct evidence for a prosecutor to prove that a person drove. A prosecutor, however, can use circumstantial evidence to prove that the person drove to where they were found while under the influence and then fell asleep.
For example, if an intoxicated person is sleeping in their vehicle in the middle of the road or at the scene of a collision (yes, it happens more often than you would think), then the prosecutor can raise those facts to create the inference that the person had driven. In other words, the prosecutor would argue that it is reasonable to infer that the defendant drove.
On the other hand, if those facts do not exist that would create the inference that the defendant drove then the prosecutor is going to have difficult time proving that the person actually drove the vehicle while being under the influence. This scenario presents itself from time to time as well. But the person may still be charged with another crime such as drunk in public.
In the 1966 case of People v. Belanger, officers found the intoxicated defendant asleep in his vehicle which was located in a parking lot. Although the facts in that case were not enough to create the inference that the defendant had driven to the location while under the influence because he could have driven there sober, drank, and then fell asleep, the officers did arrest the defendant for drunk in public.
The Court concluded that, in order to prevent the defendant from waking up and driving drunk, they needed to arrest him on suspicion of being drunk in public.
Bottom line is that no person should be in a vehicle when they’re intoxicated whether they’ve driven it or not. A prosecutor may still be able to prove a case for driving under the influence or, in the event that they cannot create the inference that person drove, the person is still facing drunk in public charges.