Archive for January, 2019

New Canadian DUI Law: Police can Breathalyze in Homes, Bars, and Restaurants

Tuesday, January 15th, 2019

I know I complain a lot about the DUI laws here in California. There is much improvement to be made with regard to how law enforcement enforces drunk driving laws and how prosecutors prosecute drunk driving laws. Having said all that, at least we’re not in Canada.

Section 253 of the Criminal Code of Canada was effectively changed in December of 2018 which gave law enforcement the authority to seek breath samples from people who might have been driving under the influence of alcohol.

Here in California, an officer must have probable cause that a person was under the influence before they could arrest them on suspicion of a DUI. Only then was a person required to provide either a breath or a blood sample. Prior to that arrest, any breath sample provided was voluntary on behalf of the driver.

Under Canada’s new law, police officers no longer need to have “reasonable suspicion” that a person had consumed alcohol to force that person to take a breathalyzer. Police could demand breath samples from people at their home, in a bar, or at a restaurant. If the person refuses, they could be arrested and charged, and if convicted, can face a fine and a driving suspension.

Notwithstanding the potential to arrest a person who was not driving under the influence of alcohol, but rather lawfully drinking in their home or elsewhere, supporters of the law point to the use of another “tool” in combating drunk driving.

“Police miss a lot of impaired drivers,” said Toronto police spokesman Sgt. Brett Moore. “It’s just a really good, strong message that there’s a real high likelihood that if you get stopped by police, you’re going to get asked to submit to a breath test.”

Not surprisingly, Mothers Against Drunk Driving Canada also supports the new law asserting that mandatory alcohol screening will make the roads safer.

Don’t get me wrong, I too support making roads safer, but not at the risk of arresting, charging, and punishing people for doing something perfectly lawful. I’m not the only one.

“It’s ridiculous, it’s basically criminalizing you having a drink at your kitchen table,” Paul Doroshenko, a Vancouver criminal defense lawyer who specializes in impaired driving cases, told Global News. “If you start to drink after you get home, the police show up at your door, they can arrest you, detain you, take you back to the (police station) and you can be convicted because your blood alcohol concentration was over 80 milligrams (per 100 millilitres of blood) in the two hours after you drove.”

The Canadian Civil Liberties Association also expressed concern about Canada’s new law saying that mandatory alcohol testing will disproportionally affect racial minorities who might be unfairly targeted by law enforcement.

Notwithstanding its problems, Minister of Justice and Attorney General Jody Wilson-Raylould believes that the law with withstand judicial scrutiny when it is challenged in court and is in support of the new law.

“Impaired driving is the leading criminal cause of death and injury in Canada,” said Wilson-Raybould in December. “I believe these reforms will result in fewer road deaths and fewer Canadian families devastated by the effects of an impaired driver. This is one of the most significant changes to the laws related to impaired driving in more than 40 years and is another way that we are modernizing the criminal justice system.”

It could take years for legal challenges to make their way through Canada’s appeal courts and even the Supreme Court of Canada. Until then, people, all people in Canada, are subject to a law that could find them in legal trouble even though they’ve done nothing wrong.

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Struggles of Finding a Legal Limit and Test for Marijuana

Thursday, January 10th, 2019

During this past New Year’s holiday, the Los Angeles Police Department utilized a new portable oral test that is able to check for the presence of marijuana, cocaine, methamphetamines, and other drugs in a person’s system. In their attempt to start aggressively enforcing impaired driving laws, they decided to use this test at New Years’ checkpoints even though the test had only been used about 50 times prior. Prosecutors hope that this eight-minute oral fluids test will eventually become an effective indicator of impairment of drugs, though they have yet to use any results from these tests as evidence in their cases.

Although this test does have the capability of checking for the presence of THC, which is the component most identified with the use of marijuana and which causes the psychoactive effects of marijuana, it does not test for impairment from THC. However, since the legalization of recreational marijuana in several states, experts have struggled to determine an appropriate level of use that would consistently label a person to be “impaired.”

It is undoubtedly important for law makers to be presented with research that helps to determine at what level of THC presence that will cause a person’s impairment. Without this, the current legal terminology of “under the influence” is extremely subjective. Unlike the research with alcohol that determined that there is a strong correlation between impairment and blood alcohol levels higher than 0.08, the research with THC levels are still inconclusive. Both neuroscientists and pharmacologists are having difficulties determining to what extent the drug can impair a person’s ability to drive as well as an appropriate way to measure it. Private companies are currently working on a breathalyzer to test for impairment similar to that used in alcohol related cases, however, the results are still not as definitive as the tests used to determine impairment of alcohol.

In the interim, the Legislature’s Special Commission on Operating Under the Influence and Impaired Driving is recommending mandatory drug testing for stoned drivers under the threat of license suspension. Law enforcement insists that this is the best way to keep stoned drivers off the road.

The threat of losing one’s license may be an effective way to keep stoned drivers off the streets, but at this point in time, it also comes with a multitude of issues, including those that make the tests unconstitutional. For one, it is still unconstitutional to force a blood draw or saliva test without a warrant.

An additional issue is that unlike alcohol that metabolizes fairly quickly and at a measurable rate, THC can last in one’s body for days, even weeks. The “recommended” tests may undoubtedly accurately measure the amount of THC in the body, but there is still no measurement for impairment. ACLU Field Director Matt Allen, who is a member of the special commission stated, “We want to ensure that if motorists are faced with penalties such as losing their license for not taking a drug test that that test is scientifically proven to measure impairment.” However, he was the lone “no” vote on the recommendation.

The scientific community is undoubtedly working on the answer. Hopefully sooner rather than later, the public will be presented with a fairly accurate level of what impairment under the influence of marijuana means. Without it, it is not only law enforcement who is at a loss for efficiently assessing impairment, but all responsible users who lack a point of reference of this newly legal drug to make sure that they are not inadvertently putting the public in danger. Until then, we cannot arbitrarily punish people who have THC in their system, but are not impaired by it.

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Stricter DUI Law Trend Across the U.S.

Monday, January 7th, 2019

Each state has their own traffic laws and has their own driving under the influence laws. Some are stricter than others. That said, until this year, all states have set the blood-alcohol (BAC) level of 0.08 as the per se standard of driving under the influence. DUI law in every state is much more complicated than simply having a BAC limit (see recent article California DUI Law 101, for a recap on DUI law in California), although it is an important number to remember. One state, however, has made the leap to lower the allowed BAC level, making it the strictest in the country. If you are knowledgeable about the history of anti-drunk driving laws in the U.S., you may not be surprised to hear that that state is Utah, which has in the past been a trailblazer for stricter DUI laws in the country.

Utah was the first state to lower the BAC limit from 0.1 to 0.08 back in 1983, and now in 2019, it will be the first state to lower the BAC limit from 0.08 to 0.05. Utah has put this new limit to effect on December 30, right before the New Year festivities. Although the BAC level will change, the punishments for being convicted of a DUI will not. In Utah, that includes suspended licenses and fines over $1,000. Those in favor of the new limit feel that this new lower BAC level will help to deter drivers from drinking before getting behind the wheel. However, this lower limit also means that law enforcement will be casting a wider net and many more people could have their licenses suspended with thousands of dollars in fines, and possibly other penalties. Unlike California, Utah does not have a policy for restricted licenses, which means that in areas with few public transit options, even first-time offenders will have a difficult time adjusting to the penalties of a first-time DUI in Utah.

Although the idea that a lower BAC limit will help to deter those who have had a few alcoholic drinks from getting behind the wheel is well-intentioned, and though there are many state lawmakers who hope that other states will soon follow in Utah’s footsteps, there are still many details that should be addressed in order to ensure that a lower BAC limit law does not unfairly overreach to people who might be sober.

Utah is not the only state to be making changes. Pennsylvania passed legislation in October that took effect on December 23, that created the state’s first felony DUI. Until now, Pennsylvania was one of four states in the U.S. that did not consider elevating a DUI to a felony after multiple DUI convictions. Now with the new law in effect, a third time offender of driving under the influence with a BAC level of 0.16 (twice the legal limit in Pennsylvania) can be charged with a felony. The new law will also consider a fourth DUI offense or higher, with any BAC level or intoxicating substance presence, as a felony.

The new Pennsylvania law also increased the penalties for homicide by vehicle while driving under the influence, increased jail time for DUI’s where there was a prior DUI, and increased the fines and fees for a DUI. In addition, the penalty amount for driving under suspension has been increased. What was previously a minimum $500 fine and up to 60 days in jail for a second offense is now a mandatory minimum of 90 days in jail and a fine of $1,000, with a third offense to resulting with six months in jail and a mandatory $2,500 fine.     

Considering that a majority of the states have already put in place the felony categorization for a DUI following multiple offenses, Pennsylvania is late in the game. However, Pennsylvania had been seeing an annual number of approximately 10,000 alcohol-related crashes and around 300 fatalities. With one source citing about 250,000 repeat DUI offenders in the state, it is no wonder Pennsylvania turned to the trend of stricter DUI laws.

Hopefully enforcement of these new laws will help to promote a safer driving environment for all, but not at the cost of arresting sober people on suspicion of a DUI.

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Utah Now has the Lowest BAC Limit in the Country

Wednesday, January 2nd, 2019

In 2016 Utah passed a law which would lower its blood alcohol content limit from 0.08 percent to 0.05 percent, making it the toughest DUI law in the country in terms of a BAC limit. Well, as of January 1st, 2019, Utah’s new law took effect.

Prior to Utah’s change, all states had the same blood alcohol content limit of 0.08 percent. However, states differed with what punishments a DUI carries.

Although the National Transportation Safety Board recommended that all states lower their blood alcohol content limits from 0.08 percent to 0.05 percent, only Utah has done so. The National Transportation Safety Board based its recommendation on studies suggesting that impairment begins when the blood alcohol content reaches 0.04 percent.

Utah will now have the task of transitioning into enforcing the new limit.

“We’ve put together a task force on how we are going to usher this in,” Utah Highway Patrol Captain Steve Winward told state lawmakers late last year.

According to Winward, Utah Highway Patrol officers will get four hours of training that will include a review of Utah policy on breathalyzers and other indicators of intoxication. Other police agencies as well as prosecutors from the state will also receive training.

“We really don’t want to change the way we do business,” Winward told members of the Law Enforcement and Criminal Justice Interim Committee last year. “We want to ensure that we are arresting those that are DUI. We want to educate troopers to focus on impairment and not the number 0.05.”

Leading up to the new year, Utah underwent a public relations campaign to inform the public of the new limit.

“People think that you can only have one drink and you are over the 0.05,” Winward said. “We want to dispel those myths.”

According to the National Highway Traffic Safety Administration, a male weighing 140 pounds would be at, or close to, a 0.08 percent blood alcohol content having had three drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.08 percent blood alcohol content having had just two drinks within an hour. Regardless of gender, your blood alcohol content will not be as high if you weigh more. Conversely, your blood alcohol content will be higher if you weigh less.

However, male weighing 140 pounds would be at, or close to, 0.05 percent blood alcohol content having had two drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.04 percent blood alcohol content having had just one drink within an hour.

Of course, these figures are approximate and depend on several factors which include, but are not limited to, whether the person ate, what they ate, what they drank, and how fast they drank it. But based on these approximate numbers, we can see that for both males and females, the difference between a 0.08 and a 0.05 percent blood alcohol content is about one less drink in an hour.

“I have no doubt that proponents of .05 laws are well-intentioned, but good intentions don’t necessarily yield good public policy,” Jackson Shedelbower, The American Beverage Institute spokesman, said in a statement.

Shedelbower added, and I agree, that the new law focuses on moderate and responsible drinkers, as opposed to drivers with far higher BAC levels who are responsible for the majority of alcohol-related traffic fatalities, according to The Washington Post.

 

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