Monthly Archives: June 2019
We often spend so much time talking about unique DUI-related topics, many of which discuss the complicated intricacies of DUI’s and DUI law, that we forget to go back and just remind our readers about the basics of a California DUI. Therefore, every so once in a while, I like to go back and just discuss the basics of a California DUI. Before I go any further, I’ll preface this post by saying that the below information is not for DUI’s where aggravating circumstances were present such as prior DUI convictions, collisions, injuries to third parties, an unusually high BAC, a refusal of a chemical test, and so on.
In order to be stopped and arrested on suspicion of a California DUI, officers need probable cause to believe that a person is driving under the influence. For an officer to have probable cause, they need to have reasonable and trustworthy facts that a person is driving under the influence. Officers obtain the probable cause needed to make a DUI arrest by observing poor driving patterns, observing signs of intoxication (slurred speech, smell of alcohol, bloodshot eyes), poor performance on field sobriety tests, and/or failure of a pre-arrest breathalyzer known as a “preliminary screening alcohol test” (PAS test).
A driver can limit the probable cause that the officers are looking for by taking steps to enforce their rights. If pulled over on suspicion of driving under the influence, the driver should not say anything to police except to invoke their 5th Amendment right to remain silent and request an attorney. The field sobriety tests are optional and should not be performed. See any of our numerous articles on the inaccuracies of field sobriety tests. Lastly, the PAS test is also optional and also should not be taken. By limiting the probable cause, the driver will give their defense attorney the ability to argue that the arrest was illegal because the officer did not have the required probable cause to make the DUI arrest.
I should note that a driver will likely still be arrested whether they take measures to protect their rights or not. Again, the purpose of protecting your rights is to help with the DUI defense in court, not to prevent an arrest. I repeat, the officers will almost always still make the arrest.
Once arrested, the driver will be required to submit to a chemical test which can either be a breath or a blood test. Do not confuse this test with the roadside breathalyzer (PAS) test. The PAS test is optional. The chemical test is required, but is only required after a driver is lawfully arrested.
After the driver is arrested, they will be held until they sober up and released with a court date. In the time between the arrest and the court date, the law enforcement agency will send its police report to the appropriate prosecuting agency to make the decision about whether to file charges.
If a DUI is charged, it will typically be under California Vehicle Code section 23152(a) and/or 23512(b). Simply put, Vehicle Code 23152(a) makes it illegal to drive while under the influence of alcohol and Vehicle Code 23152(b) makes it illegal to drive with a blood alcohol content of 0.08 percent or higher. If a person is arrested having been suspected of driving while under the influence of an intoxicant other than alcohol, they will likely be charged with California Vehicle Code section 23152(e).
The filing of charges triggers a criminal case in the appropriate courthouse. The court will schedule a hearing called an arraignment. At arraignment, the DUI suspect, who is now a DUI defendant, will enter a plea, be advised of their rights, and the charges pending against them.
Following the arraignment, there may be several or no pretrial hearings to allow the prosecutor and any defense attorney, either private or a public defender, to assess the merits of the case and negotiate a plea deal. A plea deal may include a reduction in charges to a “wet reckless,” “dry reckless,” or some other lesser charge. It may also include a reduction in sentence.
If no deal can be reached, the case proceeds to a trial where the prosecutor will have to prove to a jury beyond a reasonable doubt that the DUI defendant drove a vehicle either under the influence of alcohol, under the influence of a drug, or with a blood alcohol content of 0.08 percent or higher.
If the jury finds the person not guilty, the DUI defendant will suffer no legal penalties. However, if the finds the person guilty, they face a minimum of three years of summary probation, a fine between $390 and $1,000 plus penalties and assessments, and a three-month drunk driving program known as AB-541, and up to six-month in county jail. Other penalties that a defendant might face are a longer DUI program, a longer probationary period, a hospital and morgue program, a Mothers Against Drunk Driving Victim Impact Panel, AA meetings, and a SCRAM device (alcohol detecting anklet).
I’ve only scratched the surface of the basics of a California DUI, and I haven’t even mentioned the DMV consequences of a DUI arrest and/or conviction, which, by itself, could take up several stand-alone articles. See any number of previous posts about the DMV consequences of a DUI.
Needless to say, just the basics of a DUI are extremely complicated. Factor in other intricacies not mentioned here and it goes without saying that a person who has been stopped, arrested, and charged with a DUI should absolutely not try to take on the system by themselves. Hire a qualified and experienced DUI attorney who knows the process inside and out, and who will give you the best chance at a favorable outcome.
In the years that President Trump has led from the Oval Office, there have been significant changes to former President Obama’s policies. One of the changes being to the Deferred Action for Childhood Arrivals program, better known by many as DACA. This program, which allowed children who were brought to the United States before the age of 16 by undocumented immigrant parents to apply for deferred status and remain in the United States, was formally rescinded by Trump in 2017.
Under the current policy, for a DACA-eligible immigrant to gain deferred status to continue to stay in this country, they cannot have a felony conviction, a significant misdemeanor conviction, or three or more misdemeanor convictions. They must also pose no threat to national security or public safety. These eligible immigrants are referred to as “Dreamers.” However, under the current policy, there was no path to legal residency or ultimately citizenship.
Democrats have authored a bill to be considered by the House that would affect the process of gaining permanent residency for Dreamers and the conditions that would disqualify them from completing the process. Part of the new bill allows Dreamers to be deported if they have a felony DUI offense, three or more misdemeanor offenses, or if their DUI record can be interpreted by the Secretary of Homeland Security to be a threat. Although this is the main focus of the bill, there is also a section in the bill that allows the Secretary of Homeland Security to grant waivers for undocumented immigrants in regards to up to two DUI misdemeanors being counted against them if they have not had similar convictions in the 10 years leading up to their application for legal status. On the flip side, the Secretary may also deny someone’s legal status with one DUI offense if that offense leads to the belief that the person can be considered a public threat.
Supporters of this bill feel that it would be hypocritical for Congress to hold the Dreamers to a different standard than themselves. There have been several members of Congress who have a history of DUI and, for them, apologies seemed to have sufficed to allow them to continue in their positions. Examples of current members include Texas Representative Kevin Brady who pled no contest to a DUI charge in 2005, Idaho Senator Mike Crapo who pled guilty to DUI in 2013, and former Rhode Island Representative Patrick Kennedy who pled guilty to DUI in 2006.
Opposition to the bill feels that this new bill does not consider the severity of DUI convictions. Ohio Representative Chabot was quoted, “We should not be passing laws which shield drunk drivers from removal or reward them for their dangerous conduct by fast tracking them to get a green card.”
Committee Chairman Jerrold Nadler of New York feels that “people make mistakes and laws and policy decisions should reflect that. [They are] no more or no less a public safety threat than a member of Congress who has a DUI conviction from several years ago.” Nadler continued, “This legislation is intended to recognize reality, that these people are Americans, that they are Americans in every sense except for a piece of paper, and to say, to imply, there’s one standard for members of Congress with a DUI conviction and another … where a single DUI can automatically expel them from the country is wrong.”
As an immigrant myself with permanent residency I agree that it does seem unfair to judge a person from a past DUI conviction when that mistake was just that; a mistake. Although I agree that society as a whole should be well aware of the seriousness and consequences of driving under the influence, setting a different standard for those children who had no say in coming into this country to begin with and have known no other home but this country, seems to be unfair. Obviously, if a Dreamer racks up multiple DUI, misdemeanor, or felony convictions, then at that point they would start to pose a threat to society, and the Secretary of the Department of Homeland Security might have cause to deny legal status. Whether the bill passes or not, let’s hope that even the prospect of the bill becoming law is enough to deter Dreamers from getting behind the wheel while under the influence.
The Maui Police Department hope to be able to start enforcing their DUI laws in a more time efficient manner with the purchase and arrival of six new high-tech breathalyzers.
The current Intoxilyzer 8000 models have been used by the department since May 2015 and the introduction of the newer Intoxilyzer 9000s will hopefully allow the officers to spend less time documenting their tests results.
The new device is equipped with a touchscreen rather than a keyboard for easier data entry and its updated software will allow for some of the departmental forms to be incorporated into the device. This will allow the device to create reports rather than the officers manually typing out the reports as they did previously.
A grant totaling $63,000 through the state Department of Transportation allowed for the purchase of the new devices, and the Maui Police Department will be the first department in the state to transition to the Intoxilyzer 9000. The Honolulu Police Department also hopes to soon make the same transition.
DUI Task Force Sergeant Nick Krau has been tasked with the training as well as the writing of policy and operating procedures for the Intoxilyzer 9000 that will eventually be reviewed by the state Department of Health before being distributed. Official training and use of the new devices will take place soon thereafter.
A total of twelve officers, coming from multiple islands, spent time at a two-day training course at the Kihei Police Station in order to familiarize themselves with the new devices. The attending officers will be the ones primarily training other officers.
According to Lieutenant William Hankins, the commander of the police Traffic Section, “The technology is still the same as far as how it analyzes breath readings. It just makes it easier for the officers. Everything’s going to be faster.”
Six devices may not seem like a lot for an entire police department. however, these are not the same devices that patrol officers will have out on the street. The new Intoxilyzer 9000 devices will be analyzing results after the preliminary tests are administered and are to become the tests that are admissible in court.
Each police station in Maui County will have a new Intoxilyzer.
“We always strive to have the most updated technology possible for our officers and our community. It will allow us to get our officers back on the road faster,” said Krau.
I hope that the state departments and various police department heads do their very best to make sure that statement rings true.
A quick Google search revealed that the Intoxilyzer 9000 series has been in circulation as early as 2013. Some of the first states to implement the new model were Georgia and Colorado. Texas made a slower transition as there where a few deficiencies with the device that became apparent after other states had already begun using it but aimed for full implementation in 2015.
Although not quite as new and novel as Krau made it out to be, Hawaii’s implementation of the Intoxilyzer 9000 might signify an emerging trend of modernizing breathalyzers. Perhaps they were merely waiting for all of the deficiencies of the earlier 9000 series to work themselves out.
Back in January, we covered Utah and its new DUI law that lowered their blood alcohol content limit to 0.05 percent. (Utah Now Has the Lowest BAC Limit in the Country)
FOX13 of Salt Lake City did a deep dive into new DUI statistics in Utah since the new law’s start. It was reported by the Utah Department of Public Safety that of the 844 people who had been arrested statewide and 38 of them were arrested for having a blood alcohol concentration of between 0.05 and 0.079.
FOX13 took it a step further and broke down the numbers within the 38 who were arrested.
- 7 were found to be under the legal age of drinking
- 24 were alcohol restricted drivers and had previously been arrested for a DUI
- 2 were arrested with a combination of drugs, either prescription or illegal, in their system along with alcohol
- 1 refused a field sobriety test or chemical blood draw, the results which were positive after a warrant was issued
- 4 were arrested with the BAC being the only issue with the results between 0.05 and 0.079
Interestingly, the number of underage drinking violations do not show a change prevalence and, according to Michele Corgliano of the Salt Lake Are Restaurant Association, the breakdown and its supporting numbers show that the majority of the DUI arrests are not of drivers who registered a BAC that fell within the new lowered range.
“These results are in line with our stand prior to the law: 33 of these arrests would have been illegal under the previous law: underage drinking, drugs, suspended license, etc. This is in line with our research, in that it does NOT show .05 is the reason for impairment,” Corgliano said to FOX13.
The average time it takes for the labs to return with the toxicology results to confirm blood alcohol contents is approximately 60 days. Therefore, we have yet to find out if the more recent months show a similar trend. However, since the time that the new law had been implemented, it seems that most of the arrests were for violations of DUI laws that were already in place before the new 0.05 DUI limit took effect. It may still be too early to make any deductions, but if this trend continues, the effectiveness of the new law could face some scrutiny.
Supporters of the 0.05 DUI law have been focused on the reduction of the crashes, injuries, and deaths, noting that it was never about the number of the arrests, but rather saving more lives from the act of driving under the influence. While that may or may not be true, we do not yet have the numbers of injuries and deaths since the implementation of the new law to determine if this law is making a difference. And having said that, I’m sure they’re not crying that at least some people were arrested under the new lowered BAC limit.
Other states such as California have been contemplating following in Utah’s footsteps and lowering their legal limit from 0.08 percent to 0.05 percent. It will be interesting to see if California lawmakers take into account the numbers that Utah produces before making a decision. Given the aforementioned statistics for Utah’s new law, and if the current trend of seeming ineffectiveness continues, I certainly hope that California takes Utah’s numbers into account.