Monthly Archives: July 2020
“Expunging” a California DUI
When a person is convicted of a DUI, they face at a minimum of three years of probation, fines and fees of several thousand dollars, and a DUI class. Beyond that, depending on the severity of the DUI, a person can also face jail, rehab, a Mothers Against Drunk Driving Victim Impact Panel, a Hospital and Morgue Program, or an exorbitant amount of AA meetings (to name just a few of the consequences). However, for some, none of these penalties is as concerning for them as having the DUI on their criminal record.
Naturally, their first question is, “Can I remove the DUI conviction from my record?”
Unfortunately, when a person is arrested and convicted of a California DUI, both the arrest and the conviction will stay on their record forever. However, an arrest alone cannot be used against a person if they were never convicted. Remember, everyone is innocent until proven guilty and if a conviction never occurred, then the person is still innocent. Simply put, an arrest means nothing without a conviction and employers cannot inquire about an arrest that did not lead to a conviction nor can they use an arrest as a reason not to hire someone.
A conviction, on the other hand, does mean that a person was guilty, and a conviction can be used against them by employers.
Let’s return to the question, “Can I remove the DUI conviction from my record?” While the answer might be, “no,” there’s a very large “but” right behind it. “No, but a person can get an expungement.”
California Penal Code section 1203.4 provides, “In any case in which a defendant has fulfilled the conditions of probation…or in any case in which a court, in its discretion and the interest of justice, determines that a defendant should be granted relief under this section, the defendant shall…be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; of, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and…he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted…”
Simply put, if a person convicted of a DUI successfully completes probation, they can petition to withdraw their guilty plea, no contest plea, or guilty verdict following a trial and the court retroactively dismisses the case.
The word “expungement” is somewhat of a misnomer in that, while many people believe that the DUI will be “expunged” or erased, it does not. It will, however, appear as having been “dismissed” by the court. Dismissed cases do not result in convictions. Thus, if a DUI is dismissed (i.e. “expunged”) through California Penal Code section 1203.4, a person will no longer need to disclose the DUI conviction to most potential employers.
Although a person does not need to disclose a DUI that was dismissed/expunged to most employers, there are exceptions. The conviction must still be disclosed when applying for a government position, a state license, public office, or for contracting with the state lottery. If this is the case, however, a person can then say that the conviction was dismissed under Penal Code section 1203.4 after they have disclosed it.
A DUI conviction should not hold someone back forever, and expungement laws exist so that they don’t. If you, or someone you know, has suffered a DUI conviction, were successful at completing probation, and are ready to move on, contact a California DUI attorney about expunging the DUI.
Remaining Silent During a California DUI Stop
After having a few drinks with friends following work, a driver heads home. While on their way, they don’t make a full stop at a stop sign and are pulled over law enforcement. After telling the driver why they were pulled over, the officer begins asking questions. “Where are you going? Where are you coming from? Have you had anything to drink?” Without thinking about it, the driver says, “I had a couple of drinks with co-workers and I’m on my way home.” The next thing that driver knows is that they are in the back of the squad car and heading to the station on suspicion of driving under the influence.
The driver is released the following day having been charged with a DUI. They contact a DUI attorney and ask, “Can my case be dismissed because I was never given my Miranda Rights and I told the officer too much?”
The question is a common one since very few drivers actually invoke their right to remain silent during a DUI stop. This is true for a number or reasons; a driver might think that cooperation will help their cause, a driver might not know they had a right to remain silent, or a driver might just get too nervous to think about whether they should talk to the officer or not.
Unfortunately, in the scenario above, the case will not be dismissed and the officer legally did not need to give Miranda Warnings.
The United States Supreme Court in Miranda v. Arizona held that, since only voluntary confessions are admissible as evidence, a confession cannot be voluntary (thus admissible as evidence) unless a person knows that they have the right not to say anything. In other words, a person who does not know they have a right to remain silent and is not advised of such might mistakenly believe that they must talk to officers, thus making their confession involuntary. A confession is only voluntary if a person knows they have a right not to say anything and proceed to choose to speak to law enforcement. As such, the United States Supreme Court held that law enforcement cannot engage in a “custodial interrogation” until a person has been advised of their rights, including the right to remain silent under the 5th Amendment.
This means that officers must give the Miranda Warnings after a person has been arrested, but before an interrogation. Unfortunately, questioning by officers during a DUI stop in most instances, is not a custodial interrogation.
When the driver in the above scenario was stopped because they made a “California stop,” they were not “arrested” or “in custody.” When a person is stopped on suspicion of a DUI, or even a traffic violation that leads to a DUI investigation, the person is not arrested even though they may be temporarily detained. During the stop, the officer can ask questions without giving the Miranda Warnings because the driver was not yet arrested.
During that time, the driver still has the right to remain silent, but officer need not inform the driver of that right. These pre-arrest questions are only considered preliminary in nature, and any answers by the driver in response are fair game for prosecutors in a DUI case against the driver.
If, on the other hand, the driver engages in a “California stop” and is arrested (not merely stopped) after the officer suspects that the driver is under the influence, the officer cannot ask questions without first giving the Miranda Warnings. Any answers to post-arrest questions about the DUI are inadmissible if the officer did not provide the Miranda Warnings.
Having said all of this, the 5th Amendment right to remain silent exists whether Miranda Warnings are given or not! A person always has a right to remain silent. During a DUI stop, drivers should unequivocally, but respectfully invoke their right to remain silent, then do so.
Saliva Test for THC Level Detection in Development
In recent years, cannabis and its derivatives having been gaining traction in the United States. Cannabis has become a serious competitor to alcohol’s long-lived reign as Americans’ recreational drug of choice. This competition primarily stems from several progressive cities and states’ decisions to relax the legal restrictions on the long-outlawed drug. Although the relaxation of laws surrounding cannabis and its byproducts results in plenty of benefits, there are drawbacks as well.
A Highway Loss Data Institute study in April of 2018 found that car crashes were up in states that had recently relaxed their laws concerning cannabis. For instance, car collisions were up as much as six percent in Colorado, Oregon, and Washington when compared with neighboring states that had not legalized the recreational use of cannabis. In an attempt to grapple with the issue, state legislators are looking into drafting laws targeting marijuana users who drive while intoxicated.
However, laws targeting stoned drivers are not as clear cut as those targeting drunk drivers. Tetrahydrocannabinol (THC), the psychoactive component of marijuana that causes intoxication, can stay in an individual’s bloodstream for days—sometimes even weeks. Alcohol, on the other hand, only stays in a person’s system for a couple of hours. Additionally, legislators have been able to create “per se” laws, or laws that punish a person for merely having a certain amount of alcohol in their system (0.08 percent BAC in all states except Utah where it is 0.05 percent BAC) regardless of intoxication level because science has proven that the per se levels correspond to the point at which a person cannot operate a vehicle as a sober person would. Since THC can stay in a person’s system well after they have sobered up, most states do not have per se laws for THC. Doing so creates the possibility that marijuana users be arrested for a DUI weeks after they have ingested the drug and well after they have sobered up from it. In other words, such laws would allow officers to arrest completely sober drivers for a DUI simply because they had THC in their system from smoking days, possibly weeks ago.
So how can law enforcement officers get an accurate measure of which drivers are THC-impaired and thus reduce collisions in the states that have legalized recreational use of the drug?
Researchers at the University of Texas, Dallas believe they have a solution. They have engineered THC sensor strips and accompanying electronic readers. The THC sensor strips contain two electrodes that are coated with an antibody that binds THC and isolates it from other compounds found in an individual’s saliva. When an individual’s saliva is put on the test strip, the strip is put into the electronic reader. A strip with THC on it rather than just normal saliva will result in a different electrical current that increases with the amount of THC in that individual’s saliva. The test takes about five minutes from start to finish, making it appealing to law enforcement for use during traffic stops. As of now, it is not clear whether the method of ingestion of THC makes a difference and how long exactly THC will remain on an individual’s tongue.
The saliva THC test is still in its early stages, but researchers say it is accurate for THC levels ranging from 100 picograms per milliliter to 100 nanograms per milliliter. One of the study’s lead researchers, Dr. Shalini Prasad, stated that preliminary clinical reports seem to suggest that one to fifteen nanograms of THC per milliliters of blood would make a driver impaired. Again, although the suggestion that a person can be impaired merely by having THC in their system may be true, the fact that a person can also still be sober while having the same levels of THC suggested by Dr. Prasad means that laws still cannot be based on THC alone without some indication of impairment as well. The hope is that this saliva test closes the gap between the mere presence of THC in a person and their intoxication from it.
While drivers have no need to worry about the saliva THC test in development at the moment, it is certainly something to keep an eye on. If the history of the breathalyzer and its rise to prominence tells us anything, the saliva THC test will soon be an important component in a law enforcement officer’s toolkits. Perhaps it will be used as frequently as breathalyzers are.
GA Supreme Court Extends DUI Liability to Third Parties
If you have read this blog in the past, you might be familiar with what are known as “dram shop” laws. For those who are not familiar, dram shop laws allow the victims of drunk drivers to civilly sue the establishment that served the drunk driver with alcohol prior to the victim’s injury. Although dram shop laws specifically refer to the suing of restaurants and bars, the question of whether liability, be it civil or criminal, can be placed on any third parties who contribute to a driver’s driving drunk leading to injury has been the center of much debate.
There may, however, not be much of a debate, at least in Georgia. The Georgia Supreme Court issued a ruling this week that allows a victim to sue a third party, non-drunk driver, in a DUI collision as an “active tortfeasor.”
In September of 2016, Lakenin Morris was asked by his cousin, Keith Stroud, to drive his car. Morris agreed, Stroud handed him the keys, and they were off. Both had been drinking. Morris later collided with 18-year-old Alonzo Reid, who was hospitalized. Reid sued both Morris, the driver, and Stroud, who provided the keys to Morris. Reid was awarded $23,000 in compensatory damages, to be split equally between Morris and Stroud, and $50,000 from Morris in punitive damages. The trial court, however, decline to award the $100,000 in punitive damages that Reid was asking from Stroud. The trial court concluded that punitive damages were limited to “active tortfeasors,” or, in this case, the actual drunk driver, Morris.
The Georgia Supreme Court, however, reversed the trial court’s decision by adopting a broad interpretation of the word “active tortfeasor.”
“[Georgia law] does not define the term ‘active tortfeasor,’ but from the beginning…has made a distinction between tort defendants who ‘acted’ and those who ‘failed to act.’ The text thus suggests that an ‘active tortfeasor’ is a defendant who engaged in an affirmative act of negligence or other tortious conduct, as opposed to a defendant whose negligence consist of an omission to act when he is under a legal duty to act,” wrote Justice Michael Boggs in discussing the history of Georgia’s punitive damages laws. Justice Boggs went on to say that it does not matter whether the defendant was the drunk driver, but rather whether Morris’s conduct, at least in part, caused the injury.
In other words, the Georgia Supreme Court concluded that by drinking and giving his keys to Morris, whom he knew was drunk, Stroud was an active tortfeasor who could be subject to punitive damages just as Morris, the actual drunk driver, was.
While some states, like Georgia, continue to expand the reach of their dram shop laws, some states like California remain in their determination that only the person who drove drunk can be held liable for injuries resulting from a DUI.
The California Civil Code specifically states, “It is the intent of the Legislature to…reinstate the prior judicial interpretation…that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person…[N]o social host who furnishes alcohol beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.”
Although this code section does not specifically address the situation that led to Reid’s injury, you can see California’s view on the matter. This is not to say that California affords full protection to third parties. California still holds establishments civilly liable for injuries resulting from a DUI when the establishment knowingly served alcohol to an underage drinker who drives and causes injury. Additionally, although rarely enforced, establishments can face misdemeanor charges for serving alcohol to “any habitual or common drunkard or to any obviously intoxicated person.”