Monthly Archives: October 2020

MADD Weighs in on California Proposition 22

Mothers Against Drunk Driving (MADD) has come out this past week in support of California Proposition 22. In a letter posted to the organization’s website, MADD National President Helen Witty stated that exempting “gig workers,” such as Uber, Lyft, and other rideshare app drivers, from state law designating them “employees” rather than independent contractors keeps rideshare services affordable and available.

In 2019, the California legislature passed AB5 which designated rideshare drivers as employees. As employees, rideshare companies would have to provide certain employment benefits such as minimum wage, overtime, expense reimbursement, paid sick days, paid family leave, unemployment insurance and an employer health care option.

While Uber and Lyft maintained that their employees were independent contractors, a judge ruled in August that the companies were in violation of AB5. The ruling threatened “hundreds of thousands” of job cuts and the suspension of operations in California. Importantly for MADD, it meant less alternatives to driving when a person has had one too many to drink.

If passed, Prop. 22 would exempt rideshare companies from treating their drivers as employees, and drivers would maintain their independent contractor status.

Supporters of Prop. 22 argue that an exemption from treating drivers as employees would keep rides inexpensive and readily available to travelers. Uber has said that up to 76% of its 209,000 California drivers could be cut if the company is forced to comply with the stricter law, and that prices could increase 25-111%.

“Prop. 22 will preserve rideshare services that help keep drunk and drug-impaired drivers off of our roads by providing a safe, reliable, convenient and affordable alternative to driving,” wrote Witty. “Fewer rideshare drivers in California could mean more people choosing to get behind the wheel when they’re under the influence.”

Opponents of the measure argue that maintaining the independent contractor status for drivers is exploitative.

MADD and Uber have pointed to a number of studies over the past few years that have suggested ridesharing companies, in providing an alternative to driving when drunk, have reduced the number of DUI’s and DUI-related accidents.

Other researchers are not as sure. Some argue that the data suggests ridesharing apps have not reduced drunk driving, but have actually increased binge drinking in areas of high rideshare usage.

I urge you to do your own research on the benefits and drawbacks of passing Prop. 22 before deciding to vote for or against it.

However, while I think it’s fair to say MADD and I have not always seen eye-to-eye, we finally agree that the more alternatives to driving drunk there are available to the public, the better.

The Truth About Chemical Testing in a California DUI Investigation

Drivers who are pulled over and placed under arrest for driving under the influence will likely be required to submit to one or more chemical tests. These tests are designed to detect whether the driver has alcohol or drugs in their systems and in what quantity. The results of these chemical tests often form the backbone of a prosecutor’s case against a driver. For example, a chemical test showing a driver’ breath- or blood-alcohol concentration to be greater than .08 may be the central piece of evidence a prosecutor relies on in pursuing charges against a motorist.

Prosecutors and police officers alike want drivers and jurors to believe these chemical tests are “scientific” and “foolproof.” The truth about chemical testing in California, though, is more complicated.

Breath Tests

Breath testing on a breathalyzer machine, such as the “Intoxilyzer,” is by far the most common chemical testing requested because the testing process itself is relatively quick to perform and because it does not require someone with medical knowledge or training to assist in collecting the sample. In a breath test, the driver blows into a tube connected to the testing machine. The machine collects a sample of the person’s breath and then analyzes that sample using infrared energy and approximates the person’s alcohol concentration.

This breathalyzer chemical test is not to be confused with the roadside breathalyzer, or “Preliminary Alcohol Screening” (PAS) test that officers use when they suspect a driver is intoxicated. In California, a chemical test is required, but only after a person has been lawfully arrested on suspicion of driving under the influence. The roadside breathalyzer is not a “chemical test” in that it is not required, and considered a “field sobriety test,” which are optional.

Blood Tests

A blood test is another chemical test that may be performed during a DUI investigation. Blood tests are often considered the most reliable of the three types of chemical tests. A blood sample is drawn from the driver and is then sealed and delivered to a laboratory. At that facility, a forensic scientist analyzes the blood sample using specialized equipment to determine the alcohol concentration in the person’s blood. Despite the testing and analysis occurring in a laboratory facility, there are still opportunities for errors to occur that might render the results unreliable. Samples of blood that are not packaged properly, that are drawn too long after officers see the driver operating their car, or that are tested using defective equipment may all provide inaccurate blood alcohol content results.

Urine Tests

Urine tests are considered the least reliable of all of the chemical tests and are usually reserved for cases where the driver is suspected of being under the influence. The machines used to evaluate the urine of DUI suspects, for example, often confuses the chemical compounds of different drugs, cannot tell when the drugs were used, nor can it tell how intoxicated someone is. Fortunately, urine tests, by law, are not to be used in California as a chemical test unless both a breath test and a blood test are unavailable, which in most jurisdictions, is highly unlikely.

Which Chemical Test Should a California Driver Take?

According to California Vehicle Code 23612(a)(2)(A), drivers who are lawfully arrested on suspicion of having driven under the influence of alcohol are to be informed by the officer that the driver may choose whether to submit to a breath test or a blood test. The driver’s choice is to be honored unless the driver is unable to complete their chosen test. As stated above, only if both a breath test and a blood test are unavailable should a urine test be used.

Refusing to submit to any chemical test can have serious and negative consequences for a person’s driving privileges. Choosing to take a breath or a blood test should be made after considering the facts of the situation. While blood tests are generally more reliable, they may also be able to detect the presence of drugs in the driver’s system. Thus, if someone consumed any drugs but little or no alcohol, it may be better for them to request a breath test be performed. In addition, those laboratories who perform testing on a driver’s blood sample must preserve a sufficient amount of the sample so that the driver may obtain an independent analysis of the sample. This is known as a “blood split,” and the driver obtains the sample for independent testing through a court order.

Breath testing does not provide a driver with a sample that can be independently tested, but the problems associated with breath testing machines tend to be more significant and numerous. Thus, if a person believes they are close to or under the legal limit, a breath test result may be easier to challenge in court.

Chemical Testing is Not Dispositive in a California DUI Case

Even though law enforcement officers and prosecutors would have drivers believe otherwise, the results of a chemical test – whether a breath, blood, or urine test – are not beyond questioning. In fact, the quality of any chemical test result depends on a myriad of factors, including:

  • Whether the sample was timely collected and collected in a safe and careful manner;
  • Whether steps were taken to prevent contamination of the sample;
  • Whether the sample was appropriately stored prior to testing;
  • Whether the person analyzing the sample was adequately trained on the testing equipment and protocols;
  • Whether the testing equipment was working properly or if there were unaddressed errors in the machinery’s code or parts
  • Whether a proper observation period (if applicable) was observed to ensure the person did not belch, vomit, or put anything in their mouth before giving a breath sample

A California defense attorney with experience defending drivers from drunk driving charges can examine the facts of a particular DUI investigation and know how best to attack the chemical testing results. Samples that were collected after an unlawful arrest, that were not collected in accordance with protocols, or that were not appropriately analyzed may all be subject to suppression.