Author Archives: Jon Ibanez
The facts of a recent news story from Edgewood, Delaware are repeated countless times across the United States on a daily basis: a driver is arrested for driving under the influence and is found to have been previously convicted of DUI one or more times. In the story from Delaware, a driver was arrested for his fifth DUI offense after rear-ending another vehicle. This individual, though, is not unique. Surprisingly or not, it is not uncommon for driver drivers to have been arrested and charged with their sixth, seventh, or eighth DUI offense. The record likely belongs to Allen Warner of Wisconsin, who is believed to have accumulated 15 DUI convictions in his lifetime.
Penalties Increase for Each Subsequent DUI in California
Accumulating DUI convictions is no contest or game, however. Even having one previous DUI conviction can mean higher fines and longer jail sentences, at a minimum. In California, for example, a driver with no prior convictions for DUI can expect to spend no more than six months in the local county jail and be fined no more than $1,000. If that person is convicted of a subsequent DUI within 10 years of their first, then the person could serve between 96 hours and one year in jail, not including the other conditions that a court will likely impose, which can include longer probation and an ignition interlock device (note that some counties in California require an ignition interlock device for a first-time DUI). If the driver is convicted yet again, then they can expect to serve a minimum of 120 days in jail.
Drivers who have three or more prior DUI convictions and who are arrested for a subsequent DUI may be charged with a felony DUI in California. Also, once a driver has been convicted of a felony DUI, then each subsequent DUI arrest will be charged as a felony. Felony DUIs in California may result in the imposition of a three-year prison sentence on top of fines and fees, not to mention the likely other conditions that the court will impose.
There are collateral consequences to multiple DUI convictions in California as well. One’s first DUI conviction can lead to their license being suspended for 6 months; that time can increase to one year for a second DUI conviction and three years for a third conviction. As mentioned, other conditions may be imposed, such as AA meetings, a longer DUI program, a Hospital and Morgue Program, MADD’s Victim Impact Panel, and possibly even alcohol rehab.
Prior “Convictions” in California DUI Cases
In determining how many prior convictions a driver has accumulated, the prosecution will look at the driver’s driving record and criminal history. “Convictions” include not only DUI convictions from California, but also convictions from other states for offenses that would be considered a DUI in California. In order for an out-of-state conviction to count as a “prior,” the prosecution must produce a certified record or abstract of judgment from the jurisdiction where the prior, out-of-state DUI occurred. This evidence must clearly establish that the driver’s prior out-of-state conviction resulted from the defendant actually driving under the influence. A driver who was convicted in another state for being in “actual physical control,” for example, may be found to not have a prior “conviction” for purposes of California’s DUI law because California requires that a person actually drive the vehicle.
Defending Against a DUI Charge with Prior Convictions
In light of all of this, when a person is charged with their second, third, or fourth DUI in California, a defense strategy must not only analyze the evidence of the current DUI charge but also the evidence of the alleged prior DUI convictions. By doing so, the driver may be successful in avoiding some of the more severe penalties that accompany a DUI conviction with prior offenses even if the person is still found guilty for DUI in the present case.
There are two primary ways to defend against prior convictions that are being relied upon to enhance the severity of the current DUI. The first is to demonstrate that the prior out-of-state conviction is not comparable to a California DUI and should not be considered a prior conviction. As noted above, if the out-of-state offense would not be considered a DUI if it had occurred in California. This requires more than simply looking at how the out-of-state jurisdiction titles its statutes. Whether the out-of-state offense is called Operating While Impaired (OWI), Driving While Impaired (DWI), or Operating Under the Influence (OUI) is immaterial: what matters is if the conduct involved in the prior out-of-state incident would have been considered DUI under California’s laws. This is known as the equivalency test and is found at California’s Vehicle Code Section 15023(c).
A second avenue that may be available to drivers is to attack the evidence establishing the prior DUI conviction. In order for the prior conviction to count, there must be some objective evidence that the person was, in fact, convicted of DUI or a comparable offense. Citations, charging documents, and even financial records showing that the driver paid a fine or court costs are generally not enough to meet this burden in a criminal DUI case. Instead, certified records from the court where the prior conviction occurred, showing that the person either admitted guilt or was found guilty, is necessary.
There may still be other ways to keep a prior DUI conviction from affecting your present case. For example, if the prior DUI conviction did not occur within the preceding ten years, then it may not be able to be used as a prior conviction in the present case. Similarly, a court may not consider a prior DUI in California unless that was the offense of which the driver was actually convicted. If the charge in the prior case was amended and the driver actually pled to a lesser non-DUI offense, then that prior conviction may not be used to elevate the severity of the present DUI charge. This does not apply to a conviction for a “wet reckless.” Although a wet-reckless is a charge that is reduced from a regular DUI, it typically counts as a “prior” for purposes of future DUI charges.
Experienced Legal Assistance is Always Helpful When Dealing with DUIs
As you can see, when a person suffers a California DUI after they have already suffered one can create some very technical and nuanced legal issues to be hashed out in court. A California lawyer well-versed in the state’s DUI laws is best suited to help drivers facing their second, third, or fourth (or more) DUI charge. Having legal counsel who can analyze those prior convictions may mean the difference between spending a weekend in jail or spending the next several months behind bars.
Approximately ten percent of Americans are believed to have diabetes, according to the Centers for Disease Control and Prevention. Diabetes is a chronic condition that affects the body’s ability to produce or use insulin. Without treatment, people with diabetes may be unable to control their blood glucose levels. This can lead to a host of consequences including heart disease, kidney disease, loss of vision, nerve damage, and even death.
In addition to being potentially life-threatening, uncontrolled diabetes may also lead to a DUI arrest or conviction. The symptoms associated with uncontrolled diabetes can mimic the indicators of intoxication that law enforcement officers look for during a DUI investigation. Not only this, but even breath testing devices can return a “false positive” and indicate that a person with uncontrolled diabetes has alcohol in their systems when they do not.
Hypoglycemia Symptoms and DUI Signs of Impairment
During any California DUI investigation, law enforcement officers are trained to look for and document “signs of impairment.” Officers use these signs of impairment as evidence to support their conclusions that someone is driving under the influence when making an DUI arrest. A person with diabetes suffering from hypoglycemia (low blood sugar levels) can exhibit some of the same signs that a person under the influence of alcohol might exhibit, including:
- Confusion about one’s surroundings
- Sleepiness or lethargy
- Speech that is slurred
- Swaying while standing or inability to balance while walking
These conditions may cause the driver to perform the standardized field sobriety tests poorly. This, in turn, can provide even more evidence for an officer to place the driver under arrest for DUI. Although the national training materials used to educate officers about the detection and investigation of DUI cases encourages officers to ask whether the driver suffers from medical conditions like diabetes, not all officers take this important step during their investigations. Additionally, a driver may not even know that they suffer from conditions like diabetes.
Hyperglycemia Symptoms and the DUI Breath Tests
At the opposite end of the spectrum from hypoglycemia, diabetics who experience hyperglycemia (periods of elevated blood sugar levels) may also be mistaken for being under the influence. Another sign of impairment that officers look for when conducting a DUI investigation is an odor of alcohol coming from the driver’s person or breath. A diabetic driver who is hyperglycemic may have an odor on their breath that smells fruity. This can be mistaken for alcohol by law enforcement officers, especially if the officer is not aware of the driver’s medical condition.
It is not just human officers who can be fooled by mistaking hyperglycemia for alcohol impairment. In Type 2 diabetics, the body is unable to efficiently use its own insulin to break down glucose in the body for fuel. As a result, the body’s liver processes fat for fuel. This process causes the body to produce ketones. (Low-carb diets like the keto diet may also result in the production of ketones). Because the chemical composition of ketones is similar to ethyl alcohol, breath testing devices can mistake ketones for the presence of alcohol.
Prevailing in a California DUI Claim When Diabetic
If you are arrested and charged with DUI because the officer mistook your diabetes symptoms for signs of impairment, you may still be able to prevail in your case. Evidence of your diabetes diagnosis and your experience with managing your blood sugar levels may be relevant. In addition, the effectiveness of any medications or insulin you are taking and any recent documentation you may have concerning your blood sugar readings may help establish that the officer was not observing signs of alcohol impairment but rather symptoms of diabetes.
Breath tests are a common feature in many California DUI cases. They are, however, inherently unreliable. Despite advances in law enforcement technology, breath testing machines are still not able to effectively and reliably distinguish between isopropyl alcohol – the type of alcohol ketones most nearly approximate – and ethyl alcohol found in alcoholic beverages. Although a California DUI defense attorney cannot challenge the accuracy of breathalyzers in general, evidence may be introduced that the particular breathalyzer used in the arrest was faulty.
Advice for California Diabetics with Uncontrolled Blood Glucose
Whether a driver has Type 1 or Type 2 diabetes, it is critical that the person monitor their blood sugar levels, take any insulin or medication as directed, and make and keep regular appointments with their doctor. This may help to reduce the number of hypoglycemic or hyperglycemic incidents and thereby reduce the risk of an erroneous DUI arrest or charge. More than this, these steps are essential to reducing the chance of nerve and kidney damage vision problems, and premature death. If one is stopped for “driving while diabetic” and is experiencing a severe hypo- or hyperglycemic event, informing the officer of your condition may help you obtain the emergency medical care you need.
What about the diabetic driver who is pulled over and is investigated for DUI but who is not experiencing a medical emergency or in immediate danger from high or low blood glucose levels? Drivers should remember that they do not need to answer any questions from law enforcement officers. Additionally, California drivers have no obligation to complete the field sobriety tests and may refuse to provide a pre-arrest, roadside breath sample. Absent objective indicia of diabetes (such as insulin and syringes or prescription medication) in your vehicle, informing the officer about one’s diabetes may not prevent an arrest for DUI.
Having said that, a person charged with a DUI never has to prove their innocence. However, an experienced DUI attorney may be able to develop a defense strategy in part on a person’s health condition such as diabetes, especially when the symptoms of intoxication and the conditions are indistinguishable.
Throughout the years, we’ve discussed the different things that a person can do to prevent themselves or others from driving drunk. Amongst them, you’ve heard me mention personal breathalyzers that a person can purchase to help them gauge whether they or someone else should be getting behind the wheel. More convenient and affordable than an actual breathalyzer for the average consumer might be a breathalyzer attachment to a smartphone, which are becoming increasingly popular.
Well, smartphones may no longer even need the breathalyzer attachment to tell someone that they’re too drunk to drive using the accelerometer that is embedded in most smartphones.
According to a study published on August 18th in the Journal of Alcohol and Drugs, smartphones may help predict when a person is too drunk to drive by measuring changes in walking patterns.
Researchers from the University of Pittsburg provided enough alcohol to volunteer participants to raise their blood alcohol content levels to approximately 0.20 percent, and asked them to drink it in an hour or less.
In addition to being well over the legal limit of 0.08 percent in all states but Utah (where the legal limit is 0.05 percent), most individuals would be experiencing the telltale signs of intoxication; disorientation, loss of coordination, dizziness, and trouble walking or standing.
The researchers then monitored the volunteers over the next seven hours to take measurements of their respective blood alcohol content levels every half hour, and have them walk 10 steps in a line then turn around every hour. During this time, smartphones were affixed to the participants’ lower back to measure specific bodily movements.
Based on the measurements recorded on the cellphone, the researchers were able to predict, with 90 percent accuracy, when the blood alcohol concentration for a participant was over the legal limit of 0.08 percent.
Lead researcher Brian Suffoletto, now at Stanford University, acknowledged that the next step is to determine if it is still possible to make the same predictions when participants’ phones are in their hand or in their pocket, the places people most often keep their phones, not lower back.
“Despite these limitations, this proof-of-concept study provides a foundation for future research on using smartphones to remotely detect alcohol-related impairments,” said Suffoleto.
“I lost a close friend to a drinking and driving crash in college,” said Suffoletto in a press release. “And as an emergency physician, I have taken care of scores of adults with injuries related to acute alcohol intoxication. Because of this, I have dedicated the past 10 years to testing digital interventions to prevent deaths and injury related to excessive alcohol consumption.”
One could see the possibilities in drunk driving prevention. With further research and development of apps that are based on what this study is suggesting, it may be possible to soon have an app that, quite literally, will tell you that you are too drunk to drive.
Back in 2012, Louie Robert Villa, of Santa Ana pleaded guilty to a California DUI. When Villa was sentenced on the DUI he was told by the judge, “You are hereby advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence or alcohol or drugs, or both. If you continue to drive while under the influence of alcohol or drugs, or both, and, as a result of that driving, someone is killed, you can be charged with murder.”
The advisement, known as the Watson advisement, is routinely read to people who are pleading guilty to a California DUI by the judge in their case.
Prior to the landmark case of People v. Watson in 1981, a DUI suspect could only be charged with manslaughter if their drunk driving led to the death of someone. To be charged with murder, a person had to intend to kill someone else to be charged and convicted of murder. However, the California Supreme Court said that only “implied malice” needed to be present for someone to be charged and convicted of murder in the context of a DUI. This meant that a person need not have actual intent to kill, but that they acted with reckless disregard for human life.
The practical effect of the Watson case was that the advisement became a part of sentencing for convicted drunk driving defendants. This allowed prosecutors to find implied malice, or that the defendant acted with reckless disregard for human life, and thus charge second degree murder, should the defendant drive drunk again and kill someone. Although common sense tells us that it is dangerous to drive drunk, when a drunk driver kills someone and they haven’t suffered any prior DUI convictions, they will still be charged with manslaughter unless the prosecutor can prove that they actually knew it was dangerous to human life to drive drunk.
Last week, Villa, now 29 years old, was street racing with 24-year-old Ricardo Tolento, in Santa Ana when his BMW collided with a pickup truck which was making a left turn. The driver of the pickup truck was Orange County Register editor Eugene Harbrecht. The impact of the collision caused Harbrecht’s truck to land on its side 50 feet way and catch fire. Although good Samaritans pulled Harbrecht out of the vehicle, he was pronounced dead at the hospital.
Villa was injured and taken to the hospital. Tolento fled the scene but was apprehended a short time later.
“An illegal street race and a repeat drunk driver who had been warned about the dangers of driving under the influence collided in the middle of the day on a Santa Ana street, resulting in a tragedy that didn’t have to happen,” O.C. District Attorney Todd Spitzer said in a statement. “Because of the selfish actions of two strangers, a wife will never see her husband again and many more lost a treasured friend and colleague.”
Tolento faces up to 11 years in prison if convicted on all charges, none of which include murder. Why? Likely, this was Tolento’s first DUI, which means he was never expressly advised that it is dangerous to drive drunk, making it difficult for prosecutors to prove implied malice.
Villa, on the other hand, was charged with second degree murder. Why? He was read the Watson advisement back in 2012 and was made expressly aware that it was dangerous to drive drunk, giving prosecutors the implied malice they needed to charge murder. In addition to the murder charge, he was charged with one felony count each of driving under the influence of alcohol causing great bodily injury while street racing and driving under the influence of alcohol with a blood alcohol level of greater than 0.08 percent, misdemeanor street racing, and misdemeanor driving on a revoked or suspended license.
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.