Author Archives: Jon Ibanez

Boy on Top of Santa’s Nice List after Calling 9-1-1 on DUI School Bus Driver

Santa had better put 10-year-old Troy Luna at the top of the Nice List this Christmas season.

Luna, of Diablo Grande, a neighborhood in Stanislaus County, California, called 9-1-1 earlier this week to report his bus driver’s driving. Luna was one of between 40 and 50 students ranging from kindergarten to 5th grade who were passengers on the bus according to the CHP.

As Luna entered the bus, he smelled something odd coming from the bus driver, 51-year-old Karolyn Denise Ray. After Luna had noticed that Ray had missed a turn and driven onto the highway, he called 9-1-1.

“She stepped on the brakes really hard, and a few kids went flying and hit their heads on the seats,” Luna told KOVR-TV. “All my friends were trying to talk me out of it. I said, ‘I don’t care, I don’t feel right,’ so I just did it.” Luna said that other children on board were crying and panicking when he made the call to 9-1-1.

Lo and behold, when officers arrived, they discovered that Ray was under the influence of a controlled substance. Ray was arrested and subsequently charged with driving under the influence and child endangerment, according to KTXL. It will take a few weeks for testing to determine what substance or substances Ray was on when she was driving the bus.

“I think he is to be commended,” said Randy Fillpot, superintendent of the Newman-Crows Landing Unified School District. “I congratulated him yesterday morning at school; he absolutely did the right thing. When you suspect the safety of your peers is in jeopardy you do the right thing and in that case it was call 9-1-1.”

Law enforcement agreed.

“We are relieved that the children knew who to call in an emergency situation, so I consider this kid a hero,” said CHP Officer Thomas Olsen.

One wonders, “What does Santa bring a child who just saved, literally, a bus-load of other children, himself, and a soon-to-be-on-the-Naughty-List bus driver?”

Meanwhile, as I just mentioned, not only has Ray plummeted to the bottom of Santa’s Naughty List and looking at a stocking full of coal, she’s also looking at a whole host of “unwanted gifts” thanks to her latest transgression.

In addition to the California DUI, which carries up to six months in jail and up to $1,000 in fines, she also looking at child endangerment charges.

Under California Vehicle Code section 23572, a first time DUI conviction where a minor under the age of 14 is in the car will bring an additional 48 hours in a county jail. A second time DUI conviction will bring an additional 10 days in jail. A third time will bring an additional 30 days in jail. A fourth will bring an additional 90 days. Furthermore, these penalties are to be served consecutively, not concurrently with the underlying DUI penalties that Ray will be facing.

Personal Breathalyzer: The Perfect Stocking Stuffer

It’s that time of year when we all scramble to find last minute stocking-stuffers, or perhaps we’re still looking for a gift for that person who already has everything. Look no further.

It goes without saying that, for all the good that the holiday season brings, the unfortunate reality is that it also brings with it the very real and dangerous potential for drunk driving. Every year, we warn of the dangers of drunk driving during the holiday season. We also warn of heightened law enforcement efforts to catch drunk drivers and suggest alternative methods home from work holiday parties and the like. While we have in the past talked about personal-use breathalyzers, it’s worth discussing them again, and even suggest them as the perfect gift this holiday season.

Breathalyzers are no longer accessible to law enforcement. Breathalyzers are so readily available nowadays that, in addition to the standard multiple-use breathalyzer, they have developed single-use disposable breathalyzers and breathalyzer apps for the smartphone.

As you can imagine, the range in the quality and price of personal breathalyzers is quite large. Costs will vary between $15 and several hundred dollars. Breathalyzers under $50, and those coming on key chains have questionable accuracy from the start and accuracy continues to decrease after multiple uses.

Unlike novelty breathalyzers, quality breathalyzers will be backed by the Food and Drug Administration (FDA). This means that the FDA conducts research to confirm that the breathalyzer does what its literature says it does.

Just because I believe that personal breathalyzers can prevent a DUI, it doesn’t mean that they are 100% accurate. Almost all quality breathalyzers, like those the police use, require calibration after repeated use to ensure accuracy. Some products allow for owners to calibrate themselves and some require that the breathalyzer be sent to the manufacturer for calibration. Heavily used and non-calibrated breathalyzers will likely not be accurate.

It is possible for a person’s blood alcohol content to continue to rise after a breathalyzer reading, especially if they’ve only recently stopped drinking. Therefore, it is also possible for a person to have a blood alcohol content of 0.07 when they leave the bar (and when they test themselves) and a 0.09 after they’ve been driving for a while. If that is the case, you can still be arrested and charged for a California DUI.

Lastly, a person does not necessarily need to be above a 0.08 blood alcohol content to be arrested and charged with a California DUI. A person can be arrested and charged with a California DUI if they are above a 0.08 percent blood alcohol content or if they are “under the influence.” In other words, you can be a 0.07 percent, but if an officer determines that you cannot safely operate a vehicle as a sober person could, you can still be arrested and charged with a California DUI.  A breathalyzer may determine if you are under the legal limit, but it cannot determine whether you are “under the influence.”

At a minimum, however, having a personal breathalyzer might help people bridge the gap between how a person perceives what their intoxication level is and what their blood alcohol content is. And while many breathalyzers might not provide an accurate reading, it might still prevent people from driving simply because they now know that they are close to the limit. And knowing a range is certainly better than knowing nothing and making a stupid guess. This Christmas why not give the stocking-stuffer that just might save the recipient’s life?

Habitual Drunk Driver Kills Wife in DUI Incident

Alcohol addiction was deadly for 53-year-old Robert Lee Ellis, of Columbus, Ohio, but not in the way you might think.

On October 16th of this year, Ellis was driving around a curve just outside of Columbus when he struck a utility pole. His 51-year-old passenger was pronounced dead at the scene. The passenger was his wife, Dawn Ellis. Neither were wearing seatbelts at the time of the collision.

Ellis’s blood alcohol content at the time was 0.185 percent. What’s more, officers learned that this was not Ellis’s first DUI incident. In fact, it was his 13th, and his driving suspension from a prior DUI was still in effect at the time.

“While investigating this fatal traffic crash it was very clear to investigators that Mr. Ellis is one of the worst habitual repeat offenders of drunk driving we have seen,” the Franklin County Sheriff’s Office said in a statement. “He has no regard for human life continuing to be an extreme danger to the motoring public due to his criminal behavior of operating vehicle while impaired. It is further evidence in this case in which he caused the death of his wife while having a blood alcohol of .185, which is more than double the legal limit.”

On Monday, Ellis was indicted by a grand jury for aggravated vehicular homicide as a first degree felony, aggravated vehicular homicide as a second degree felony, and two counts of operating a vehicle under the influence as a third degree felony.

“I’m so happy he’s behind bars so he cannot put anyone else’s family through what he’s put us through,” Dawn Ellis’s daughter, Bobbi Spencer told NBC Columbus affiliate WCMH. “But it’s still never gonna [sic] take the pain away that he’s caused all of us.”

There is no question that Ellis should not have been driving or that he caused the loss of a life for which he must now pay a price. But focusing anger on what Ellis did alone ignores another sad truth; Ellis suffered from alcoholism and the system failed him and his wife.

This issue, on a number of occasions, has been discussed by both myself and Lawrence Taylor, who said the following in a post from way back in 2013 that remains true now.

Albert Einstein once famously said, “The definition of insanity is doing the same thing over and over again…and expecting different results”.

The simple fact is that most DUI-caused deaths are caused by a relatively small group of “problem drinkers”. These individuals are typically characterized by recidivism (repeat offenses), unusually high blood-alcohol levels — and alcoholism. And alcoholics are simply not deterred by criminal sanctions, any more than drug addicts are. By now, most experts recognize that alcoholism is a disease, not a choice. And you don’t treat a disease with incarceration. If you throw an alcoholic in jail for six months, on the day he walks out he will likely go to the first bar he finds and resume drinking. What has been accomplished? 

We recognize incapacity due to disease for such crimes as murder: the plea/verdict is “not guilty by reason of insanity”. The defendant is not simply set free, but is hospitalized for treatment of the disease. Why not treatment for drunk drivers who suffer from the disease of alcoholism?

Would you prefer to have a chronic drunk driver off the roads for a few months — or treated for his addiction?

Murder Charge Dropped for DUI Boater

On July 5th of this year, Juan Francisco Moreno Herrera, 43 of Salida, California, was arrested on suspicion of murder after a collision between Herrera’s boat and a jet ski carrying a couple of teenagers. It was alleged that Herrera was operating his boat under the influence and, as a result, collided Vanessa Zamora, 14, of Watsonville, California, killing her and causing injuries to her 15-year-old cousin. Prosecutors also charged Herrera with two felony counts of driving a boat under the influence of alcohol.

Initially, according to prosecutors, Herrera caused the injuries to the girls because he was driving “his boat around in circles and did not attempt” to help either injured girl in the water following the collision.  

Under California Law, a DUI resulting in death will be charged as manslaughter if the driver has not suffered any prior DUI-related convictions. If, however, the driver has suffered a prior DUI-related conviction, they will likely be charged with second degree murder under California’s “Watson Murder Rule.” Under Watson, the California Supreme allowed murder to be charged in a subsequent DUI resulting in death because the driver was made aware of the dangers of drunk driving after having been sentenced on the prior DUI. It is almost as if the court is saying, “We warned you, you did it anyways, and now look at what happened.”

Herrera had been convicted of a DUI in the past, which allowed prosecutors to charge murder. As a result, Herrera had been in jail since his arrest, unable to afford the $2 million bail bond.

Kirk McAllister, Herrera’s attorney, however, believed the allegations to be false and his law firm conducted its own investigation into the collision.

Following McAllister’s investigation, it was learned that the girls had, in fact, collided into Herrera, not the other way around. What’s more, Herrera did, in fact, jump into the water to help Vanessa’s cousin stay afloat.

McAllister’s findings directly contradicted an affidavit filed by the Sheriff’s department alleging that “two independent witnesses” said that Herrera was driving his boat in circles and did not render aid. The affidavit, however, failed to identify the witnesses, and the sheriff’s department has refused to answer questions about the accuracy of the affidavit.

“What our investigation showed was that in fact they ran into him. In boating terms, he had the right of way. They hit him on the port side, or the left side. … He did the right thing, he powered down (the boat),” said McAllister to the Modesto Bee. “He had a terrible choice to make: One girl was not moving, the other girl was flailing in the water. He chose the one who was flailing because she was showing signs of life, obviously. He kept her afloat until another boat came.”

McAllister’s findings were submitted to the Stanislaus County District Attorney, and last month, the prosecution dropped the felony DUI charges and murder charge. Michael Scheid, the prosecutor assigned to the case, filed an amended complaint against Herrera alleging only misdemeanor boating under the influence charges.

Although the result might not sit well with some readers, the law requires it.

As the District Attorney’s Office itself recognizes, “[i]t is not enough to prove that someone who drank alcohol and was piloting a boat got involved in a collision where someone died,” said John Goold, a spokesman for the District Attorney’s Office.

By law the prosecution must prove every element of a crime beyond a reasonable doubt, and one element to the crime of second degree murder via DUI (or BUI) is that Herrera “did an act or neglected any duty imposed by law…which act or neglect proximately caused the bodily injury.” Based on McAllister’s investigation, Herrera simply did not.

“In this case, ongoing investigation led us to the inescapable conclusion that we could not prove all the elements beyond a reasonable doubt, which led to the filing of the amended complaint,” said Goold rightly so.

Following the amended complaint and dropping of charges, Herrera was released from custody on his own recognizance.

“I was in hell; that’s hell in there,” Herrera said following his release, recalling his time in jail awaiting prosecution. “Just thinking about my family. What was going to become of my kids and myself? Being in there for something that I didn’t do.”

Go ahead and ask Juan Francisco Moreno Herrera whether it’s a good idea to hire a criminal defense attorney when facing California DUI charges. In his case, it was the difference between a misdemeanor DUI and a murder.

Herrera still faces those misdemeanor DUI charges and expected in court this month.

 

 

 

California School Bus Driver DUI on the Job

Last week, a school bus driver from Paradise, California was arrested on suspicion of driving under the influence of alcohol after several students riding on her bus, as well as parents of children on that bus, reported that she may have been drunk.

Students and their parents called 911 to report that the school bus driver, Desiree Ann Abrams, was speaking loudly, interacting inappropriately with the students, and smelled as though she had been drinking.

“When we got on the bus that day, she was kind of slurring her words. I thought she was just having a really good day but when I sat down she was stopping people and asking them questions what’s your middle name, how old are you, you’re looking pretty good today,” Dustin Jones, an eighth-grader at Paradise High School, told local news outlet KRCR.

When CHP officers arrived, they observed signs commonly associated with being intoxicated and determined that Abrams was driving under the influence.

According to law enforcement, no students were on board of the bus at the time of the DUI stop because they had already been dropped off at their regular stops.

“I thought she was just joking around until I saw she got arrested then I believed it,” said Phenix Rye, a junior at Paradise High School.

Paradise Unified School District confirmed the incident.

“A Paradise Unified School District bus driver was arrested on 11-15-19. District Administration was present at the scene and confirmed that students were safe and secure. We are grateful for the prompt response of both the Butte County Sheriff’s Office and the California Highway Patrol as well as the courageous actions of students and families. As always, student safety remains our top priority. Resources will be made available for students that may need additional support. Thank you for your understanding and support in this ongoing process.”

Abrams is out on bond and facing DUI charges and child endangerment.

Not only is Abrams looking at the punishment under California’s DUI law, she is also looking at additional penalties because of the danger that she placed the student in.

Under California Vehicle Code section 23572, California’s child endangerment DUI enhancement law, a first time DUI conviction where a minor under the age of 14 is in the car will bring an additional 48 hours in a county jail. A second time DUI conviction will bring an additional 10 days in jail. A third time will bring an additional 30 days in jail. A fourth will bring an additional 90 days. Furthermore, these penalties are to be served consecutively, not concurrently with the underlying DUI penalties.

The prosecutor need only prove that the driver was driving under the influence and that there was a minor child under the age of 14 in the car when that person drove.

The students being transported by Abrams, however, were high school students whose ages generally range from 14 to 18. If so, how can Abrams be charged with child endangerment for a DUI if the enhancement only applies to children under the age of 14?

Often times, prosecutors will charge child endangerment as a separate and whole charge against a person under the Penal Code, not as a mere enhancement to a DUI under the Vehicle Code.

California Penal Code section 273(a) makes it illegal for an adult to 1.) cause or permit a minor to suffer unjustifiable physical pain or mental suffering, 2.) cause or permit a minor to be injured, or 3.) cause or permit a child to be placed in a dangerous situation.

The crime of child endangerment, if a misdemeanor, carries up to one year in county jail and up to a $1,000 fine. However, if the risk to the child or children included death or “great bodily injury,” a felony child endangerment conviction carries two, four, or six years in a California state prison, and a fine of up to $1,000.

It should be noted that a person arrested for a DUI with a child in the car cannot be punished under both the Vehicle Code’s enhancement law and the Penal Code’s child endangerment law. Thus, if Abrams is found guilty, she’ll be punished for the DUI, and either the child endangerment enhancement or a separate child endangerment conviction.