Category Archives: Current Events

COVID-19 AND DUIs

Since government stay-at-home orders and business shutdowns, there has been a significant drop in the number of cars on the road. If you think this has led to a significant decline in the number of DUIs, you’re right. Data from local and state agencies show showed DUI arrests have decreased significantly since the pandemic arrived. There has been a 42% decrease in DUI rates in California post-pandemic. However, while DUIs have decreased, substance abuse has increased.

The pandemic has caused many Americans to:

-Be isolated from their friends and family

-Fear and worry about their health and the health of their loved ones

-Lose their job or fear losing their job

-Lose the support services they rely on

This has lead to changes in sleep and/or eating patterns, difficulty concentrating and functioning, and worsening of chronic health problems which leads to depression and anxiety and increased substance abuse. Those who already struggle with alcoholism and addiction are at even higher risks of substance abuse during these difficult times.

“I would definitely say the depression, the anxiety, the uncertainty, the loneliness, the isolation, all of those factors aren’t good for mental health,” Sheila Vakharia, deputy director of research and academic engagement at Drug Policy Alliance, told Yahoo Finance. “What we do when we’re feeling that way is that sometimes we shut down, but sometimes we reach out in different ways to cope. Reaching out to your drug of choice, whatever that might be, is one strategy.”

“A lot of this depression and anxiety is also related to the fact that people have lost their jobs,” Vakharia said. “We’ve got unprecedented rates of unemployment, employment instability, the loss of benefits, or other things that your business might do to employees to stay open. I think people do things to cope with the circumstances that they’re in. People are struggling with all these other forms of instability and confusion and lack of information from the top down about what’s going on, when we’re going to get out of this, what they can expect, and how to stay safe.”

In April of this year, one-third of Americans couldn’t make their rent payments. While there’s no comprehensive date, many states report sharp upticks in homeschooling. The unemployment rate stood at 6.7 percent in December, well above pre-pandemic levels of 3.5 percent.

“Are you supposed to be happy when you lose your job?” Ms. Vakharia goes on to say. “Or when your kids are at home and you can’t make ends meet?”

According to the CDC, there were over 81,000 deaths from substance abuse in America in the 12 months ending in May 2020. That the highest number of deaths from substance abuse ever recorded in a 12-month period. According to the market research by Nielsen, online sales of alcohol rose to 234 percent in March of this year compared to March of last year. In-store purchases of tequila, gin, and pre-mixed cocktails increased to 75 percent. Wine sales soared to 66 percent. Beer sales rose to 42 percent.

If you are struggling with a mental health condition such as depression and anxiety, please do not resort drugs or alcohol as a coping mechanism. This will only create more problems for yourself and your loved ones. Instead, please consider these healthy tips on how to cope:

-Take breaks from watching, reading, or listening to news stories, including those on social media. Constantly hearing about the pandemic can be stressful.

-Go for a run or a hike.

-Take deep breaths, stretch, or do yoga.

-Try to eat healthy, well-balanced meals.

-Exercise regularly.

-Get plenty of sleep.

-Avoid alcohol and drug use.

-Make time to unwind. Try to do activities you enjoy.

-Take time to journal.

-Make a list of things that you are grateful for.

-Make a list of songs that put you in a positive mood and listen to them when you are down.

-Connect with others. Talk with people you trust about your concerns and how you are feeling.

-Do something kind for someone, such as posting a kind comment on someone’s social media page.

-Connect with your community or faith-based organizations via online, through social media, or by phone or mail.

-Another way to cope with depression is to focus on the 5 P’s: 1) People- connect with the right people whom you trust, who make you happy, and who can provide support; 2) Physical Needs- be sure to get enough sleep, eat right and exercise; often we neglect our physical needs when we are depressed and this only increases the depression; 3) Purpose- recognize that we are all put on this planet for a purpose. Find an activity that makes you connect with your life purpose and gives your life an sense of meaning such as joining a community service organization; 4) Positive outlook- recognize that pain is gain and any challenge is just an opportunity for personal growth; and 5) Power- recognize that you have the power to overcome any challenge that comes your way.

-Lastly, know you are not alone and there is help if you need it. Here are a few resources if you are considering harming yourself:

– National Suicide Prevention Lifeline: 1-800-273-8255 (TALK)

– Crisis Text Line: Text NAMI to 741-741 to connect with a trained crisis counselor to receive free, 24/7 crisis support via text message

– NAMI HelpLine: 1-800-950-NAMI (6264), Monday through Friday, 10 am to 6 pm, ET

This Coronavirus pandemic shall pass and you have the power to overcome anything that comes your way. Stay strong.

If you end up abusing alcohol or drugs and are caught committing a DUI, please contact an attorney as soon as possible.

HOW A LOW-CARB DIET CAN LEAD TO A DUI

Low-carb diets -such as the Atkins diet or the Ketogenic diet- have been around for decades. Nonetheless, this type of diet can cause problems for California drivers. It may cause a breath test provided by a California driver who was pulled over or arrested on suspicion of a DUI to falsely show the presence of alcohol – even if the driver had not consumed any alcohol that day.

Here’s how: A low-carb diet deprives the body of glucose, an important source of fuel for the body. In the absence of this source of fuel, the body turns to its fat for fuel. The process of turning fat into fuel produces ketones. When the body produces ketones and uses them for fuel, the body is in a state of ketosis. When the body is in a state of ketosis, ketones can be detected in that person’s breath. (This explains the bad breath that some report while on a low-carb diet). These ketones have a chemical composition similar to isopropyl alcohol. Many breathalyzer testing devices cannot distinguish between isopropyl alcohol molecules and ethyl alcohol molecules.  As such, a breath testing machine used in a DUI investigation may falsely detect the presence of alcohol simply because the suspect is on a low-carb diet.

It is doubtful that the amount of ketones in anyone’s breath could be sufficient to result in a breath test result showing a blood alcohol concentration at or greater than the .08% legal limit without the person having had consumed some alcohol. However, a person who would have otherwise been below the .08% legal limit may end up with a breath test result at or greater than the legal limit if that person is in ketosis. For example, someone who is in ketosis and has a true blood alcohol concentration of .06% could potentially register at 0.08% or more.

California Vehicle Code 23612(a)(2)(A) allows drivers arrested for suspicion of a DUI to choose between submitting to a breath test or a blood test. Unless the chosen test is not available, the officer must perform the test selected by the driver. Drivers on a low-carb diet may want to avoid submitting to the breath test to avoid being stuck with a false positive result.

Any driver arrested for a DUI should immediately hire an attorney. If you are on a low-carb diet, it is crucial that you tell your attorney.

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.

 

Boyfriend and Girlfriend Busted for DUI One Hour Apart

An hour is not enough time to sober up, at least not for Christopher McFarlane.

 McFarland was the passenger in his girlfriend’s car when she was pulled over after California Highway Patrol officers spotted her vehicle swerving in Santa Rosa, California. Anna Arthur was arrested for driving under the influence and McFarlane was, himself, too drunk to drive Arthur’s Honda home. McFarlane walked to Arthur’s house.

This guy wasn’t falling-down drunk, but was definitely over 0.08” percent, the legal limit for driving, said CHP officer Jonathan Sloat.

About an hour later and shortly after Arthur was booked into Sonoma County Jail, officers spotted a McFarlane driving a Jetta. McFarlane told officers that he was on his way to the jail to bail out Arthur.

McFarlane, apparently, had not yet sobered up because, according to Sloat, “The officers still noticed signs of intoxication, and McFarlane failed field sobriety tests.”

It was also determined that McFarlane was on probation and his license was suspended for a DUI conviction last year. As a result, not only was McFarlane booked on suspicion of a California DUI, he was also booked for violation of probation and driving on a suspended license.

McFarlane is going to need more than love to get him out of this jam. He’ll need a California DUI attorney. At least if both he and Arthur are convicted, they might be able to do their DUI classes together.