Category Archives: Drugged Driving
Prosecutors say no but the plain language of the new misdemeanor judicial diversion statute PC 1001.95 clearly states that it applies to all misdemeanors except those specifically excluded. DUI offenses are not specifically excluded in the language of the statute.
The Legislative intent of a statute as determined by the plain language of the statute is discussed in detail in Burden v. Snowden, (1992) 2 Cal. 4th 556:
The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. (Kimmel v. Goland (1990) 51 Cal.3d 202, 208 [271 Cal.Rptr. 191, 793 P.2d 524]; California Teachers Assn. v. San Diego Community College Dist., supra, 28 Cal.3d at p. 698.) “In determining intent, we look first to the language of the statute, giving effect to its ‘plain meaning.’ ” (Emphasis added.) (Kimmel, supra, 51 Cal.3d at pp. 208-209, citing Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 218-219 [188 Cal.Rptr. 115, 655 P.2d 317]; California Teachers Assn., supra, 28 Cal.3d at p. 698.) Although we may properly rely on extrinsic aids, we should first turn to the words of the statute to determine the intent of the Legislature. (California Teachers Assn., supra, 28 Cal.3d at p. 698.) See also People v. Lawrence (2000) 24 Cal.4th 219, 230, 99 Cal.Rptr. 2d 570, 6 P.3d, 228; People v. Lopez (2003) 31 Cal 4th 1051, 1056, 6 Cal.Rptr. 3d 432, 79 P.3d 548.
The Court in Khajavj v. Feather River Anesthesia Medical Group, (2000) 84 Cal. App. 4th 32 , 34 further explained that:
the most powerful safeguard for the courts’ adherence to their constitutional role of construing, rather than writing, statutes is to rely on the statute’s plain language.
Furthermore, although the direct issue in question in Tellez v. Superior Court of Riverside was mental health diversion, the court discussed PC 1001.95 Misdemeanor Diversion in anticipation of the question as to DUI eligibility for the newly enacted PC 1001.95. That court stated in pertinent part:
“…Misdemeanor diversion already exists. In 1982, the Legislature enacted two sets of statutes providing for misdemeanor diversion programs. (Pen. Code, §§ 1001-1001.9, 1001.50-1001.55; Davis v. Municipal Court(1988) 46 Cal.3d 64, 75.) When the Legislature did so, it expressly excluded DUI offenses from eligibility. (Pen. Code, §§1001.2, subd. (a), 1001.51, subds. (b), (c)(6).) In view of that history, the Legislature’s failure to expressly exclude DUI offenses this time around is a good indicator that it intended DUI offenses to be eligible for the new misdemeanor program.” (Emphasis Added). (Tellez v. Superior Court of Riverside, Filed Oct. 23, 2020, from the Fourth Appellate District, Division Two, Case No. E074244, Superior Ct. No. INF1800977).
Despite opposition from California prosecutors, PC 1001.95 misdemeanor judicial diversion applies to misdemeanor DUI offenses.
In 2016, an upstate New York woman she blew a blood alcohol level more than four times the legal limit and was charged with a DUI. However, the a judge dismissed the charges after being presented with evidence the woman suffers from “auto-brewery syndrome.”
“I had never heard of auto-brewery syndrome before this case,” her attorney told CNN. “But I knew something was amiss when the hospital police wanted to release her immediately because she wasn’t exhibiting any symptoms.”
“That prompts me to get on the Internet and see if there is any sort of explanation for a weird reading,” adds her her attorney. “Up pops auto-brewery syndrome and away we go.”
“I’m in touch with about 30 people who believe they have this same syndrome, about 10 of them are diagnosed with it,” said Panola College Dean of Nursing Barbara Cordell, who has studied the syndrome for years. “They can function at alcohol levels such as 0.30 and 0.40 when the average person would be comatose or dying. Part of the mystery of this syndrome is how they can have these extremely high levels and still be walking around and talking.”
Auto-brewery syndrome is a very rare condition. People who have auto-brewery syndrome register abnormally high blood alcohol levels, even if they consume no alcohol. Crohn’s disease, liver problems, poor nutrition, antibiotics, inflammatory bowel disease, low immune system, diabetes are all believed to cause auto brewery syndrome. Symptoms can sometimes include moodiness, confusion, difficulty focusing, lack of physical coordination, and memory problems.
When people suffer from this disorder, their bodies makes alcohol out of carbs they eat. This happens insides the gut or intestines. It may be caused by too much yeast in the gut. Yeast is a fungus. Some kinds of yeast that might cause this disorder are
- Candida albicans
- Candida glabrata
- Torulopsis glabrata
- Candida krusei
- Candida kefyr
- Saccharomyces cerevisiae
The syndrome was first discovered in 1912. It was then called “germ carbohydrate fermentation.” It was studied in the 1930s and ‘40s as a contributing factor to vitamin deficiencies and irritable bowel syndrome. Right now, there’s no criteria to diagnose or even treat auto-brewery syndrome making it even harder to tell when patients have the disorder.
The auto-brewery syndrome might lead to a DUI arrest since it causes patients to have a breath or blood alcohol concentration over the legal limit even though no alcoholic beverage was consumed. However, it can be used as a defense to a DUI charge.
California Vehicle Code 23152 (a) states: It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle. Someone with auto brewery system cannot be convicted of violating this statute because they have not consumed any alcoholic beverage.
California Vehicle Code 23152(b) states: It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. It doesn’t mention the defendant’s BAC needs to be due to actually having consumed an alcoholic beverage. However, involuntary intoxication can be used as a defense to this crime. If someone has not consumed any alcoholic beverages, the defendant’s intoxication was involuntary just as if they were drugged.
Defense would have to use expert testimony to prove to the court that the disorder is valid, the defendant’s medical records that the defendant has the disorder and present evidence that it contributed to the DUI offense.
If you have been arrested for a DUI offense, immediately hire an attorney. If you believe you might suffer from auto brewery syndrome, it is crucial that you discuss with your attorney.
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.
-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.
Whether a driver faces DUI charges in California or any other state, there is one potential consequence that is likely to be of concern to the person: incarceration. There is good reason for such concern: even a few days spent in jail can lead to a reduction in income or job loss. Not only this, but any time that a parent spends away from their child or that a spouse spends away from their partner can cause emotional hardship. All of this is on top of the harm to one’s reputation that might result from serving time for a DUI conviction.
First-Time DUIs Do Not Usually Lead to Jail Time
A person is unlikely to face jail time for their first DUI conviction. While the maximum sentence for a first-time DUI includes six months in jail, this outcome is not likely in many cases. Most first-time DUI offers include a period of three years of informal probation, approximately $2,000 in fines and fees, a 3-month DUI program, the MADD VIP program, and restitution if there was a collision.
Drivers convicted of their first DUI and whose cases involving aggravating factors are more likely to face jail time. Such factors can include:
· Causing injuries
· Excessive speeding
· Reckless driving
· Driving on a suspended license
· Having a blood- or breath-alcohol concentration that is significantly higher than the legal limit.
Thus, drivers convicted of their first DUI may need not worry about having to serve jail time. Instead, they will likely placed on a period of informal probation. If there are aggravating factors involved, however, then the driver faces a greater risk of incarceration
Once a person is convicted of a subsequent DUI in California within a 10 year period, courts are required to sentence the person to some period of incarceration. Under these circumstances, it becomes even more important to challenge the prosecution’s case. There are several areas where the prosecutor’s case may be vulnerable:
· Lack of evidence of essential elements: The prosecution must be able to prove that the defendant was driving a vehicle. If there are no witnesses who saw the person driving and there is little circumstantial evidence suggesting the person drove a vehicle, the prosecutor may not be able to win their case.
· Suppressed breath or blood test results: If law enforcement officers did not follow the proper steps in collecting, preserving, and testing a person’s breath or blood sample, then a court may rule that any results obtained from testing of those samples are to be suppressed (kept out of court). Test results may also be suppressed if they were obtained in violation of the person’s constitutional rights. Without being able to present test results showing the driver’s blood or breath alcohol concentration, the prosecutor may lack the evidence they need to show the person was impaired at the time they were driving a vehicle.
· Inaccurate or inconclusive breath or blood test results: There are a number of reasons why a breath testing machine may not give an accurate result, especially if the driver has an underlying medical condition or follows a ketogenic diet. Similarly, a blood sample may not be suitable for testing if the individual who collected the sample did not follow the proper protocol in collecting, storing, or analyzing the sample.
· No evidence of prior convictions: If the prosecutor is alleging that a person charged with DUI has one or more prior convictions, then the prosecution must be prepared to present evidence of those prior convictions. An erroneous entry on a person’s driving history or criminal record that cannot be substantiated may mean the difference between a second DUI conviction and mandatory jail time and a first DUI conviction and informal probation.
Drivers Charged With A DUI Should Seek Legal Assistance
While a first-time DUI will most likely not lead to incarceration, there are no guarantees. Even a person’s first DUI conviction, when accompanied by a high BAC, a collision involving injury, and/or other aggravating factors, may result in a jail sentence. Motorists with subsequent convictions within a 10 year period will face incarceration. Therefore, any individual who is facing a California DUI charge and who is concerned about incarceration should speak with an experienced California DUI defense lawyer about their case as soon as possible.
In late August, a Montebello police lieutenant was taken into custody in San Bernardino County on suspicion of driving under the influence of drugs. He had previously been arrested on suspicion of driving under the influence of prescription drugs, although charges were never filed. The arrest serves as a reminder that someone can be arrested for a California DUI with drugs, both illegal and legal.
On August 21st, Montebello Police Lt. Christopher Cervantes, 47, was arrested after police believe he rear-ended another car in the city of Montclair.
Neither Cervantes nor the other driver were injured in the collision, Cervantes was booked on suspicion of DUI at the San Bernardino County Jail, and he was subsequently placed on paid administrative leave.
In 2015, Cervantes was arrested following a collision with a tree in Diamond Bar. Although he tested positive for a combination of pain-relieving prescription drugs acetaminophen, butalbital, codeine, and morphine, the Los Angeles County District Attorney’s Office declined to file charges citing a lack of evidence.
In 2011, Cervantes was detained after resisting arrest at a San Diego hotel party where he falsely claimed to police that he was a federal agent. Charges were never filed for this arrest either.
“I’m aware of everything in his personnel file and as I was the one who promoted him, I was confident that he was a great candidate for promotion to lieutenant,” said Montebello Police Chief Brad Keller. Cervantes was promoted by Keller after
Cervantes’s 2015 arrest.
As a high-ranking police officer, Cervantes should have been acutely aware that a person can still be arrested for driving under the influence of drugs, including prescription drugs. Many people, on the other hand, often believe that a DUI can only occur if a driver has alcohol in their system. Some people believe that a DUI can occur with only alcohol or illegal drugs, and because a drug might be legal, whether prescription or over-the-counter, a driver cannot get a DUI if they have legal drugs in their system.
California Vehicle Code section 23152 (f) states, “It is unlawful for a person who is under the influence of any drug to drive a vehicle.”
“Any drug” includes those that are illegal as well as legal, both prescription and over the counter.
The important consideration here is the phrase “under the influence.” Although, prescription drugs and other legal drugs fall within the definition of “any drug,” a person must also have his or her mental or physical abilities impaired to such a degree that he or she is unable to drive a vehicle with the caution of a sober person to be “under the influence.”
What kinds of medications can cause you to be under the influence? Tranquilizers, narcotic pain pills, sleep aids, antidepressants, cough medicines, antihistamines, and decongestants to name a few. And how might they cause you to be under the influence? Drowsiness, dizziness, nausea and vomiting, blurred vision, and confusion, to name a few. Kind of sounds like being drunk, doesn’t it?
A few years back, the AAA Foundation for Traffic Safety found that almost half of people 70 years old and above take up to five medications per day. Additionally, a survey from the foundation found that 72% of people 55 and over, the demographic most likely to take medications for chronic conditions, had no idea that their driving performance could be affected by their prescription medications.
Remember, a DUI does not just mean driving under the influence of alcohol, or even illegal drugs, but all drugs including prescription and over-the-counter drugs. If it is capable of affecting a person’s driving ability, then it’s best to wait until after a driving excursion is over.