Category Archives: Drugged Driving

Rules for Obtaining a Blood Sample After a DUI Arrest

There is much confusion over the rules for obtaining a blood sample after a DUI arrest. Many people are unclear of the laws regarding DUI cases and what’s permitted in court. Do you have to submit to a blood test? What can affect a blood alcohol test? This blog will answer these questions and more. 

Here, you will learn what your rights are while gaining a comprehensive understanding of the DUI blood test. If you have already submitted to a blood test or you’re facing a DUI case, this article will offer guidance and direction as to how to proceed.

What is a DUI Blood Test?

The term “DUI” is an acronym for Driving Under the Influence. Moreover, DUI means operating a motor vehicle while intoxicated with drugs or alcohol. Every state has its own DUI law that dictates it is illegal to drive while intoxicated, whether under the influence of alcohol, marijuana, prescription medication, or illicit drugs. 

What’s more, some states have laws in place that differentiate between the various possible DUIs, such as one involving alcohol and one involving an over-the-counter medication like cough syrup. And it’s because there are so many possible scenarios involving DUIs that blood tests exist.

Blood tests help determine the blood alcohol content (BAC) in persons charged with DUI. If you are pulled over, and the police officer determines that you are intoxicated, blood testing can be ordered. 

But unlike breathalyzers, blood tests are almost never performed at the scene of the arrest. Unless there is a unique situation where a qualified medical practitioner is present at the scene and has the necessary equipment to legally do so, all blood tests take place in a medical facility.

Moreover, blood alcohol testing in hospitals ensures that proper laws regarding chemical testing are followed. Some states have strict regulations in place that dictate who can take a blood sample and test alcohol levels, as well as the manner in which the samples are analyzed and transported.

It’s rare that police officers are trained and equipped to administer blood tests. And even you are pulled over for DUI by an officer that can perform blood draws, your state’s laws may prohibit them from doing so at the scene.

If you discover that someone took a blood sample from you who wasn’t qualified to do so, you can legally challenge the results of the blood test.

What Can Affect a Blood Alcohol Test?

Blood alcohol tests are used to determine the blood-alcohol concentration (BAC) of a driver suspected of driving while intoxicated. BAC is defined as the amount, by weight, of ethanol in 100 milliliters of blood or 210 liters of breath. 

There are a number of factors that can affect the validity of this test. Some things that may cause an inaccurate reading include time from alcohol consumption, having diabetes, taking certain medications, or eating food right before the test. 

Time

Your body absorbs alcohol the moment you consume it, and it does so quite efficiently. However, it can take as much as 60 minutes for your blood alcohol concentration to reach its peak. Therefore, it is very likely that a blood alcohol test conducted 30 minutes before or 30 minutes after the peak 60-minute mark would yield very different results.

Medications

This is a very significant factor that can radically change blood alcohol levels. For instance, some medicines can cause a person’s body to respond in a way that limits the effects of alcohol, while other medications can actually make the effects worse.

Food

The more food you have in your body, the longer it takes you to absorb alcohol into your blood. Therefore, if you and a friend have been drinking the same amount of alcohol, but you have an empty stomach, it’s likely that testing you both would should you to have a higher blood alcohol level.

What is the Legal Limit for Blood Alcohol Content?

In every state, the legal limit for BAC is 0.08%. However, the limits vary when it comes to increased penalties. For example, the California BAC limit is 0.08%, with penalties increased for anyone caught driving with a blood alcohol content of 0.15% or higher.

If you are facing DUI charges, it is important to secure the legal counsel of a qualified DUI attorney. Your lawyer will ensure your rights are not violated.

For your blood test to count as evidence in court, prosecutors must follow what’s called the “chain of custody.” This means that they must establish the following to the court in order for the blood test to be accepted as evidence:

  • Who performed the blood draw
  • Whether they were qualified
  • Where it was taken
  • How it was taken
  • Who analyzed it
  • Their qualifications
  • Protocols in place to ensure your sample was constantly accounted for
  • Protocols in place to ensure testing equipment was constantly accounted for
  • The use of a common testing method
  • Proper storage and transport of sample

In addition, there is special documentation in place that must be signed and dated every time a blood sample changes hands. In DUI defenses, attorneys carefully research and review the above requirements and make sure the proper paperwork was used throughout your testing.

If anything was ignored, overlooked, or protocol wasn’t followed correctly, your attorney will fight to have your sample disqualified as evidence.

Penalties for Refusal of a Chemical Test

Each state has its own implied consent law, which can result in penalties for refusing to take a chemical  test- whether a breath or  blood test- when authorities have a basis for believing you are operating a motor vehicle while under the influence. What type of penalties you might face depends on the state in which you are pulled over. However, while you can face additional penalties for refusing to take a blood test and the refusal can be used as evidence of guilt at trial, you cannot face a separate criminal charge for refusal of a blood test.

Blood Test Administration: How It Works

If you do anything to purposefully delay the test, the police may deem you a refusal. With that said, you can request that a different type of test be administered to you, such as a breath test if it is available.

Just be aware that if alternative tests aren’t available, you must agree to the blood test. Upon administration, a qualified person will use a syringe to draw blood from a vein. That sample is stored in a vial that is then sent off for analysis.

If you are concerned about the way your blood test was handled or you want to ensure that you are fairly represented, contact a trusted DUI attorney today.

How Do California Police Officers Test for Marijuana?

Just as driving drunk is illegal, so is driving under the influence of marijuana. Essentially, any impaired driving can get you into trouble. If you’re pulled over by a police officer who suspects impairment, tests can detect THC if necessary.

While it’s true that recreational marijuana use is legal in many states, including California, it’s still against the law nationwide to operate a motor vehicle while under the influence of drugs or alcohol of any kind.

Thus, law enforcement agencies can legally request that you consent to a weed DUI test. But what are these tests, and how do police officers detect THC? To answer this question and more, we first need to define what it means to drive under the influence of marijuana.

Marijuana Use While Driving

Drivers are affected by marijuana and thus under the influence when consumption causes physical and mental impairment to the point where the driver can no longer safely operate a vehicle. But to determine whether the driver in question is under the influence, a judge or jury will have to decide.

This is because California law doesn’t have a set legal limit for marijuana in one’s system. What’s more, there is much debate surrounding the effects of marijuana while driving. Some proponents argue that cannabis use actually makes you sharper and more aware of your surroundings.

Others, however, claim it to be just as dangerous as drunk driving. If a driver is under the influence of marijuana at the time of arrest, a prosecutor must convince the judge or jury in court.

DUI cases regarding marijuana driving pose a serious challenge to prosecutors. As stated, California doesn’t set limits on how much cannabis a person can have in their system while driving. Thus, prosecutors have to prove that however much a person had present in their body was enough to cause impairment behind the wheel. 

THC vs CBD: Knowing the Difference

THC is short for delta-9-tetrahydrocannabinol and is the primary ingredient in cannabis that causes psychoactive effects. It’s also what makes cannabis users feel “high.” Some weed contains minimal THC content, but the CBD (cannabidiol) content might be high. CBD is a non-psychoactive substance found in hemp. 

In fact, many medical marijuana users choose high CBD strains to get the health benefits of marijuana without the intoxicating effects. This can ensure that they don’t fail a drug test for work, for example.

Chemical Testing: Does It Work?

Chemical testing is available for checking a person’s THC levels. However, these tests are unreliable. To make matters worse, experts disagree on how much THC is safe. As such, this division and unreliability present problems for convicting a driver of a DUI charge.

With that said, the test results from chemical testing aren’t needed for conviction. This is often confusing to drivers in California. But if there is enough evidence elsewhere to show that you were impaired, test results become unnecessary.

Also, it’s important to note that if all the prosecution has is a positive chemical test and there’s no other evidence, the test usually won’t be enough for a conviction. At the end of the day, it often comes down to other forms of evidence that prove you were under the influence and unsafe to drive a motor vehicle.

Other Evidence

So, what are the other forms of evidence that you might need to be worried about? Examine the examples below to better understand the evidence that can result in a DUI conviction.

  • Your driving pattern
  • The statement you gave to the police
  • Your performance in Field Sobriety Tests
  • You had marijuana on you or in your vehicle
  • You had drug paraphernalia on you or in your vehicle
  • There’s evidence that shows you’re addicted to cannabis

Moreover, if there is a Drug Recognition Expert (DRE) at the scene, they will make a note of your appearance and actions. People who are intoxicated will exhibit the following traits:

  • Delayed/slow reaction time
  • The smell of weed
  • Rapid breathing
  • Fast heart rate
  • Dilated pupils
  • Dry mouth
  • Red eyes

Most of the time, when there is suspicion of drug use, the attending officer will call in a DRE to examine the suspect. If the case goes to court, the DRE can testify on the arresting officer’s behalf, thus providing potentially damaging evidence against the suspect.

Testing for Marijuana: How It’s Done

If the officer suspects drug use in a person who chose a breath test, a blood test may be ordered. However, a blood test can only be requested if the officer believes the following: 

  • The driver is under the influence of marijuana or other types of drugs
  • The blood test will show that drugs are present

Moreover, blood tests usually come up in the following scenarios: 

  • The breath test came back negative, or the alcohol content was very low
  • The police officer smells marijuana on the driver
  • The police officer observes physical signs revealing intoxication
  • The police officer found drugs in the driver’s vehicle
  • The police officer found drug paraphernalia in the vehicle

If a blood test is not possible, such as if a medical condition prevents it or a blood test isn’t readily available, a urine screen will be presented instead.

Chemical Tests and Reliability

Using chemical tests to prove that someone is driving under the influence of marijuana has three fundamental problems:

  • There is no consensus on the extent to which cannabis can cause driving problems
  • Chemical tests cannot reliably indicate when someone used marijuana
  • They cannot reliably indicate how much has been used

Test results may also vary based on the type of test used. When you secure the services of a trusted DUI attorney in California, you can look forward to comprehensive research and representation that fights for your rights.

Your lawyer will carefully examine all evidence to make sure that proper protocols are followed at all times. So if you are facing DUI charges, consider getting legal counsel. You will have the guidance and direction you need to ensure that nothing is overlooked in your case.

Blood Testing

The most commonly used chemical test in cannabis DUI cases is a blood test. The blood test directly looks for the presence of THC. But unlike alcohol, the rate of metabolism of THC is not stable, especially when smoking. Conversely, the THC level in the blood can reach a peak in just ten minutes and then drop rapidly.

When someone’s arrested, and blood samples are taken, most of the THC will likely be gone. Furthermore, THC can be detected within one month after smoking marijuana.

But the bigger problem with THC blood testing is that, unlike water-soluble alcohol, THC is fat-soluble. This means that once ingested, it will be stored in the body’s fat tissues.

These fatty tissues can filter stored THC back into the blood for up to a month or more. Therefore, even if the driver has not smoked or used marijuana recently, the THC blood test may be positive. 

In addition, low THC levels in the blood may be due to relatively recent use or long-term use. So even if a person didn’t recently consume cannabis, it could still show up. As such, a positive blood test does not factor in as well as one might think.

Urine Testing

The urine test does not directly check for the presence of THC. Instead, it detects the presence of inactive metabolites found in cannabis. These inactive metabolites can be detected in the urine for a long time after using cannabis. Some estimates indicate that they can be detected in long-term users for up to 4 weeks.

Since these substances do not cause harm by themselves, a positive urine test does not prove that someone is “affected” by marijuana. It only indicates that the person had smoked marijuana at some point in the past month or so.

It’s also worth noting that strains high in CBD can trigger false positives. With so many variables, it’s difficult for prosecutors to paint a clear picture of factual use in a suspect. This is why it’s so important to have a qualified DUI attorney in your corner. 

Your lawyer will focus on the inaccuracies of the testing methods used and fight to prove to the court that you weren’t impaired while driving. Moreover, your attorney will carefully gather evidence and make sure that proper procedures are followed at all times. 

To ensure that you receive the representation you deserve, contact a California DUI attorney today.

DUI DIVERSION

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.  

AUTO BREWERY SYNDROME

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.

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.