Category Archives: DUI Case

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.

Avoiding Jail Time in a California DUI Case

 

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

Subsequent DUIs

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.

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.

 

 

 

Supreme Court Rules Cops Can Withdraw Blood from an Unconscious Driver

Yes, you read that title correctly. The United States Supreme Court just ruled that police can withdraw blood from an unconscious person suspected of driving under the influence.

Six years ago, police found Gerald Mitchell on a beach in Wisconsin and suspected he was intoxicated after a neighbor reported that he was drunk and suicidal. After being arrested, Mitchell was transported to a hospital. However, by the time he arrived at the hospital, he was unresponsive and law enforcement ordered hospital staff to draw his blood, which revealed a blood alcohol content of 0.22 percent.

Although Mitchell tried to exclude his blood alcohol content from evidence, he was denied and ultimately convicted of driving under the influence. After losing in the Wisconsin state courts, he appealed to the United States Supreme Court arguing that the withdrawal of his blood while he was unconscious without a warrant violated his 4th Amendment right against unreasonable searches and seizures.

Justice Samuel Alito, writing for the majority which included Chief Justice John Roberts, Justice Stephen Breyer, Justice Brett Kavanaugh, and himself, concluded that the 4th Amendment, generally, does require a warrant to conduct a search. However, he went on to say that there are exceptions to the warrant requirement including “exigent circumstances” where, as here, a warrantless blood withdraw was necessary to “prevent the imminent destruction of evidence.” Alito continued that the alcohol in a person’s system is “literally disappearing,” which justifies the need to obtain the evidence before taking the time for law enforcement to obtain a warrant.

“Indeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk,” Alito wrote. “It would be perverse if the more wanton behavior were rewarded — if the more harrowing threat were harder to punish.”

Alito also noted that the condition of a driver who is unconscious creates additional burdens on law enforcement since the driver will likely be taken to a hospital rather than the police station where a breath test can be administered.

“It would force them to choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value and all the compelling interest served by BAC limits,” he wrote. “This is just the kind of scenario for which the exigency rule was born – just the kind of grim dilemma it lives to dissolve.”

Justice Clarence Thomas concurred with the result, but not Alito’s rationale. Thomas maintained that since alcohol automatically leaves a person’s blood within a certain amount of time, police should be able to forcibly withdraw blood whether the driver is conscious or not.

Justice Sonia Sotomayor wrote a dissenting opinion that was joined by Justice Ruth Bader Ginsburg and Justice Elena Kagan. Sotomayor argued that Alito’s rationale had missed the point. Sotomayor emphasized that, in this case, law enforcement admitted that there was time to obtain a warrant for Mitchell’s blood, but that they didn’t because of “implied consent.” Implied consent, which exists here in California, is a law that a driver has impliedly agreed to a chemical test by mere virtue of having a driver’s license.

“Wisconsin has not once, in any of its briefing before this Court or the state courts, argued that exigent circumstances were present here,” Sotomayor wrote. “In fact, in the state proceedings, Wisconsin ‘conceded’ that the exigency exception does not justify the warrantless blood draw in this case.”

She went on to say, correctly so in my opinion, that, while “drunk driving poses significant dangers that Wisconsin and other States must be able to curb…the answer is clear: If there is time, get a warrant.”

Justice Neil Gorsuch dissented separately also taking issue with the fact that the case had been decided on grounds that were not the basis for the appeal; whether implied consent laws violate the 4th Amendment.

“We took this case to decide whether Wisconsin drivers impliedly consent to blood alcohol tests thanks to a state statute,” Gorsuch wrote. “That law says that anyone driving in Wisconsin agrees — by the very act of driving — to testing under certain circumstances. But the Court today declines to answer the question presented. Instead, it upholds Wisconsin’s law on an entirely different ground—citing the exigent circumstances doctrine.”

Take a second to ask yourself what place you expect to be more private than any other place, including your home. I expect that the most prevalent answer is “our bodies.” Yet, for the place that we consider to be the most private, law enforcement does not need a warrant to intrude into it as long as we have a driver’s license.

Sound like a loophole for law enforcement? It is!

I am not saying that we shouldn’t be testing the blood of suspected drunk drivers. But the Constitution protects all of us, suspected drunk drivers included. And if the Constitution requires a warrant to search, especially the thing most of hold to be the most private, then law enforcement should have to get one.

It’s not like law enforcement is sending the warrant application by raven! How long (or difficult) would it really take to obtain a warrant? A few minutes if done digitally? Alito and the majority don’t seem to care as they continue to make it easier for law enforcement to violate constitutional rights.

Justice Sotomayor said it best. If there is time, get a warrant.