Category Archives: DUI Charge
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.
Chelsea Annmarie Stiles, 27, was convicted of vehicular manslaughter in a DUI crash that left an elderly man dead in 2019 in San Luis Obispo, California. This week, District Attorney Dan Dow announced that Stiles has been sentenced to serve 15 years and eight months in state prison.
In December 2020, the San Louis Obispo County jury convicted Stiles of numerous offenses. However, after several days of deliberation, the jury was initially unable to reach an unanimous verdict on the most serious charge—murder. Stiles was convicted of the following felonies: gross vehicular manslaughter while intoxicated, driving under the influence of a drug causing death, four counts of assault with a deadly weapon using an automobile, fleeing the scene of a vehicle collision causing injury, child abuse, and a misdemeanor possession of cocaine.
The deadly crash sequence occurred on December 1, 2019 at approximately 6:00 p.m. on Highway 227. According to investigative reports, Stiles, while under the influence of cocaine, seemingly lost control of her vehicle and rear-ended an automobile carrying a family of four at over 70 miles per hour, disabling the vehicle as a result. Moments later, Stiles inexplicably drove into the opposite lane and struck a 77-year-old San Luis Obispo man identified as Terry Tilton head on at 68 miles per hour. Unfortunately, the impact of collision was severe and killed Tilton instantly. Stiles’s 18-month old daughter and her two dogs were also in her vehicle at the time of both collisions.
Stiles suffered from moderate injuries and was taken to a nearby hospital for medical treatment along with her young daughter who thankfully only sustained minor injuries.
During trial, court testimonies suggested that prior to the deadly crash, Stiles cut her daughter’s scheduled visitation with the father short. The father told investigators that Stiles’ strangely aggressive behavior lead him to believe that she was under the influence of drugs.
A CHP officer Trevor Ashton testified that Stiles was generally incoherent as she was being transported into the ambulance. At the hospital, Stiles admitted to intentionally crashing her vehicle into the two cars she hit but gave no explanation as to why.
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.
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.
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.