Category Archives: Duiblog

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.

MADD Weighs in on California Proposition 22

Mothers Against Drunk Driving (MADD) has come out this past week in support of California Proposition 22. In a letter posted to the organization’s website, MADD National President Helen Witty stated that exempting “gig workers,” such as Uber, Lyft, and other rideshare app drivers, from state law designating them “employees” rather than independent contractors keeps rideshare services affordable and available.

In 2019, the California legislature passed AB5 which designated rideshare drivers as employees. As employees, rideshare companies would have to provide certain employment benefits such as minimum wage, overtime, expense reimbursement, paid sick days, paid family leave, unemployment insurance and an employer health care option.

While Uber and Lyft maintained that their employees were independent contractors, a judge ruled in August that the companies were in violation of AB5. The ruling threatened “hundreds of thousands” of job cuts and the suspension of operations in California. Importantly for MADD, it meant less alternatives to driving when a person has had one too many to drink.

If passed, Prop. 22 would exempt rideshare companies from treating their drivers as employees, and drivers would maintain their independent contractor status.

Supporters of Prop. 22 argue that an exemption from treating drivers as employees would keep rides inexpensive and readily available to travelers. Uber has said that up to 76% of its 209,000 California drivers could be cut if the company is forced to comply with the stricter law, and that prices could increase 25-111%.

“Prop. 22 will preserve rideshare services that help keep drunk and drug-impaired drivers off of our roads by providing a safe, reliable, convenient and affordable alternative to driving,” wrote Witty. “Fewer rideshare drivers in California could mean more people choosing to get behind the wheel when they’re under the influence.”

Opponents of the measure argue that maintaining the independent contractor status for drivers is exploitative.

MADD and Uber have pointed to a number of studies over the past few years that have suggested ridesharing companies, in providing an alternative to driving when drunk, have reduced the number of DUI’s and DUI-related accidents.

Other researchers are not as sure. Some argue that the data suggests ridesharing apps have not reduced drunk driving, but have actually increased binge drinking in areas of high rideshare usage.

I urge you to do your own research on the benefits and drawbacks of passing Prop. 22 before deciding to vote for or against it.

However, while I think it’s fair to say MADD and I have not always seen eye-to-eye, we finally agree that the more alternatives to driving drunk there are available to the public, the better.

The Truth About Chemical Testing in a California DUI Investigation

Drivers who are pulled over and placed under arrest for driving under the influence will likely be required to submit to one or more chemical tests. These tests are designed to detect whether the driver has alcohol or drugs in their systems and in what quantity. The results of these chemical tests often form the backbone of a prosecutor’s case against a driver. For example, a chemical test showing a driver’ breath- or blood-alcohol concentration to be greater than .08 may be the central piece of evidence a prosecutor relies on in pursuing charges against a motorist.

Prosecutors and police officers alike want drivers and jurors to believe these chemical tests are “scientific” and “foolproof.” The truth about chemical testing in California, though, is more complicated.

Breath Tests

Breath testing on a breathalyzer machine, such as the “Intoxilyzer,” is by far the most common chemical testing requested because the testing process itself is relatively quick to perform and because it does not require someone with medical knowledge or training to assist in collecting the sample. In a breath test, the driver blows into a tube connected to the testing machine. The machine collects a sample of the person’s breath and then analyzes that sample using infrared energy and approximates the person’s alcohol concentration.

This breathalyzer chemical test is not to be confused with the roadside breathalyzer, or “Preliminary Alcohol Screening” (PAS) test that officers use when they suspect a driver is intoxicated. In California, a chemical test is required, but only after a person has been lawfully arrested on suspicion of driving under the influence. The roadside breathalyzer is not a “chemical test” in that it is not required, and considered a “field sobriety test,” which are optional.

Blood Tests

A blood test is another chemical test that may be performed during a DUI investigation. Blood tests are often considered the most reliable of the three types of chemical tests. A blood sample is drawn from the driver and is then sealed and delivered to a laboratory. At that facility, a forensic scientist analyzes the blood sample using specialized equipment to determine the alcohol concentration in the person’s blood. Despite the testing and analysis occurring in a laboratory facility, there are still opportunities for errors to occur that might render the results unreliable. Samples of blood that are not packaged properly, that are drawn too long after officers see the driver operating their car, or that are tested using defective equipment may all provide inaccurate blood alcohol content results.

Urine Tests

Urine tests are considered the least reliable of all of the chemical tests and are usually reserved for cases where the driver is suspected of being under the influence. The machines used to evaluate the urine of DUI suspects, for example, often confuses the chemical compounds of different drugs, cannot tell when the drugs were used, nor can it tell how intoxicated someone is. Fortunately, urine tests, by law, are not to be used in California as a chemical test unless both a breath test and a blood test are unavailable, which in most jurisdictions, is highly unlikely.

Which Chemical Test Should a California Driver Take?

According to California Vehicle Code 23612(a)(2)(A), drivers who are lawfully arrested on suspicion of having driven under the influence of alcohol are to be informed by the officer that the driver may choose whether to submit to a breath test or a blood test. The driver’s choice is to be honored unless the driver is unable to complete their chosen test. As stated above, only if both a breath test and a blood test are unavailable should a urine test be used.

Refusing to submit to any chemical test can have serious and negative consequences for a person’s driving privileges. Choosing to take a breath or a blood test should be made after considering the facts of the situation. While blood tests are generally more reliable, they may also be able to detect the presence of drugs in the driver’s system. Thus, if someone consumed any drugs but little or no alcohol, it may be better for them to request a breath test be performed. In addition, those laboratories who perform testing on a driver’s blood sample must preserve a sufficient amount of the sample so that the driver may obtain an independent analysis of the sample. This is known as a “blood split,” and the driver obtains the sample for independent testing through a court order.

Breath testing does not provide a driver with a sample that can be independently tested, but the problems associated with breath testing machines tend to be more significant and numerous. Thus, if a person believes they are close to or under the legal limit, a breath test result may be easier to challenge in court.

Chemical Testing is Not Dispositive in a California DUI Case

Even though law enforcement officers and prosecutors would have drivers believe otherwise, the results of a chemical test – whether a breath, blood, or urine test – are not beyond questioning. In fact, the quality of any chemical test result depends on a myriad of factors, including:

  • Whether the sample was timely collected and collected in a safe and careful manner;
  • Whether steps were taken to prevent contamination of the sample;
  • Whether the sample was appropriately stored prior to testing;
  • Whether the person analyzing the sample was adequately trained on the testing equipment and protocols;
  • Whether the testing equipment was working properly or if there were unaddressed errors in the machinery’s code or parts
  • Whether a proper observation period (if applicable) was observed to ensure the person did not belch, vomit, or put anything in their mouth before giving a breath sample

A California defense attorney with experience defending drivers from drunk driving charges can examine the facts of a particular DUI investigation and know how best to attack the chemical testing results. Samples that were collected after an unlawful arrest, that were not collected in accordance with protocols, or that were not appropriately analyzed may all be subject to suppression.