If you have read this blog in the past, you might be familiar with what are known as “dram shop” laws. For those who are not familiar, dram shop laws allow the victims of drunk drivers to civilly sue the establishment that served the drunk driver with alcohol prior to the victim’s injury. Although dram shop laws specifically refer to the suing of restaurants and bars, the question of whether liability, be it civil or criminal, can be placed on any third parties who contribute to a driver’s driving drunk leading to injury has been the center of much debate.

There may, however, not be much of a debate, at least in Georgia. The Georgia Supreme Court issued a ruling this week that allows a victim to sue a third party, non-drunk driver, in a DUI collision as an “active tortfeasor.”

In September of 2016, Lakenin Morris was asked by his cousin, Keith Stroud, to drive his car. Morris agreed, Stroud handed him the keys, and they were off. Both had been drinking. Morris later collided with 18-year-old Alonzo Reid, who was hospitalized. Reid sued both Morris, the driver, and Stroud, who provided the keys to Morris. Reid was awarded $23,000 in compensatory damages, to be split equally between Morris and Stroud, and $50,000 from Morris in punitive damages. The trial court, however, decline to award the $100,000 in punitive damages that Reid was asking from Stroud. The trial court concluded that punitive damages were limited to “active tortfeasors,” or, in this case, the actual drunk driver, Morris.

The Georgia Supreme Court, however, reversed the trial court’s decision by adopting a broad interpretation of the word “active tortfeasor.”

“[Georgia law] does not define the term ‘active tortfeasor,’ but from the beginning…has made a distinction between tort defendants who ‘acted’ and those who ‘failed to act.’ The text thus suggests that an ‘active tortfeasor’ is a defendant who engaged in an affirmative act of negligence or other tortious conduct, as opposed to a defendant whose negligence consist of an omission to act when he is under a legal duty to act,” wrote Justice Michael Boggs in discussing the history of Georgia’s punitive damages laws. Justice Boggs went on to say that it does not matter whether the defendant was the drunk driver, but rather whether Morris’s conduct, at least in part, caused the injury.

In other words, the Georgia Supreme Court concluded that by drinking and giving his keys to Morris, whom he knew was drunk, Stroud was an active tortfeasor who could be subject to punitive damages just as Morris, the actual drunk driver, was.

While some states, like Georgia, continue to expand the reach of their dram shop laws, some states like California remain in their determination that only the person who drove drunk can be held liable for injuries resulting from a DUI.

The California Civil Code specifically states, “It is the intent of the Legislature to…reinstate the prior judicial interpretation…that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person…[N]o social host who furnishes alcohol beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.”

Although this code section does not specifically address the situation that led to Reid’s injury, you can see California’s view on the matter. This is not to say that California affords full protection to third parties. California still holds establishments civilly liable for injuries resulting from a DUI when the establishment knowingly served alcohol to an underage drinker who drives and causes injury. Additionally, although rarely enforced, establishments can face misdemeanor charges for serving alcohol to “any habitual or common drunkard or to any obviously intoxicated person.”

Pennsylvania, which has legalized medical marijuana, has introduced a bill that would exempt medical marijuana users from the state’s arbitrary per se marijuana DUI law.

Although Pennsylvania legalized medical marijuana in 2016, with dispensaries opening up in the state in 2018, laws still remain on the books that would arbitrarily punish medical marijuana users merely for having THC in their system, even though they are no longer “high.” The new bill aims to close that loophole.

Prior to Pennsylvania’s legalization of marijuana for medical purposes, it was illegal to have any THC in a driver’s system while driving. At the time, the law did not conflict with itself because it was illegal to have any THC in the system because marijuana use, as a whole, was illegal. Thus, it did not matter whether a driver was still high or not; if they had THC in their system, it was illegal because all marijuana use was illegal.

Since the state has now legalized medical marijuana, at a minimum, those laws cannot remain on the books. Otherwise, it is possible for a legal medical marijuana to be arrested, charged, and convicted of a DUI in the state even though they haven’t smoked in days, possibly even weeks, and are perfectly sober when pulled over for that DUI.

 Unlike alcohol, the intoxicating chemical of marijuana, tetrahydrocannabinol or “THC,” can possibly stay in a person’s system for weeks. Also, unlike alcohol, THC levels do not necessarily correspond to how intoxicated or high a person is. Science suggests that when a person has a blood alcohol content of 0.08 percent, they typically are at a level of intoxication that would make it unsafe to drive. This is why it is illegal to drive while under the influence and with a 0.08 percent (0.05 in Utah). It is dangerous to society when people drive when they are under the influence, or when their blood alcohol content suggests that they are “under the influence.” No such scientific correlation exists between THC and degree of intoxication from marijuana use.

Therefore, when Pennsylvania legalized medical marijuana, it put every single user of medical marijuana at risk of an arbitrary DUI by not also updating its DUI laws. It was possible for a cancer patient to smoke marijuana on Monday, become sober by Tuesday, remain sober for the rest of the week, and then get arrested for a DUI on Sunday simply because they still had THC in their system (as a result of taking prescribed medicine for cancer!).

Pennsylvania’s new law would require police and prosecutors to prove that a medical marijuana user was actually impaired while driving rather than merely proving that the person had used marijuana sometime in the past.

“We need to ensure that the legal use of this medicine does not give rise to a criminal conviction,” state Sen. Camera Bartolotta (R), who introduced the legislation, said in a statement about her bill. “Patients fought tooth and nail for years to see the use of medical cannabis legalized to treat a variety of terrible health conditions. They should have the peace of mind to know that they will not be punished later for using their prescriptions responsibly.”

Although some states still have per se limit laws for THC, like they do with alcohol (0.08% BAC in all states except Utah where it is 0.05%), a 2019 study, published in the journal Addiction by a team of Canadian researchers, found that drivers who had 2-5 nanograms of THC per milliliter of blood (the level of some states’ per se laws) were no more likely to cause a crash than people who had not consumed marijuana.

“Given the very serious consequences of a DUI conviction, my legislation will provide critical protections for medical cannabis patients by ensuring responsible use of their legal medicine does not give rise to a criminal conviction,” said Bartolotta.

My response: It’s about time. Until states can figure out a way link THC levels (or any other quantifiable measure) with intoxication, per se laws DUI laws for marijuana usage in states that have legalized it are unconstitutional.

It is no secret that some states prioritize enforcing certain laws over other laws. Similarly, some states have much harsher penalties for certain crimes than other states do. For instance, some states, like California, are known for strict gun laws. Other states, like Virginia and New Jersey, are known for imposing strict penalties on thieves. Each state’s decision on how strictly it will enforce a law and how severe the penalties are for violating it, in part, comes down to what each state prioritizes. These decisions are related to public policy and what each state’s populous values. On that note, there are certain states that are known for their strict enforcement of DUI laws and others that are known for imposing strict penalties on DUI law violators. Keep this in mind if you find yourself in the following states as the ramifications of driving under the influence of drugs or alcohol can be severe.

Arizona: The Grand Canyon State is known for deserts, sunshine, hiking, and . . . being the worst state to get a DUI in. Arizona’s DUI laws, like most states, prevent all motorists from driving a vehicle with a blood alcohol concentration (“BAC”) of 0.08 percent or more. Additionally, Arizona DUI laws prohibit motorists from driving under the influence of drugs or alcohol if the driver is even impaired “to the slightest degree.” Arizona’s impaired “to the slightest degree” distinction is stricter than other states. For instance, California law enforcement officers can arrest motorists with DUI for having a BAC greater than or equal to 0.08 percent or being “under the influence,” which has been held to mean that a driver is not able to drive as a reasonable and sober driver would because of an intoxicant. Finally, Arizona has a “not-a-drop” DUI law for all motorists under the age of 21 years old. This “not-a-drop” law prohibits anyone under the age of 21 years old from driving with any measurable amount of alcohol in their system. Although the “not a drop” law seems harsh, many other states enforce the same or a similar law. Additionally, it is possible to get a DUI in Arizona without actually driving. If an individual is “in physical control” of a car while impaired, they can be cited for DUI. Other states, like California, require actual movement of the vehicle. Arizona’s justification for this particular law is that it helps to stop impaired driving before it starts.

Arizona is also known for being the toughest state on first-time DUI offenders. It was the first state to implement a mandatory interlock device installation policy for first time offenders. Other states have since followed suit and implemented similar policies. Also, Arizona has some of the highest fees for first-time offenders and mandatory jail time as well.

Massachusetts: Like Arizona, Massachusetts DUI laws prevent all motorists from driving a vehicle with a BAC of 0.08 percent or more. Unlike Arizona’s “slightest degree” standard, a driver in Massachusetts can also arrested on suspicion of a DUI if they are “under the influence.” However, the Bay State dishes out the most jail time for a DUI conviction. A first-time DUI offender in Massachusetts can face up to two and a half years in jail. The state also has a strict penalty for driving under the influence with child passengers under 14 years old in the vehicle. If a driver is caught with a child in their vehicle while under the influence, the driver can be convicted of child endangerment—which is separate offense to DUI. The child endangerment offense carries with it up to $5,000 in fines, a one-year license suspension, and 90 days to two and a half years in jail. However, Massachusetts is not alone in imposing additional penalties for DUI with minors in the vehicle. For instance, Pennsylvania and the District of Columbia have similar penalties for this aggravating factor. 

Ohio: The Buckeye State is known for lengthy driver’s license suspensions for DUI offenders. If an individual is convicted of DUI in Ohio, it is possible that they could lose their driver’s license for up to three years. This is a stark contrast to some other states. For instance, Kentucky, Michigan, Montana, New Jersey, Pennsylvania, Rhode Island, South Carolina, South Dakota, and Tennessee do not mandate that a DUI offender’s driver’s license be suspended. Also, California generally limits a first-time DUI offense to a six-month license suspension. Therefore, Ohio is undoubtedly tougher on DUI offenders when it comes to license suspensions than many other states. Individuals should keep this in mind before operating a motor vehicle while under the influence in Ohio as it might be difficult to get around for several years if convicted of DUI.

Utah: The Beehive State has the lowest BAC limit of any state. In Utah, any motorist in physical control of a vehicle while having a BAC of 0.05% or higher has per se committed a DUI offense. This is currently the lowest BAC limit in the country, and the only state with such a limit. Also, in Utah, a first or second DUI offense is generally categorized a Class B misdemeanor. However, the DUI offense increases to a Class A misdemeanor if the impaired driver inflicted bodily injury upon another as a proximate result of driving under the influence or the impaired driver has a passenger under the age of sixteen years old in the vehicle at the time of the offense. While Utah’s misdemeanor class distinctions are somewhat comparable to other states, the state’s low BAC limit is entirely unique. Although Utah’s DUI arrest rates have been relatively consistent since the lowering of the BAC limit, other states could follow suit in their own efforts to curb drunk driving. For more info on Utah’s 0.05 percent limit see Utah Now has the Lowest BAC Limit in the Country and How Effective is Utah’s New BAC Limit?

Clearly, some states adopt more stringent measures to prevent individuals from driving under the influence than others. Arizona, Massachusetts, Ohio, and Utah are known for either strictly enforcing their DUI laws or imposing harsh penalties on violators of their DUI laws. Although nobody should get behind the wheel after consuming alcohol, motorists should be aware of the rather harsh DUI laws and penalties they face when driving in other states.

While some states are beginning to transition out of quarantine, other states’ lockdown orders remain intact. Regardless, some areas saw incidents of drunk driving rise precipitously during the COVID-19 lockdown. Whether it was people trying to calm their pandemic fears with some drinks or the lifted restrictions on obtaining alcohol, or perhaps a combination of both, law enforcement from across the country have reported spikes in DUI’s across the country.

Notwithstanding the impact of other socio-political current events, police are still out and looking for drunk drivers. Similarly, despite the temporary closure of courthouses, DUI prosecutions are still rolling forward, even if a little delayed.

As mentioned, restrictions have been lifted in obtaining alcohol since the closure of restaurants and bars. Establishments have been allowed to sell alcohol for pick-up, or even delivery, to their customers through phone orders or through smart phone apps like Grubhub. One would think that having more options to obtain and drink alcohol at home, would reduce the number of DUI’s. Apparently not so.

If drivers do happen to venture out, they should remember a few things.

Should a driver get pulled over on suspicion of a DUI, first and foremost, remember the 5^th Amendment exists for a reason. Drivers have the right not to say anything to law enforcement ever. Invoke your right to remain silent by telling the officer, “I would like invoke my 5th Amendment right and respectfully decline to answer any of your questions.” Now keep your mouth shut until given the opportunity to call your attorney.

At this point, it is likely that law enforcement will have the driver exit their vehicle and request that they perform field sobriety tests. Drivers should absolutely decline to perform the field sobriety tests. They are an inaccurate indicator of intoxication, but fortunately they are optional. I and many other people would have trouble doing them sober.

In a last-ditch effort to obtain the evidence they need to make a DUI arrest, they’ll ask the driver to take a roadside breathalyzer commonly referred to as a “PAS” (preliminary alcohol screening) test. Under California’s implied consent rule, as a driver, you must submit to a chemical test, which can be either a breath or a blood test, after you have been arrested on suspicion of a DUI. The key word is “after.” Decline the optional roadside breathalyzer. Why give the officers the evidence they need to arrest you? However, if arrested, you must submit to either a breath or a blood test.

Should the stop occur at a DUI checkpoint, most of the same rules still apply. Invoke your right to remain silent. Decline to perform the field sobriety tests. Only perform the post-arrest breath or blood test, not the pre-arrest breathalyzer. This is all if a driver is not able to pull away from the checkpoint prior to arriving at it without breaking any other traffic laws, which they are legally allowed to do.

While the punishment if convicted on a first-time DUI might vary widely depending on the circumstances of each individual case, at a minimum a driver faces three to five years of probation, fines and fees in the thousands, a minimum three-month DUI course, and up to six months in jail. As part of a plea deal or a sentence if convicted, drivers can additionally face AA meetings, a longer DUI course, a MADD Victim Impact Panel, a Hospital and Morgue Program, more in fines and fees, community service, and community labor. The collateral consequences are a license suspension by the DMV and a stain on your criminal record. While most people don’t see jail time on a first-time DUI with no other aggravating factors, it is certainly a possibility. Those rather severe consequences being said, I’ll move on to my last bit of advice should a driver be pulled over on suspicion of a DUI during COVID-19.

Never forget to obtain an attorney. With so much at stake in the middle of one of the most complex processes in society, why wouldn’t a person seek the help and advice of a trained DUI attorney? If you needed a medical operation, you certainly wouldn’t perform the surgery yourself.

Even though times might be changing, taking precautions to keep the street safe as well as protecting our rights remain the same.

Ask any U.S. citizen today if they know that it is against the law to operate a motor vehicle under the influence of drugs or alcohol. Of course, most would answer, “yes” immediately. However, this has not always been the case. Not long ago, states enacted the first wave of DUI laws, which would become a mainstay in our society as a means to make the streets safe.

In 1906, New Jersey became the first state in the union to criminalize driving an automobile while intoxicated. The New Jersey law stated no “intoxicated person shall drive a motor vehicle.” Any violation of this law amounted to a $500.00 fine (quite a large amount of money in 1906) or up to 60 days in county jail. In 1910, New York followed suit, and eventually, so did all the other states. The original DUI laws were much different than today’s versions because they simply prohibited driving while intoxicated. The laws did not specify what blood alcohol concentration (“BAC”) level constituted being intoxicated. As a result, the laws lacked a clear definition as to what qualifies as drunk or intoxicated driving. It took lawmakers quite some time to address the ambiguity problem of when someone was “intoxicated.” At the time, there was no way to properly measure an individual’s BAC. Additionally, even if a driver’s BAC could be determined, there lacked an understanding as to the correlation between BAC and the motor skills necessary to safely operate a vehicle. Thus, appropriate BAC level recommendations could not be made. However, an unlikely invention eventually paved the way to clarity.

In 1936, Rolla N. Harper invented a device called the “Drunkometer,” which incorporated a balloon in its design to indicate with decent accuracy a person’s BAC. Then, Robert Borkenstein, an American scientist and police officer, collaborated with the Indiana University School of Medicine to expand the Drunkometer for law enforcement purposes. Authorities were finally able to establish a correlation between BAC and intoxication. Therefore, in 1938, the American Medical Association and the National Safety Council suggested establishing 0.15 percent as the proper BAC level to consider an individual drunk.

Borkenstein’s ingenuity did not stop with the Drunkometer. In 1953, he introduced the Breathalyzer—which has become an important component of a police officer’s tool kit. The Breathalyzer was superior to the Drunkometer in that it used chemical oxidation and photometry to more accurately measured the alcohol vapors in an individual’s breath. From this point on, there was a fairly accurate way to measure the alcohol in an individual’s system, which meant that authorities could also tell, better than they ever had before, whether someone was intoxicated. Next, it was up to states to modify their existing testing standards to account for this technological breakthrough.

For the subsequent decade, law enforcement officers rarely enforced DUI laws. The potential penalties for driving under the influence were relatively harsh, and perhaps that is why officers were initially reluctant to enforce them. The officer’s reluctance led to backlash among public interest groups that advocated for stricter enforcement of DUI laws. Eventually, the National Highway Traffic Safety Administration (“NHTSA”) convinced some states to lower their DUI BAC levels to 0.10 percent. 

In the 1970s, the federal government and state governments sought to further prevent the increasing spread of DUI-related traffic accidents across the United States. This led to the development and passage of per se DUI laws—where, to be convicted of a DUI, a state does not need to prove that alcohol in the driver’s system is what affected the driver’s ability to safely operate a motor vehicle. The only thing a state needed to prove was that driver was operating the vehicle while his or her BAC was above the respective state’s legal limit. Per se DUI laws combined with a growing public interest in preventing DUI-related deaths shaped the severity of current penalties for drunk driving.

In the 1980s and 1990s, groups like Mothers Against Drunk Driving (“MADD”) and Students Against Destructive Decisions (“SADD”) began receiving national attention for their efforts to combat drunk driving. Activist Candy Lightner arguably did the most to shed light on the dangers of driving under the influence by founding “MADD.” In 1980, a drunk driver with three previous DUI convictions hit and killed Ms. Lightner’s 13-year-old daughter while she was on her way home from a school function. The driver was out on bail at the time of the accident from a hit-and-run arrest two days earlier. The public outrage associated with this tragedy was quite severe. MADD continues to be influential in shaping DUI legislation throughout the country.

In 2000, the Clinton administration used congressional spending powers to require all states to lower their BAC legal limit to 0.08 percent. If a state decided not to adopt the new nationwide standard, they would lose a substantial amount of federal highway construction funds. The federal government rationalized this decision by stating it was a bipartisan public policy goal to decrease DUI-related deaths, and it used statistics to show that decreasing the BAC limit from 0.10 percent to 0.08 percent would save roughly 500 lives per year. Accordingly, most states complied with the federal government’s new, universal BAC limit. 45 states passed laws lowering the permissible BAC limit to 0.08 percent by October 2003. The final five states did not hold out much longer as all 50 states were on board by July 2004.

The 0.08 percent BAC limit and the per se component of DUI law is the minimum standard of all 50 states’ DUI laws today. However, some states have gone beyond what the federal government suggests in order to combat and deter driving under the influence. For instance, Utah boasts the strictest BAC limit in the nation. The state adopted a BAC limit of 0.05 percent in late 2018. Furthermore, many states have added harsher penalties for excessively high BAC levels. For instance, Arizona, California, Texas, Washington and many other states have harsher penalties for DUI convictions where the driver’s BAC was 0.15 percent or more.

DUI laws are constantly evolving. As government authorities seek new ways to reduce DUI-related deaths, other states will undoubtedly also look to lower their legal limits. If the trend from the 1960s to today tells us anything, we should prepare for stricter DUI laws in the future.