Category Archives: Duiblog
Last week, a school bus driver from Paradise, California was arrested on suspicion of driving under the influence of alcohol after several students riding on her bus, as well as parents of children on that bus, reported that she may have been drunk.
Students and their parents called 911 to report that the school bus driver, Desiree Ann Abrams, was speaking loudly, interacting inappropriately with the students, and smelled as though she had been drinking.
“When we got on the bus that day, she was kind of slurring her words. I thought she was just having a really good day but when I sat down she was stopping people and asking them questions what’s your middle name, how old are you, you’re looking pretty good today,” Dustin Jones, an eighth-grader at Paradise High School, told local news outlet KRCR.
When CHP officers arrived, they observed signs commonly associated with being intoxicated and determined that Abrams was driving under the influence.
According to law enforcement, no students were on board of the bus at the time of the DUI stop because they had already been dropped off at their regular stops.
“I thought she was just joking around until I saw she got arrested then I believed it,” said Phenix Rye, a junior at Paradise High School.
Paradise Unified School District confirmed the incident.
“A Paradise Unified School District bus driver was arrested on 11-15-19. District Administration was present at the scene and confirmed that students were safe and secure. We are grateful for the prompt response of both the Butte County Sheriff’s Office and the California Highway Patrol as well as the courageous actions of students and families. As always, student safety remains our top priority. Resources will be made available for students that may need additional support. Thank you for your understanding and support in this ongoing process.”
Abrams is out on bond and facing DUI charges and child endangerment.
Not only is Abrams looking at the punishment under California’s DUI law, she is also looking at additional penalties because of the danger that she placed the student in.
Under California Vehicle Code section 23572, California’s child endangerment DUI enhancement law, a first time DUI conviction where a minor under the age of 14 is in the car will bring an additional 48 hours in a county jail. A second time DUI conviction will bring an additional 10 days in jail. A third time will bring an additional 30 days in jail. A fourth will bring an additional 90 days. Furthermore, these penalties are to be served consecutively, not concurrently with the underlying DUI penalties.
The prosecutor need only prove that the driver was driving under the influence and that there was a minor child under the age of 14 in the car when that person drove.
The students being transported by Abrams, however, were high school students whose ages generally range from 14 to 18. If so, how can Abrams be charged with child endangerment for a DUI if the enhancement only applies to children under the age of 14?
Often times, prosecutors will charge child endangerment as a separate and whole charge against a person under the Penal Code, not as a mere enhancement to a DUI under the Vehicle Code.
California Penal Code section 273(a) makes it illegal for an adult to 1.) cause or permit a minor to suffer unjustifiable physical pain or mental suffering, 2.) cause or permit a minor to be injured, or 3.) cause or permit a child to be placed in a dangerous situation.
The crime of child endangerment, if a misdemeanor, carries up to one year in county jail and up to a $1,000 fine. However, if the risk to the child or children included death or “great bodily injury,” a felony child endangerment conviction carries two, four, or six years in a California state prison, and a fine of up to $1,000.
It should be noted that a person arrested for a DUI with a child in the car cannot be punished under both the Vehicle Code’s enhancement law and the Penal Code’s child endangerment law. Thus, if Abrams is found guilty, she’ll be punished for the DUI, and either the child endangerment enhancement or a separate child endangerment conviction.
It is not uncommon for people arrested on suspicion of a California DUI to mistaken believe that it is in their best interest to flatly refuse the breathalyzer. Not knowing the correct thing to do in this scenario can be the difference between becoming convicted of a California DUI and not, and unfortunately, the right thing to do is a little more complicated than merely refusing the breathalyzer or not.
When people refer to a “breathalyzer” during a California DUI stop, they actually referring to two different tests. The first is the roadside breathalyzer, often called a preliminary screening alcohol test or “PAS” test, and the second is the “chemical breath test.”
According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”
The PAS roadside breath test, like other field sobriety tests such as the walk-and-turn test, the horizontal gaze nystagmus test, and the one leg stand test, are optional. Although an officer might threaten to arrest someone for refusing the optional breathalyzers, a driver should stand their ground and politely refuse to complete any field sobriety tests. Despite what the officer might say, they are optional and are only meant to give the officer the evidence they need to arrest the driver.
In fact, the officer must advise the driver that the roadside breath test is optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”
As stated above, providing a breath sample to an officer during the PAS test only give the officer the evidence they need to arrest a driver. Whether a driver provides the officer that information or not, the officer will have to make the decision to arrest a driver on suspicion of a DUI or not. In order to arrest a driver on suspicion of a California DUI, the officer must have probable cause. The probable cause can consist of driving patterns indicative of intoxication, bloodshot eyes, slurred speech, smell of alcohol on a driver’s breath, admissions of drinking or intoxication, and, yes, a reading of the pass test indicating a BAC of 0.08 percent or higher.
If the officer meets the probable cause standard by obtaining and/or observing enough evidence that a driver is driving under the influence, the officer can lawfully arrest the driver on suspicion of driving under the influence. Once this happens, California’s Implied Consent law takes effect.
California’s Implied Consent law, codified in California Vehicle Code section 23612(a)(1)(A), “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”
Simply put, if you have a license and you drive in California, you have impliedly consented to submit to the chemical test after you have lawfully been arrested for a DUI, which can either be a breath test or a blood test. If the driver opts not to give blood, then they must provide a breath test. Conversely, if a person opts against the breath test, they must submit to the blood test.
So should you pass on the breathalyzer?
Pass on the roadside “PAS” test. Submit to the chemical test required under California’s Implied Consent law (See Breath or Blood Test After a California DUI Stop).
I’ve been saying and writing about it for years; breathalyzers are inaccurate. Now, The New York Times, in a bombshell report confirmed exactly that.
According to the report, “The Times interviewed more than 100 lawyers, scientists, executives and police officers and reviewed tens of thousands of pages of court records, corporate filings, confidential emails and contracts. Together, they reveal the depth of a nationwide problem that has attracted only sporadic attention.”
With so much at stake, including jail, you’d think that there would be more than mere “sporadic attention.”
Yet, the report found numerous inconsistencies with maintenance procedures of breathalyzer machines, inconsistencies within the machines themselves, and an over reliance on inaccurate data produced by breathalyzers.
In Colorado, for example, police had continued using a chemical solution that had long been expired when prepping the machines. The expired solutions caused inaccurate results. In another example, a former manager created his own chemical solution inconsistent with the standard chemicals used in the solution. In some instances, there were no standards on how to prepare and operate the machines.
The report also found that the manufacturing process of the breathalyzer machines also create inaccuracies. For example, testing revealed that some machines produced a result even though the software programed into the machine occurred. Some tests revealed that accuracy of reading was affected by external factors such as the temperature of a person’s breath, whether they’ve consumed breath mints, or whether they’ve recently brushed their teeth, to name a few.
Despite the known inaccuracies, breathalyzer machines continue to often be the deciding factor in a DUI conviction.
In 2013, the California Supreme Court held that, although breathalyzers are generally inaccurate, scientific evidence challenging the accuracy of breathalyzers in California is not admissible as evidence in DUI trials.
The holding comes from the 2007 DUI stop of Terry Vangelder. Vangelder was stopped for speeding in San Diego. Although having admitted to consuming some alcohol, Vangelder passed field sobriety tests. Vangelder then agreed to a preliminary screening alcohol test (an optional roadside breathalyzer) which indicated that Vangelder’s blood alcohol content was 0.086 percent. Based on that, Vangelder was arrested and transported to the police station where he submitted to a chemical breath test (a required post-arrest breathalyzer). This breath test showed a blood alcohol content of 0.08 percent. Vangelder then submitted to a blood test which indicated that his blood alcohol content of 0.087 percent.
At trial, Vangelder called Dr. Michael Hlastala, a leading authority on the inaccuracies of breathalyzers.
“They are (inaccurate),” Dr. Hlastala testified before the trial judge. “And primarily because the basic assumption that all of the manufacturers have used is that the breath that [is] measured is directly related to water in the lungs, which is directly related to what’s in the blood. And in recent years, we’ve learned that, in fact, that’s not the case.”
The judge however, did not allow the testimony and Vangelder was found guilty. Vangelder appealed and the appellate court reversed the decision in 2011. San Diego City Attorney, Jan Goldsmith, then appealed the appellate court decision arguing that such testimony would undermine California’s a per se law making it illegal to drive 0.08 percent blood alcohol content or higher.
Unfortunately, the California Supreme Court sided with Goldsmith.
“[T]he 1990 amendment of the per se offense was specifically designed to obviate the need for conversion of breath results into blood results — and it rendered irrelevant and inadmissible defense expert testimony regarding partition ratio variability among different individuals or at different times for the same individual,” Chief Justice Tani Gorre Cantil-Sakauye wrote for the court. “Whether or not that part of expired breath accurately reflects the alcohol that is present only in the alveolar region of the lungs, the statutorily proscribed amount of alcohol in expired breath corresponds to the statutorily proscribed amount of alcohol in blood, as established by the per se statute.”
The Court went on to say that, “Although Dr. Hlastala may hold scientifically based reservations concerning these legislative conclusions, we must defer to and honor the legislature’s reasonable determinations made in the course of its efforts to protect the safety and welfare of the public.”
Simply put, the California Supreme Court is willfully ignoring scientific evidence simply because the legislature was well-intentioned.
Although drivers can no longer challenge the accuracy of breathalyzers in general, a driver who has been arrested for a California DUI can still challenge the accuracy of the specific breathalyzer machine used on them.
In late August, a Montebello police lieutenant was taken into custody in San Bernardino County on suspicion of driving under the influence of drugs. He had previously been arrested on suspicion of driving under the influence of prescription drugs, although charges were never filed. The arrest serves as a reminder that someone can be arrested for a California DUI with drugs, both illegal and legal.
On August 21st, Montebello Police Lt. Christopher Cervantes, 47, was arrested after police believe he rear-ended another car in the city of Montclair.
Neither Cervantes nor the other driver were injured in the collision, Cervantes was booked on suspicion of DUI at the San Bernardino County Jail, and he was subsequently placed on paid administrative leave.
In 2015, Cervantes was arrested following a collision with a tree in Diamond Bar. Although he tested positive for a combination of pain-relieving prescription drugs acetaminophen, butalbital, codeine, and morphine, the Los Angeles County District Attorney’s Office declined to file charges citing a lack of evidence.
In 2011, Cervantes was detained after resisting arrest at a San Diego hotel party where he falsely claimed to police that he was a federal agent. Charges were never filed for this arrest either.
“I’m aware of everything in his personnel file and as I was the one who promoted him, I was confident that he was a great candidate for promotion to lieutenant,” said Montebello Police Chief Brad Keller. Cervantes was promoted by Keller after
Cervantes’s 2015 arrest.
As a high-ranking police officer, Cervantes should have been acutely aware that a person can still be arrested for driving under the influence of drugs, including prescription drugs. Many people, on the other hand, often believe that a DUI can only occur if a driver has alcohol in their system. Some people believe that a DUI can occur with only alcohol or illegal drugs, and because a drug might be legal, whether prescription or over-the-counter, a driver cannot get a DUI if they have legal drugs in their system.
California Vehicle Code section 23152 (f) states, “It is unlawful for a person who is under the influence of any drug to drive a vehicle.”
“Any drug” includes those that are illegal as well as legal, both prescription and over the counter.
The important consideration here is the phrase “under the influence.” Although, prescription drugs and other legal drugs fall within the definition of “any drug,” a person must also have his or her mental or physical abilities impaired to such a degree that he or she is unable to drive a vehicle with the caution of a sober person to be “under the influence.”
What kinds of medications can cause you to be under the influence? Tranquilizers, narcotic pain pills, sleep aids, antidepressants, cough medicines, antihistamines, and decongestants to name a few. And how might they cause you to be under the influence? Drowsiness, dizziness, nausea and vomiting, blurred vision, and confusion, to name a few. Kind of sounds like being drunk, doesn’t it?
A few years back, the AAA Foundation for Traffic Safety found that almost half of people 70 years old and above take up to five medications per day. Additionally, a survey from the foundation found that 72% of people 55 and over, the demographic most likely to take medications for chronic conditions, had no idea that their driving performance could be affected by their prescription medications.
Remember, a DUI does not just mean driving under the influence of alcohol, or even illegal drugs, but all drugs including prescription and over-the-counter drugs. If it is capable of affecting a person’s driving ability, then it’s best to wait until after a driving excursion is over.
If you’re anything like me, the speed with which technology is advancing is almost too much to keep up with. No doubt, while some technology is proving to be a detriment to society, like the diminishment of person-to-person interaction, other technology serves to benefit technology, like the various ways lives can be saved as a result of technology. Two law makers are hoping that new technology can stop drunk driving and save lives in the process.
Recall the post Can Alcohol Sensors in All Cars Eliminate Drunk Driving? where I discussed the prospect of introducing alcohol sensing technology into all new vehicles available for purchase.
Since then, as expected, alcohol sensing technology has advanced and Tom Udall, a democratic senator from New Mexico, and Rick Scott, a republican senator from Florida, have said in a recent interview with Reuters that they plan on introducing bi-partisan legislation making the technology a requirement for all new vehicles off the lot.
“This issue has a real urgency to it,” Udall said in an interview with Reuters. “The industry is often resistant to new mandates. We want their support but we need to do this whether or not we have it – lives are at stake.”
According to the National Highway Traffic Safety Administration (NHTSA), almost 30 people die in the United States as a result of drunk driving. In 2017, that amounted to 10,847 fatalities involving drunk driving.
The technology that Udall and Scott are referring to are devices implanted within a steering wheel or a push-button ignition that can detect the blood alcohol content of a driver through infrared lights shined through the driver’s finger tips. They are also looking at sensors that monitor a driver’s eye movement and breath. Whatever the method, should the technology detect a blood alcohol content higher than the legal limit, the driver will not be able to start their vehicle.
A similar bill has been introduced in the U.S. House of Representatives by Debbie Dingell, a Democrat, that would require setting rules for advanced vehicle alcohol detection devices by 2024.
The NHTSA has invested over $50 million spanning 10 years in similar technology to what Udall and Scott are seeking to implement. The technology is already undergoing limited field testing in Maryland and Virginia, according to Udall.
Earlier this year, Volvo announced plans to install cameras and sensors in its vehicles by the early 2020’s to monitor the driver for distractions, errors, and even drunk driving. And should the technology detect anything that could result in a collision, the vehicles internal system would limit the vehicle’s speed, alert the “Volvo on Call” assistance service, or slow down and parking the car.
Udall and Scott’s Reduce Impaired Driving for Everyone Act, or RIDE Act, can be read here.