Category Archives: Duiblog
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 5th 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.
Drowsy driving is a term used to describe driving while sleepy or fatigued. Drowsy driving usually happens when a driver has not slept enough. However, in some cases, drowsy driving can be the result of a sleep disorder, medications, or being overworked. Drowsy driving is a significant problem — the risk, danger, and sometimes tragic consequences of drowsy driving are especially concerning. In fact, studies have shown that going too long without sleep can affect your ability to drive the same way that drinking too much alcohol can lead to impairment. According to some studies, being awake for 24 hours is akin to having a blood content (BAC) of 0.10 percent, which is above legal limit of 0.08 percent in all states except Utah (which is 0.05 percent). When a driver is tired, reaction times, awareness of hazards, and the ability to pay attention lower and traffic collisions are more likely.
In a report by the National Highway Traffic Safety Administration (NHTSA), every year, there are about 100,000 crashes involving drowsy driving reported to the police. Other studies suggest the numbers to be higher than 300,000. In the same report, drowsy driving crashes were reported to result in more than 1,550 fatalities and 71,000 injuries.
Characteristics of Drowsy Driving
Signs of fatigue can be hard to identify. However, drowsy drivers can exhibit the some of the same physical symptoms as impaired drivers, which can include sleepiness, dizziness, irritability, slowed reflexes and responses, and impaired decision-making and judgment. As such, a drowsy driver, much like a drunk driver, might swerve, drift into other lanes, miss traffic signals, or unintentionally violate other traffic laws. Similarly, a drowsy driver can also show signs of physical impairment like red or watery eyes and slurred speech. As the result of fatigue, some people also experience “micro-sleep,” which involves short, involuntary periods of inattention.
It goes without saying that distracted driving can be very much like driving under the influence, and certainly can be as dangerous. It is easy to see how and why an officer might mistake a drowsy driver for a drunk driver.
Consequences of Drowsy Driving
People get pulled over for drowsy driving because it resembles drunk driving, but can a driver get a DUI for drowsy driving? The answer is no, unless drugs (prescription, illicit, or recreational) or alcohol cause the drowsiness.
When drowsy driving leads to reckless driving, a driver can be arrested, charged and convicted of California Vehicle Code section 23103. Under the law, a person who drives in “willful or wanton disregard for the safety of other people or property” can be charged with misdemeanor “reckless driving.” Driving while drowsy or fatigued can certainly qualify as driving in willful or wanton disregard for the safety of others, even if it doesn’t involve alcohol or drugs.
Drivers convicted of reckless driving will be punished by up to 90 days in jail or by a fine of up to one $1,000, or by both that fine and imprisonment.
If a driver injures someone while driving recklessly in California, they can be subject to California Vehicle Codes sections 23104, which can result in a minimum of 30 days in jail, up to six months in jail, and up to a $1000 fine. Under section 23105, f the reckless driving results in “certain injuries” including loss of consciousness, concussion, or bone fracture, a driver can face a felony conviction resulting in up to three years in jail.
In 2003, the New Jersey legislature enacted a law known as “Maggie’s Law.” The bill, named after a young college student, Maggie McDonnell, who died after a tired driver collided with her car, intended to make drowsy driving a crime under the state’s existing vehicular manslaughter framework. The other driver had not slept for 30 hours and fell asleep at the wheel. The state charged him with vehicular homicide, but because fatigued driving was not a crime, he was acquitted and fined only $200. Vehicle manslaughter can apply if a driver has been awake for more than 24 hours, gets behind the wheel, and causes a fatality. Other states have followed suit in cracking down on distracted driving.
In California, a driver who acts negligently while driving, commits a traffic violation, and kills someone as a result, is subject to vehicular manslaughter charges. Drowsy driving is negligent and can certainly cause a driver to engage in a traffic violation, such as running a red light, or possibly collide with a pedestrian while running that red light. Drowsy drivers who kill as a result of their drowsy driving are subject to up to six years in jail and up to $10,000 in fines.
Drowsy drivers who cause traffic collisions can be civilly liable for all damages incurred in the crash. Civil liability can include expenses to fix the other vehicle, medical expenses for injuries, or lost wages.
No one person is immune from fatigue; in fact, many drivers admit to having driven while too tired. It is essential to recognize the signs of drowsy driving and try to mitigate them. Every driver owes a responsibility to other drivers on the road, and the best way to honor that responsibility is to drive carefully and stay off the road if too tired.
DUI convictions can have severe consequences for anybody, but for drivers with a commercial driver’s license, a DUI can also result in the loss of his or her livelihood. Commercial drivers operate large, cumbersome, and oftentimes dangerous vehicles and payloads. For this reason, the federal government, states, and interstate agencies have enacted laws specific to commercial drivers to ensure that the roads stay as safe as possible.
An accident involving a semi-truck last year illustrates why driving under the influence, especially while operating commercial vehicles, is so very dangerous and can have deadly consequences. A truck driver crossed a double-yellow line on a highway in rural New Hampshire while high on drugs and claimed he was reaching for a drink just before causing a collision which killed seven motorcyclists. The driver of the truck was a young man, who had a dubious driving record and is now fighting seven negligent homicide charges.
What is a Commercial DUI:
Drivers who operate commercial vehicles require special driving licenses, known as a commercial driver’s license (CDL). Commercial vehicles can include large semi-trucks with weights of up to 26,000 pounds or smaller vehicles like buses, tanks, or large trailers. The nature of commercial driving is often times very dangerous and for that reason, the legislature lowered the blood alcohol content (BAC) threshold for commercial drivers to be DUI.
In California, it is unlawful for a person who has a BAC of 0.04 percent or more of alcohol in his or her blood to drive a commercial motor vehicle. For non-commercial drivers, the blood alcohol content limit, as you may know, is 0.08 percent (0.05 percent in Utah). If a driver is above the threshold, they can be convicted of a DUI. They need not be impaired by the alcohol.
Additionally, a driver, regardless of whether they are commercial or not, can also be convicted for DUI if they are “under the influence” of drugs or alcohol, or a combination of both. A driver is considered “under the influence” if his or her mental or physical ability is so impaired that he or she cannot drive with the same caution and care that a sober driver would exhibit in similar driving conditions.
Penalties & Consequences of Commercial DUI:
Commercial license holders who are convicted of a DUI face all of the regular penalties that non-commercial drivers face for a DUI, which can, at a minimum, include probation, fines/fees, a DUI program, and a suspension of regular driver’s license. However, drivers who hold CDL licenses are also subject to a minimum one-year suspension of their commercial license. In some situations, like commercial drivers of hazardous materials, the suspension can be up to three years. If a CDL holder is convicted of DUI or refuses to be tested for a second separate incident, the CDL license can be revoked for life.
Interestingly, a person who has a CDL will lose the CDL if they are convicted of a DUI regardless of whether he or she was driving a commercial motor vehicle (and was either 0.04 percent BAC or higher, or was “under the influence”) or a regular, non-commercial vehicle (and was either 0.08 percent BAC or higher, or was “under the influence.”).
In other words, if a commercial driver is driving their commercial vehicle, and are convicted of a DUI because they were either at least 0.04 percent BAC or were “under the influence,” they will their CDL for at least a year.
Additionally, if a commercial driver is driving their regular, non-commercial vehicle, and they are convicted of a DUI because they were either at least 0.08 percent BAC or were “under the influence,” they will still lose their CLD for at least a year.
Getting a CDL Back:
If the circumstances warrant, some states will allow a driver to obtain a “restricted CDL,” with varying eligibility standards amongst those states. Other states do not allow restricted CDLs.
Some states, like California, do not provide for a restricted CDL, but allow the driver to downgrade to a non-commercial driver’s license and get a restricted license to drive a non-commercial vehicle, which allows the driver to go to and from work (other than as a commercial driver); drive themself and dependents to medical appointments, and transport dependents to and from school (if no public transportation is available). Generally, a commercial driver is eligible to downgrade to a non-commercial license if they haven’t had another violation in the last ten years, submitted to a BAC test, were at least 21 years old during the time of the DUI, and do not have a suspended license for a reason other than DUI, they may qualify for a restricted license to drive a non-commercial license. Other requirements include obtaining proof of insurance (“SR-22 Certificate of Financial Responsibility”), enrollment in a DUI program, and may include installation of an ignition interlock devise (IID).
If a state does allow reinstatement, generally, in order to have the CDL reinstated, a driver will need to wait out the entire suspension period, pay reissue fees, retake and pass the CDL driving tests, and take any court-ordered classes.
Whether a CDL can be reinstated after a lifetime disqualification, will also largely depend on the state where the CDL was issued. Federal law provides that a state may reinstate a commercial driver disqualified for life for DUI offenses after 10 years, if that person has voluntarily entered and successfully completed an appropriate rehabilitation program approved by the State. Unfortunately, in many states, like California, a lifetime disqualification truly means that a driver will never be allowed to hold a CDL from that state again.
On a final note, commercial DUI, like regular DUIs, is a criminal offense and as such, the driver is presumed innocent until proven otherwise. As is the case for all criminal cases, the prosecutor has the burden of proving to a jury, beyond a reasonable doubt, that the driver was DUI using the standards mentioned above. A good DUI defense attorney can go toe-to-toe with the prosecutor and perhaps, just perhaps, save a person’s CDL.
Undoubtedly, the primary purpose of DUI laws is to keep the public safe from intoxicated or otherwise impaired individuals from driving their motor vehicles on roads. When most of us envision a DUI stop take place, we envision someone getting pulled over in a sedan, or an SUV, or perhaps a minivan. But there are less obvious, some even absurd, ways of being cited for a DUI that don’t even involve driving an actual vehicle. While this might seem strange, the purpose of DUI laws – to keep the public safe – doesn’t change whether a person is on a golf cart, a Zamboni, or a horse.
One unusual way to get a DUI is by driving a golf cart under the influence. Many golf carts are battery-powered. Accordingly, there is an argument that they should be treated differently than standard motor vehicles for DUI purposes. However, the State of California disregards this argument. It applies DUI laws to any form of vehicle that can be propelled on a highway, except vehicles which are exclusively human powered. Therefore, under California’s definition, DUI laws apply to golf carts. Importantly, it does not matter if a golf cart driver is oblivious to the fact that it is possible to get a DUI while driving a golf cart. This is problematic because golf custom leads golfers to believe that operating a golf cart after drinking a few beers is normal. Although enforcement is less prevalent on golf courses, impaired golf cart drivers should understand that the possibility of a DUI exists.
Ice hockey fans are familiar with a “vehicle” commonly known as the Zamboni. For those unfamiliar, a Zamboni is used to resurface the ice floor at hockey games. Only a select few individuals have the pleasure of operating a Zamboni. They too should be cautious that operating this “vehicle” under the influence could result in a DUI. In 2015, a Fargo, North Dakota Zamboni driver was arrested on suspicion of driving a Zamboni while intoxicated. The full story can be found at: http://www.cbssports.com/nhl/news/fargo-zamboni-driver-arrested-on-suspicion-of-dui Even though the Zamboni driver was not driving on a public street, North Dakota’s broad DUI laws still applied.
The two scenarios above make at least some sense considering that golf carts and Zambonis are, at a minimum, vehicles with mechanical motors. Nobody wants to be run over by a golf cart in the middle of their backswing, and nobody wants their child to witness a Zamboni driver running into the wall of an ice hockey rink. But, what if your transportation method does not involve a motor vehicle at all, can you still be cited for DUI? In some states, the answer is yes.
In places like Texas, where riding horses is commonplace, people can be arrested, charged, and convicted of a DUI for riding a horse while under the influence. For instance, two Texans were arrested in 2011 for riding a horse and a mule down a street while intoxicated. They were charged with DUI, although the charges were subsequently reduced to public intoxication. Regardless, the possibility still exists that riding a horse or mule in Texas (and in other states) while intoxicated can result in a DUI.
In 2017, a 53-year-old Florida woman was charged with drunk driving for riding a horse down a highway with a 0.16 BAC. Clearly, she was putting herself, the horse, and others on the highway in danger by riding a horse in such an intoxicated state.
In South Carolina, a 25-year-old woman was driving a Power Wheels electric toy truck at a whopping five miles per hour while intoxicated. A video of the incident can be seen at www.usatoday.com/story/news/nation/2019/06/20/megan-holman-driving-toy-truck-drunk-arrested-south-carolina/1519018001. The woman told law enforcement officers that she was driving the toy truck as part of a scavenger hunt. She miraculously avoided a DUI conviction even though the toy truck had a battery in it (similar to a golf cart). But, she was eventually charged with public intoxication. Nonetheless, this incident demonstrates that, while charges may eventually get dropped or dismissed, police can and will still arrest someone for a DUI even on something like a Power Wheels toy truck.
Individuals must remember that law enforcement officers can arrest on suspicion of a DUI for unexpected reasons like driving a golf cart under the influence, or Zamboni under the influence, or even riding a Power Wheels under the influence. While it might not necessarily seem fair to some that law enforcement officers can issue DUI tickets for all these seemingly harmless actions, individuals must still be aware that there are, in fact, risks associated with performing these uncommon methods of transportation while intoxicated. However, when individuals are engaged in particularly risky behavior like riding a horse down a highway while intoxicated, law enforcement officers are less inclined to look the other way. In fact, officers can be more likely to take notice and be forced to take action against the person.