Tag Archives: BAC
We often spend so much time talking about unique DUI-related topics, many of which discuss the complicated intricacies of DUI’s and DUI law, that we forget to go back and just remind our readers about the basics of a California DUI. Therefore, every so once in a while, I like to go back and just discuss the basics of a California DUI. Before I go any further, I’ll preface this post by saying that the below information is not for DUI’s where aggravating circumstances were present such as prior DUI convictions, collisions, injuries to third parties, an unusually high BAC, a refusal of a chemical test, and so on.
In order to be stopped and arrested on suspicion of a California DUI, officers need probable cause to believe that a person is driving under the influence. For an officer to have probable cause, they need to have reasonable and trustworthy facts that a person is driving under the influence. Officers obtain the probable cause needed to make a DUI arrest by observing poor driving patterns, observing signs of intoxication (slurred speech, smell of alcohol, bloodshot eyes), poor performance on field sobriety tests, and/or failure of a pre-arrest breathalyzer known as a “preliminary screening alcohol test” (PAS test).
A driver can limit the probable cause that the officers are looking for by taking steps to enforce their rights. If pulled over on suspicion of driving under the influence, the driver should not say anything to police except to invoke their 5th Amendment right to remain silent and request an attorney. The field sobriety tests are optional and should not be performed. See any of our numerous articles on the inaccuracies of field sobriety tests. Lastly, the PAS test is also optional and also should not be taken. By limiting the probable cause, the driver will give their defense attorney the ability to argue that the arrest was illegal because the officer did not have the required probable cause to make the DUI arrest.
I should note that a driver will likely still be arrested whether they take measures to protect their rights or not. Again, the purpose of protecting your rights is to help with the DUI defense in court, not to prevent an arrest. I repeat, the officers will almost always still make the arrest.
Once arrested, the driver will be required to submit to a chemical test which can either be a breath or a blood test. Do not confuse this test with the roadside breathalyzer (PAS) test. The PAS test is optional. The chemical test is required, but is only required after a driver is lawfully arrested.
After the driver is arrested, they will be held until they sober up and released with a court date. In the time between the arrest and the court date, the law enforcement agency will send its police report to the appropriate prosecuting agency to make the decision about whether to file charges.
If a DUI is charged, it will typically be under California Vehicle Code section 23152(a) and/or 23512(b). Simply put, Vehicle Code 23152(a) makes it illegal to drive while under the influence of alcohol and Vehicle Code 23152(b) makes it illegal to drive with a blood alcohol content of 0.08 percent or higher. If a person is arrested having been suspected of driving while under the influence of an intoxicant other than alcohol, they will likely be charged with California Vehicle Code section 23152(e).
The filing of charges triggers a criminal case in the appropriate courthouse. The court will schedule a hearing called an arraignment. At arraignment, the DUI suspect, who is now a DUI defendant, will enter a plea, be advised of their rights, and the charges pending against them.
Following the arraignment, there may be several or no pretrial hearings to allow the prosecutor and any defense attorney, either private or a public defender, to assess the merits of the case and negotiate a plea deal. A plea deal may include a reduction in charges to a “wet reckless,” “dry reckless,” or some other lesser charge. It may also include a reduction in sentence.
If no deal can be reached, the case proceeds to a trial where the prosecutor will have to prove to a jury beyond a reasonable doubt that the DUI defendant drove a vehicle either under the influence of alcohol, under the influence of a drug, or with a blood alcohol content of 0.08 percent or higher.
If the jury finds the person not guilty, the DUI defendant will suffer no legal penalties. However, if the finds the person guilty, they face a minimum of three years of summary probation, a fine between $390 and $1,000 plus penalties and assessments, and a three-month drunk driving program known as AB-541, and up to six-month in county jail. Other penalties that a defendant might face are a longer DUI program, a longer probationary period, a hospital and morgue program, a Mothers Against Drunk Driving Victim Impact Panel, AA meetings, and a SCRAM device (alcohol detecting anklet).
I’ve only scratched the surface of the basics of a California DUI, and I haven’t even mentioned the DMV consequences of a DUI arrest and/or conviction, which, by itself, could take up several stand-alone articles. See any number of previous posts about the DMV consequences of a DUI.
Needless to say, just the basics of a DUI are extremely complicated. Factor in other intricacies not mentioned here and it goes without saying that a person who has been stopped, arrested, and charged with a DUI should absolutely not try to take on the system by themselves. Hire a qualified and experienced DUI attorney who knows the process inside and out, and who will give you the best chance at a favorable outcome.
The Maui Police Department hope to be able to start enforcing their DUI laws in a more time efficient manner with the purchase and arrival of six new high-tech breathalyzers.
The current Intoxilyzer 8000 models have been used by the department since May 2015 and the introduction of the newer Intoxilyzer 9000s will hopefully allow the officers to spend less time documenting their tests results.
The new device is equipped with a touchscreen rather than a keyboard for easier data entry and its updated software will allow for some of the departmental forms to be incorporated into the device. This will allow the device to create reports rather than the officers manually typing out the reports as they did previously.
A grant totaling $63,000 through the state Department of Transportation allowed for the purchase of the new devices, and the Maui Police Department will be the first department in the state to transition to the Intoxilyzer 9000. The Honolulu Police Department also hopes to soon make the same transition.
DUI Task Force Sergeant Nick Krau has been tasked with the training as well as the writing of policy and operating procedures for the Intoxilyzer 9000 that will eventually be reviewed by the state Department of Health before being distributed. Official training and use of the new devices will take place soon thereafter.
A total of twelve officers, coming from multiple islands, spent time at a two-day training course at the Kihei Police Station in order to familiarize themselves with the new devices. The attending officers will be the ones primarily training other officers.
According to Lieutenant William Hankins, the commander of the police Traffic Section, “The technology is still the same as far as how it analyzes breath readings. It just makes it easier for the officers. Everything’s going to be faster.”
Six devices may not seem like a lot for an entire police department. however, these are not the same devices that patrol officers will have out on the street. The new Intoxilyzer 9000 devices will be analyzing results after the preliminary tests are administered and are to become the tests that are admissible in court.
Each police station in Maui County will have a new Intoxilyzer.
“We always strive to have the most updated technology possible for our officers and our community. It will allow us to get our officers back on the road faster,” said Krau.
I hope that the state departments and various police department heads do their very best to make sure that statement rings true.
A quick Google search revealed that the Intoxilyzer 9000 series has been in circulation as early as 2013. Some of the first states to implement the new model were Georgia and Colorado. Texas made a slower transition as there where a few deficiencies with the device that became apparent after other states had already begun using it but aimed for full implementation in 2015.
Although not quite as new and novel as Krau made it out to be, Hawaii’s implementation of the Intoxilyzer 9000 might signify an emerging trend of modernizing breathalyzers. Perhaps they were merely waiting for all of the deficiencies of the earlier 9000 series to work themselves out.
According to the Florida DMV website, “Driving under the influence (DUI) is defined as operating a motor vehicle while impaired with a blood alcohol content (BAC) of 0.08% or higher, a chemical substance, or a controlled substance. Those under 21 years old will be charged with a DUI if their BAC is 0.02% or over and commercial drivers will be charged if their BAC is 0.04% or over.”
The term “motor vehicle” is used by most states and has a wide range of interpretations. In previous posts, we have covered DUI for unusual vehicles such as drones and electric scooters. Well, another “vehicle” has popped up in the news that made me question the thought processes of man; a lawnmower. Yes, that’s right, a lawnmower. Granted, it wasn’t one that you pull the string to get the motor going and push across your lawn. It was a larger type that you sit on and “drive” across your lawn and one that actually had a trailer attached to it, but still, what need would one have to drive it in a parking lot?
I get it. If my neighbor Farmer John needed to borrow my John Deere tractor, someone may drive it across the street to his farm, but I’ll say it again, a lawnmower?
What’s more, the man was caught because he ran into and damaged a police car!
On May 4, a police officer had parked his police cruiser in a parking lot in Haines City, Florida, and stepped inside a nearby business to deal with a dispatch call when he heard a loud noise outside of the business. The officer stepped outside to check the situation to find Gary Anderson, 68, sitting atop of a lawnmower with a trailer containing a cooler. Although he admitted to hitting the patrol car, he denied causing any damage to it. However, upon inspection, the officer saw that there was some damage to the bumper of the cruiser.
Anderson admitted to having “consumed a pint of wine prior to the crash.” The officer conducted field sobriety tests, which Anderson failed. According to the affidavit, Anderson “almost fell to the ground multiple times while walking and standing.” While in custody, Anderson’s demeanor changed from jovial to belligerent with foul language and racial slurs. After a while, he started to accuse the police of poisoning him and asked to be taken to a hospital. Tests were done at the Heart of Florida Regional Medical Center, where results showed Anderson of having a 0.241 percent blood alcohol content, approximately three times the legal limit. The blood tests also revealed cocaine in his system. Anderson, however, accused the officers of poisoning him with the cocaine.
According to one source, Anderson had been convicted of DUI twice within the last 10 years and was charged with a third DUI in 10 years and refusing to submit to a chemical test. However, other sources say his most recent charge was back in 1987. This discrepancy can make a huge difference. According to the Florida Vehicle Code, if Anderson’s third conviction is within 10 years of a prior conviction, then there is a mandatory jail sentence of at least 30 days. If his conviction is more than 10 years of a prior conviction, then imprisonment is for not more than 12 months. Not only is there a difference in possible jail time, if the third DUI is within 10 years of a prior conviction, then Anderson is possibly guilty of committing a third-degree felony.
Anderson was held in jail in lieu of $3,000 bail.
“I’m proud of the professional demeanor our officers showed when dealing with this heavily-intoxicated, belligerent offender,” Haines City police Chief Jim Elensky said in a statement. “It’s never a good idea to get behind the wheel drunk, even if that wheel is to a Craftsman, Massey Ferguson or John Deere.”
The New York Legislature last month voted to lower the blood alcohol limit allowed while hunting to match the threshold for the blood alcohol content someone can have while driving.
On March 26th of this year, the New York Assembly voted 147 – 1 to amend the law that previously outlawed hunting in the state with a blood alcohol content of 0.10 percent or higher. The following day, the New York senate voted 56 – 5 to amend the law. Under the amended law, hunters cannot have a blood alcohol content of 0.08 percent or higher, matching blood alcohol content limit while driving in most states, including California (Utah just became the first state to lower its blood alcohol content limit to 0.05 percent).
Under the new law, hunting with a blood alcohol content of 0.08 percent or more is a misdemeanor and carries a fine of up to $500, up to a year in jail, and a revocation of a person’s hunting license for two years. Additionally, licensed hunters who refuse to submit to a breath or other test for intoxication can also have their licenses revoked.
“These changes were based in part on studies which determined that this level of alcohol in an individual’s bloodstream can result in substantially impaired motor skills, perception and judgment,” Assemblyman Kenneth Zebrowski wrote in his sponsor’s memo. “These are also critical skills used in hunting.”
In California and other states, DUI laws generally include prohibitions against both driving with a per se blood alcohol limit of 0.08 percent or higher (or 0.05 percent or higher in Utah) and driving while under the influence (or some other iteration like “driving while intoxicated” or “operating under the influence”).
The purpose for this is that nobody should be driving while actually under the influence, meaning that they cannot drive like a reasonable and sober person would. And, as Mr. Zebrowski stated, at a 0.08 percent, studies have shown that the motor skills of individuals, albeit very subjectively, are affected to a degree that might impair driving.
Like Zebrowski, lawmakers who approved of New York’s new limit expressly cited the risk of injury and death.
“An individual who is too intoxicated to drive a car or pilot a boat is also unfit to engage in hunting and the increased risk is not only to the hunter, but to everyone else in the field,” Zebrowski, a Rockland County Democrat, wrote. “This bill would ensure a consistent standard for intoxication in state law.”
Sure, it sounds like they’re considering driving with a blood alcohol content limit of 0.08 percent just as dangerous as shooting a gun with a blood alcohol content limit of 0.08 percent or higher. But are they really?
Let me get this straight. It is illegal to shoot a gun and drive with a blood alcohol content of 0.08 percent or higher. Fine. However, it is also illegal to drive a vehicle while “under the influence” regardless of what a person’s blood alcohol content is. Yet, a person can shoot, say a semi-automatic rifle, if they are “under the influence,” but not necessarily above a 0.08 percent.
Let me give an example. Take a person weighing less than a hundred pounds who has never had a sip of alcohol before in their life. If they have a couple of beers, they may not be above a blood alcohol content of 0.08 percent, but they’re certainly going to be “drunk” or “under the influence.” New York is telling them, “Sure, go shoot that gun, but don’t you dare drive.”
It seems to me, and I would hope others would agree, that using any firearms with any alcohol seems patently dangerous, and certainly more dangerous than driving a vehicle. Not that I’m saying it’s safe to drive with alcohol in your system. Neither are safe. But if lawmakers are using a driving under the influence as a measuring standard for how they draft other laws, then it should actually be equal at a minimum, if not more restrictive for more dangerous activities. Or is this just another example of the overzealous vilification of DUI’s?
New York’s new law becomes effective September 1st.
Maine Supreme Court Affirms DUI Conviction Even Though Science Suggests Defendant was Involuntarily Intoxicated
Apparently, some high courts in this country don’t care whether science can show a person is innocent.
Earlier this month, the Maine Supreme Court denied the appeal of a man who sought to introduce the testimony of a medical expert at trial that he suffers from auto-brewery syndrome.
Believe it or not, there is a rare medical condition that causes a person to “brew” alcohol within their body causing them to become intoxicated even though they haven’t had a sip of actual alcohol; hence the name, “auto-brewery syndrome.”
If you know how beer is made, you’ll know that yeast is added to grain extract (which is essentially sugar). When the yeast eats the sugar, it releases carbon dioxide (which creates the carbonation in beer) and alcohol (which gives beer its intoxicating effects). This process is known as fermentation. A person with auto-brewery syndrome produces unusually high levels of yeast in their gastrointestinal tract which, in turns, eats the sugars that a person ingests creating both carbon dioxide and alcohol in the person’s system even though they haven’t actually ingested any alcohol. In some instances of auto-brewery syndrome, the production of alcohol is so much that it can actually cause a person to become legally intoxicated!
I think you can see where I’m going with this. John Burbank claimed to be such a person afflicted with this rare disorder when he was arrested on suspicion of a DUI in 2016 because his blood alcohol content was 0.31 percent, almost four times the legal limit. In preparation for trial, Burbank sought to introduce an expert who would have testified that he suffered from this condition and that the condition caused him to become intoxicated through no fault of his own.
The trial court judge, however, denied the introduction of Burbank’s expert. And without the expert’s testimony, Burbank opted to plead no contest and filed an appeal challenging the denial of the expert’s testimony.
The Maine Supreme Court concluded that the trial court was correct in not allowing the expert to testify, thus affirming Burbank’s DUI conviction.
The Maine Supreme Court justified its conclusion by saying that, although the expert was a P.h.D. in toxicology and physiology, she was merely basing her opinions several articles regarding the condition, but that she, herself, had not worked directly with cases of auto-brewery syndrome or with Burbank and his condition. Additionally, the court pointed out, that Burbank’s symptoms were different than those who were the subjects of the articles that the expert was relying on.
Bear in mind that auto-brewery syndrome is extremely rare with far less available research and knowledge about it than many other conditions.
The court went on to say that the denial of the expert’s testimony did not amount to a denial of Burbank’s constitutional right to present a defense because, according to the justices, the denial was a “reasonable restriction.”
I don’t know about you, but this sounds like an unreasonable restriction to me. In law, for expert testimony to be admissible, it must be relevant and reliable. It is relevant because it could show that Burbank did not choose to become intoxicated when he drove. The law should not and, in most cases, does not punish people for things they cannot control. The law should only punish people who, through voluntariness and free will, engage in criminal conduct. And it is reliable because, while the expert may not have specific knowledge as to Burbank’s auto-brewery syndrome, it is nonetheless a legitimate and recognized medical condition, albeit with little research on it because of its rarity. People with rare conditions should not be disadvantaged and punished merely because their condition is rare, which is exactly what the Maine Supreme Court is doing.
What’s more, the concurring justice concluded that the defense of involuntary intoxication should not be allowed in DUI cases because “it may invite many ‘I didn’t know there was vodka in my orange juice’ or similar defenses to [DUI]…charges.”
So what?! So what if it invites future defenses? If it is a plausible defense to a crime for which the government can take away someone’s freedom, a defendant should be allowed to assert it. It’s their life on the line, not the judges. And pardon me, but I thought it was the jury’s job to determine if a defense is true or not. If the jury had heard the expert testimony, but still concluded that Burbank did drink and drive, then so be it. At least he was provided the opportunity to defend himself.
What’s next? Courts not allowing an alibi defense because it could invite many “I was somewhere else” defenses?
[October 28, 2019]
Another case of auto-brewery syndrome has appeared in the news, and this time, the courts took it seriously. Read about it more here: https://ktla.com/2019/10/25/north-carolina-man-pulled-over-for-dui-said-he-hadnt-been-drinking-researchers-found-his-body-produced-alcohol/