Tag Archives: BAC
An Indiana man was recently arrested on suspicion of driving under the influence. It was later discovered that he was on his way to the Indianapolis airport. The man, identified as Robert Harris III, is a commercial pilot.
According to police, Harris’ eyes were bloodshot, his speech was slurred, and he had trouble with coordination. In fact, according to court documents, field sobriety tests could not be completed because Harris almost fell over while trying to walk. It was later determined that his blood alcohol content was 0.29 percent.
It is unclear if Harris was scheduled to fly that evening and the airline for which Harris was employed refused to comment on the matter.
While federal regulations require that pilots follow an 8-hour “bottle to throttle” rule, some airlines require a 12-hour period between a pilot’s last drink and flight. Also, according to the Federal Aviation Administration, a pilot must report an alcohol-related conviction, suspension, revocation, and/or failed breath test within 60 days.
Since federal aviation regulations do not require a person to hold a driver’s license to fly a plane, the arrest and a subsequent conviction for driving under the influence does not necessarily preclude piloting aircraft following the arrest and/or conviction.
“The FAA (Federal Aviation Administration) does not hesitate to act aggressively when pilots violate the alcohol and drug provisions of the Federal Aviation Regulations,” said FAA spokesperson Elizabeth Cory. “Airlines are required to have random testing programs in place.”
“The FAA evaluates these cases on an individual basis, which could affect the pilot’s certificate eligibility,” said Cory.
Not surprisingly, this did not settle well with Mothers Against Drunk Driving (MADD).
“I would have assumed the FAA would have similar sanctions to the state of Indiana and withholding their license to operate a motor vehicle whether that’s a plane or car,” said MADD spokesperson Lael Hill. “It’s a little bit concerning knowing someone accused of a crime and is allegedly drinking and driving and could have their driver’s license taken away and not their pilot’s license or certificate.”
Hypothetically, had Harris had been on his way to the airport to fly, what would have happened had he flown an airplane under the influence?
First off, the California Vehicle Code does not apply to aircraft. Rather, crewmembers of civil aircrafts, including pilots, are governed by the FAA. Title 14 of the Code of Federal Regulations section 91.17 states that, “no person may act or attempt to act as a crewmember of a civil aircraft within 8 hours after drinking alcohol, while under the influence of alcohol, while using any drug that affects the person’s faculties in any way contrary to safety, or while having an alcohol concentration [BAC] of 0.04 or greater in a blood or breath specimen.”
Furthermore, the FAA requires random alcohol screenings of pilots and are subject to an implied consent law similar to California’s DUI implied consent law.
Similarly, California Public Utility Code section 21407 reads, “It is unlawful for any person to operate an aircraft in the air, or on the ground or water in a careless or reckless manner so as to endanger the life or property of another. In any proceeding charging operation of aircraft in violation of this section, the court in determining whether the operation was careless or reckless shall consider the standards for safe operation of aircraft prescribed by federal statutes or regulations governing aeronautics.”
California penalties for a first time FUI include a county jail sentence of 30 days to six months, and/or a fine of $250 to $1,000. Federal penalties, on the other hand, are far more severe and can include up to 15 years in federal prison and up to $250,000.
Considering purchasing a personal breathalyzer? I’ve suggested it before as one of several ways to help prevent a DUI. What if knowing your blood alcohol content was a simple as slapping on a temporary tattoo? Well, researchers at the Center for Wearable Sensors at the University of California San Diego have created a removable electronic tattoo that detects the wearer’s BAC.
A team of researchers at the center were interested in a device that offered continued BAC monitoring which typical breathalyzer do not offer. The researchers also wanted to develop a BAC detector that could not be skewed by factors other than blood alcohol such as mouthwash, acid reflux, or alcohol residue in the mouth all of which affect typical breathalyzers.
The tattoo is similar to other devices sometimes mandated by the court as a condition of a California DUI sentence or a condition of being release without having to post bail pending the outcome of a California DUI case. At least in Southern California, the device is called a SCRAM device which passively tests “insensible” sweat, or trace amounts of sweat, excreted from a person’s skin. The SCRAM device is rather bulky and can be relatively expensive.
The tattoo, however, emits a drug called pilocarpine, which generates sweat. The tattoo then tests the sweat excreted from the skin as a result of administration of the pilocarpine for ethanol alcohol through sensors which are attached to the skin. However, unlike the SCRAM device, the temporary tattoo and sensors are attached to a flat, flexible circuit board that is about an inch in length. The circuit board then transmits the information to the wearer’s phone via Bluetooth.
One of the project scientists and professor of nanoengineering, Joseph Wang, has said that the tattoo device could be made even smaller than its current form with continued engineering. He added that, unlike the SCRAM device, the tattoo could cost a mere pennies to produce.
“We developed a new tattoo-based wearable alcohol sensor that enables real-time monitoring of blood alcohol level, overcoming limitations of conventional non-invasive alcohol sensors,” said Jayoung Kim, a co-author and PhD student at UCSD.
The tattoo comes at a time when law makers and law enforcement agencies are actively seeking more reliable and efficient ways to detect blood alcohol content.
Earlier this year, the National Institute on Alcohol Abuse and Alcoholism, which is part of the National Institute of Health, awarded $200,000 to San Francisco-based BACtrack for developing a bracelet-type device as the winner of its Wearable Alcohol Biosensor Challenge. BACtrack has produced a number of personal breathalyzers for consumer use.
Keith Nothacker, BACtrack’s founder and chief executive officer, said that the firm is working on bringing the winning sensor, called “Skyn,” to the consumer market for around $99 and offer a version that is integrated into a band for the Apple watch.
In a press release, Joseph Wang said that the primary purpose for developing the BAC-detecting temporary tattoo was to prevent drunk driving.
“Lots of accidents on the road are caused by drunk driving. This technology provides an accurate, convenient and quick way to monitor alcohol consumption to help prevent people from driving while intoxicated,” Wang said.
Hopefully soon the temporary tattoo will be available for consumer use. And maybe the BAC detecting tattoo will prevent, not just drunk driving, but also someone from getting so drunk that they get a real tattoo that they might regret the next morning.
When it comes to a California DUI, sentence there is a difference between driving drunk and driving really drunk.
It is not uncommon for a person to be caught driving drunk with a blood alcohol content of more than 0.15 percent. Unfortunately, it is also not uncommon for a person to be caught driving drunk with a blood alcohol content of more than 0.20 percent.
When this happens, in addition to being charged with the normal California DUI charges under California Vehicle Code section 23152 (a) and 23152(b), the prosecutor will also include what is known as a “special allegation” in the complaint. As a result of the “special allegation,” the person arrested for a California DUI is now actually facing increased penalties.
California Vehicle Code section 23578 sets forth the special allegation when a person’s blood alcohol content is 0.15 to 0.19 percent.
“In addition to any other provision of this code, if a person is convicted of a violation of Section 23152 or 23153, the court shall consider a concentration of alcohol in the person’s blood of 0.15 percent or more, by weight, or the refusal of the person to take a chemical test, as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation.”
In my experience, there are a number of common enhanced penalties that a prosecutor seeks when there is a special allegation that a person’s BAC was 0.15 or more. Those enhancements include, but are not limited to, a longer DUI program, AA meetings as a condition of probation, AA meetings as a condition of being released on their own recognizance pending the outcome of their case, MADD’s Victim Impact Panel, and/or a Hospital and Morgue Program.
When a person’s blood alcohol content is 0.20 percent or more, California Vehicle Code section 23538(b)(2) provides:
“The court shall refer a first offender whose blood-alcohol concentration was 0.20 percent (.20%) or more, by weight, or who refused to take a chemical test, to participate for at least nine (9) months or longer, as ordered by the court, in a licensed program that consists of at least 60 hours of program activities, including those education, group counseling, and individual interview sessions described in Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code.”
Although section 23538(b)(2) specifically mentions a 9-month DUI program (called AB1353), there’s a good chance that the prosecutor will be pushing for an 18-month program (called SB38). The longer DUI program would be in addition to any of the other increased penalties I mentioned above.
When a California DUI case includes special allegations such as these, it is important and especially advantageous to the DUI-arrestee that an experienced California DUI attorney not only fight the underlying DUI charges, but the special allegations as well.
Most people who are convicted under California’s DUI laws will receive probation. One of the most common questions I get from my clients during DUI sentencing is, “What does probation consist of?”
Generally speaking, probation is supervision for a specified period of time, during which a person must satisfy specific conditions. Probation can be either formal or informal. Formal probation requires that a person periodically report to a probation officer who supervises the probationary period. Informal probation, on the other hand, is almost always given for a misdemeanor California DUI conviction and does not require a person to report to a probation officer. Rather, a person on informal probation agrees to complete the conditions on their own and without the supervision of a probation officer.
Depending on the circumstances of the case, a person convicted of a California DUI is usually given between two and five years of informal probation. A person convicted of a California “wet-reckless” may be given two years of probation while a person who has been convicted of a second or more DUI within ten years may be given five years of probation.
During the probationary period, a person convicted of a California DUI must complete “conditions of probation.” If the person fails to complete the conditions of probation, they will be charged with a probation violation. If a person is convicted of a probation violation, the court has the authority to (although rarely does) sentence the person to the maximum allowable punishment by law for a DUI. In California, the maximum sentence when probation is granted is six months in jail and a fine of $1,000 (not including court penalties and assessments which usually quadruple the amount).
So what are some of the conditions that the court requires following a California DUI conviction?
First and foremost, stay out of trouble. This means do not pick up any other convictions, either misdemeanor or felony, during the probationary period. This does not include infractions.
The court will also require that a person enroll and complete a DUI program. The length of the program can range between twelve hours and thirty months. Information on the different types of programs can be found on my last post: http://ltduiblog.wpengine.com/2014/10/06/how-long-do-you-have-to-attend-a-dui-program/
Fines ranging between $390 and $1,000 must also be paid by a certain date set by the court within the probation period. As stated above, this amount usually quadruples after the court tacks on “penalties and assessments.”
The court will order the driver’s license suspended independent of any action taken by the California DMV. The length of the suspension will range from six months to four years.
California Vehicle Code section 23154(C)(1) requires that a person on probation for DUI “who drives a motor vehicle is deemed to have given his or her consent to a preliminary alcohol screening test or other chemical test for the purpose of determining the presence of alcohol in the person…”
California Vehicle Code section 23600 prohibits anyone who on probation for a California DUI from driving with any measurable amount of alcohol in their system. This means that a person cannot even have a blood alcohol content level of 0.01. If a person on probation violates this law and has a blood alcohol content level of 0.04 percent or more, their probation will be revoked unless they spend at least two days in county jail.
The court may also order the installation of an ignition interlock device (IID) as a condition of probation. Some counties, including Los Angeles, require an IID be installed on any vehicle to be driven by the person on probation.
If the case involves aggravating facts such as a high BAC or an accident, the court may require the person to attend Alcoholics Anonymous meetings, a Mothers Against Drunk Driving Victim Impact Panel, or a Hospital and Morgue Program.