The California DUI-Triggered License Suspension

Friday, April 13th, 2018

Without a doubt, one of the most confusing aspects of a California DUI case is how the DUI arrest and conviction affects a person’s driving privileges. When does it take effect? How long does it last? Am I eligible for a restricted license? What complicates matters further is that whenever a person is arrested for a DUI, there is the possibility of two separate license suspensions.

To help understand the suspension process, it makes sense to discuss it chronologically.

When a person is arrested in California on suspicion of a first-time DUI, the arresting officer usually takes their license. In return, the officer provides the driver with a “pink slip.” The pink slip is a temporary license which allows the person to drive temporarily.

When the officer gives the pink slip to the driver, the officer should also advise the driver that they have only 10 days to contact the DMV to request a hearing and request a “stay” of the suspension pending the outcome of the hearing. If the hearing is not requested, the driver’s license will automatically be suspended for four months through the DMV’s “administrative per se” action after 10 days.

If the hearing is requested, the DMV will set the hearing date anywhere from a month two several months from the date of arrest. Assuming that the stay was also requested, the driver will be able to drive pending the outcome of the hearing.

The purpose of the DMV hearing is to determine 1.) whether the officer had reasonable cause to believe the driver was driving under the influence, 2.) whether the driver was lawfully arrested, and 3.) whether the driver had a blood alcohol content of 0.08 percent or higher.

Prior to the hearing date, the DMV will send the driver or their attorney a packet of information which contains the evidence that the DMV is using to make the determinations in the previous paragraph. As if disproving those determinations wasn’t difficult enough, even with a lawyer to argue on the driver’s behalf at the hearing, the hearings are unfairly one-sided against the driver.

Since the DMV is not a court, the standard of proof needed to suspend a person’s license is much lower than what is needed to convict a person of a crime in criminal court. A prosecutor in a criminal case must prove beyond a reasonable doubt that the driver was either 0.08 percent blood alcohol content or “under the influence.” A DMV hearing officer must only prove more likely than not that the driver was either a 0.08 percent blood alcohol content or that they refused the chemical test.

The DMV hearing officer, who is a DMV employee, runs the hearing. The hearing officer can object to the driver’s evidence and rule on his or her own objection. Finally, the hearing officer decides if he or she wins. And they almost always do. In this sense, the hearing officer acts as both the prosecutor and the judge.

Hearsay statements, which are generally excluded from court cases because the person making the statement cannot be cross examined, are admissible in DMV hearings. Most of the time, arresting officers are absent from DMV hearings. If a driver wishes to cross examine the arresting officer who wrote the report, he or she must subpoena the officer at his own cost. This includes paying for the officer’s salary for the time that they attend the hearing.

Lastly, the DMV hearing officer, who, like a judge, determines the outcome of the DMV hearing is merely a DMV employee with no background in law. In fact, according to the DMV’s employment eligibility requirements, a hearing officer does not even need to have a college degree.

Suffice it to say, a majority of DMV hearings are lost, thus triggering the four-month “APS” suspension.

If, however, the DMV hearing is won, the driver will save themselves from the four-month “APS” suspension, but they will still face a court-triggered suspension if they are convicted of a DUI in the criminal action against them.

You can read any number of my previous posts on the inner workings of DUI criminal court case. This post is about the license suspension and how the criminal DUI case affects driving privileges. As such I will not go into the details of the DUI criminal case.

If, after all is said and done in the DUI criminal case, the driver pleads guilty (or no contest) or is convicted after trial, the court will notify the DMV that the driver has been convicted of the DUI. When the DMV becomes aware of the DUI conviction, a six-month “mandatory action” suspension will become effective. The driver, however, will get credit against the six-month mandatory action suspension for any time spent on the four-month APS suspension.

For example, a driver is arrested in January and loses the DMV hearing in February. The driver serves the four-month suspension and gets their license back in June. Then in July, the driver is convicted of a DUI, thus triggering the six-month suspension. Since the driver already served the four-month suspension, they will only need to serve another two months.

As you can see, the license suspension is no simple process, and I haven’t even begun to discuss cases that are not your run-of-the-mill first-time DUI cases.

Without going into too much detail, here are some basics for other, slightly more complicated scenarios:

A second-time DUI carries a one-year APS suspension and the mandatory action suspension is two years. A third-time DUI carries a one-year APS suspension and a three-year mandatory action suspension. A driver who refuses the mandatory chemical test following a DUI arrest faces a one-year APS suspension and the driver can face additional criminal penalties.

Share

Lung Condition Causes Woman to Fail Breathalyzer

Thursday, April 5th, 2018

According to the American Lung Association, Chronic Obstructive Pulmonary Disease, commonly referred to as COPD, which includes chronic bronchitis and emphysema, is a chronic lung disease that makes it difficult to breathe. And according to the World Health Organization, COPD affects 65 million people worldwide. COPD, however, affected one Canadian woman in an unexpected way; it caused her to fail a breathalyzer.

Connie McLean, a 64-year-old woman from New Brunswick, Canada, who suffers from COPD, said that the condition can make everyday living difficult.

“When I’m carrying in wood, I can only carry in a couple sticks at a time and I usually have to stop and get some air before I go and get some more,” she said last week. “And shoveling is even worse.”

Early last month, McLean was pulled over by local law enforcement. The officer asked her if she had been drinking. McLean responded that she had a beer that afternoon. At that point, the officer produced a breathalyzer to try and determine her blood alcohol content.

As a result of the COPD, McLean could not produce a strong enough of a breath sample to provide a breathalyzer reading.

“I tried several times, but due to COPD and mucous in my airway I wasn’t successful,” she said. “And he just almost hollered, ‘You’re not trying, you’re under arrest and you’re going to jail.’”

McLean was charged with refusing to comply with the breathalyzer test which resulted in her vehicle being impounded for 30 days and her driver’s license being suspended for 90 days.

“It makes perfect sense to us that if you have severe COPD that it would be impossible to exhale for any length of time,” said Henry Roberts of COPD Canada. “I would hope the police would show some compassion to people who have difficulty breathing.”

McLean has a court date next month and intends on fighting the charge.

McLean’s predicament is not an unusual one, even here in the United States. Often, people are unable to provide a sufficient breath test for a number of health-related reasons. Breathalyzers require deep lung air, known as alveolar air, to be able to produce a blood alcohol content reading. If a person does not advise an officer of the health issue that might prevent them from providing alveolar air, the officer may believe that the person is deliberately trying to provide a sufficient breath sample.

California courts have found that an inference can be made that a person is deliberately attempting to avoid providing a sufficient breath sample if the facts permit. If such an inference is made, the court treats it as a refusal.

Fortunately, here in California, a driver is not required to give a breath sample for a roadside breathalyzer, commonly referred to as a “preliminary alcohol screening” test or “PAS” test. Refusing it will not result in additional penalties with either the court or the DMV. In fact, many DUI attorneys like myself recommend politely refusing the PAS test.

Of more importance, however, is the mandatory “chemical test” under California’s “implied consent law.” Under the implied consent law, a driver must submit to a chemical test once they are lawfully arrested on suspicion of a DUI. The chemical test can be either a breath or a blood test. Only for a refusal of the chemical test, not the PAS test, may a driver be punished.

Here in the California, a refusal of a chemical test can result in jail time, a longer DUI program, and/or a longer license suspension.

Let’s hope that reason prevails in the Canadian courts for McLean’s sake.

 

Thanks to my student, David Hong, for sending me this story!

Share

Do BAC Limits Discriminate Against Alcoholics?

Thursday, February 15th, 2018

A Texas man who was convicted of a fourth DUI claimed that blood alcohol content limits discriminate against alcoholics.

Ralph Alfred Friesenhahn of San Antonio was convicted of his fourth DUI in 2016 and was sentenced to four years in prison after he rolled his vehicle outside of San Antonio, Texas. A later blood test revealed that Friesenhahn’s blood alcohol content was 0.29 percent, more than three times the legal limit of 0.08 percent.

Although some states are considering lowering the legal limit to 0.05 percent, all states currently have a limit of 0.08 percent.

At trial, Friesenhahn’s attorney motioned the court to dismiss the indictment against Friesenhahn arguing that the state’s legal limit discriminated against alcoholics. Not surprisingly, the judge denied the request and Friesenhahn was convicted of felony driving while intoxicated, the Texas equivalent to California’s “driving under the influence,” and was sentenced to four years in prison due to his prior convictions.

Friesenhahn’s attorney appealed the conviction, once again arguing that the state’s blood alcohol content limit of 0.08 percent discriminated against alcoholics in violation of the right to equal protection guaranteed under the United States Constitution and Texas Constitution. Specifically, she argued that the legal limit ignored the “protected class of alcoholics,” who have a high tolerance to alcohol, to be prosecuted for DUI charges when there is no indication that the alcohol impaired their ability to safely drive a vehicle even though they might be over the legal limit.

Sammy McCrary, chief of the felony division for the Comal County District Attorney’s Office argued that it’s absurd to suggest that the law treats alcoholics differently.

“You’re not being punished for being an alcoholic. It’s the driving that’s the problem,” McCrary said. “It’s making the decision to get into a 3,000-pound vehicle … after drinking.”

The Austin-based 3rd Court of Appeals agreed with McCrary with an opinion issued last week.

In denying that Friesenhahn and other alcoholics fall within a “protected class,” the court said that Texas law “provides two alternative definitions of intoxication. The first involves the loss of the normal use of mental or physical faculties; the second involves an alcohol concentration of at least 0.08…The alternative definitions are presented disjunctively…indicating that only one must be satisfied to establish that a person is legally intoxicated. Further, these alternative definitions apply to all persons charged with an intoxication offense…Thus, the alcohol concentration definition of intoxicated allows for a finding of intoxication based on an alcohol concentration of 0.08 or more without showing the loss of mental or physical faculties – whether the defendant is an alcoholic or not. Therefore, there is no classification in the statute that treats any persons, including [Friesenhahn’s] defined ‘class’ of alcoholics, differently than similarly situated persons: the 0.08 alcohol concentration level applies to all offenders prosecuted for DWI.”

In short, the court said that since the law treats all persons equally, there can be no violation of equal protection.

Let Friesenhahn’s case serve as a reminder that, while you may not be “impaired” when driving your vehicle, as long as you’re over the legal limit of 0.08 percent blood alcohol content, you’re putting yourself at risk of a DUI arrest, charge, and possible conviction.

 

Share

Drunk Drivers Say Personal Breathalyzers Helped them Prevent Driving Drunk Again

Friday, December 1st, 2017

This past August, the Colorado Department of Transportation gave 475 personal smartphone breathalyzers to people who had been convicted of a DUI. In addition to the obvious objective of preventing drunk driving, the Colorado Department of Transportation also wanted to see if, in fact, having the breathalyzer actually helped keep them from driving drunk again.

After recently surveying those people who were given breathalyzers, the Colorado Department of Transportation’s results showed that having a personal breathalyzer helped those people avoid driving drunk. In fact, a whopping 90 percent said that having a breathalyzer helped them avoid driving drunk and 94 percent said that they would recommend a personal breathalyzer to others who regularly drink alcohol.

The Colorado Department of Transportation teamed up with BACtrack, who created the smartphone breathalyzer, during the informal study. The breathalyzer is linked to a smartphone app through Bluetooth. If the user determines that they cannot legally drive, the smartphone app can order them a taxi or Uber.

I’ve written a few times on the benefits of purchasing a personal breathalyzer.

Like those handed out by the Colorado Department of Transportation, people can buy breathalyzers that can either be attached directly to a smartphone or connect to smartphone through Bluetooth and will run buyers between $100 and $150.  

Other, less expensive, breathalyzers can come on keychains and can cost buyers as low as $15. Like many things, quality comes with price and the results of these novelty breathalyzers are questionable at best and decrease in accuracy after time.  

Some breathalyzers are handheld and resemble those commonly associated with the breathalyzers used by law enforcement. Those breathalyzers range widely in terms of price and quality. Some come as low as $50 and some can go as high as a few hundred dollars. Obviously, the less expensive handheld breathalyzers have lower quality, but those more expensive handheld breathalyzers are the ones used by law enforcement because of their accuracy and may even be approved by the Food and Drug Administration (FDA). Law enforcement grade breathalyzers have an accuracy range of plus or minus 0.002 percent which means that if a person is a 0.08 percent, the breathalyzer results can range between 0.078 percent and 0.082 percent.

I purchased my own personal handheld breathalyzer to experience first-hand what I’ve been writing about. I didn’t break the bank, but I did spend $60 on the lower end of the legitimate handheld breathalyzers. After having a few drinks, I gave it a go. While I don’t know what my actual blood alcohol content was because different readings were provided, I can say that the multiple readings ranged by about 0.03 percent. In other words, using that range, a person could register between a 0.095 percent and 0.65 percent, or between a 0.18 percent and 0.12 percent, or between 0.26 and 0.23 percent. After a few months of use, the breathalyzer stopped working and I need to send it to the manufacturer.

While on the face of it, it might seem as though this range is too large to help drivers know whether they are okay to drive because if a person is actually at a 0.08 percent, the breathalyzer reading can show results as high as 0.095 percent and as low as 0.065 percent. Having said that, if a person knows that a breathalyzer is less than accurate and shows a blood alcohol content of 0.065 percent, they may know that they might actually be at a 0.08 percent and abstain from driving. And bear in mind that this is one of the less accurate handheld breathalyzers.

At a minimum, having a personal breathalyzer might help people bridge the gap between how a person perceives what their intoxication level is and what their blood alcohol content is. And while many breathalyzers might not provide an accurate reading, it might still prevent people from driving merely knowing that they are close to the limit. And knowing a range is certainly better than knowing nothing and making a stupid guess.

 

Share

DUI on a Horse

Friday, November 10th, 2017

Over the years, I’ve written about DUI’s on a variety of transportation methods, from a Zamboni to a Power Wheels to a canoe. Although I’ve written about a DUI on a horse before, it has been quite a while and is definitely due. Is there any surprise that this story comes from never-dull state of Florida?

A Florida woman rode her horse on a highway drunk, police say. She was charged with a DUI

November 4, 2017, Washington Post — Nothing’s unusual in Florida, a sheriff department spokesman said Friday. But some things like a woman arrested this week for allegedly riding a horse while drunk down a busy highway — are still surprising.

Around 3 p.m. Thursday, a passer-by saw Donna Byrne, 53, on the horse looking confused and possibly in danger and notified officers, according to her arrest affidavit. Sheriff’s officers found Byrne on Combee Road near North Crystal Road in Lakeland, about 35 miles east of Tampa. She smelled of alcohol and had red watery eyes. When she dismounted from the horse, she staggered from side to side.

Byrne had ridden the horse for a 10 to 15-mile stretch from Polk City, said Brian Bruchey, a spokesman for the Polk County Sheriff’s Office.

Byrne is being charged with driving under the influence while operating a vehicle — which in her case was a horse equipped with a saddle and bridle. She is also charged with animal neglect for putting the horse in danger of being injured or killed.

“We haven’t had a horse DUI that I’m aware of. We’ve had incidents of bicycle DUIs and motorcycle DUIs, so this was a different kind of thing.”

Whether an intoxicated person on horseback can be charged with a DUI or DWI varies from state to state.

In 1993, an appellate court in California ruled in People vs. Fong that people riding animals on the highway are subject to the same rules as the drivers of automobiles, meaning people must ride their animals at a reasonably safe speed and avoid reckless behavior.

The issue was a hot topic in Montana in 2011, when the state’s department of transportation aired an advertisement featuring a horse picking up its owner after a night of drinking at the bar. In Montana, horseback riders can’t be arrested for driving under the influence, because state law’s criteria for a vehicle in a DUI excludes devices moved by “animal power.”

Several criminal defense lawyers in Florida interviewed by The Post are skeptical of whether the DUI charge will hold up in Florida court. Thomas Grajek, a Tampa attorney who specializes in DUI cases, said he thinks Byrne can’t be charged with a DUI because Florida law states that people riding animals on roadways or shoulders are treated as pedestrians, and are not subject to the same rules as automobile drivers. Grajek said that, if anything, someone riding a horse drunk might be charged with disorderly conduct, similarly to a publicly intoxicated pedestrian.

Officers arrested Byrne after conducting a sobriety test, during which Byrne registered blood-alcohol levels of .157 and .161, twice the state’s legal limit of .08. The horse was taken to the Polk County Sheriff’s Animal Control livestock facility, officers said.

“The road she was stopped on was a very busy road,” Bruchey said. “Of course, if somebody hit the horse, then that person would be in danger. And (Byrne) was a danger to herself.”

The Polk County State Attorney’s office could not be immediately reached for comment. Bruchey, the sheriff’s department spokesman, said the officer who arrested Byrne thought he had sufficient probable cause to consider the horse a vehicle.

“I can tell you it’s going to be interesting if (the DUI charge) goes through,” Bruchey said. “The way sheriffs look at it, the woman put a saddle and bridle on this horse and was riding it to get from point A to point B. For all intents and purposes, we look at that as a vehicle.”

Byrne’s criminal history includes five felony and ten misdemeanor charges, consisting of cruelty to animals, drug possession, probation violation and criminal traffic, officers said. She could not be reached for comment.

While there may be questions as to whether Byrne will actually be prosecuted and convicted under Florida law, as the article stated, California fully recognizes DUI on a horse. In fact, California Vehicle Code section 21050 states, “Every person riding or driving an animal upon a highway…is subject to all of the duties applicable to the driver of a vehicle…”

I’ll leave you with a poem written by a dissenting Pennsylvania Supreme Court Justice in a Pennsylvania case which held that a horse is not a vehicle for purposes of driving under the influence:

“A horse is a horse, of course, of course, but the Vehicle Code does not divorce its application from, perforce, a steed as my colleagues said. ‘It’s not vague’, I’ll say until I’m hoarse, and whether a car, a truck or hors, this law applies with equal force, and I’d reverse instead.”

 

Share