Teen Who Livestreamed Drunk Driving Collision Pleads Not Guilty

Thursday, July 27th, 2017

You may have already seen the video. A California teen livestreamed herself driving drunk and crashing the vehicle that she was driving. The collision killed her younger sister. The teen driver, Obdulia Sanchez, pleaded not guilty to gross vehicular manslaughter and number of other felony offenses this past Wednesday.

18-year-old Sanchez of Stockton, California was filming herself behind the wheel of a 2003 Buick with her 14-year-old sister, Jacqueline and another 14-year-old girl in the back seats. The video showed Sanchez dancing to music as she was driving moments before the collision. The accident itself was caught on the camera as the footage shows the inside of the vehicle as it rolled. Moments later, Sanchez shows her sister’s body with fatal head injuries.

“Hey, everybody, if I go to f***ing jail for life, you already know why,” Sanchez told viewers of the livestream. “My sister is f***ing dying. Look, I f***ing love my sister to death. I don’t give a f***. Man, we about to die. This is the last thing I wanted to happen to us, but it just did. Jacqueline, please wake up.”

Neither girl in the back seat were wearing seatbelts and both were ejected. Manuela Seja, the surviving passenger suffered severe injuries to her right leg.

It was later determined that Sanchez’s blood alcohol content was 0.10 percent.

According to the District Attorney’s Office, Sanchez was charged with felony vehicular manslaughter with gross negligence, felony manslaughter while intoxicated, two counts of felony driving under the influence resulting in injury and two counts of felony driving with a blood alcohol content of 0.08 percent or more causing injury.

“The behavior demonstrated both prior to and after the incident, as documented by the defendant’s own recording, is disturbing and shocking,” Deputy District Attorney Harold Nutt said in a statement. “The Merced County district attorney’s office will do everything in its power to see that justice is done in this matter.”

On Wednesday, Sanchez appeared on video for her arraignment where her public defender, Ramnik Samrao pleaded not guilty to all counts on her behalf.

After the hearing, Samrao told reporters that Sanchez “feels absolutely terrible.” Although Sanchez admitted to killing her sister in the video, Samrao maintains that it is unclear whether a crime was committed. “We don’t know that she was drunk, that’s the allegation,” he said.

Sanchez is being held on $560,000 bail and, if convicted, faces up to 13 years and eight months in a California state prison.

I understand how the video can make it easy to rush to judgment about Sanchez or what her fate should be. However, we must to remind ourselves that one of the cornerstones of our criminal justice system is the notion that everyone is innocent until proven guilty. If Sanchez is guilty, the system needs to take its course before she is, in fact, deemed guilty. Then, and only then, can she be punished for what she did.

 

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Two DUI’s in Less than Three Hours

Thursday, June 15th, 2017

A Wisconsin man was arrested twice in about two and a half hours for driving under the influence according to Ashwaubenon, Wisconsin Public Safety. What’s more, he’s only 18 years old.

18-year-old Preston Bierhals was on his way home from a graduation party last week when he lost control of his vehicle and struck a light pole. Bierhals told responding officers that he was trying to make a phone call when he lost control of his car.

His blood alcohol content was later determined to be 0.157 percent.

At the time, Bierhals’s license was suspended.

“The legal limit for him is zero, but he was still above the 0.08, he was over 0.10 actually both times,” said Capt. Jody Crocker.

Bierhals was booked for “operating while intoxicated” (OWI), which is the Wisconsin equivalent of California’s “driving under the influence” (DUI).

Instead of keeping Bierhals to sober up, officers released him to someone who signed a Responsibility Agreement not to allow him to drive a vehicle.

“They signed an affidavit that says to us that they will take that responsibility in lieu of this person sitting in jail for the next 12 hours. Here of course, that didn’t work,” said Capt. Crocker.

Why didn’t it work? Well, because less than three hours later, an officer working traffic detail for a triathlon that morning spotted Bierhals driving and recognized him from the arrest just hours prior.

The officer stopped Bierhals once again and administered field sobriety tests to which Bierhals failed again. And again he was arrested on suspicion of OWI.

This time, Bierhals’s blood alcohol content was a 0.121. This is consistent with the average rate of alcohol metabolism (burn-off) of 0.015 percent per hour, assuming no more alcohol was consumed since the first arrest.

In Wisconsin, prosecutors cannot file charges for a second drunk driving offense until the citation Bierhals received for the first OWI is resolved.

According to Capt. Crocker, law enforcement is looking into whether charges should be filed against the person whom Bierhals was released to.

Some of you may be thinking, “What could happen to someone like that?”

Well, here in California a minor who is caught driving with alcohol in their system can face several charges and penalties.

California Vehicle Code section 23136 makes it illegal for a minor to have a blood alcohol content of 0.01 percent or greater while driving. This is knowns as California’s “Zero Tolerance” law for underage drivers. Under this law, a minor faces a one-year suspension of their driver’s license.

California Vehicle Code section 23140 makes it illegal for a minor to have a blood alcohol content of 0.05 percent or greater while driving. Unlike section 23136, this section is an infraction which can result in fines of up to $100 and a one-year suspension of their driver’s license.

However, in Bierhals’s case, had it occurred here in California, prosecutors would have likely charged him with the standard adult DUI under California Vehicle Code section 23152 (driving under the influence and driving with a blood alcohol content of 0.08 percent or greater). A violation of section 23152 is a misdemeanor which carries a three to nine month DUI program, three years of summary probation, up to $1000 in fines, up to six months in jail, and a six-month suspension of driving privileges.

Of course, Bierhals is facing the penalties for a second-time DUI as well. A second time DUI, here in California will also be charged as a misdemeanor, but this time, he’s facing between 96 hours and one year in jail, an 18-month DUI program, and two-year suspension of driving privileges.

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Do I have to Take a Breath Test?

Thursday, June 1st, 2017

You heard me say a couple of weeks ago that breathalyzers are inaccurate and, as a result, lawyers can challenge the results of a particular breathalyzer. Lawyers, however, cannot challenge breathalyzers generally even though they are inaccurate.

This begs the question: Do you have to take a breathalyzer test?

Like many things in law, the answer is that it depends. In California, there are two different “breathalyzer” tests. One test is required by law, while the other is not.

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 California Vehicle Code is referring to the roadside breathalyzer, called a preliminary alcohol screening test (PAS test), that officers use to obtain the evidence they need to make a DUI arrest. As an officer makes a stop, whether the officer suspects a DUI or not, they don’t have the evidence needed to arrest the driver on suspicion of a DUI. To obtain that evidence, the officer may ask the driver questions, the officer may have the driver perform field sobriety tests, and the officer may ask the driver to submit to a PAS test. In fact, the PAS test is considered a field sobriety test.

Like the field sobriety tests, the PAS test is optional. Also like the field sobriety tests, a driver should not submit to the PAS test.

In fact, the investigating officer must advise the driver that the PAS test is, in fact, 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.”

If a driver tells the officer they consumed alcohol or the driver performs and fail the field sobriety tests or the driver provides a PAS sample that shows the presence of alcohol, the driver will likely be arrested on suspicion of a California DUI.

Once the driver is arrested, the California Vehicle Code requires that the driver submit to a “chemical test,” which can either be a breathalyzer test or a blood test. This is called California’s “implied consent law.”

California Vehicle Code section 23612(a)(1)(A) states, “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].”

In other words, if you can legally drive in California, you have impliedly consented to a chemical test if you are lawfully arrested on suspicion of a DUI.

Unlike the PAS test, if you are arrested for a DUI and you do not want to provide a blood sample, the chemical breath test is not optional.  

In fact, refusing the chemical test can lead to increased penalties such as a longer DUI school, a longer license suspension, and even jail time.

To sum up, the pre-arrest PAS test is optional and you should always politely decline this test. A post-arrest chemical breath test is required provided the suspect opts not to provide a blood sample.

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Do Drugged Drivers Cause More Traffic Deaths than Drunk Drivers?

Thursday, May 4th, 2017

The increase in DUI of drugs has led some to ask whether drugged drivers cause more fatal traffic collisions than drunk drivers. At least according to a new study, the answer is yes.

The Governors Highway Safety Association (GHSA) and the Foundation for Advancing Alcohol Responsibility, a nonprofit funded by alcohol distillers, released a report in April of this year that found in 2015, drivers killed in vehicle collisions were more likely to be under the influence of drugs than alcohol. This was the first recorded time where it is suggested that drugged driving is responsible for more traffic fatalities than drunk driving.

“Drug impaired driving is increasing,” said Jim Hedlund a private consultant from Ithaca, New York who conducted the study for the Governors Highway Safety Association. “We have new data that show drugs are more prevalent to drivers than alcohol is for the first time.”

The study showed that 43 percent of drivers tested in fatal vehicle collisions in the United States had used either a legal or illegal drug. According to the study, 37 percent of drivers tested had a blood alcohol content above the legal limit of 0.08 percent.

Marijuana was the most common drug detected. 9.3 percent of drivers who had their blood tested had amphetamines in their system and in many cases, drivers had multiple drugs in their system.

While the result of the study may be accurate, those who are suggesting that the results indicate that drugged driving causes more traffic fatalities than drunk driving is somewhat misleading.

The presence of alcohol in a person’s system does not necessarily mean that they are under the influence. However, the legislature has created a per se blood alcohol content limit of 0.08 because science has shown that the mental or physical abilities of those with a blood alcohol content of 0.08 are likely so impaired that they can no longer operate a vehicle with the caution of a sober person, using ordinary case, under similar circumstances.

Thus, while the study only tested whether drivers had a 0.08 percent blood alcohol content or higher and not actual impairment, we know that if the driver had a blood alcohol content of 0.08 percent or higher, they were also likely impaired.

Therefore, to conclude that more drugged drivers cause fatal vehicle collisions than drunk drivers is inaccurate. In other words, we cannot compare driving statistics of those with a blood alcohol content of 0.08 percent and those with drugs in their system.

Furthermore, drugs such as marijuana can stay in a person’s system for far longer than alcohol, sometimes for up to weeks at a time. Therefore, the likelihood of drugs being present in a person’s system, whether they used recently or not, is far higher than the likelihood of alcohol being present in a person’s system.

For once, Mothers Against Drunk Driving (MADD) and I actually agree on something.

Like myself, MADD officials questioned the methodology of the results, noting that there is no scientifically agreed level of impairment with drugs such as marijuana.

Another of MADD’s concerns is that the study is leading people to believe that the country is doing better than we have been in terms of drunk driving.

“There is no way you can say drugs have overtaken alcohol as the biggest killer on the highway,” said J.T. Griffin, chief government affairs officer at MADD. “The data is not anywhere close to being in a way that would suggest that … We’re doing a lot of good things on drunk driving, but the public needs to understand this problem is not solved.”

According to NORML, with whom I tend to agree, the study merely reflects the increased detection of drugs and alcohol, but does not reflect any direct connection to fatal vehicle collisions.

 

 

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Company Behind Personal Breathalyzer Settles Dispute with FTC

Thursday, January 26th, 2017

I’ve never hidden my belief that if a personal breathalyzer can prevent a DUI, it should be used. That being said, it seems the company behind one of the most popular personal breathalyzers on the market has settled with the Federal Trade Commission (FTC) over false claims of its accuracy.

On the fifth season of ABC’s hit show “Shark Tank,” CEO and founder of Breathometer Inc., Charles Michael Yim, won over the “shark” investors with an invention called the “Breathometer” that allowed users to a detect their own blood alcohol content through their smart phone. The device attached to smartphone, would be blown into by the user, and the smartphone would calculate the BAC through an app. Yim’s pitch included the prospect that the Breathometer could prevent incidences of driving under the influence of alcohol.  The investors were so impressed with Yim’s invention that they offered up a $1 million dollar investment in exchange for a 30% stake in his startup.

The Breathometer became a consumer hit partly due to advertisements which claimed that the devices accuracy was backed up by government-lab grade testing. According to the FTC, sales for the Breathometer totaled $5.1 million.

However, more than three years after the episode aired, the FTC announced that Yim and Breathometer Inc. had settled a claim that the device “lacked scientific evidence to back up their advertising claims.” The complaint also alleged that the company knew that one variation of the Breathometer, the Breeze, “regularly understated” blood alcohol content levels.

While Yim and Breathometer Inc. did, in fact, settle with the FTC, they did not admit or deny the FTC’s allegations.

Under the settlement with the FTC, Yim and Breathometer Inc. are barred from making claims of the device’s accuracy unless the claims are supported through “rigorous testing.” The company also agreed to notify purchasers of the product to offer full refunds.

“People relied on the defendant’s products to decide whether it was safe to get behind the wheel,” Jessica Rich, director of the FTC’s Bureau of Consumer Protection, said in a statement. “Overstating the accuracy of the devices was deceptive — and dangerous.”

Breathometer recognized the settlement on its website by stating, “We feel it is important to clarify that this settlement does not undermine our achievements in creating quality consumer health devices.”

Kevin O’Leary, one of the Shark Tank investors, responded to the settlement by stating that the company proactively stopped the manufacturing of the Breathometer in 2015 before the FTC’s initial inquiry.

I stand by my assertion that a personal breathalyzer is a good way to prevent a DUI. Just do some research beforehand on the reliability of what you purchase. According to digitaltrends.com, the best personal breathalyzer for 2016 was the BACtrack S80 Professional Breathalyzer which will run you $125. According to the website, the best smartphone breathalyzer was the BACtrack Mobile Smartphone Breathalyzer at $98, the best portable breathalyzer was the BACtrack Keychain Breathalyzer Portable starting at $26, and the best budget breathalyzer was the VastarAB120 Professional at $20.

Better to spend $125 (at most) to prevent a DUI than to spend the thousands of dollars it will cost you if you are arrested on suspicion of a DUI.

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