The Rights of People, Not Necessarily Drunk Drivers

Monday, December 21st, 2015

On December 16, 2015, the Los Angeles Times published an editorial entitled “Sobriety tests and the Constitution.” The article can be found here:

http://www.latimes.com/opinion/editorials/la-ed-1216-drunk-driving-20151216-story.html

The editorial was partly in response to the United States Supreme Court’s decision to decide whether people can be criminally punished for refusing a post-DUI arrest chemical test absent a warrant.

The author’s stance is clear when they say, “It seems clear that it’s wrong to criminalize the refusal to submit to a test for which police haven’t obtained a warrant. Not only do such laws punish suspects for asserting their rights under the 4th Amendment; they also effectively provide an end run around the court’s 2013 decision [to require law enforcement to obtain a warrant prior to a forcible blood withdrawal].”

I wholeheartedly agree.

On December 18, 2015, the Los Angeles Times published responses to the December 16th editorial in a section entitled “Readers React – The risk of giving more rights to drunk driving suspects.”  The responses can be found here:

http://www.latimes.com/opinion/readersreact/la-le-1218-friday-dui-checkpoints-20151218-story.html

In the first of two responses, a retired deputy district attorney for Santa Barbara County wrote, “Let drunk-driving suspects refuse a mandatory biological sample (such as the option of breath or blood in California) without consequences, and watch alcohol-related roadway deaths spiral upward. Why? Without the objective and usually conclusive evidence of a breath or blood sample available for trial, prosecutors will be left with largely subjective evidence. That enables defense attorneys to endlessly second-guess officers’ observations. This will leave legions of drivers undeterred by the perceived legal consequences of alcohol-impaired driving.”

Another response, in part, says, “Your defense of individual rights as they relate to prosecuting suspected drunk drivers goes too far. Police personnel have to do their job, and a drunk driver endangering people’s lives on a road needs to be punished, end of story.”

Plain and simple, the 4th Amendment was included in the Bill of Rights to protect the people from unreasonable and warrantless governmental searches and seizures of places and things where there existed a reasonable expectation of privacy.

Nowhere do we have a higher expectation of privacy than with our bodies. Consequently, nowhere does the 4th Amendment become as important as it does when it comes to searches of our bodies.

Just as the 5th Amendment requires that people cannot be punished for asserting their right to remain silent, so too can they not be punished for asserting their right against a search of their body without a warrant.

Requiring law enforcement to obtain a warrant prior to subjecting a person to a chemical test, which is a search for 4th Amendment purposes, will not leave prosecutors without “objective and usually conclusive evidence of a breath or blood sample” nor will “prosecutor be left with largely subjective evidence,” as the first response asserts. All it is doing is requiring that law enforcement play by the rules before getting what they want. Play by the rules (i.e. the Constitution), and get the evidence needed to legally prosecute drunk drivers. Stop looking for shortcuts and prosecute drunk drivers within the parameters of the Constitution.

Yes, police personnel “have to do their jobs,” but, again, they must do it lawfully. And the law requires that they obtain a warrant before searching.

I agree with the notion that “A drunk driver endangering people’s lives on a road needs to be punished.” But this statement has nothing to do with refusing a warrantless chemical test.  A person cannot be punished before they are found guilty beyond a reasonable doubt of drunk driving. At the time a person submits to a chemical test, they have not been found guilty of anything.

Furthermore, they most certainly cannot be punished for doing something that the Constitution of the United States absolutely gives them a right to do.

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What is the Rising Blood Alcohol Defense?

Monday, November 30th, 2015

California DUI law requires that a person’s blood alcohol content be at a 0.08 percent or higher at the time they were driving. However when a person drinks, their blood alcohol content is either rising or falling. This means that, at the time the driver was actually driving, his or her blood alcohol content could have been lower than the chemical test reading.

When a person drinks, alcohol enters the blood stream after it is absorbed through the walls of the stomach and the small intestine. This process is called absorption and during this time, the person’s blood alcohol content will continue to rise. When the person stops drinking, absorption stops and a person’s blood alcohol content peaks. After the person’s blood alcohol content peaks because they have stopped drinking, it then begins to fall.

If we were to chart a person’s blood alcohol content as they drink, stop drinking, and begin sobering up, we would see a lopsided bell curve, rising sharply and falling gradually. The more alcoholic drinks are and the faster someone drinks them, the quicker the blood alcohol content rises.

A person’s BAC can be determined in several ways. The first is with a preliminary alcohol test (also known as a “PAS” test) which is a pre-arrest breathalyzer. The PAS test is a field sobriety test is not mandatory. The chemical test, on the other hand, is mandatory and can be either a blood test or a breath test after a person has been lawfully arrested for a California DUI.

If only one test is done and only one BAC level determined, we’ll only where on the curve the person was at the time they took the test. In other words, there’s no way to determine whether the person’s blood alcohol content was rising or falling.

When there are two BAC readings at two different times, however, we can determine whether a person’s BAC is rising or falling because one reading will be higher than the other.

Take, for example, a person who is pulled over at midnight for drunk driving. Following the stop at around 12:20am, the officer does a PAS test. The PAS test indicates that the driver’s BAC is 0.09 percent. Because the driver is over the legal limit of 0.08 percent, the driver is arrested on suspicion of a California DUI. Following the arrest, the driver provides a blood test for the mandatory chemical test. The blood test is performed at 12:45am and the results show a blood alcohol content of 0.14 percent.

This is a rise of 0.05 percent in the 25 minutes between the PAS test and the blood test. Therefore, if you to track the BAC level backwards in time to the last point the person was driving at midnight, it is possible that the driver’s blood alcohol content was as low as 0.05 percent.

Conversely, it is also possible that the later BAC reading is higher than the earlier reading which would indicate that the driver’s blood alcohol content was falling.  Therefore, unfortunately, it is also possible that it was much higher at the time they were driving.

While this may serve as a defense to California Vehicle Code section 23152(b) – driving with a 0.08 percent blood alcohol content or higher – it may not serve as a defense to California Vehicle Code section 23152(a). If a person “drives under the influence,” they can still be convicted of a California DUI under California Vehicle Code section 23152(a). To prove that a person is “driving under the influence,” the prosecution typically uses the officer’s observations of poor performance of field sobriety tests, poor driving, and the “objective symptoms of intoxication.”

If the prosecution, however, cannot prove that a person was under the influence, it may be possible to they were under the legal limit of 0.08 percent at the time they were driving using the rising blood alcohol defense.  

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Should You Take a Breath or a Blood Test?

Monday, November 16th, 2015

One of the biggest areas of confusion when it comes to a California DUI is the chemical test. More specifically, one of the most asked questions regarding the chemical test is whether a person should submit to a breath or a blood test.

Before I get into whether a breath test or a blood test is better, let me start off by saying that, yes, California law requires that someone who has been arrested for a California DUI submit to a chemical test. Any test requested by an officer prior to arrest, including field sobriety tests and a pre-arrest breathalyzer (called a “PAS” test), is optional. And I would never suggest submitting to them. Why give the officers any more reason to arrest you when you don’t have to?

Once a person is lawfully arrested for a California DUI, however, they must submit to a chemical test under California’s “Implied Consent” law which can either be a breath or a blood test.

Ok, so now on to the question of whether a person should submit to a breath test or a blood test after they’ve been lawfully arrested. Unfortunately, like many questions dealing with the law, the answer is: it depends.

The blood test is far more accurate than the breath test and much less likely than a breathalyzer to produce a false reading. Also, when law enforcement draws blood from a DUI suspect, they are required by law to preserve a sample of the blood for the defense. This means that the defense attorney can request that a portion of the blood be sent to an independent analyst for re-testing. This is called a “blood split” and is used to contradict the results of the state blood test results or possibly to show contamination of the blood sample.

If a person knows that they are under the legal limit and a blood test is likely to show that they are under the legal limit, a blood test might be the better option because it is more accurate. On the other hand, for the same reason, the blood test may not be the best option for someone who will likely test over the legal limit.

The breath test is far less reliable than the blood test and can be inaccurate for a number of reasons. Without addressing all of the problems with breathalyzers here, I’ll just point you to Lawrence Taylor’s post:

https://www.duiblog.com/2014/09/09/are-breathalyzers-accurate/

In fact, it is not uncommon for a breathalyzer to provide a false positive result for someone who is actually under the legal limit.

While the general accuracy of breathalyzers cannot be legally challenged as a whole, a skilled California DUI defense attorney can challenge the reliability of the particular breathalyzer that was used in a DUI arrest.

If a person knows that they are likely to be above a 0.08 percent blood alcohol content, the breathalyzer is likely the better option because it is easier to refute the results.

So to answer the question of whether a breath or a blood test is the better chemical test, it really does depend. It depends on whether the person believes they are actually over or under the legal limit. If you believe that you are under the legal limit, the blood test is the better option because the accuracy of the blood test will show that you are, in fact, under the legal limit. On the other hand, if you believe that you are over the legal limit, the breath test is the better option because it is easier to refute the results.

 

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Can Alcohol Sensors in All Cars Eliminate Drunk Driving?

Monday, June 8th, 2015

Last week federal officials said that new technology which could be installed in all new cars in the next five years could eliminate drunk driving.

The new technology, however, isn’t doing anything we’re not already doing: preventing a vehicle from being started by someone who has a blood alcohol content above the legal limit. What is different is the method by which this is being accomplished.

Passive breath sensors or touch-sensitive contact points on a starter button or gear shift would immediately register the blood alcohol content of a driver. Unlike the ignition interlock devices, which require a driver to blow into a tube to provide a breath sample and start a car, drivers of vehicles with the new technology need not do anything for a BAC level to be detected.

“The message today is not ‘Can we do this?’ but ‘How soon can we do this?’ ” said Mark Rosekind, administrator of the National Highway Traffic Safety Administration (NHTSA). “It is a huge step forward.”

Although cost estimates of the new technology have not yet been made, officials anticipate the costs, once the sensors go into general production, to be comparable to the cost of seat belts or air bags; about $150-$200 per vehicle.

Unlike other safety features like backup cameras, which the NHTSA made mandatory beginning in 2014, the new alcohol detection technology would not be required by automakers. Instead, the technology would be offered as an upgrade to new vehicles.

“These devices have to be quick, accurate and easy to use for the automakers to put them on their platforms,” said Bud Zaouk who runs the laboratory where the technology is being developed.

Developers are still working on refining the technology to ensure accuracy. Their goal is also to allow the technology to produce blood alcohol readings in less than a second and to work for at least 10 years or 157,000 miles without calibration or maintenance.

Not surprisingly, Mothers Against Drunk Driving (MADD) has expressed its support for the new technology. Colleen Sheehey-Church, president of MADD, addressed an audience at NHTSA.

“This is the future,” she said, gesturing toward a vehicle equipped with prototype detection gear, “when drunk drivers will be unable to drive their cars. If this technology was available in 2004, my son, Dustin, might be alive today.”

Sheehey-Church’s son died in the back seat of a car when the driver  who was drunk drove into a river in 2004.

In all that I’ve heard and read about the new technology, the NHTSA has yet to address some glaring problems.

Unlike an ignition interlock device, which is intended to only detect the blood alcohol content of the driver, the passive alcohol detection devices will be detecting alcohol located in the air of the vehicle whether it’s coming from the driver’s seat, passenger’s seat, or even the back seats.

If such is the case, what’s the point of having a designated driver? In fact, this is just the tip of the iceberg of questions yet to be addressed.

Will the technology detect alcohol coming from something other than a drunk driver such as mouthwash, perfumes, or hand sanitizer? Will bartenders have to shower and change clothes before heading home after a shift? Will the technology work with open windows? What about convertibles or motorcycles?

If you ask me, let’s just focus on self-driving cars to reduce drunk driving.

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Should I Take a Breath or a Blood Test?

Monday, November 17th, 2014

One of the most common questions I get as a DUI defense attorney is “Should I have taken a breath test or a blood test?” As with many questions in DUI law, the answer is, “It depends.”

Just to be clear, I’m talking about a breath or blood chemical test required under California’s implied consent law. This does not include the pre-arrest preliminary alcohol screening test. Although a breathalyzer, the “PAS” test is not a chemical test and is not required under California law. The chemical test, on the other hand, can either be a breath or a blood test and is required under California law once a person is lawfully arrested on suspicion of a California DUI.

The DUI blood test is much more accurate than the DUI breath test. The blood test is far less likely than a DUI breath test to produce a false reading. Another benefit of a DUI blood test is that a sample of the blood is saved for future testing by the DUI suspect’s defense attorney. The defense attorney can have the sample tested by its own blood analyst to contradict the results of the prosecutor’s analyst. This is called a “blood split” and it is commonly used in DUI defense.

Having said that, the blood test can still be subject to scrutiny. See my previous post: https://www.duiblog.com/2014/09/15/the-dirty-skin-defense/

In other words, the blood test may be good for someone who is under the legal limit because it is more accurate. The blood test might be bad for someone who is over the legal limit because it is more difficult to refute the accuracy.

The DUI breath test, on the other hand, is far less accurate than the DUI blood test. Breath tests can provide false readings for a number of reasons. See Lawrence Taylor’s post: https://www.duiblog.com/2014/09/09/are-breathalyzers-accurate/

While California defense attorneys cannot challenge the unreliability of breathalyzers on a general basis, they can provide evidence that the particular breathalyzer used on the DUI suspect was inaccurate.

The breath test may be good for someone who is over the legal limit because it is easier for a California DUI attorney to refute the results. However, many people who are actually under the legal limit may test over because of the breath test’s inaccuracies.

If you are fairly confident that your blood alcohol content will below the legal limit of 0.08 percent, you’re probably better off opting for the blood test because it will accurately show that you were, in fact, under the legal limit. However, if you think there is a chance that you could be above the legal limit, you might be better off opting for a breath test so that your attorney can challenge the results if you test above the legal limit.

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