California DUI Law 101

Wednesday, December 12th, 2018

The law surrounding California DUI’s is so expansive and complicated that sometimes it’s worth wild to take a step back and just talk about the basics of a California DUI.

In California, it is illegal to drive with a blood alcohol content of 0.08 percent or higher. It is also illegal to drive while under the influence. While every person is different, with a different metabolism and different tolerances, a mere two drinks in an hour can certainly get a driver to a 0.08 percent. Additionally, person is “under the influence” if they cannot operate a vehicle as a reasonable and sober person would have under similar circumstances.

Now, let’s be very clear. A person does not have to be above a blood alcohol content of 0.08 percent or more to be charged with a California DUI if they were under the influence. Similarly, a person does not have to be under the influence to be charged with a California DUI if they have a blood alcohol content of 0.08 percent or more. Having said that, most people who are caught driving with a blood alcohol content of 0.08 percent or higher will be charged with both under California Vehicle Code section 23152(a) and section 23152(b) respectively. Yes, you read that correct. Most people who get a DUI are actually looking at two separate charges.

For example, John is heavy in weight and is an alcoholic. If John drinks four beers in an hour, he may likely have a blood alcohol content of above a 0.08 percent, but he’ll probably not be “under the influence” because he can function as though he were sober. He will still be arrested, charged, and may be convicted of driving with a blood alcohol content of 0.08 percent or more under Vehicle Code section 23152(b).

On the other hand, for example, Jane is underweight and very rarely drinks. If she were to have one glass of wine, she may not be above a blood alcohol content of 0.08 percent or more, but she may certainly not be able to function as a sober person would. As such, while she cannot be charged with having a blood alcohol content of 0.08 percent or higher, she may very well be arrested and charged with driving under the influence under Vehicle Code section 23152(a).

Whether a person is a 0.08 percent or higher, or if they are under the influence, officers have no knowledge of either when they decide to pull someone over. They might suspect that a person is under the influence based on observed driving patterns, but that alone is not enough to arrest a person. An officer must have probable cause to arrest a driver for a DUI. An officer has probable cause when they have trustworthy facts that would lead a reasonable person to believe that the driver was either a 0.08 percent or higher, or that they were driving under the influence.

The key is that the officer must have facts that the driver is DUI before they can make the arrest. The officer can obtain the facts to meet the probable cause standard through observation of driving patterns, statements made by the drive (ex. “I had a few beers with dinner”), smell of alcohol on the driver’s breath, bloodshot and watery eyes, slurred speech, poor performance on field sobriety tests, and failure of a roadside breathalyzer.

Just because these may be what an officer uses to justify a DUI arrest, there are things that drivers can do to limit the amount of “facts” that they give the officer.

Drivers do not need to talk to the officers, nor should they. The 5th Amendment exists for a reason. Use it. Rather than potentially providing incriminating statements and allowing the officer to smell the driver’s breath, the driver should simply invoke his or her 5th Amendment right to remain silent, request their attorney, and then keep their mouth shut.

Drivers do not need to perform the field sobriety tests, nor should they. The officer might threaten arrest if the driver does not perform them, but the driver has that right. Chances are that the officer has already made up his or her mind to arrest the driver. However, by not performing the field sobriety tests, the driver has prevented the officer from obtaining any facts that the driver is impaired.

Lastly, drivers do not need to perform the roadside breathalyzer, nor should they. This test, referred to as a preliminary alcohol screening test or “PAS” test, is optional. That is not to say that a driver will not have to perform any test.

Once a person has been lawfully arrested for a DUI, meaning the officer does have the requisite probable cause to make the arrest, the driver must submit to either a breath test or a blood test under California law. Not doing so can lead to increased penalties with both the court as well as the California DMV.

Speaking of the California DMV, when a person is caught driving with a blood alcohol content of 0.08 percent or more, it triggers an action by the DMV to determine whether the driver’s license should be suspended. The driver or their attorney must contact the DMV within 10 days to request a hearing and stop the automatic suspension of the driver’s license. If the hearing is lost, then the person’s license will be suspended, the time of which will be dependent upon prior DUI’s and whether the driver refused the required breath or blood test. If the hearing is won, albeit unlikely, the driver’s driving privileges are saved…for now.

After the arrest, the driver must challenge the DUI in court. If convicted, the driver faces some serious consequences. For a first time DUI, the driver is facing a minimum of $390 in fines, which will increase to about $2,000 after court fees are included, three years of informal probation, a three-month DUI course, additional license suspension time, and a DUI on their criminal record. Now, these are minimums. A driver could face a whole host of other penalties including jail of up to six months.

Since this post is about the basics, I won’t get into the penalties for a second or more DUI, or other penalties for various DUI scenarios.  

Needless to say, even the basics are extremely complicated. A driver absolutely should not try to tackle a DUI case on their own. They should hire an experienced California DUI attorney who has studied California DUI law and who practices it day in and day out. Simply put, having a California DUI attorney can be the difference between going to jail and not.

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20,667 DUI Cases in New Jersey Tainted by Bad Breathalyzers Results

Thursday, November 15th, 2018

It was only a couple of months ago that tens of thousands of breathalyzer results were called into question in Massachusetts, affecting countless DUI cases. It appears New Jersey is dealing with a similar issue now that the state’s highest court ruled that 20,667 breathalyzer results were faulty and therefore inadmissible in the DUI cases where the results were used to secure convictions.

The ruling stems from a case that begun more than two years ago after the attorney for a woman by the name of Eileen Cassidy was notified by the state that the breath results were possibly faulty. At the time the attorney was notified, Cassidy was two weeks into a 180-day sentence on a third-time DUI. Cassidy then filed a lawsuit which led to the appointment of a special master to determine the reliability of the breathalyzer results.

Cassidy’s lawsuit led to the charging of Sergeant Marc W. Dennis with falsely certifying that he had followed proper calibration procedures when calibrating breathalyzers used in DUI stops. The court, in its recent ruling, concluded that the results of the breathalyzers calibrated by Dennis, called Alcotests, were untrustworthy.

“Confidence in the reliability of instruments of technology used as evidence is of paramount importance,” Justice Walter Timpone wrote for the court. “Unfortunately, alleged human failings have cast doubt on the calibration process.”

In addition to determining that the results of the breathalyzers were faulty, the court also vacated Cassidy’s conviction. Unfortunately, Cassidy passed away from cancer in March, never allowing her to see her case vacated by the court.

That, however, didn’t stop her attorney, Michael R. Hobbie, from continuing to fight for her.

While the court vacated Cassidy’s conviction, the New Jersey Supreme Court failed to enunciate in its ruling who could challenge their conviction or exactly how to challenge their conviction.

“With respect to the other 20,667, their cases weren’t vacated,” said Hobbie. “They just going to get notified that the breath test in their case has been deemed inadmissible and they should seek whatever remedy is available to them.”

County prosecutors have already notified thousands of people whose cases may have been affected by the faulty breathalyzer results. The New Jersey Supreme Court, however, has now ordered state authorities to notify everyone whose faulty breath test was used in their case that the results are inadmissible.

“We’ll be issuing guidance shortly for our county prosecutors and municipal prosecutors over how to handle those cases,” said Gurbir Grewal, the New Jersey attorney general.

Although the court declaring the results of the breathalyzers inadmissible is a step in the right direction, ask yourself: How much is it going to cost those people affected by the faulty breathalyzer to legally challenge their conviction (after many, I’m sure, have already spent thousands of dollars to fight the underlying DUI charge in the first place)? As I’ve pointed out many times in previous posts and as I’m sure you’re aware, lawyers are not cheap. Should these people have to bear the burden, financial or otherwise, to remedy something that would not have occurred but for the actions of a corrupt law enforcement officer trying to secure convictions of people who may have been innocent?

Sergeant Dennis was indicted in 2016 and is currently facing criminal charges.

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Should You Take a Breathalyzer During a California DUI Stop?

Thursday, October 4th, 2018

There are many misconceptions about what a person should and shouldn’t do during a DUI stop, not the least of which is whether a person should submit to the breathalyzer test. Unfortunately, the answer, like many things in law, is much more complicated than simply “yes” or “no.”

There are actually two breathalyzer tests that can be taken during a California DUI stop. The first is the roadside breathalyzer, often called a preliminary screening alcohol test or “PAS” test, and the second is the “chemical breath test.”

Under 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.”

Like the other field sobriety tests that officers hope will give them reason to believe that the driver is intoxicated, the roadside breath test is optional. Having said that, many people don’t even know that the other field sobriety tests are optional. These tests include the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. All field sobriety tests, including the roadside breathalyzer, are optional. Although the officer might threaten to arrest you, stand your ground and politely refuse all field sobriety tests. They are only meant to give the officer the evidence they need to arrest you.

In fact, the officer must advise the driver that the roadside breath test is 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.”

Whether the driver has submitted to the roadside breathalyzer or not, the officer must determine if the person is intoxicated and thus should be arrested.

If the officer has the required probable cause to make an arrest for a DUI, whether through the field sobriety tests, the PAS test, or any other information, California’s Implied Consent Law kicks in. Herein lies the difference between a roadside breath test and a chemical test.

Under California’s Implied Consent law, which is codified in California Vehicle Code section 23612(a)(1)(A), “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].”

Simply put, if you have a license and you drive in California, you have impliedly consented to submit to the chemical test after you have lawfully been arrested for a DUI, which can either be a breath test or a blood test. If the driver is like me and hates giving blood, then they must provide a breath test. Conversely, if a person opts against the breath test, they must submit to the blood test.

So, to answer the question that is the title of this article, you do not have to (nor do I recommend) submitting to the pre-arrest roadside breath test. However, after someone is arrested, they must do either a breath test or a blood test.

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Tens of Thousands of DUI Cases Affected by Tainted Breathalyzers in Massachusetts

Thursday, September 20th, 2018

Prosecutors in the state of Massachusetts have agreed to stop using breathalyzer results dating back to 2011 as a result of improper calibration of the breathalyzers when the machines were first purchased by the state. What’s more, state officials later attempted to hide the machines’ flaw from both defense attorneys as well as prosecutors.

The agreement will be presented this week to Judge Robert Brennan, who has been overseeing the proceedings challenging the reliability of the Draeger 9510 since 2015.

Although prosecutors in Massachusetts had already agreed to stop using results from June 1, 2011 to June 14, 2014, defense attorneys learned that state officials in the Office of Alcohol Testing, which is part of the Massachusetts State Police Crime Lab, had withheld hundreds of documents that a judge had ordered them to overturn. Those documents showed a higher calibration failure rate than state officials had previously reported.

According to defense attorney, about 36,500 test results have been affected by the calibration flaw. This includes nearly every breathalyzer result obtained since 2011.

People who were convicted of a DUI where the breathalyzers results were obtained from within that timeframe can seek a new trial if their conviction was based solely on the breathalyzer results. People convicted of a DUI cannot, however, seek a new trial if their conviction was at least partly based on other evidence of intoxication such as observed poor driving by witnesses or police, video, or field sobriety tests.

According to Jake Wark, a spokesman for the Suffolk County District Attorney’s office, the actual number of affected cases will be “significantly lower” than 36,500 because it will not include cases where a breathalyzer was given to a person before being put into protective custody or where someone was given a breathalyzer to show them how the machine works.

Contrary to the usual adversarial rapport between defense attorneys and prosecutors, defense attorneys are maintaining that prosecutors and law enforcement are not to blame for the monumental blunder.

“It was not the assistant district attorneys who were withholding the material, said Joseph Bernard, an attorney leading the litigation over the machines. “They had nothing to do with this and when they found out, they rose up.”

Prosecutors are, however, still arguing to use the results in DUI cases involving death or severe injury, or in fifth or subsequent DUI cases. Additionally, prosecutors are proposing a cutoff date of August 31, 2017, after which they can begin using the breathalyzer results again.

Defense attorneys are arguing that the use of the breathalyzer results should continue to be halted until the state lab obtains accreditation by a national standards group, ANSI-ASQ National Accreditation Board, which likely wouldn’t happen until 2020.

It shouldn’t come as a surprise to anyone where I fall on this. If the results are faulty, they should not be used in any DUI case, including those that involved death or serious injury and fifth or subsequent DUI’s. The seriousness of the offense does not justify the use of tainted evidence.

Furthermore, those convicted of a DUI should not be barred from re-trial simply because other evidence existed. Just because other evidence exists that tends to show intoxication doesn’t mean that that evidence alone and without the breathalyzer result would have produced the same result.

We’ll have to wait and see how this, as I referred to it earlier, monumental blunder plays out in Massachusetts.

 

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Has a Marijuana Breathalyzer Finally been Developed?

Friday, August 10th, 2018

As predicted, recreational marijuana is here in California. California joined Nevada, Oregon, Washington, Colorado, Maine, Vermont, Massachusetts, and the District of Columbia in legalizing both medical and recreational marijuana. Thirty states and the District of Columbia have legalized medical marijuana. The trend of states in the expanding legalization of marijuana has had tech companies scrambling to become the first to develop a marijuana breathalyzer.

However, a California company has recently claimed to have cracked the code.

California Vehicle Code section 23152(e) makes it illegal to drive a vehicle while under the influence of drugs including marijuana. Unlike California’s DUI of alcohol law, there is no legal limit for marijuana, or more specifically, tetrahydrocannabinol (THC) the psychoactive component of marijuana. Therefore, a person can only be arrested and convicted of a marijuana DUI if the ingestion of marijuana impairs a person’s ability to drive a vehicle as a sober person would under similar circumstances.

To prove that a person is driving under the influence of marijuana, a prosecutor can use officer observations of driving patterns, observations during the traffic stop, performance on field sobriety tests, and the presence of THC in any blood test done.

Although THC can be detected in quantities of nanograms per milliliter of blood, the quantification is unlike alcohol in that the degree of impairment is unrelated to the amount of THC in a person’s blood. With alcohol, there is a fairly accurate correlation between a person’s blood alcohol content and how impaired they are. Therefore, unlike alcohol where prosecutors only need to prove that a person’s BAC was above a 0.08 percent, with marijuana, prosecutors can only prove that a person was “under the influence.”

Since “under the influence” is an extremely subjective standard, it is often very difficult to prosecute DUI of marijuana cases. This is especially true if the driver refused to perform the field sobriety tests and/or the officer did not observe driving that would be indicative of someone who is under the influence of marijuana.

Hound Labs, located in Oakland, California, is hoping to bridge the gap for officers and prosecutors.

“We are trying to make the establishment of impairment around marijuana rational and to balance fairness and safety,” said Hound Labs CEO Mike Lynn.

The company is claiming that it has developed a breathalyzer that can detect whether a subject has ingested marijuana in the last two hours, which many to consider the peak time for marijuana impairment after ingestion.

“When you find THC in breath, you can be pretty darn sure that somebody smoked pot in the last couple of hours,” Lynn says. “And we don’t want to have people driving during that time period or, frankly, at a work site in a construction zone.”

If accurate, Hound Labs would be the closest to developing this type of technology. However, thus far, no company has yet developed a machine to detect actual impairment.

According to Lynn, law enforcement are trying to determine who is impaired as opposed to “”somebody who smoked maybe yesterday or a few days ago and is not impaired. They’re not in the business of arresting people that are not impaired when it comes to marijuana. That makes no sense at all.”

Several law enforcement agencies will begin testing Hound Lab’s breathalyzer this fall. “They’re interested in it providing objective data for them at the roadside,” says Lynn. “That’s really the key, objective data at the roadside — just like we have for alcohol.”

For those of you who think that it is safe to smoke some marijuana and get behind the wheel, be aware that law enforcement could be out with a new roadside tool at their disposal to confirm that you have smoked within two hours, that is if Hound Labs’s new device does that it claims it can do.

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