DUIs Are Not Just for Alcohol

Thursday, July 18th, 2019

Last month, Illinois became the 11th state to legalize marijuana and since just a few weeks ago, we reminded our readers about The Basics of a California DUI, this may be a good time to also remind our readers that a DUI is not just about alcohol.

We tend to think about drunk driving only in terms of alcohol, primarily because it is the more dominant of legal substances that leads to a DUI. However, marijuana is also becoming more widespread and legal in recreational applications.

While marijuana may still be used by many for its medical properties, there has definitely been an increase in recreational use here in California, thus making DUI of marijuana more prevalent than it has been in the past.

California Vehicle Code section 23152 (f) states, “It is unlawful for a person who is under the influence of any drug to drive a vehicle.” “Any drug” includes those that are legal. The important factor here is “under the influence.” Although, prescription drugs and other legal drugs fall within this purview of “any drug,” a person must also have his or her mental or physical abilities impaired to such a degree that

he or she is unable to drive a vehicle with the caution of a sober person to be “under the influence.”

A recent survey by the AAA revealed that many Americans don’t believe that they will get caught when driving high on marijuana. An estimated 14.8 million Americans admitted to driving within one hour of using marijuana.

We have previously covered topics that have dealt with the insufficient methods of determining impairment, especially when it comes to the effects of THC and other drugs. This may add to the public’s belief that they may not get caught.

However, according to Executive Director of the AAA Foundation for Traffic Safety, Dr. David Yang, “Marijuana can significantly alter reaction times and impair a driver’s judgement. Yet, many drivers don’t consider marijuana-impaired driving as risky as other behaviors like driving drunk or talking on the phone while driving.”

While it is true that no research has proven an exact correlation between impairment and specific levels of THC, unlike how we can calculate a correlation between heightened BAC levels, law enforcement is taking measures to train their officers to better detect impaired drivers. It is only a matter of time before a more consistent method of determining marijuana-impairment will be developed. There are already scientists and researchers hard at work in attempting to create a breathalyzer-type test for determining THC levels and even impairment.

Even current alcohol-testing breathalyzers (used for both the roadside test and for the mandatory “chemical test”), which have been around for quite some time, are by no means perfect. Depending on the officers administering them, how they are administered, and how they’re maintained, breathalyzer results can be challenged by competent DUI attorneys.

While probable cause may seem harder to prove with marijuana, or other drugs, when compared to alcohol, it does not mean that you are not actually impaired. The AAA website summed it up nicely, “AAA recommends all motorists avoid driving while impaired by marijuana or any other drug (including alcohol) to avoid arrest and keep the roads safe. Just because a drug is legal does not mean it is safe to use while operating a motor vehicle. Drivers who get behind the wheel while impaired put themselves and others at risk.”

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The Basics of a California DUI

Thursday, June 27th, 2019

We often spend so much time talking about unique DUI-related topics, many of which discuss the complicated intricacies of DUI’s and DUI law, that we forget to go back and just remind our readers about the basics of a California DUI. Therefore, every so once in a while, I like to go back and just discuss the basics of a California DUI. Before I go any further, I’ll preface this post by saying that the below information is not for DUI’s where aggravating circumstances were present such as prior DUI convictions, collisions, injuries to third parties, an unusually high BAC, a refusal of a chemical test, and so on.

In order to be stopped and arrested on suspicion of a California DUI, officers need probable cause to believe that a person is driving under the influence. For an officer to have probable cause, they need to have reasonable and trustworthy facts that a person is driving under the influence. Officers obtain the probable cause needed to make a DUI arrest by observing poor driving patterns, observing signs of intoxication (slurred speech, smell of alcohol, bloodshot eyes), poor performance on field sobriety tests, and/or failure of a pre-arrest breathalyzer known as a “preliminary screening alcohol test” (PAS test).

A driver can limit the probable cause that the officers are looking for by taking steps to enforce their rights. If pulled over on suspicion of driving under the influence, the driver should not say anything to police except to invoke their 5th Amendment right to remain silent and request an attorney. The field sobriety tests are optional and should not be performed. See any of our numerous articles on the inaccuracies of field sobriety tests. Lastly, the PAS test is also optional and also should not be taken. By limiting the probable cause, the driver will give their defense attorney the ability to argue that the arrest was illegal because the officer did not have the required probable cause to make the DUI arrest.

I should note that a driver will likely still be arrested whether they take measures to protect their rights or not. Again, the purpose of protecting your rights is to help with the DUI defense in court, not to prevent an arrest. I repeat, the officers will almost always still make the arrest.

Once arrested, the driver will be required to submit to a chemical test which can either be a breath or a blood test. Do not confuse this test with the roadside breathalyzer (PAS) test. The PAS test is optional. The chemical test is required, but is only required after a driver is lawfully arrested.

After the driver is arrested, they will be held until they sober up and released with a court date. In the time between the arrest and the court date, the law enforcement agency will send its police report to the appropriate prosecuting agency to make the decision about whether to file charges.

If a DUI is charged, it will typically be under California Vehicle Code section 23152(a) and/or 23512(b). Simply put, Vehicle Code 23152(a) makes it illegal to drive while under the influence of alcohol and Vehicle Code 23152(b) makes it illegal to drive with a blood alcohol content of 0.08 percent or higher. If a person is arrested having been suspected of driving while under the influence of an intoxicant other than alcohol, they will likely be charged with California Vehicle Code section 23152(e).

The filing of charges triggers a criminal case in the appropriate courthouse. The court will schedule a hearing called an arraignment. At arraignment, the DUI suspect, who is now a DUI defendant, will enter a plea, be advised of their rights, and the charges pending against them.

Following the arraignment, there may be several or no pretrial hearings to allow the prosecutor and any defense attorney, either private or a public defender, to assess the merits of the case and negotiate a plea deal. A plea deal may include a reduction in charges to a “wet reckless,” “dry reckless,” or some other lesser charge. It may also include a reduction in sentence.

If no deal can be reached, the case proceeds to a trial where the prosecutor will have to prove to a jury beyond a reasonable doubt that the DUI defendant drove a vehicle either under the influence of alcohol, under the influence of a drug, or with a blood alcohol content of 0.08 percent or higher.

If the jury finds the person not guilty, the DUI defendant will suffer no legal penalties. However, if the finds the person guilty, they face a minimum of three years of summary probation, a fine between $390 and $1,000 plus penalties and assessments, and a three-month drunk driving program known as AB-541, and up to six-month in county jail. Other penalties that a defendant might face are a longer DUI program, a longer probationary period, a hospital and morgue program, a Mothers Against Drunk Driving Victim Impact Panel, AA meetings, and a SCRAM device (alcohol detecting anklet).

I’ve only scratched the surface of the basics of a California DUI, and I haven’t even mentioned the DMV consequences of a DUI arrest and/or conviction, which, by itself, could take up several stand-alone articles. See any number of previous posts about the DMV consequences of a DUI.

Needless to say, just the basics of a DUI are extremely complicated. Factor in other intricacies not mentioned here and it goes without saying that a person who has been stopped, arrested, and charged with a DUI should absolutely not try to take on the system by themselves. Hire a qualified and experienced DUI attorney who knows the process inside and out, and who will give you the best chance at a favorable outcome.

 

 

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Should Waze be Allowed to Post DUI Checkpoint Locations?

Monday, February 11th, 2019

I’m sure most of you have heard of Waze, possibly even use it yourself. On the off chance that you haven’t heard of it, Waze is a smartphone app developed by Google that provides real-time traffic information for drivers. Users simply plug in their destination address or location and Waze provides the quickest possible route using GPS and real-time user input while en route. While driving, not only are users directed to the fast route, but they are also made aware of upcoming traffic, obstacles in the road, street closures, and yes, police presence, including the location of DUI checkpoints.

The New York Police Department is not happy about it and is seeking to stop it.

The NYPD has sent a letter to Google demanding that it stops allowing users to post the location of DUI checkpoints claiming that the app is “encouraging reckless driving.”

“Individuals who post the locations of DWI checkpoints may be engaging in criminal conduct since such actions could be intentional attempts to prevent and/or impair the administration of the DWI laws and other relevant criminal and traffic laws. The posting of such information for public consumption is irresponsible since it only serves to aid impaired and intoxicated drivers to evade checkpoints and encourage reckless driving,” NYPD acting Deputy Commissioner Ann Prunty said in the letter to Google dated February 2.

Although Waze does not have a feature that specifically alerts drivers about upcoming DUI checkpoints, it does notify drivers of upcoming police presence.

“We believe highlighting police presence promotes road safety because drivers tend to drive more carefully and obey traffic laws when they are aware of nearby police. We’ve also seen police encourage such reporting as it serves as both a warning to drivers, as well as a way to highlight police work that keeps roadways safe,” a Waze spokesperson said in a statement to CNN last week. “There is no separate functionality for reporting police speed traps and DUI/DWI checkpoints — the Waze police icon represents general police presence.”

However, in Waze’s feature that displays upcoming police presence, users can report the presence of a DUI checkpoint as a comment about what they have observed including whether the police presence is a DUI checkpoint.

Law enforcement complaints on the posting of DUI checkpoint locations is nothing new. In July of 2016, the National Sheriff’s Association released a statement which said, “Evidence on social media shows that people who drink and drive use Waze’s police locator feature to avoid law enforcement. …The facts are clear. It is just a matter of time before we start seeing the dangers that lurk within the Waze app’s police locator feature.”

The California Supreme Court in the 1987 case of Ingersoll v. Palmer held that, for DUI checkpoints to be constitutional, they must meet the following criteria:

  1. The decision to conduct checkpoint must be at the supervisory level.
  2. There must be limits on the discretion of field officers.
  3. Checkpoints must be maintained safely for both the officers and the motorists.
  4. Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
  5. The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
  6. The checkpoint must show indicia of official nature of the roadblock.
  7. Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.
  8. Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.

Three years later in the case of Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop. In doing so, the court held that sobriety checkpoints were constitutional even though officers were technically violating the 4th Amendment.Having said all of that, nothing prevents a driver, nor should it, from letting others know when and where a DUI checkpoint is. Waze has not provided a feature that specifically points out DUI checkpoints. Rather, users can advise of DUI checkpoint locations in comments. How is this any different than speaking about police activity with friends and family in person, or in a text, or in an email? How is it any different that speaking about police activity on Facebook, Twitter, or Instagram? It isn’t any different, and to allow law enforcement to prevent such speech would be a violation of the 1st Amendment. Doing so would also open the door to allow law enforcement to dictate what we can or can’t say on our social media sites. That is not acceptable.

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UBER Fined $750,000 for Failing to Enforce Zero-Tolerance Policy

Thursday, December 20th, 2018

Ridesharing apps such as Uber and Lyft have introduced to the public a cheap and “right at your fingertips” method for calling a ride home after a night of drinking. These apps have given the public the comfort of being able to arrive at a destination without worrying about finding parking, or as is often the case at night, worrying about drinking and driving.

Back in June of 2016, BuzzFeed News posted an article entitled “Here’s What Happens When Your UBER Driver Gets A DUI.” The article focused on an interview with a passenger who suspected her Uber driver of driving under the influence, the subsequent customer service the passenger received, and the steps that the company took in handling the situation with the driver. BuzzFeed also reported that this was not the first incident where an Uber driver was arrested for driving under the influence. The driver associated with this particular drive was deactivated fairly quickly. However, that was not the case for all of Uber’s drivers who received complaints of drunk driving.

According to the Uber homepage, they have a zero-tolerance policy with regard to driving under the influence. Specifically, it states, “Uber does not tolerate the use of alcohol or drugs by drivers using the Uber app.” Yet, the Los Angeles Times recently released an article that highlighted an investigation by the California Public Utilities Commission (CPUC) that resulted in Uber being fined a total of $750,000 for failing to follow its own “zero tolerance policy.

The zero-tolerance policy is a requirement that was included by the CPUC within the regulations for smartphone-enabled ride share companies. The regulations, approved in 2013, were placed in an attempt to placate the angry licensed taxi companies and their drivers whose service was disrupted by the spread of these private drivers through the smartphone and online applications. The regulations called for the ride-sharing companies to institute a zero-tolerance intoxicating substance policy for all of its drivers and to suspend the driver to allow for an investigation as soon as a zero-tolerance complaint is filed.

Uber’s violation of the policy was discovered in an investigation of the customer complaints associated with driving under the influence from August 2014 to August 2015. An administrative law judge had recommended a fine of $7,500 per violation, which, with the number of violations found in the investigation, would have resulted in a total of $1,132,500.

However, a settlement was made between the CPUC and Raiser-CA, an Uber owned company, and the final amount of $750,000 was reached Thursday, November 8th. According to the Los Angeles Times, “In addition to the fine, Uber agreed to implement an education program on zero-tolerance regulations and file a motion to expand existing regulations and develop stronger standards for the ride-hailing industry.”

AB 2687, a bill that passed in 2016 and has been in effect since July 1, 2018, lowers the blood alcohol level of drivers with passengers for hire in their vehicles to 0.04 percent or more to be considered under the influence. How this new bill affects how Uber handles their education program and renews their standards will be an interesting development.

Hopefully, Uber will be able to remedy the issue in a timely manner. One of the main reasons that many people utilize ride sharing services like Uber is to prevent drunk driving. If hired drivers continue to create an issue of driving under the influence, we are essentially replacing one drunk driver with another, resulting in a public safety issue that we had wanted to avoid in the first place.

 

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Man Arrested for DUI for Falling Asleep while Tesla in Autopilot Mode

Thursday, December 6th, 2018

Last week, California Highway Patrol arrested a driver for DUI after he had fallen asleep in his Model S Tesla while it drove down Highway 101 in autopilot mode.

A CHP officer spotted a grey Tesla going about 70 miles per hour on Highway 101 near Redwood City. As the officer approached the vehicle, he also noticed that it appeared the driver of the Tesla was asleep behind the wheel. CHP then closed traffic on the highway and proceeded to slow the Tesla by pulling a patrol vehicle in front of it and slowing down, thus causing the Tesla to slow down.

The driver of the vehicle eventually awoke to the CHP stopping his vehicle. Once stopped, responding officers suspected that the driver was under the influence and had the driver perform field sobriety tests, which he allegedly failed.

“It’s great that we have this technology; however, we need to remind people that…even though this technology is available, they need to make sure they know they are responsible for maintaining control of the vehicle,” CHP spokesman Art Montiel said.

In January of this year, CHP arrested a driver who was found passed out behind the wheel of a Tesla on San Francisco’s Bay Bridge. According to CHP, the driver’s blood alcohol content was more that double the legal limit. The man claimed he wasn’t responsible because the vehicle was in autopilot.

While fully autonomous vehicles may be in the offing, no major car manufacturer has yet to develop a fully autonomous vehicle for public consumption. In fact, Tesla warns that its autopilot features are not fully autonomous. “Autopilot is intended for use only with a fully attentive driver,” a Tesla spokes person told the Washington Post earlier this year. Rather, auto pilot systems are designed to detect obstructions in the road and, if necessary, bring the vehicle to a halt if the driver does not respond in time.

In fact, a goal of Elon Musk is to have fully autonomous vehicles in the near future.

“We aimed for a very simple, clean design, because in the future – really, the future begins now – the cars will be increasingly autonomous,” Musk said in July of last year. “So, you won’t really need to look at an instrument panel all that often. You’ll be able to do whatever you want: You’ll be able to watch a movie, talk to friends, go to sleep.”

This, however, raises an interesting legal dilemma.

California law requires that a drunk driver be in physical control of the vehicle and must cause the vehicle to move in the slightest amount. Are drunk drivers who are in autopilot really in physical control of the vehicle and cause it to move if the car is in autopilot? At least right now, the answer is a likely yes.

Drivers still need to operate a vehicle in autopilot to a certain degree. As Tesla’s spokesperson pointed out, Tesla’s autopilot feature still requires a fully attentive vehicle to take control of the vehicle to engage in maneuvers that are not available in autopilot. Just because a vehicle has autopilot mode does not mean that it is autonomous.

The question will become even trickier when fully autonomous vehicles are introduced to the public. If a vehicle is fully autonomous, then there is no need for a driver to be in any kind of control of the vehicle. On the other hand, a driver (now a passenger of a fully autonomous vehicle) will still need to input coordinates and tell the vehicle where to go, which can raise the argument that the passenger is, in fact, in control of the vehicle.

You can see how this technology can raise interesting legal questions. I suppose we’ll just have to 1.) wait for fully autonomous vehicles, and 2.) see what the legislature and/or courts do to define what it means to be “in control” of a fully autonomous vehicle.

Until then, drinking and getting behind the wheel of a vehicle while in autopilot mode will still land you a DUI in California.

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