California Proposes New Law to Allow Roadside Marijuana Test

Monday, April 27th, 2015

Assembly Bill 1356 has made its way to Capitol Hill and, if passed, would allow law enforcement to use a device similar to a breathalyzer that could detect the presence of marijuana and a number of other drugs in a driver’s system in a matter of minutes.

“It’s very clear that the usage of marijuana is becoming more and more common,” said Assemblyman Tom Lackey from Palmdale, California, who proposed the law.

The law would expand California’s current implied consent law to “provide that 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 oral fluids for the purpose of determining the drug content of his or her blood or oral fluids.”

Currently, if law enforcement want to test for the presence of drugs in a driver’s system following the lawful arrest of that driver, they need to withdraw blood which could take hours.

According to CBS San Francisco, officers would be able to use a portable drug detection device called Alere™ DDS®2 that would allow law enforcement to perform a test on drivers’ oral fluids gathered from the gum line and cheeks. The swabbed fluid samples could provide results within five minutes according to the device’s developers.

"We’d be testing for marijuana, cocaine, opiates, amphetamines, methamphetamines and benzodiazepine," said Fred Delfino, spokesperson for Alere DDS 2, the company behind the new device.

You may recall from my previous posts that the Los Angeles Police Department had been given a federal grant to test these devices.

“The number of drugged drivers is increasing rapidly, and those of us in law enforcement simply do not have the tools necessary to determine the level of impairment on anything other than alcohol,” said Ron Lawrence, chief of police for Rocklin. “If the legalization of marijuana is in our future, we in California law enforcement need to be prepared to deal with the roadways and safety precautions of tomorrow."

The problem is that the device does not test for impairment. It only tests for the presence of the drugs.

It has yet to be determined what amount of drugs found in a person’s system will constitute impairment. According to Lackey, that part of the bill has not yet been worked out.

There is an established correlation between blood alcohol content, specifically the legal limit of 0.08 percent, and alcohol impairment. Unlike alcohol, however, there is no such correlation between the presence of drugs and impairment.

"I think that people want to have a clear-cut, black-and-white solution," says Mason Tvert, the communications director for the Marijuana Policy Project, a pro-legalization group. "They want a specific number that we can use to just say that this person is impaired or not. Unfortunately, it’s a little more of a gray area than that."

Unfortunately, Tvert is correct and that gray area can lead to sober drivers getting arrested for DUI of marijuana.

Tetrahydrocannabinol or THC is the active component of marijuana. Unlike alcohol which dissipates after several hours, THC can stay in a person’s system for weeks at a time and well after the person has smoked.

Simply put, the mere presence of THC in a person does not necessarily mean that the person is impaired and incapable of safely operating a vehicle and the new device, if AB1356 passes, could be used to prosecute sober drivers.

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What is the True Cost of a First-Time California DUI?

Monday, March 23rd, 2015

You may have seen the billboards a couple years ago warning motorists that a DUI can cost a person up to $16,000 total. I suspect that it has gone up since then. People have asked me whether this figure is accurate and what they can actually expect to spend after a first-time California DUI conviction. So let’s do the math.

Now I don’t say this next thing because I’m an attorney who is trying to solicit clients, but rather I’m saying it as an attorney who knows what to expect from the court process. Hire a lawyer. Attorneys have gone through three or more years of a law school, passed the unbelievably rigorous bar exam, and eventually become licensed to practice law in California for a reason. That reason is to go to court for people. Don’t think you can do it on your own.

Having said that, attorneys can cost between $1,000 and $10,000 depending on who they are, what their reputation is, and what their experience is. You can do your own math based on these figures. But of the attorney and law firms I know, I’d say a safe average is $3,500. This will usually cover a retainer up to, but not including trial. Those costs can be much more.

Upon conviction, the court will impose fines and fees. The statutory minimum for a first time DUI is $390 and the statutory maximum is $1,000. Fortunately for first-time California DUI offenders, the court usually imposes the minimum. Unfortunately, however, the court tacks on “penalties and assessments.” It is difficult to know exactly how much these penalties and assessments will amount to. In fact, today in court I heard a judge say that even he didn’t know how much amounted to. But, as a rule of thumb, I tell my clients to expect four to five times what the base fine is. So for the sake of our discussion, let’s say an even $1,700.

Most people convicted of a first-time California DUI will be required to take a three month DUI program. While people can choose from a number of programs with slightly different enrollment costs, a three month DUI program can cost a person around $575.

In Los Angeles, Alameda, Sacramento, and Tulare Counties, a person convicted of a first-time California DUI will be required to install an ignition interlock device in their vehicle for five months. On average, a person can expect to pay about $100 to have the device installed and about $2.50 per day to lease the device, have it maintained, and keep it calibrated. This amounts to about $325.

If a person’s vehicle is towed and stored at a yard, which is often the case following a California DUI arrest, that person can expect to pay about $350 to have it released.

Once a person is eligible to have their license reinstated by the California DMV, they will need to pay $125 to the DMV as a reinstatement fee.

However the single most expensive cost following a California DUI conviction is the increase in insurance premiums. In order to drive following a California DUI, the California DMV will require a person to file an SR-22 form. This document certifies to the DMV that, notwithstanding the DUI conviction, a person’s insurance company still insures them for California’s minimum requirements for automobile insurance liability coverage. The exact amount it costs to maintain the SR-22 is difficult to calculate because a number of factors such as age, gender, place of residence, and the rates of the particular insurance company.

Because the amounts of increased insurance premiums are difficult to calculate, I’ll use the figure used by the 2013 Automobile Club’s estimate for a 25 year old male over a 10 year period. This was the amount used when the Automobile Club announced that the total costs of a DUI were $16,000 in 2013. This amount was $10,154.

I’ll save you from doing the math. When you add all of these figure up it amount to $16,729.

This is about as rough as an estimate as we can get. Remember there are a number of other factors that contribute to the overall cost of a DUI. Having said that, this number can still be used as a guide to what a person can expect to pay following a first-time California DUI conviction.

I’ve said it before and I’ll say it again…

Before you head out for a night of drinking don’t turn your $50 bar tab into a $16,000 mistake.

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Will I Have to Install an Ignition Interlock Device?

Monday, March 9th, 2015

One of the more common questions I get when someone has been charged with a California DUI is whether they will need to install an ignition interlock device. Unfortunately the answer is not straight forward and depends on several things.

An ignition interlock device, in short, is a breathalyzer that is installed into the dash of a person’s vehicle that must be blown into before the vehicle can be started, but only if the breathalyzer does not detect alcohol.  Not only must the ignition interlock device be blown into before someone can start their vehicle, but it must also be blown into at random times throughout the drive.

There are a number of things that a person can be sentenced to following a DUI conviction, some of which are mandatory and some of which are imposed at the discretion of the judge. Amongst the discretionary terms of a California DUI sentence is the requirement that a person install an ignition interlock device.

However, if you are arrested and convicted of a California DUI in Los Angeles, Alameda, Tulare or Sacramento Counties, the installation of an ignition interlock device is mandatory following a license suspension and before a person can drive again.

As of January 1, 2010, Assembly Bill 91 became law and created a pilot program in those counties.

The law, California Vehicle Code section 23700, in part reads:

"Before a driver’s license may be issued, reissued, or returned to a person after a suspension…of that person’s driving privilege that requires the installation of an ignition interlock device…"

How long a person has to install an ignition interlock depends on how many prior DUI convictions the person has had. A first time offense carries a 5-month installation period. A second time offense carries a 12-month installation period. A third time offense carries a 24-month installation period. A fourth time offense carries a 36-month installation period.

If a person is required to install an ignition interlock device, they must certify to the California DMV that the device has been installed and they must take their vehicle to the provider of the ignition interlock device every 60 days for maintenance.

The law provides for an exception to the pilot program for those who do not own a car or otherwise have access to one. If that is the case, a person must complete and submit an “exemption form” to the California DMV. A person can then completely avoid the ignition interlock device by waiting out their suspension plus the period during which they would have had the ignition interlock device installed. If, however, the person obtains a vehicle in that time, they must have the ignition interlock device installed.

The pilot program is set to run to January 1, 2016. By July 1st of this year, the California DMV will report to the Legislature on the pilot program’s effectiveness in reducing repeat California DUI offenses. If the data from the pilot program indicates a reduction in repeat California DUI offenses, we may see the installation of an ignition interlock device as a requirement following a DUI conviction throughout California.

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California Lawmaker wants Ignition Interlock Devices for All DUI Offenders

Monday, January 5th, 2015

For those of you who are unfamiliar with ignition interlock devices (IID), it is a device which is installed on a vehicle’s dashboard. The device works like a breathalyzer that must be blown into and provided a breath sample. If the sample is registered as being below the preset blood alcohol content level, the vehicle will be allowed to start. However, if the sample is above the preset limit, the device prevents the engine from being started.

The IID requires further breath samples at random times after the vehicle has been started. The purpose is to prevent someone else from blowing into the IID just to start the vehicle and ensure that the driver is sober throughout the drive. If a sample is not provided or if the sample contains alcohol above the preset limit, the device warns the driver, and initiates an alarm (flashing lights and honking horn) until the vehicle is turned off or the IID is provided a clean breath sample.

Currently, IID are required for first-time drunk driving offenders in four California counties participating in a pilot program. Alameda, Los Angeles, Sacramento, and Tulare counties require installation of an IID for five months in all vehicles that a driver operates following a California DUI conviction.

Senator Jerry Hill, D-San Mateo, has proposed a bill that would expand the IID requirement for first-time offenders throughout California.

“California needs to do a better job of reducing deaths and injuries from drunk drivers,” said a statement from Hill. “Ignition interlocks save lives and can be an effective counter measure to reduce DUI recidivism.”

The issue is personal for Hill whose best friend was killed by a drunk driver thirty years ago.

“It’s something that’s personal to me. I know the pain his family and we felt… I hate to see other families go through that.”

In addition to the other thousands of dollars associated with a California DUI conviction, people required to install the IID will have to pay between $50 and $100 per month to have the device installed. This can prove to be quite a financial burden on some. This, however, is the least of my concerns with IIDs.

Not only can they be inaccurate for a number of reasons, just as breathalyzers can be, they can also be dangerous.

Talk about distracted driving. Having to blow into a device installed on the dashboard whilst driving sounds more dangerous than talking on a phone while driving. And how dangerous is it to drive with the lights flashing and horn honking because a sample is not provided in time?  That would most certainly prove to be a distraction for the driver of the vehicle with the IID as well as a distraction for other motorists on the road. 

That’s a big risk for something that does not even tackle the underlying cause of DUI-related fatalities, which is what Hill claims the new law will prevent. The majority of DUI-related fatalities do not come from first-time offenders who register a blood alcohol content of between 0.08 percent and 0.15 percent. Rather, the vast majority of DUIs that cause death or injury come from repeat offenders who register well over 0.20 percent blood alcohol content; drivers with serious alcohol problems, not social drinkers.

I’m not against getting drunk drivers off of the road, but Hill’s legislation misses the mark.

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Can a Personal Breathalyzer Prevent a California DUI?

Monday, December 15th, 2014

Many people are arrested on suspicion of a California DUI after only having one or two drinks. Could those arrests have been prevented if the arrestees knew their blood alcohol content was only, say at a 0.09 percent blood alcohol content and they waited a little while before getting behind the wheel? Maybe, if they had their own breathalyzer. 

I’ve written several posts on the availability of different types of personal breathalyzers from single-use disposable breathalyzers to breathalyzer phone apps. People can, however, also purchase regular multiple use breathalyzers. Some are attached to keychains and tend to be low-quality novelty items. Others are a more expensive and are of a quality similar to what law enforcement uses.

Not surprisingly, quality breathalyzers will, in most cases, cost well more than inferior breathalyzers. Costs will vary between $15 and several hundred dollars. Breathalyzers under $50, and those coming on key chains have questionable accuracy from the start and accuracy continues to decrease after several uses.

Unlike novelty breathalyzers, quality breathalyzers will be backed by the Food and Drug Administration (FDA). This means that the FDA conducts research to confirm that the breathalyzer does what its literature says it does.

So is it still possible for a person to get arrested on suspicion of a California DUI even if their personal breathalyzer indicates that they are under the legal limit?

Of course it’s possible.

I can’t even count how many times I’ve told my readers that breathalyzers, even the high-quality breathalyzer, are inaccurate. Almost all quality breathalyzers, like those the police use, require calibration after repeated use to ensure accuracy. Some products allow for owners to calibrate themselves and some require that the breathalyzer be sent to the manufacturer for calibration. Heavily used and non-calibrated breathalyzers will likely not be accurate.

It is possible for a person’s blood alcohol content to continue to rise after a breathalyzer reading, especially if they’ve only recently stopped drinking. Therefore, it is also possible for a person to have a blood alcohol content of 0.07 when they leave the bar (and when they test themselves) and a 0.09 after they’ve been driving for a while. If that is the case, you can still be arrested and charged for a California DUI.

Lastly, a person does not necessarily need to be above a 0.08 blood alcohol content to be arrested and charged with a California DUI. A person can be arrested and charged with a California DUI if they are above a 0.08 percent blood alcohol content or if they are “under the influence.” In other words, you can be a 0.07 percent, but if an officer determines that you cannot safely operate a vehicle as a sober person could, you can still be arrested and charged with a California DUI.  A breathalyzer may determine if you are under the legal limit, but it cannot determine whether you are “under the influence.”

The only foolproof way to prevent a California DUI is to not drive after drink anything. However, if a personal breathalyzer can help prevent a DUI, I’m all for it.

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