Can a DUI Attorney Challenge Breathalyzer Results?

Sunday, May 21st, 2017

When people think of a DUI stop, two things immediately come to mind; the field sobriety tests and the breathalyzer. I can tell you without going into much detail here that field sobriety tests are designed for failure. If you would like more details, see many of the previous articles I’ve written on the fallacies of field sobriety tests.

But what about the breathalyzer? Are they inaccurate as well and can the results of a breathalyzer be challenged?

A number of studies have shown that breathalyzers are often inaccurate. That too is a discussion for a different time. But the more important question, since breathalyzers are generally inaccurate, is whether a breathalyzer result can be challenged in court.

Unfortunately, the California Supreme Court in 2013 ruled that, although breathalyzers are generally inaccurate, scientific evidence challenging the accuracy of breathalyzers in California is not admissible as evidence in DUI trials.

The ruling stems from the 2007 DUI stop of Terry Vangelder. Vangelder was stopped for speeding in San Diego. Although having admitted to consuming some alcohol, Vangelder passed field sobriety tests. Vangelder then agreed to a preliminary screening alcohol test (an optional roadside breathalyzer) which indicated that Vangelder’s blood alcohol content was 0.086 percent. Based on that, Vangelder was arrested and transported to the police station where he submitted to a chemical breath test (a required post-arrest breathalyzer). This breath test showed a blood alcohol content of 0.08 percent. Vangelder then submitted to a blood test which indicated that his blood alcohol content of 0.087 percent.

At trial, Vangelder called Dr. Michael Hlastala, a leading authority on the inaccuracies of breathalyzers.

"They are (inaccurate)," Dr. Hlastala testified before the trial judge. "And primarily because the basic assumption that all of the manufacturers have used is that the breath that [is] measured is directly related to water in the lungs, which is directly related to what’s in the blood. And in recent years, we’ve learned that, in fact, that’s not the case."

The judge however, did not allow the testimony and Vangelder was found guilty. Vangelder appealed and the appellate court reversed the decision in 2011. San Diego City Attorney, Jan Goldsmith, then appealed the appellate court decision arguing that such testimony would undermine California’s a per se law making it illegal to drive 0.08 percent blood alcohol content or higher.

Unfortunately, the California Supreme Court sided with Goldsmith.

“[T]he 1990 amendment of the per se offense was specifically designed to obviate the need for conversion of breath results into blood results — and it rendered irrelevant and inadmissible defense expert testimony regarding partition ratio variability among different individuals or at different times for the same individual," Chief Justice Tani Gorre Cantil-Sakauye wrote for the court. "Whether or not that part of expired breath accurately reflects the alcohol that is present only in the alveolar region of the lungs, the statutorily proscribed amount of alcohol in expired breath corresponds to the statutorily proscribed amount of alcohol in blood, as established by the per se statute."

The Court went on to say that, “Although Dr. Hlastala may hold scientifically based reservations concerning these legislative conclusions, we must defer to and honor the legislature’s reasonable determinations made in the course of its efforts to protect the safety and welfare of the public."

Sounds to me like the Supreme Court is willfully ignoring science simply because the legislature was well intentioned. Sounds like flawed logic.

While people can no longer challenge the accuracy of breathalyzers in general, people who are suspected of DUI in California can still challenge the accuracy of the particular breathalyzer used in their case.

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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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Man Found Asleep in Car in OC High School Arrested DUI

Thursday, April 27th, 2017

The Orange County Sheriff’s Department found an intoxicated man asleep inside of his parked vehicle which was located in the middle of Aliso Niguel High School.

According to the Lt. Dan Dwyer of the Orange County Sheriff’s Department, Alexander Nixon, 23, of Las Vegas was arrested last week on suspicion of driving under the influence of alcohol when he was found asleep in his 2014 Dodge sedan which was parked inside of Aliso Niguel High School in Orange County.

Upon waking Nixon, officers suspected that he was under the influence. Nixon then told officers that he had been drinking before attempting to drive home. Nixon also told officers that he thought that he was in a parking lot in Santa Ana.

Nixon field sobriety tests and was subsequently arrested on suspicion of a California DUI.

Although law enforcement said that the car was located in a back lot of the school, media photographs of the scene showed the car inside of an enclosed walkway leading to an outside seating area.

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Had Nixon not confessed to driving, his situation raises an interesting question: Can prosecutors prove that a person drove (which is required for a California DUI) if the person was not seen driving, but their vehicle could have only reached its location through driving?

To be arrested, charged, and convicted of a California DUI, the prosecutor needs to prove that the defendant actually drove the vehicle. And California Courts have held that even slight movement will suffice to meet this requirement.

Movement of the vehicle can be proven through circumstantial evidence, meaning evidence that creates an inference of vehicle movement.

Such was the case in People v. Wilson (1985) 176 Cal.App.3d Supp. 1. The defendant in that case was found asleep in his car which was blocking the 60 freeway in Los Angeles.

The court concluded that “there was ample evidence from which the jury could have inferred that the defendant had been driving his vehicle on the public highway at a time when he was intoxication. From the combination of circumstances – defendant’s sitting in a vehicle in the center of the street–behind the wheel–engine running–lights on, it can be inferred that defendant must have placed himself in such position, and that he accomplished this by driving the car to the place at which he was found.”

The defendant in Wilson argued that it was possible that a friend drove him to the location and placed him in the driver’s seat. He also argued it was possible that the car was already in that position, he intended to drive it, but fell asleep before he could do so.

The Court rejected the defendant’s arguments stating, “It seems unlikely that in either situation the car would have been left parked in the middle of the street, straddling the traffic lanes and facing generally at right angles to the street. Suffice it to say that the jury apparently discarded these possibilities as being unreasonable and adopted the more likely deduction that defendant had driven himself to the area and was then unable to continue."

With that in mind, it seems unlikely prosecutors would even need Nixon’s confession that he drove to convict him of a California DUI. How else would his car have ended up in the middle of a high school?

 

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How Do I Choose the Right California DUI Attorney?

Thursday, April 20th, 2017

It goes without saying that the day a person is arrested on suspicion of a California DUI is very often the worst day of that person’s life. As the handcuffs are being slapped around the wrists, thoughts flood the mind of the person who has just been arrested for a California DUI: How long will I be under arrest? What will happen in court? What am I facing?

Fortunately, people don’t have to do it on their own. The legal system is complex to say the least and should never be tackled by the person facing the charges. Most lawyers have spent at least four years at an undergraduate university then three years at law school. Then, lawyers must pass the scrutiny of the bar exam, which in California is the most difficult in the country, before they can actually practice law.

Ok, so lawyers have a lot of education under their belt. How does a person tell if a lawyer is qualified and right for their case?

The first step is research. You don’t buy the first car you see at the dealership. With so much at stake, why would you hire the first attorney you talk to? Ask family and friends if they know a lawyer. You’d be hard pressed to not find anyone who hasn’t used a lawyer in the past. Check user-based rating websites like Avvo.com or Yelp.com to see what others have said about a lawyer’s services. Lastly, check the California Bar Association’s website at Calbar.org to check if a lawyer has had any disciplinary action taken against them for misconduct.

After a lawyer becomes licensed to practice law, they are legally allowed to practice any and all areas of law, but this does not necessarily mean that they are qualified to practice any area of law. Many lawyers are known as “general practitioners.” General practitioners practice everything from personal injury law to real estate law to estate planning and possibly even criminal defense, which may include DUI law. While the law, in general, is complicated, DUI law is complicated in its own right. Understanding the nuances of DUI law and the science involved is crucial in defending a DUI case. If I’m hiring an attorney to represent me for a DUI, I want a lawyer who defends DUI cases day in and day out, not a lawyer who may defend a DUI case every couple of months.

Although many of don’t like to say it, but we, by the nature of our profession, are also salespeople. We need to convince people to hire us to represent them. Unfortunately, the reputation of salespeople runs true with many attorneys as well. Some lawyers will tell you what you want to hear to make the sale. They might claim that they can help because the case is a “slam dunk.” I have been practicing DUI defense for some time now and I can tell you firsthand that no case is a slam dunk. In fact, very few things in law are black and white. DUI defense lawyers don’t know the facts of the case, other than what the potential client tells them, until the first court date. In fact, many times what the potential client tells the lawyer is very different than what is in the police report. Therefore, when a person contacts a lawyer for the purpose of hiring them for representation in a California DUI case, the lawyer lacks the information necessary to predict the outcome of a case. Furthermore, it is actually illegal for a lawyer to guarantee an outcome.

It’s no surprise that lawyers can be expensive. But remind yourself that you’re paying for someone with the experience to help you make it through one of the most difficult times of your life. Make your decision to hire a lawyer based on experience, not cost. Fees for California DUI lawyers range from $1000 to $10,000. DUI defense lawyers almost always charge flat fees, not hourly fees. Often, the price of a DUI lawyer corresponds with their experience and what is included in the service. Sometimes, however, it isn’t. Make sure that you’re getting what you’re paying for.

I can’t say it enough. Hiring a lawyer is an extremely important decision and one that can have lasting effects on your life. Do your research and find the right California DUI attorney.

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In California it is Actually Illegal to Drive While Addicted

Thursday, March 30th, 2017

Most people know that in California, a person cannot drive with a blood alcohol content of 0.08 percent or more. Some know that, additionally, a person can be charged separately with “driving under the influence” if the officer observed facts that would lead a prosecutor to believe that the person couldn’t drive like a sober person regardless of their blood alcohol content. But few people, however, are aware of California’s least known DUI law.

It is actually illegal in California to drive a vehicle while addicted to a drug.

Under California Vehicle Code section 23152(c), “[i]t is unlawful for any person who is addicted to the use of any drug to drive a vehicle.”

When I first learned that this law existed, I asked myself the same questions that you’re probably asking yourself right now: If an addict is not under the influence at the time of driving, how can still be prosecuted for a DUI? Shouldn’t the law only punish those who actually pose a risk to the roads because of current intoxication?

In 1965, the California Supreme Court justified the law in the case of People v. O’Neil.

In looking at the legislative intent in drafting the law, the court concluded, “when an individual has reached the point that his body reacts physically to the termination of drug administration, he has become ‘addicted’ within the meaning and purpose of [23152(c)]. Although physical dependency or the abstinence syndrome is but one of the characteristics of addiction, it is of crucial import in light of the purpose of [23152(c)] since it renders the individual a potential danger on the highway.”

Although it’s a stretch, the court concluded that a person who is an addict and going through withdrawals can be a danger to the roads. So if that’s the case, can a person who is an addict, but not going through withdrawals, still be arrested, charged, and convicted? According to the California Supreme Court, yes.

“The prosecution need not prove that the individual was actually in a state of withdrawal while driving the vehicle. The prosecution’s burden is to show (1) that the defendant has become ‘emotionally dependent’ on the drug in the sense that he experiences a compulsive need to continue its use, (2) that he has developed a ‘tolerance’ to its effects and hence requires larger and more potent doses, and (3) that he has become ‘physically dependent’ so as to suffer withdrawal symptoms if he is deprived of his dosage.”

Although this section of the vehicle code is rarely enforced, California technically can continue to punish drivers who are addicted to a drug even though they may not be, at the time of driving, under the influence of a drug.

Apparently some parts of the California Vehicle Code like this section doesn’t exist to protect the public from unsafe drivers, but rather punish people with arbitrary labels who can and do drive safe.

 

 

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