Law Requiring Ignition Interlock Devices for California DUI Passes Senate

Monday, June 6th, 2016

On Tuesday of last week, the California Senate passed a new bill that would require all people convicted of a California DUI to have an ignition interlock device installed on their vehicle. Senate Bill 1046 will now be sent to the California Assembly for consideration.

Under a current pilot program here in California, only four counties require the installation of an ignition interlock device following a DUI conviction; Alameda, Los Angeles, Tulare, and Sacramento. A first-time DUI requires installation for five months upon eligibility to drive either with a restricted license or a full reinstatement of driving privileges. The pilot program also requires an IID for 12 months for a second-time DUI, 24 months for a third DUI, and 36 months for a fourth or subsequent DUI.

If you don’t already know, an ignition interlock device is a breathalyzer that is installed into the dashboard of a person’s vehicle. The device must be blown into before the engine can be started, but only if the breathalyzer does not detect alcohol on the breath sample. Once the vehicle is started, the breathalyzer must be blown into at random times throughout the drive.

The proposed law was introduced by Senator Jeremy Hill and, not surprisingly was overwhelmingly praised by Mothers Against Drunk Driving (MADD).

“MADD is grateful to the Senate for moving this life-saving bill forward," said MADD’s National President, Colleen Sheehey-Church. "In the coming weeks, MADD will be visiting Assembly members and calling on them to quickly pass SB 1046 to protect residents and visitors from this 100 percent preventable crime."

MADD released its “Ignition Interlock Report” compiled from data collected during the pilot program which has been running since 2010. According to the report, ignition interlock devices have prevented more than one million drunk driving attempts in California with about 125, 000 of those attempts involving a blood alcohol content of 0.08 percent or more.

However, the California DMV is also compiling a report on the effectiveness the ignition interlock devices have had on preventing drunk driving.

In fact, the California DMV previously found that such a law would not prevent people without ignition interlock devices from driving drunk. Additionally, there are ways to circumvent the requirement of providing a clean breath sample before starting a vehicle.

The cost of the interlock device can run approximately $75 to $100 for installation, about $75 per month, and often additional fees for maintenance and calibration. This is on top of the cost already associated with a California DUI conviction which can run upwards of $10,000.

If passed, first time offenders would be required to install the devices for six months, a year for a second offense, two years for a third offense and three years for a fourth or subsequent offenses.

The will be heard by several Assembly committees, including the Committee on Public Safety, and must be approved by the Assembly before it can be considered by California Governor Jerry Brown.

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California Senate Committee Passes IID Law

Monday, April 4th, 2016

A couple of posts ago, I wrote about whether a person who has been convicted of a California DUI will be required to install and maintain an ignition interlock device. 

Currently, ignition interlock devices are only required by the DMV for people convicted of a California DUI in four counties as part of a pilot program: Alameda, Los Angeles, Tulare and Sacramento. Otherwise, the requirement that a person install an ignition interlock device is dependent upon whether a judge orders it as a condition of probation.

Last year, Senate Bill 61 extended the pilot program, which was set to end January 1, 2016, to July 1, 2017.

July 1, 2017, however, was too long for Senator Jerry Hill.

Hill authored Senate Bill 1046 which, if passed, would require people convicted of a DUI to install an ignition interlock device in their vehicle throughout California.

The bill took a big step into becoming law this past week when the California Senate Public Safety Committee voted 7-0 in favor of passing the bill. Now that the California Senate Committee has unanimously voted for the bill, it will be sent to the Senate Appropriations Committee.

Not surprisingly Mothers Against Drunk Driving (MADD) fully backed the proposed bill.

“Senator Hill has shown extraordinary leadership on drunk driving prevention, and we are extremely grateful to the committee for agreeing that ignition interlocks do save lives,” said Mary Klotzbach, a MADD National Board member and whose 22-year-old son, Matt, was killed by a drunk driver.

This past February, MADD released its own Ignition Interlock Report, which reportedly showed the deterrent effect that ignition interlock devices had on repeat drunk driving. According to their report, ignition interlock devices prevented 1.77 million drunk driving attempts where the would-be driver’s blood alcohol content was 0.08 percent or more. The report also alleges that ignition interlock devices prevented more than 124,000 drunk driving attempts.

“Today, the Senate Public Safety Committee voted to protect all Californians from the completely preventable, violent crime of drunk driving,” said Klotzbach. When I buried Matt, I buried a piece of my heart. Now I want make sure no other parent, child, brother, or sister ever has to endure this kind of heartache.”

The mandatory installation of ignition interlock devices will add to an already long list of mandatory conditions that a person convicted of a California DUI must complete. What’s more, in addition to the other thousands of dollars associated with a California DUI conviction, people required to install the ignition interlock device will have to pay between $50 and $100 per month to have the device installed and maintained.

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Increased Penalties for a High BAC

Monday, October 26th, 2015

When it comes to a California DUI, sentence there is a difference between driving drunk and driving really drunk.

It is not uncommon for a person to be caught driving drunk with a blood alcohol content of more than 0.15 percent. Unfortunately, it is also not uncommon for a person to be caught driving drunk with a blood alcohol content of more than 0.20 percent.

When this happens, in addition to being charged with the normal California DUI charges under California Vehicle Code section 23152 (a) and 23152(b), the prosecutor will also include what is known as a “special allegation” in the complaint. As a result of the “special allegation,” the person arrested for a California DUI is now actually facing increased penalties.

California Vehicle Code section 23578 sets forth the special allegation when a person’s blood alcohol content is 0.15 to 0.19 percent.

“In addition to any other provision of this code, if a person is convicted of a violation of Section 23152 or 23153, the court shall consider a concentration of alcohol in the person’s blood of 0.15 percent or more, by weight, or the refusal of the person to take a chemical test, as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation.”

In my experience, there are a number of common enhanced penalties that a prosecutor seeks when there is a special allegation that a person’s BAC was 0.15 or more. Those enhancements include, but are not limited to, a longer DUI program, AA meetings as a condition of probation, AA meetings as a condition of being released on their own recognizance pending the outcome of their case, MADD’s Victim Impact Panel, and/or a Hospital and Morgue Program.

When a person’s blood alcohol content is 0.20 percent or more, California Vehicle Code section 23538(b)(2) provides:

“The court shall refer a first offender whose blood-alcohol concentration was 0.20 percent (.20%) or more, by weight, or who refused to take a chemical test, to participate for at least nine (9) months or longer, as ordered by the court, in a licensed program that consists of at least 60 hours of program activities, including those education, group counseling, and individual interview sessions described in Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code.”

Although section 23538(b)(2) specifically mentions a 9-month DUI program (called AB1353), there’s a good chance that the prosecutor will be pushing for an 18-month program (called SB38). The longer DUI program would be in addition to any of the other increased penalties I mentioned above.

When a California DUI case includes special allegations such as these, it is important and especially advantageous to the DUI-arrestee that an experienced California DUI attorney not only fight the underlying DUI charges, but the special allegations as well.  

 

 

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Traveling to Canada after a California DUI Conviction

Monday, July 6th, 2015

I’ve recently represented several people in California DUI cases who, after having been convicted, needed to travel to Canada. They were all surprised to learn that traveling to visit our neighbors to the north after a California DUI conviction was not as easy as they thought.

Canada considers driving under the influence as a very serious crime, so much so in fact, that they consider it an “indictable offense.” This is the functional equivalent to a felony under California law. Unlike California where a DUI is, for the most part, considered a misdemeanor for a first, second and third offense and punishable up to a year in jail, as an indictable offense in Canada, a DUI is punishable up to five years in jail.

Because all DUIs are, for all intents and purposes, considered felonies, anybody convicted of a DUI or even a wet reckless is excludable from entry into Canada under their Immigration Act.

Not all hope is lost. There are several exceptions where Canadian law allows a non-Canadian entry into the country despite a California DUI conviction.

The first exception is to be “deemed rehabilitated.” To be deemed rehabilitated, the maximum term of imprisonment for the DUI conviction was less than 10 years, the sentence for the California DUI conviction was completed at least 10 years ago, and no other indictable offenses were committed during those 10 years. If someone meets these criteria, they do not need to do anything further to gain entry into Canada, although it would be a good idea to have proof of this when trying to cross the border.

The second way to gain entry into Canada notwithstanding a California DUI conviction is “individual rehabilitation,” otherwise known as “rehabilitation by application.” The first requirement is that at least five years must have passed since the completion of the sentence for a California DUI conviction. It gets tricky however in trying to calculate the five-year wait period. The five-year wait period can be calculated in the following ways: 1.) five years from the date of sentencing if given a suspended sentence; 2.) five years from the date a fine was paid if given a suspended sentence and a fine; 3.) five years from the end of a prison term with no parole; 4.) five years from the end of parole or probation if sentenced to either; or 5.) five years from the end of a driver’s license suspension.

If someone meets the criteria needed for individual rehabilitation, they will need to fill out an application and submit it to a Canadian visa office located in the U.S. The application requires the applicant to explain why they are rehabilitated. The submission of the application for individual rehabilitation also requires a non-refundable application fee.

Another option to enter Canada even if someone has a California DUI conviction on their record is to obtain an expungement of the conviction. An expungement is the equivalent to a Canadian “record suspension.” Under Canadian law, a person cannot be denied entry for a DUI conviction where a record suspension has been issued for that conviction. To be eligible for an expungement of a California DUI conviction, a person must have successfully completed probation and must not have any criminal actions pending against them including criminal charges, probation on another case, or serving a sentence for another case.

While an expungement is the most common and efficient way to obtain entry into Canada, it would be wise to consult an immigration attorney to ensure that the expungement will meet the requirements of a “record suspension.”

The last way to enter Canada with a California DUI conviction on the record is to apply for a “temporary resident permit.” A temporary resident permit may be given when an applicant must enter Canada for a specific purpose and only for a limited period of time. The applicant must also so that the need to enter Canada must outweigh any risk to Canadian public safety. Like individual rehabilitation, an applicant must pay a non-refundable application fee.

Anyone wishing to enter Canada following a California DUI conviction through any of the abovementioned avenues should consult with both a criminal defense attorney as well as an immigration attorney.

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Can You Get a California DUI While Parked?

Monday, May 4th, 2015

The first word in the acronym DUI is “drive,” yet many people believe that a person can get a California DUI even if they didn’t drive a vehicle. While that may be the case in other states, in California a prosecutor needs to prove that a person actually drove a vehicle while intoxicated.

California Vehicle Code section 23152 (a) and (b) reads, “It is unlawful for a person who is under the influence of any alcoholic beverage or who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

So can a person be arrested and subsequently convicted if police find them drunk and passed out in a parked car?

In the 1991 case of Mercer v. Department of Motor Vehicles, the California Supreme Court held that the word “drive” for purposes of California’s DUI law required evidence of a defendant’s volitional movement of a vehicle. With his holding, the California Supreme Court upheld “decades of case law” on the issue.

In 1985, it was held in the case of People v. Wilson that “[w]ith regard to the offence of driving under the influence…a ‘slight movement’ of the vehicle in the officer’s presence has been a determinative factor in concluding whether or not a defendant was ‘driving’ in the presence of the officer.”

So does that mean that the officer must witness a “slight movement” of the vehicle? No.

The court in Wilson went on to say, “On the other hand, where the sufficiency of the evidence to support the judgement is in question, as contrasted with the validity of a defendant’s arrest, it is clear that the existence of evidence establishing a ‘slight movement’ of the vehicle does not present a problem. In the absence of such direct evidence of ‘driving’ the element of ‘driving’ may nonetheless be established at trial through circumstantial evidence…”

Simply put, a prosecutor needs to prove that a DUI suspect, at the very least, caused a vehicle to slightly move. The easiest way to prove that the DUI suspect was driving is if an officer observes a “slight movement” of the vehicle. However, if an officer does not observe a “slight movement,” a prosecutor can still prove that a person drove a vehicle with circumstantial evidence.

Circumstantial evidence that has been used to prove that a person drove for purposes of a California DUI include, but not limited to, officers finding the vehicle at or close to an accident site or finding the vehicle in the middle of the road.

California’s DUI law is different than several other states which only require “dominion and control” over a vehicle. In those states, DUI suspects can be charged and convicted if they are found intoxicated while having “dominion and control” over a vehicle with the potential to drive it.

So to answer our initial question of whether a person can arrested and subsequently convicted of a California DUI if they’re found drunk and passed out in a parked car, the answer is it depends. It depends on whether the prosecutor can prove that the person actually drove the vehicle.

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