Breath or Blood Test After a California DUI Stop?

Thursday, October 19th, 2017

Let’s imagine a common DUI scenario.

A person is stopped on suspicion of a California DUI. The person stopped has read my many posts telling readers that the field sobriety tests are optional and should not be submitted to. So they politely decline the field sobriety tests. Then the officer requests an on-scene breathalyzer known as the “preliminary alcohol screening” test or PAS test. In addition to my posts reminding readers that this too is option, the officer also informs the driver that the PAS test is optional. So this too is politely declined by the driver. Lastly, the officer advises the driver that they are under arrest on suspicion of a California DUI and that, by law, they must submit to a chemical test which can either be a breath or a blood test.

Which test should the driver choose? Breath or blood?

The DUI blood test is much more accurate than the DUI breath test. The blood test is far less likely than a DUI breath test to produce a false reading. Another benefit of a DUI blood test is that the law requires that a sample of the blood is saved for future testing by the DUI suspect’s defense attorney. The defense attorney can have the sample tested by its own blood analyst to contradict the results of the prosecutor’s analyst. This is called a “blood split” and it is commonly used in DUI defense.

The blood test, however, is not infallible. See my previous post:

The Dirty Skin Defense

Since the blood test is more accurate, if a person knows that they have not had much to drink and they are fairly certain that they are under the legal limit of 0.08 percent, then a blood test might be the better option. On the other hand, the blood test might not be the best for someone who is clearly over the legal limit because it will be more difficult to dispute the test results.

 Unlike the blood test, the breath test is rather unreliable. Breath tests can provide false readings for several reasons. See Lawrence Taylor’s post:

Are Breathalyzers Accurate?

Although California DUI attorneys cannot dispute the reliability of breathalyzers as a whole during a DUI trial, they can provide evidence that the particular breathalyzer used in an individual case was inaccurate.

Unlike the blood test, the breath test may be a better option for someone who knows they are likely over the legal limit because it will be easier for a California DUI attorney to refute the results. However, many people who are actually under the legal limit may still test over the legal limit because of the same inaccuracies.

Simply put, if you are fairly confident that your blood alcohol content will below the legal limit of 0.08 percent, you’re probably better off opting for the blood test because it will accurately show that you were, in fact, under the legal limit. However, if you think there is a chance that you could be above the legal limit, you might be better off opting for a breath test so that your attorney can challenge the results if you test above the legal limit.

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DUI in a Driverless Car

Friday, October 13th, 2017

Driverless cars are so close to becoming a reality that just this past week, California published new draft rules that provide a clearer picture of how the driverless car industry will be regulated in the state.

Amongst the many proposed regulations that were drafted, which can be found on California’s DMV website here, is that driverless cars must comply with state and local driving laws.  Companies which sell the driverless vehicles to customers must make software updates available to comply with changes in traffic laws.

While the proposed regulations apply primarily to the manufacturers of the driverless vehicles and not necessarily on the owner of the driverless vehicle, it remains unclear how driverless cars will affect another state law that does apply to the owner and, dare I say it, driver of the driverless vehicle; the California DUI.  

As is, the California Vehicle Code’s DUI law makes it “unlawful for a person who is under the influence of any alcoholic beverage…[or] who has 0.08 percent or more…of alcohol in his or her blood to drive a vehicle.”

If driverless cars take to the streets of California in the next year, or possibly even months, the question becomes whether the word “drive” under California’s DUI law still applies. In other words, can a person still be charged, arrested, and convicted of a California DUI while using a driverless car?

At least one country says no.

Australia’s National Transport Comission (NTC) has released a report suggesting that applying drunk driving laws to driverless cars could discourage the use of driverless cars in general and when trying to get home safely after drinking:

Driving Drunk or on Drugs in a Driverless Car Should Be Legal, Expert Body Says

October 6, 2017, CNBC – People under the influence of drugs and alcohol should be able to use driverless cars without falling foul of the law, a regulatory body in Australia has suggested.

The National Transport Commission (NTC), an independent advisory body, said current laws could reduce the uptake of automated vehicles. One of those potential barriers could be any law that requires occupants of self-driving cars to comply with drink-driving laws.

"This would create a barrier to using a vehicle to safely drive home after drinking. Enabling people to use an automated vehicle to drive them home despite having consumed alcohol has the potential to improve road safety outcomes by reducing the incidence of drink-driving," the NTC said in a discussion paper released earlier this week.

"Legislative amendments could be made to exempt people who set a vehicle with high or full automation in motion from the drink- and drug-driving provisions."

The NTC does acknowledge a risk that could involve a person under the influence of drink or drugs choosing to take over the car. If that occurred, the body suggests that drink and drug driving offences would apply. But ultimately, a drunk person in a driverless car is similar to them being in a taxi, the NTC concludes.

"The application of an exemption is clear-cut for dedicated automated vehicles, which are not designed for a human driver. The occupants will always be passengers. The situation is analogous to a person instructing a taxi driver where to go," the paper said.

In many countries drugs are illegal and drink-driving laws differ between jurisdictions.

Australia has been pushing forward legislation to facilitate driverless cars over the past two years. In 2015, the first public self-driving car trials took place in South Australia, after laws were passed there to allow tests.

The NTC also recently released guidelines on driverless car tests across the entire country.

Analysts have forecast that automated vehicles could actually be a boon for the alcohol industry.

"Shared and autonomous vehicles could expand the total addressable market of alcoholic beverages while reducing the incidence of traffic fatalities and accidents," Morgan Stanley analyst Adam Jonas saidin a report last month.

Governments across the world are looking into the implications that driverless cars will have on the law and the insurance industry.

I’ve said it before and I’ll say it again. Anything that helps prevent drunk driving, I’m in favor of. If a driverless car can get people home safely after a night of drinking, then why wouldn’t we use them? But to apply DUI laws to those using driverless cars defeats the purpose of DUI laws in the first place, namely to punish and deter drunk driving. In fact, it may actually discourage people from choosing this new method from traveling, as the NTC’s report suggests.

 

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California DUI with a High BAC

Friday, September 29th, 2017

Many people know that the legal blood alcohol content limit is 0.08 percent and that if caught driving with a 0.08 percent or more, they will face the penalties associated with a DUI. Few people however know that if they are caught driving with a blood alcohol content that is much higher than the legal limit, they face additional penalties.

The mandatory minimum punishment for a first time DUI conviction in California is $390 plus penalties and assessments, which are like court taxes and will increase the overall amount to about $2,000, three years of summary (informal) probation, and a three-month DUI program called AB-541.

The first consequence of a driver having a high blood alcohol content, beyond the mandatory minimum penalties mentioned above, is that they must admit to having a high blood alcohol content. The prosecutor may include in the criminal complaint a “special allegation” that the driver’s blood alcohol content was high. In addition to pleading guilty to the DUI itself, as part of a plea deal, prosecutors often want the driver to admit on the record that the special allegation that their blood alcohol content was particularly high.

A driver may also be facing a longer DUI program. AB 762 is a six-month program and AB 1353 is a nine-month program and both can be offered as part of plea deal for an elevated blood alcohol content. There is an 18-month program called SB 38, but it is reserved for people who have been convicted of one or more California DUI’s within the past 10 years. 

Another additional penalty that a person faces after a California DUI conviction with a high blood alcohol content is the Mothers Against Drunk Driving Victim Impact Panel. According to Mother Against Drunk Driving (MADD), one of their main goals is to prevent recidivism of DUI offenses. In an attempt to accomplish this, MADD provides one-day presentations where convicted DUI offenders listen to the stories of people whose lives have been negatively affected by drunk driving. The speakers are usually victims of DUI-related collisions or relatives of those who were killed as the result of DUI-related collisions.

The prosecutor might also offer a Hospital and Morgue (HAM) program. The name is exactly what the program entails. The person convicted of the California DUI must visit with doctors at a hospital who address the dangers of driving drunk and experience the health consequences of driving drunk. Following the hospital visit, the person must visit a morgue where they view the bodies that are stored there and are confronted with the ultimate consequence of driving drunk and other risky behavior. After both the hospital and morgue components are completed, the person must write an essay reflecting on their experience, the lessons learned, and behavior moving forward.

Alcoholics Anonymous (AA) meetings might also be offered as an additional penalty when a BAC is particularly high. According to its own website, www.aa.org, “AA is an international fellowship of men and women who have a drinking problem…Membership is open to anyone who wants to do something about his or her drinking problem.” AA meetings are relatively easy to locate and are offered throughout the week at varying times. Since the meetings only typically last one hour to 90 minutes, the court usually requires at least 10 meetings. For extremely high BAC readings, a person may have to a significant amount of AA meetings.

Lastly, a person may actually have to serve jail time. Whether a prosecutor will want jail for an elevated BAC depends other aggravating factors surrounding the DUI, the county in which the DUI took place, and the courthouse itself. Although it is the most severe of the increased penalties and unlikely to be offered, it is possible.

A driver with a particularly high blood alcohol content may face one, all, or a combination of any of the abovementioned increased penalties. Other, less frequent penalties, such as a SCRAM device or an ignition interlock device, may also be included. Since these penalties are not mandatory, it is important to hire a California DUI attorney to possibly eliminate them as part of a DUI sentence.

 

 

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Drunk Driving on an ATV

Saturday, August 12th, 2017

A little over a week ago, two drivers were arrested for driving their all-terrain vehicles while under the influence of alcohol.

George Mooshian, 47, and Randy Hoisington, 55, both of Newport, New Hampshire were driving their ATV’s while under the influence of alcohol when Mooshian drove his ATV off of the trail and into a tree. Hoisington, who was following behind Mooshian, attempted to avoid colliding into Hoisington and rolled his ATV.

Both ATV operators were flown to the hospital for serious injuries.

Fish and Game officials responded to the incident and determined that speed and alcohol were contributing factors in both collisions. Also, neither driver was wearing a helmet at the time of the collisions.

Mooshian and Hoisington were arrested on suspicion of operating a OHRV (off-highway recreational vehicle), which is another name for an all-terrain vehicle.

Although this particular incident happened in another state, someone in California can also be charged with a California DUI for operating an ATV while intoxicated.

For those who take to the dunes or off-road trails on their ATVs, it is not uncommon to pack a cooler of beers as refreshments. To the surprise of many riders, if the beer is consumed before hopping aboard the ATV, it could land them in jail on California DUI charges.

For purposes of California DUI law, an ATV is a motor vehicle. Although California DUI law requires that a person drive a “vehicle,” California Vehicle Code Section 670 defines a “vehicle” as “a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”

Because ATV’s are considered vehicles, drunk drivers of ATV’s are subject to the same penalties as those who are arrested for a California DUI in their vehicle; probation, up to 6 months in jail, up to $1,000 in fines, and other possible penalties.

Does it matter if the drunk ATV driver is not on a public road way? Unfortunately, no.

Off-road trails and sand dunes are considered public roadways for the purposes of California DUI law. The California Court of Appeals in the case of People v. Malvitz concluded that the legislative intent of California DUI laws was that they extend beyond the public roadways to anywhere in California including private off-road trails or dunes.

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DUI with Keys in the Ignition but No Driving?

Friday, August 4th, 2017

Not only do I practice DUI defense and write these posts on DUI-related topics, but I also teach law which sometimes includes teaching students what is required for a DUI. Students are often surprised when I tell them that, in California, driving must occur for a person to be arrested, charged, and convicted of a California DUI.

States are split on whether a person can get a DUI for merely having their keys in the ignition. States that don’t require that the defendant actually drive are called “dominion and control” states. Fortunately, California is not one of those states.

In states that have “dominion and control” DUI laws, if a person is intoxicated and has dominion and control of their vehicle with the mere ability to drive, they can be arrested, charged, and convicted of that state’s DUI laws. California, on the other hand, requires that the defendant actually drive the vehicle.

In 1991, the California Supreme Court in the case of Mercer v. Department of Motor Vehicles held that the word “drive” in California’s DUI law means that the defendant volitionally and voluntarily moved the vehicle. While no movement is insufficient for a DUI, the courts have held that even a “slight movement” is enough to meet the requirement that the defendant drove the vehicle.

Therefore, in California, a person cannot get a DUI for merely having the keys in the ignition. The officers and prosecutor would need evidence, in addition to the keys being in the ignition, that the person voluntarily moved the vehicle.

When there is no direct evidence that the defendant drove, such as the officer witnessing the defendant driving, proof that the defendant drove can be established through circumstantial evidence and inferences.

For example, if a person is on the shoulder of the freeway as the sole occupant of a vehicle with the keys in the ignition and they are under the influence or have a blood alcohol content of 0.08 percent or higher, the prosecutor and jury can infer that there was no other way to get to shoulder of the freeway and there was no one other person who could have driven there.

Contrast that with a scenario in which the defendant is found under the influence or with a blood alcohol content of 0.08 percent or higher in their vehicle which is in their driveway and the keys are in the ignition. Here, there is no other circumstantial evidence to create the inference that the defendant actually drove the vehicle.

So, just because you can’t be arrested, charged, and convicted of a DUI with just the keys in the ignition, doesn’t mean that a you should be drunk in a vehicle with keys in the ignition. Don’t put it past law enforcement and prosecutors to try to establish that a person drove even if ever so slightly.

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