Is there such a thing as Attempted DUI?

Tuesday, October 11th, 2016

It’s not a common question, but one that I was asked about during a criminal law class that I teach: Is there such a thing as attempted DUI?

“When might this scenario present itself,” you might ask.

Imagine a scenario when a person is extremely drunk at a bar. After leaving the bar, the person enters their vehicle, but cannot start it because they are drunkenly using the wrong key. Unbeknownst to the person, a police officer was outside of the bar and witnessed the whole thing.

The officer can’t arrest the person for a DUI because in California, the law requires that the person actually drive their vehicle. But can the officer arrest the person for attempting to drive drunk?

In People v. Garcia, law enforcement found the defendant in her vehicle which was in the fast lane of the highway with the hazard lights on. As her vehicle began to roll backwards, the defendant unsuccessfully attempted to start the engine. She was, however, able to put the vehicle in park. Law enforcement observed the entire thing and arrested the defendant.

After the defendant was convicted, the court of appeals determined that the crime of “attempt” can be applied to a California DUI.

According to the California Penal Code, an “[a]ttempt requires a specific intent to commit the crime, and a direct but ineffectual act done towards its commission.”

Driving under the influence is, what is called, a “general intent” crime because it only requires that a person intend to commit the act of driving, but not necessarily driving while drunk. A “specific intent” crime, on the other hand, requires that a person intent to commit a crime. Theft, for example, is a specific intent crime because it requires that the person have the specific intent to steal the property of someone else. But very few people intend on driving while drunk. Rather, they intend to drive while they also happen to be drunk. It is subtle, but very important distinction.

The court in Garcia essentially ruled that an attempted California DUI is a specific intent crime. In other words, a person can specifically intend on attempting to commit the crime of driving under the influence, not just the act of driving. This ruling begs the question: If a person can specifically intend to attempt to drive while under the influence, then can the mere fact that they are drunk negate their specific intent to commit a crime?

This may sound a little confusing, so let me put it in other terms. Let’s say a person becomes so drunk that they “black out,” but are still conscious. That person then steals his neighbor’s lawn gnomes because, in his drunken state, he thinks it will be funny. If he is prosecuted for theft, the prosecutor would have to prove that the person had the mental state to specifically commit the crime of theft. This may be difficult for the prosecutor to do if the person was “blacked out” drunk.

So let’s recap. A California DUI is a general intent crime because a person doesn’t intent to drive under the influence. However, when they attempt to drive under the influence, but unsuccessfully do so, it is a specific intent crime where a prosecutor must prove that a person actually intended on committing a crime of attempted DUI. The intoxicating effects of alcohol consumption can serve to negate the specific intent needed to commit the crime of attempted DUI.

So where does that leave us? Unfortunately, I don’t know and I don’t think the court knows either.

The court in Garcia went on to say that it was “not unmindful that there might be some troublesome questions which will have to be resolved in a later case.”

 

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New IID Law Signed into Law in California

Monday, October 3rd, 2016

California Governor Jerry Brown signed Senate Bill 1046 into law this past week making ignition interlock devices mandatory for most DUI offenders.

An IID device is essentially a breathalyzer that is attached to the dashboard of an offender’s vehicle. The device will not the offender to start their ignition if it detects alcohol on the offender’s breath.

The bill was authored by Senator Jerry Hill (D-San Mateo) and extended California’s existing pilot program for another two years which required the installation of an IID for all first time offenders for a period of five months in Alameda, Sacramento, Tulare, and Los Angeles counties.

The bill would require an IID in a number of circumstances; a first-time DUI offense involving injury would require an IID for six months, a first-time non-injury DUI offense would require an IID for six months with full driving privilege if a person does not want to serve a one year suspension with a restricted license, a second-time DUI offense would require an IID for a year, a third-time DUI offense would require an IID for two years, and a fourth or subsequent DUI offenses would require an IID for three years.

“This is a great day for California and this bill will clearly save lives. A week doesn’t go by without us hearing about another death from a drunk driver,” Hill said, noting the recent killing of a 3-year-old in the East Bay, as well as the Southern California accident where a drunk driver killed the 10-year-old daughter of a Hillsborough Elementary School District board member. “It’s needless to say the state should not condone this behavior and we need to do something to stop it.”

Not so surprisingly, Mothers Against Drunk Driving pushed heavily for the bill and applauded its signing last week.

“No parent should have to lose their child to the criminal negligence of a drunk driver — especially when technology exists to prevent such a tragedy,” said MADD board member Mary Klotzbach, whose son Matt was killed by a drunken driver in 2001, in a statement.

Opponents of the bill, including Sarah Longwell, executive director of the American Beverage Institute, argue that California should focus its resources on higher risk, multiple DUI offenders rather than first and second-time offenders. Other complaints of opponents are that the bill undermines a judge’s discretion in sentencing DUI offenders and that the IID requirement is expensive to implement and enforce.

“Our argument is there’s a hard-core population of offenders who are out there habitually driving at extreme intoxication levels. Let’s … focus our resources on that hard-core population, make sure they’re complying,” Longwell said. “We think ignition interlocks can absolutely be a useful tool in fighting drunk driving, it’s about at what level do you expand these mandates and at what point is it a diminishing return?”

The bill will go into effect January 1st of 2019 and last until 2026 unless the California Legislature extends or modifies is.

The typical cost of an IID runs between $60 and $80 per month for maintenance and calibration with a $70 to $150 installation fee.

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LAPD Officers Charged in DUI Cover-Up

Monday, September 26th, 2016

Usually when I write about officers falsifying DUI police reports, it’s because they’ve done so to create non-existent evidence to justify a DUI arrest and help secure a wrongful conviction. So when I see a story of officers falsifying evidence to hide a DUI, I take notice.

According to the Los Angeles Times, two LAPD officers have been charged with attempting to cover up a DUI-related collision by driving the drunk driver home and falsifying the police report.

Officers Rene Ponce and Irene Gomez were patrolling a neighborhood in Boyle Heights, California on October 26, 2014, when they responded to a crash involving a drunk driver. According to prosecutors, the drunk driver had collided into two parked cars.

Prior to Ponce and Gomez’s arrival, a neighbor was awakened by the sound of the collision and observed the man who crashed into his neighbors’ vehicles attempt to flee the scene. The neighbor, Larry Chavez, 63, and two other neighbors gave chase and eventually caught up with the man.

“We held him down till one of the cops came,” Chavez told The Times. “He was so drunk.”

However, instead of conducting the DUI investigation, Ponce, 39, and Gomez, 38, lied in their police report and said that the drunk driver fled the scene when, in fact, they drove him home to his apartment and told him to sleep it off.

Following an internal affairs investigation, Ponce and Gomez were charged with felony filing a false police report and conspiracy to commit an act injurious to the public, according to the Los Angeles County District Attorney.

Ponce’s attorney declined to comment. Gomez’s attorney, on the other hand, maintains that his client did nothing wrong.

“My client has an outstanding record, with an outstanding reputation for truth and honesty,” Gomez’ attorney, Ira Salzman told The Los Angeles Times. “She’s well-respected by her peers.”

If convicted, the officers face up to three years in jail.

There is a misconception that DUI defense attorneys condone drunk driving and anything that helps a drunk driver get off the hook is a good thing. I can speak for most DUI attorneys when I say that is absolutely not true. We want law enforcement to do their jobs, and we want the Constitution to be upheld, and we want the truth.

I do not applaud Ponce and Gomez’s actions. All I ask is that they investigate the DUI within the bounds of the law while maintaining the constitutional rights of the person suspected of driving under the influence.  

 

 

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Challenging the Breathalyzer in a California DUI Case

Tuesday, September 20th, 2016

The breathalyzer is the most commonly used method for testing the blood alcohol content of suspected drunk drivers in California. Yet, both myself and Lawrence Taylor have written on more than a few occasions about the inaccuracies of the breathalyzer. Such inaccuracies include, but are not limited to an inability to differentiate between blood alcohol and “mouth alcohol,” elevated temperatures causing elevated BAC readings, and certain diets causing elevated readings.  

So can a person suspected of driving under the influence of alcohol in California challenge the accuracy of breathalyzers in court?

Notwithstanding the widely proven fact that breathalyzers are generally inaccurate, the California Supreme Court in 2013 ruled that scientific evidence refuting the accuracy of breathalyzers in general in California DUI cases are inadmissible.

The issue arose when a California trial court agreed with the prosecutor and excluded the testimony of a defense expert of Terry Vangelder who would have testified that breathalyzers, in general, can be inaccurate.

In 2007, California Highway Patrol pulled over Vangelder for allegedly going 125 miles per hour 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 Californi’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."

I’m sorry, but I read that to say, “We recognize that science is important in determining the accuracy of breathalyzers, but we’re not going to undermine the legislature because of its good intent.”

Legislators are not scientists.

The effect of the decision was that people suspected of a California DUI can no longer offer evidence that breathalyzers, in general, are inaccurate. People suspected of a California DUI can, however, still challenge the accuracy of a particular breathalyzer.

Seems to me that the California Supreme Court doesn’t want accuracy in California DUI cases.

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Temporary Tattoo Give BAC Reading

Tuesday, August 16th, 2016

Considering purchasing a personal breathalyzer? I’ve suggested it before as one of several ways to help prevent a DUI. What if knowing your blood alcohol content was a simple as slapping on a temporary tattoo? Well, researchers at the Center for Wearable Sensors at the University of California San Diego have created a removable electronic tattoo that detects the wearer’s BAC.

A team of researchers at the center were interested in a device that offered continued BAC monitoring which typical breathalyzer do not offer. The researchers also wanted to develop a BAC detector that could not be skewed by factors other than blood alcohol such as mouthwash, acid reflux, or alcohol residue in the mouth all of which affect typical breathalyzers.

The tattoo is similar to other devices sometimes mandated by the court as a condition of a California DUI sentence or a condition of being release without having to post bail pending the outcome of a California DUI case. At least in Southern California, the device is called a SCRAM device which passively tests “insensible” sweat, or trace amounts of sweat, excreted from a person’s skin. The SCRAM device is rather bulky and can be relatively expensive.

The tattoo, however, emits a drug called pilocarpine, which generates sweat. The tattoo then tests the sweat excreted from the skin as a result of administration of the pilocarpine for ethanol alcohol through sensors which are attached to the skin. However, unlike the SCRAM device, the temporary tattoo and sensors are attached to a flat, flexible circuit board that is about an inch in length. The circuit board then transmits the information to the wearer’s phone via Bluetooth.

One of the project scientists and professor of nanoengineering, Joseph Wang, has said that the tattoo device could be made even smaller than its current form with continued engineering. He added that, unlike the SCRAM device, the tattoo could cost a mere pennies to produce.

“We developed a new tattoo-based wearable alcohol sensor that enables real-time monitoring of blood alcohol level, overcoming limitations of conventional non-invasive alcohol sensors,” said Jayoung Kim, a co-author and PhD student at UCSD.

The tattoo comes at a time when law makers and law enforcement agencies are actively seeking more reliable and efficient ways to detect blood alcohol content.

Earlier this year, the National Institute on Alcohol Abuse and Alcoholism, which is part of the National Institute of Health, awarded $200,000 to San Francisco-based BACtrack for developing a bracelet-type device as the winner of its Wearable Alcohol Biosensor Challenge. BACtrack has produced a number of personal breathalyzers for consumer use.

Keith Nothacker, BACtrack’s founder and chief executive officer, said that the firm is working on bringing the winning sensor, called “Skyn,” to the consumer market for around $99 and offer a version that is integrated into a band for the Apple watch.

In a press release, Joseph Wang said that the primary purpose for developing the BAC-detecting temporary tattoo was to prevent drunk driving.

“Lots of accidents on the road are caused by drunk driving. This technology provides an accurate, convenient and quick way to monitor alcohol consumption to help prevent people from driving while intoxicated,” Wang said.

Hopefully soon the temporary tattoo will be available for consumer use. And maybe the BAC detecting tattoo will prevent, not just drunk driving, but also someone from getting so drunk that they get a real tattoo that they might regret the next morning.

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