If Prop 64 Passes, Will We See More Marijuana-DUI Traffic Collisions?

Monday, October 31st, 2016

A few weeks ago, I wrote about how California DUI law could be affected generally should voters pass Proposition 64 this coming November.

If you haven’t read it, here’s the gist:

If Prop. 64 is approved, California would legalize recreational marijuana this November 8th. As the sixth largest economy in the world and an already existing thriving medical marijuana market, it is estimated that the marijuana industry could become a $6 billion industry by 2020.

While THC is the psychoactive component of marijuana that is detected in cases of DUI of marijuana, there is no way to determine how impaired someone is regardless of how much THC is in their system Unlike alcohol, there is not an established correlation between THC and impairment. As a result, a number of companies are racing to create a roadside test to determine impairment of marijuana rather than just presence of THC.

If Prop. 64 passes, there are many more questions that need answering. One of these questions is whether we will see more marijuana-DUI traffic collisions.

The Los Angeles Times consulted with Beau Kilmer, senior researcher at RAND Corp. specializing in drug policy and co-author of the book “Marijuana Legalization” to ask the very same question.

The Los Angeles Times made mention of the fact that AAA announced last week that it was opposing efforts to legalize marijuana in California and Maine citing statistics showing an increase in marijuana related fatal collisions in Washington, a recreational marijuana state. While AAA opposed Prop. 64, it also conceded, “While the data analyzed for the study did not include enough information to determine which driver was at fault in a given crash.”

To this Kilmer responded, “The bulk of the research suggests that driving drunk is worse than driving stoned, but driving stoned is worse than driving sober. The research suggests that when people are under the influence of both marijuana and alcohol, it does increase the probability of getting into a crash.”

But, he added, “If you are going to be objective about this and you really want to know how marijuana legalization is going to affect traffic safety, you don’t just look at the number of people in crashes who are testing positive for THC. You want to look at total crashes and total accidents. It might be the case that yeah, more people are driving stoned, but some of them are now less likely to drive drunk.”

Kilmer added that the studies are not definitive.

Kilmer’s statements are correct in that, if we are to be objective about this, we can’t just look at AAA’s cited statistic. Just because a person has THC in their system at the time of a collision does not mean that the person is driving under the influence. What’s more, it may be that the amount DUI of alcohol related collisions have reduced since the legalization of recreational marijuana in Washington.

 

 

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What are the Penalties for a California DUI?

Monday, October 17th, 2016

It goes without saying that the punishment for driving under the influence in California, and across the United States for that matter, continues to increase significantly thanks to the hypervigilance of Mothers Against Drunk Driving and like organizations.

So what are the current penalties for a California DUI conviction?

The following is a list of what a person can expect if arrested and convicted of a first-time California DUI. It should be noted that penalties and punishment increase beyond what is listed below when a person has suffered prior DUI convictions within 10 years. The following is what can be expected out of a first-time conviction only.

The first thing a person can expect are the fines and fees. The statutory minimum fine that a person must pay following a California DUI is $390. The maximum is $1,000. Absent aggravating circumstances such as a collision, a person can expect $390. However, in addition to the $390, a person can expect to pay “penalties and assessments,” which will bring the overall amount to about $2,000, give or take a few hundred. I can’t tell you exactly what “penalties and assessments” means. In fact, I’ve heard judges say that they don’t know what it means. Suffice it to say, they are akin to court taxes.

When convicted of a California DUI, a person will be placed on summary (informal) probation for a period of three to five years. Again, absent aggravating circumstances, a person should expect the lower term of three years. Informal probation simply means staying out of trouble and doing what the court ordered. This includes not picking up any new cases, DUI or otherwise, not driving without a valid license, and not driving with any measurable amount of alcohol in the system. During the probationary period, a person must also complete the terms associated with that probation. This includes paying all fines and fees, completing a DUI program, and completing any other conditions the court might order.

The last of the penalties that are required by law is the requirement that a person complete a DUI program. For a first-time California DUI, a person is facing a three-month, six-month, or nine-month program. Like the probation and fines, the longer programs are given when the facts surrounding the DUI include aggravating circumstance. Otherwise, a person can expect to complete the three-month program called AB-541.

The aforementioned are what a person can expect by law. There are, however, other penalties which are not mandated by law, but rather discretionary.

If arrested and convicted of a California DUI, a person can be ordered to complete a “Hospital and Morgue Program.” The program is self-explanatory and is, in my opinion, the most unpleasant of the penalties. Participants in this program must first visit the hospital and listen to doctors explain the negative consequences of drinking and driving. Then the person must visit the morgue or coroner’s office and view the bodies of victims of drunk driving. Following the completion of both the hospital component and the morgue component, the participant must write an essay on their experience.

 Another discretionary punishment for a California DUI is a Mothers Against Drunk Driving Victim Impact Panel. This is a one-day lecture hosted by the group where victims of drunk drivers speak on the impact that driving under the influence has had on their lives.

The court may order a person to complete a number of Alcoholics Anonymous (AA) meetings. As many people know, AA meetings are hosted by the non-profit organization for the purpose of “stay[ing] sober and help[ing] other alcohols achieve sobriety.”

Lastly, the court can order a person convicted of a California DUI to install an ignition interlock device (IID). An ignition interlock device is essentially a breathalyzer that is installed into the ignition of a person’s vehicle. The device will not allow a person to start their vehicle unless they provide a breath sample free of alcohol. It should be noted that, by law, the DMV already requires the installation of an IID for five months in four California counties; Alameda, Tulare, Sacramento, and Los Angeles.

Again, this is what is commonly ordered and what can be expected. The courts have great discretion as to what can be given as punishment for a California DUI including the unexpected. Believe me, prosecutors are currently pushing for as much punishment as possible and this is precisely why it is extremely important to hire an experienced California DUI attorney if arrested on suspicion of a California DUI.

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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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