Will I Have to Install an Ignition Interlock Device?

Monday, March 9th, 2015

One of the more common questions I get when someone has been charged with a California DUI is whether they will need to install an ignition interlock device. Unfortunately the answer is not straight forward and depends on several things.

An ignition interlock device, in short, is a breathalyzer that is installed into the dash of a person’s vehicle that must be blown into before the vehicle can be started, but only if the breathalyzer does not detect alcohol.  Not only must the ignition interlock device be blown into before someone can start their vehicle, but it must also be blown into at random times throughout the drive.

There are a number of things that a person can be sentenced to following a DUI conviction, some of which are mandatory and some of which are imposed at the discretion of the judge. Amongst the discretionary terms of a California DUI sentence is the requirement that a person install an ignition interlock device.

However, if you are arrested and convicted of a California DUI in Los Angeles, Alameda, Tulare or Sacramento Counties, the installation of an ignition interlock device is mandatory following a license suspension and before a person can drive again.

As of January 1, 2010, Assembly Bill 91 became law and created a pilot program in those counties.

The law, California Vehicle Code section 23700, in part reads:

"Before a driver’s license may be issued, reissued, or returned to a person after a suspension…of that person’s driving privilege that requires the installation of an ignition interlock device…"

How long a person has to install an ignition interlock depends on how many prior DUI convictions the person has had. A first time offense carries a 5-month installation period. A second time offense carries a 12-month installation period. A third time offense carries a 24-month installation period. A fourth time offense carries a 36-month installation period.

If a person is required to install an ignition interlock device, they must certify to the California DMV that the device has been installed and they must take their vehicle to the provider of the ignition interlock device every 60 days for maintenance.

The law provides for an exception to the pilot program for those who do not own a car or otherwise have access to one. If that is the case, a person must complete and submit an “exemption form” to the California DMV. A person can then completely avoid the ignition interlock device by waiting out their suspension plus the period during which they would have had the ignition interlock device installed. If, however, the person obtains a vehicle in that time, they must have the ignition interlock device installed.

The pilot program is set to run to January 1, 2016. By July 1st of this year, the California DMV will report to the Legislature on the pilot program’s effectiveness in reducing repeat California DUI offenses. If the data from the pilot program indicates a reduction in repeat California DUI offenses, we may see the installation of an ignition interlock device as a requirement following a DUI conviction throughout California.


California Lawmaker wants Ignition Interlock Devices for All DUI Offenders

Monday, January 5th, 2015

For those of you who are unfamiliar with ignition interlock devices (IID), it is a device which is installed on a vehicle’s dashboard. The device works like a breathalyzer that must be blown into and provided a breath sample. If the sample is registered as being below the preset blood alcohol content level, the vehicle will be allowed to start. However, if the sample is above the preset limit, the device prevents the engine from being started.

The IID requires further breath samples at random times after the vehicle has been started. The purpose is to prevent someone else from blowing into the IID just to start the vehicle and ensure that the driver is sober throughout the drive. If a sample is not provided or if the sample contains alcohol above the preset limit, the device warns the driver, and initiates an alarm (flashing lights and honking horn) until the vehicle is turned off or the IID is provided a clean breath sample.

Currently, IID are required for first-time drunk driving offenders in four California counties participating in a pilot program. Alameda, Los Angeles, Sacramento, and Tulare counties require installation of an IID for five months in all vehicles that a driver operates following a California DUI conviction.

Senator Jerry Hill, D-San Mateo, has proposed a bill that would expand the IID requirement for first-time offenders throughout California.

“California needs to do a better job of reducing deaths and injuries from drunk drivers,” said a statement from Hill. “Ignition interlocks save lives and can be an effective counter measure to reduce DUI recidivism.”

The issue is personal for Hill whose best friend was killed by a drunk driver thirty years ago.

“It’s something that’s personal to me. I know the pain his family and we felt… I hate to see other families go through that.”

In addition to the other thousands of dollars associated with a California DUI conviction, people required to install the IID will have to pay between $50 and $100 per month to have the device installed. This can prove to be quite a financial burden on some. This, however, is the least of my concerns with IIDs.

Not only can they be inaccurate for a number of reasons, just as breathalyzers can be, they can also be dangerous.

Talk about distracted driving. Having to blow into a device installed on the dashboard whilst driving sounds more dangerous than talking on a phone while driving. And how dangerous is it to drive with the lights flashing and horn honking because a sample is not provided in time?  That would most certainly prove to be a distraction for the driver of the vehicle with the IID as well as a distraction for other motorists on the road. 

That’s a big risk for something that does not even tackle the underlying cause of DUI-related fatalities, which is what Hill claims the new law will prevent. The majority of DUI-related fatalities do not come from first-time offenders who register a blood alcohol content of between 0.08 percent and 0.15 percent. Rather, the vast majority of DUIs that cause death or injury come from repeat offenders who register well over 0.20 percent blood alcohol content; drivers with serious alcohol problems, not social drinkers.

I’m not against getting drunk drivers off of the road, but Hill’s legislation misses the mark.


Can a Personal Breathalyzer Prevent a California DUI?

Monday, December 15th, 2014

Many people are arrested on suspicion of a California DUI after only having one or two drinks. Could those arrests have been prevented if the arrestees knew their blood alcohol content was only, say at a 0.09 percent blood alcohol content and they waited a little while before getting behind the wheel? Maybe, if they had their own breathalyzer. 

I’ve written several posts on the availability of different types of personal breathalyzers from single-use disposable breathalyzers to breathalyzer phone apps. People can, however, also purchase regular multiple use breathalyzers. Some are attached to keychains and tend to be low-quality novelty items. Others are a more expensive and are of a quality similar to what law enforcement uses.

Not surprisingly, quality breathalyzers will, in most cases, cost well more than inferior breathalyzers. Costs will vary between $15 and several hundred dollars. Breathalyzers under $50, and those coming on key chains have questionable accuracy from the start and accuracy continues to decrease after several uses.

Unlike novelty breathalyzers, quality breathalyzers will be backed by the Food and Drug Administration (FDA). This means that the FDA conducts research to confirm that the breathalyzer does what its literature says it does.

So is it still possible for a person to get arrested on suspicion of a California DUI even if their personal breathalyzer indicates that they are under the legal limit?

Of course it’s possible.

I can’t even count how many times I’ve told my readers that breathalyzers, even the high-quality breathalyzer, are inaccurate. Almost all quality breathalyzers, like those the police use, require calibration after repeated use to ensure accuracy. Some products allow for owners to calibrate themselves and some require that the breathalyzer be sent to the manufacturer for calibration. Heavily used and non-calibrated breathalyzers will likely not be accurate.

It is possible for a person’s blood alcohol content to continue to rise after a breathalyzer reading, especially if they’ve only recently stopped drinking. Therefore, it is also possible for a person to have a blood alcohol content of 0.07 when they leave the bar (and when they test themselves) and a 0.09 after they’ve been driving for a while. If that is the case, you can still be arrested and charged for a California DUI.

Lastly, a person does not necessarily need to be above a 0.08 blood alcohol content to be arrested and charged with a California DUI. A person can be arrested and charged with a California DUI if they are above a 0.08 percent blood alcohol content or if they are “under the influence.” In other words, you can be a 0.07 percent, but if an officer determines that you cannot safely operate a vehicle as a sober person could, you can still be arrested and charged with a California DUI.  A breathalyzer may determine if you are under the legal limit, but it cannot determine whether you are “under the influence.”

The only foolproof way to prevent a California DUI is to not drive after drink anything. However, if a personal breathalyzer can help prevent a DUI, I’m all for it.


Drunk Driving Charges Following Drunk Flying Conviction

Monday, December 8th, 2014

It’s not uncommon for a person to get caught driving under the influence after they’ve already been convicted of a California DUI. What is uncommon, however, is for a person to be caught driving under the influence after they’ve previously been convicted of operating some other type of vehicle while intoxicated like…say…an airplane.

Michael Ferrero, of Petaluma California, was arrested this past November for a California DUI after he drove his pickup truck into a ditch. According to the San Francisco Chronicle, the responding California Highway Patrol officer smelled alcohol and discovered an open bottle of vodka.

Sounds like a pretty standard California DUI. That is, until you hear about Ferrero’s previous alcohol-related conviction.

In 2012, California Highway Patrol plane piloted by CHP officer, Gary Wareham, was patrolling for speeding vehicles on the highways north of San Francisco when he spotted a plane flying approximately 50 feet above the road. At the time, the Press Democrat reported that Wareham followed the plane after witnessing it pitching and rolling through the air. Wareham followed the plane to a Petaluma, California airport

Ferrero later failed a breathalyzer. However Ferrero claimed that he had taken a shot of whiskey in the hangar after landing.

Ferrero ultimately pleaded no contest to flying under the influence, but not before saying, “Nobody needs to worry about me ever again.”

That proved to be an untrue statement with Ferrero’s current arrest.

I’ve covered the law for cycling under the influence, boating under the influence, and even riding a horse under the influence. What about the law for flying thousands of feet in the air (or in Ferrero’s case, 50 feet in the air) while intoxicated?

Crewmembers of civil aircrafts, including pilots, are governed by the Federal Aviation Administration (FAA). Title 14 of the Code of Federal Regulations section 91.17 states that, “no person may act or attempt to act as a crewmember of a civil aircraft within 8 hours after drinking alcohol, while under the influence of alcohol, while using any drug that affects the person’s faculties in any way contrary to safety, or while having an alcohol concentration [BAC] of 0.04 or greater in a blood or breath specimen.” Furthermore, the FAA requires random alcohol screenings of pilots and are subject to an implied consent law similar to California’s DUI implied consent law.

California Public Utility Code section 21407 is similar to the federal regulations in defining a FUI charge. California penalties for a first time FUI include a county jail sentence of 30 days to six months, and/or a fine of $250 to $1,000.  Federal penalties, on the other hand, are far more severe and can include up to 15 years in federal prison and up to $250,000.

The prosecution agency has discretion to charge under state or federal law.

The interesting question in Ferrero’s case is whether the prosecutor will treat the current charge as a second-time California DUI since, technically, this is Ferrero’s first time violating California’s Vehicle Code law for driving under the influence.


Can a California DUI Conviction Get You Deported?

Monday, November 3rd, 2014

A California DUI conviction can have severe consequences. For non-citizens, however, the consequences of a California DUI conviction can be particularly devastating because it can lead to deportation from this country.   

The Immigration and Nationality Act (INA), specifically section 237, sets for the crimes for which a person can be deported. Although a California DUI is not specifically included in this section as a deportable offense, other categories of deportable offenses are listed which a California DUI conviction can fall under. Those categories include aggravated felonies, crimes of moral turpitude, and offenses involving controlled substances.

Prior to 2004, a DUI was considered a crime of violence and therefore deportable under the category of aggravated felonies. However, the United States Supreme Court in the case of Leocal v. Ashcroft, 543 U.S. 1, held that DUIs are not, without other aggravating circumstances, deportable. Specifically, the Court held that a crime of violence is one that includes a “higher degree of intent than negligent or merely accidental conduct.” A DUI, on the other hand, is a general intent crime because it involves negligent conduct rather than a specific intent to cause harm.

If a DUI is not a crime of violence, then may it be a crime of moral turpitude?

Although vague, the phrase “moral turpitude” has been interpreted as shocking the public conscience or acts that are considered wrong by society’s standards. In determining whether a crime shocks the public conscious, the court will look to aggravating circumstances such as a “guilty intent.” As I stated before, a simple DUI, by itself, does not involve any specific intent to cause harm or even commit a crime and therefore cannot be a crime of moral turpitude.

If, however, the DUI is coupled with another offense that does require a “guilty intent,” the DUI conviction could be considered a deportable offense. For example, if someone is arrested for driving under the influence while their license is suspended, it may be considered a crime of moral turpitude if the person knew their license was suspended and drove drunk anyways.

Lastly, a California DUI conviction can be deportable if it involves a controlled substance. As I’m sure you’re aware having read previous posts on this blog, a California DUI does not necessarily involve alcohol. A DUI can involve both legal and illegal drugs. However, being under the influence of only drugs listed in the Controlled Substances Act can cause a DUI to become a deportable offense. The drugs listed in the Controlled Substances act can be found at http://www.deadiversion.usdoj.gov/schedules/orangebook/c_cs_alpha.pdf.