Should California Lower its BAC Limit?

Friday, March 29th, 2019

It’s not a novel question. Should California lower the blood alcohol content limit before someone can be arrested, charged, and convicted of a DUI in the state?

Although a nationwide blood alcohol content limit was suggested prior, it was not until 2001 that the Department of Transportation said it would cut funding to states that did not maintain a blood alcohol content limit of 0.08 percent for DUI cases. As a result, all states adopted a 0.08 percent blood alcohol content limit. However, as of January 1st of this year, Utah became the first state to lower the blood alcohol content limit to 0.05 percent making it the strictest in the country.

A new bill introduced in California hopes to follow in Utah’s footsteps.

Introduced by Assemblywoman Autumn Burke (D-Marina del Rey), AB1713, otherwise known as Liam’s Law, would lower California’s BAC limit to 0.05 percent.

The bill was named in honor of a 15-month old who was struck and killed by a drunk driver in 2016 when his aunt was pushing his stroller across Hawthorne Boulevard. Liam was the son of former mixed martial art fighter Marcus Kowal and his wife, Mishel Eder. Since then, both have been pushing for a lower BAC limit and Burke said that she had been influence by them.

“Every year, we see drunk drivers kill or injure our friends and loved ones because they thought they were OK to drive,” said Assemblyman Heath Flora (R-Ripon), who co-authored the bill and who also introduced a bill to increase the penalties for repeat DUI offenders. “Lowering the [blood alcohol content] limit to .05 percent has [been] shown to decrease DUI-related traffic fatalities by serving as a deterrent to folks driving drunk in the first place.”

Flora is referring to studies that suggest people begin to start feeling the effects of alcohol at 0.04 percent, and which have been used by the National Transportation Safety to justify its support of a 0.05 percent limit.

According to the National Highway Traffic Safety Administration, a male weighing 140 pounds would be at, or close to, a 0.08 percent blood alcohol content having had three drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.08 percent blood alcohol content having had just two drinks within an hour. Regardless of gender, your blood alcohol content will not be as high if you weigh more. Conversely, your blood alcohol content will be higher if you weigh less.

On the other hand, male weighing 140 pounds would be at, or close to, 0.05 percent blood alcohol content having had two drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.04 percent blood alcohol content having had just one drink within an hour.

Of course, these figures are approximate and depend on several factors which include, but are not limited to, whether the person ate, what they ate, what they drank, and how fast they drank it. But based on these approximate numbers, we can see that for both males and females, the difference between a 0.08 and a 0.05 percent blood alcohol content is about one less drink in an hour.

This raises another question: Is this law merely changing the definition of “drunk” to cast a wider net, thus creating more “criminals”?

“When (a bill) is first introduced, the 10,000-foot view is, ‘This is a law that’s tough on drunk driving. It should pass pretty easily,’” said Jackson Shedelbower, spokesman for the American Beverage Institute. “But in reality, it’s not tough on drunk driving. It’s punishing moderate, social drinkers. It’s focusing traffic safety resources away from people who are the real problem toward people who aren’t the problem.”

Shedelbower went on to say that most DUI-related collisions are caused by drivers with BAC levels higher than 0.05 and repeat offenders, and that having a BAC level of 0.05 is less impairing than talking on a hands-free cell phone while driving.

Should the bill become law, many could be arrested after having a single drink and certainly when they’re not even drunk. I’m sorry, but I thought DUI laws were meant to protect against impaired driving. I’m not so sure that the hoped effect of the bill is worth the collateral consequence of arresting, charging, and convicting non-impaired drivers.  

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How Does a DUI Affect Car Insurance?

Thursday, February 28th, 2019

When one gets pulled over and subsequently arrested for an alleged DUI, what are some of the first things that run through their head? “Oh no, I’m in trouble,” “I am going to jail,” “I need a lawyer” are probably a few. However, after the initial shock wears off, that person eventually gets to realizing the potential fines and legal fees that go along a DUI conviction. Those fines and fees are typically a one-time expense. But there is one cost that often gets over looked and is one that affects your life for 10 years after the DUI; car insurance.

In January of 2007, new legislation required that DUI offenses be a part of your public driving record and remain on that record for 10 years from the violation date. The legislation was changed in order to allow car insurance companies access to driving records so that they could apply the new provisions that were added in 2005 in the Insurance Code under Senate Bill 597, primarily dealing with “good driver” discounts. Under the law, good driver discounts would not apply to drivers with DUI offenses within the past 10 years. In other words, because the discount you previously received for being a good driver will not apply, your car insurance premium will go up, at minimum, the amount of that previous discount.

Losing the discount is not the only reason your car insurance premiums may go up. Having a history of DUI suggests to the car insurance company that you are at a higher risk of being in an accident. It’s no surprise that having a higher blood alcohol content will hinder basic motor skills and therefore negatively affect your ability to operate a vehicle, thus leading to a higher chance of being involved in a collision. And having a higher risk of being in an accident means that the insurance company has more to lose with you behind the wheel. The insurance companies are not allowed to cancel your insurance mid-policy due to a DUI conviction, but they will definitely reconsider your premiums when the renewal comes around. As such, your premiums will more than likely go up. Although it will depend on your insurance company, on average, an increase of a few hundred dollars is likely. Some, however, can increase as much as a couple thousand dollars.

Assuming for argument’s sake that your insurance only increases a few hundred dollars, that few hundred dollars might seem doable, but remember, your status as a “high risk” driver stays with you regardless of whether you change insurance companies for 10 years. With that label lasting 10-years, you are looking at a quite a few thousand dollars of a difference in total. Now, imagine what it would be if the increase is more than a few hundred dollars.

If you are convicted of a DUI, you may want to shop around for car insurance. With this new dent in your record, there may be other policies that won’t make as much of a dent in your wallet.

It may seem like a lot of work, and more money than someone might want to dish out for a DUI, but taking the time to research a good DUI lawyer will also probably be worth it. If the right circumstances are aligned in your case, your lawyer may be able to get your DUI charge down to a “wet reckless” (See the post What are the Benefits (and Disadvantages) of a Wet Reckless? for details on wet reckless). One of the advantages of being able to reduce your DUI to a charge of wet reckless is that the conviction will stay on your record for only seven years, rather than the 10 years that a DUI conviction requires. Obviously, it would depend on your car insurance, but the additional cost of paying for a good DUI lawyer, may outweigh the cost of paying an additional three years of increased premiums.

Suffice it to say, that extra six-dollar beer is not worth the few thousand dollar increase in insurance premiums that a DUI conviction will bring with it, or all of the time and research you will have to put into finding yourself a good lawyer, or the time and research in possibly finding new insurance to make sure you are able to keep your premium increase to a minimum.

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Should Waze be Allowed to Post DUI Checkpoint Locations?

Monday, February 11th, 2019

I’m sure most of you have heard of Waze, possibly even use it yourself. On the off chance that you haven’t heard of it, Waze is a smartphone app developed by Google that provides real-time traffic information for drivers. Users simply plug in their destination address or location and Waze provides the quickest possible route using GPS and real-time user input while en route. While driving, not only are users directed to the fast route, but they are also made aware of upcoming traffic, obstacles in the road, street closures, and yes, police presence, including the location of DUI checkpoints.

The New York Police Department is not happy about it and is seeking to stop it.

The NYPD has sent a letter to Google demanding that it stops allowing users to post the location of DUI checkpoints claiming that the app is “encouraging reckless driving.”

“Individuals who post the locations of DWI checkpoints may be engaging in criminal conduct since such actions could be intentional attempts to prevent and/or impair the administration of the DWI laws and other relevant criminal and traffic laws. The posting of such information for public consumption is irresponsible since it only serves to aid impaired and intoxicated drivers to evade checkpoints and encourage reckless driving,” NYPD acting Deputy Commissioner Ann Prunty said in the letter to Google dated February 2.

Although Waze does not have a feature that specifically alerts drivers about upcoming DUI checkpoints, it does notify drivers of upcoming police presence.

“We believe highlighting police presence promotes road safety because drivers tend to drive more carefully and obey traffic laws when they are aware of nearby police. We’ve also seen police encourage such reporting as it serves as both a warning to drivers, as well as a way to highlight police work that keeps roadways safe,” a Waze spokesperson said in a statement to CNN last week. “There is no separate functionality for reporting police speed traps and DUI/DWI checkpoints — the Waze police icon represents general police presence.”

However, in Waze’s feature that displays upcoming police presence, users can report the presence of a DUI checkpoint as a comment about what they have observed including whether the police presence is a DUI checkpoint.

Law enforcement complaints on the posting of DUI checkpoint locations is nothing new. In July of 2016, the National Sheriff’s Association released a statement which said, “Evidence on social media shows that people who drink and drive use Waze’s police locator feature to avoid law enforcement. …The facts are clear. It is just a matter of time before we start seeing the dangers that lurk within the Waze app’s police locator feature.”

The California Supreme Court in the 1987 case of Ingersoll v. Palmer held that, for DUI checkpoints to be constitutional, they must meet the following criteria:

  1. The decision to conduct checkpoint must be at the supervisory level.
  2. There must be limits on the discretion of field officers.
  3. Checkpoints must be maintained safely for both the officers and the motorists.
  4. Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
  5. The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
  6. The checkpoint must show indicia of official nature of the roadblock.
  7. Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.
  8. Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.

Three years later in the case of Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop. In doing so, the court held that sobriety checkpoints were constitutional even though officers were technically violating the 4th Amendment.Having said all of that, nothing prevents a driver, nor should it, from letting others know when and where a DUI checkpoint is. Waze has not provided a feature that specifically points out DUI checkpoints. Rather, users can advise of DUI checkpoint locations in comments. How is this any different than speaking about police activity with friends and family in person, or in a text, or in an email? How is it any different that speaking about police activity on Facebook, Twitter, or Instagram? It isn’t any different, and to allow law enforcement to prevent such speech would be a violation of the 1st Amendment. Doing so would also open the door to allow law enforcement to dictate what we can or can’t say on our social media sites. That is not acceptable.

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UBER Fined $750,000 for Failing to Enforce Zero-Tolerance Policy

Thursday, December 20th, 2018

Ridesharing apps such as Uber and Lyft have introduced to the public a cheap and “right at your fingertips” method for calling a ride home after a night of drinking. These apps have given the public the comfort of being able to arrive at a destination without worrying about finding parking, or as is often the case at night, worrying about drinking and driving.

Back in June of 2016, BuzzFeed News posted an article entitled “Here’s What Happens When Your UBER Driver Gets A DUI.” The article focused on an interview with a passenger who suspected her Uber driver of driving under the influence, the subsequent customer service the passenger received, and the steps that the company took in handling the situation with the driver. BuzzFeed also reported that this was not the first incident where an Uber driver was arrested for driving under the influence. The driver associated with this particular drive was deactivated fairly quickly. However, that was not the case for all of Uber’s drivers who received complaints of drunk driving.

According to the Uber homepage, they have a zero-tolerance policy with regard to driving under the influence. Specifically, it states, “Uber does not tolerate the use of alcohol or drugs by drivers using the Uber app.” Yet, the Los Angeles Times recently released an article that highlighted an investigation by the California Public Utilities Commission (CPUC) that resulted in Uber being fined a total of $750,000 for failing to follow its own “zero tolerance policy.

The zero-tolerance policy is a requirement that was included by the CPUC within the regulations for smartphone-enabled ride share companies. The regulations, approved in 2013, were placed in an attempt to placate the angry licensed taxi companies and their drivers whose service was disrupted by the spread of these private drivers through the smartphone and online applications. The regulations called for the ride-sharing companies to institute a zero-tolerance intoxicating substance policy for all of its drivers and to suspend the driver to allow for an investigation as soon as a zero-tolerance complaint is filed.

Uber’s violation of the policy was discovered in an investigation of the customer complaints associated with driving under the influence from August 2014 to August 2015. An administrative law judge had recommended a fine of $7,500 per violation, which, with the number of violations found in the investigation, would have resulted in a total of $1,132,500.

However, a settlement was made between the CPUC and Raiser-CA, an Uber owned company, and the final amount of $750,000 was reached Thursday, November 8th. According to the Los Angeles Times, “In addition to the fine, Uber agreed to implement an education program on zero-tolerance regulations and file a motion to expand existing regulations and develop stronger standards for the ride-hailing industry.”

AB 2687, a bill that passed in 2016 and has been in effect since July 1, 2018, lowers the blood alcohol level of drivers with passengers for hire in their vehicles to 0.04 percent or more to be considered under the influence. How this new bill affects how Uber handles their education program and renews their standards will be an interesting development.

Hopefully, Uber will be able to remedy the issue in a timely manner. One of the main reasons that many people utilize ride sharing services like Uber is to prevent drunk driving. If hired drivers continue to create an issue of driving under the influence, we are essentially replacing one drunk driver with another, resulting in a public safety issue that we had wanted to avoid in the first place.

 

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California DUI Law 101

Wednesday, December 12th, 2018

The law surrounding California DUI’s is so expansive and complicated that sometimes it’s worth wild to take a step back and just talk about the basics of a California DUI.

In California, it is illegal to drive with a blood alcohol content of 0.08 percent or higher. It is also illegal to drive while under the influence. While every person is different, with a different metabolism and different tolerances, a mere two drinks in an hour can certainly get a driver to a 0.08 percent. Additionally, person is “under the influence” if they cannot operate a vehicle as a reasonable and sober person would have under similar circumstances.

Now, let’s be very clear. A person does not have to be above a blood alcohol content of 0.08 percent or more to be charged with a California DUI if they were under the influence. Similarly, a person does not have to be under the influence to be charged with a California DUI if they have a blood alcohol content of 0.08 percent or more. Having said that, most people who are caught driving with a blood alcohol content of 0.08 percent or higher will be charged with both under California Vehicle Code section 23152(a) and section 23152(b) respectively. Yes, you read that correct. Most people who get a DUI are actually looking at two separate charges.

For example, John is heavy in weight and is an alcoholic. If John drinks four beers in an hour, he may likely have a blood alcohol content of above a 0.08 percent, but he’ll probably not be “under the influence” because he can function as though he were sober. He will still be arrested, charged, and may be convicted of driving with a blood alcohol content of 0.08 percent or more under Vehicle Code section 23152(b).

On the other hand, for example, Jane is underweight and very rarely drinks. If she were to have one glass of wine, she may not be above a blood alcohol content of 0.08 percent or more, but she may certainly not be able to function as a sober person would. As such, while she cannot be charged with having a blood alcohol content of 0.08 percent or higher, she may very well be arrested and charged with driving under the influence under Vehicle Code section 23152(a).

Whether a person is a 0.08 percent or higher, or if they are under the influence, officers have no knowledge of either when they decide to pull someone over. They might suspect that a person is under the influence based on observed driving patterns, but that alone is not enough to arrest a person. An officer must have probable cause to arrest a driver for a DUI. An officer has probable cause when they have trustworthy facts that would lead a reasonable person to believe that the driver was either a 0.08 percent or higher, or that they were driving under the influence.

The key is that the officer must have facts that the driver is DUI before they can make the arrest. The officer can obtain the facts to meet the probable cause standard through observation of driving patterns, statements made by the drive (ex. “I had a few beers with dinner”), smell of alcohol on the driver’s breath, bloodshot and watery eyes, slurred speech, poor performance on field sobriety tests, and failure of a roadside breathalyzer.

Just because these may be what an officer uses to justify a DUI arrest, there are things that drivers can do to limit the amount of “facts” that they give the officer.

Drivers do not need to talk to the officers, nor should they. The 5th Amendment exists for a reason. Use it. Rather than potentially providing incriminating statements and allowing the officer to smell the driver’s breath, the driver should simply invoke his or her 5th Amendment right to remain silent, request their attorney, and then keep their mouth shut.

Drivers do not need to perform the field sobriety tests, nor should they. The officer might threaten arrest if the driver does not perform them, but the driver has that right. Chances are that the officer has already made up his or her mind to arrest the driver. However, by not performing the field sobriety tests, the driver has prevented the officer from obtaining any facts that the driver is impaired.

Lastly, drivers do not need to perform the roadside breathalyzer, nor should they. This test, referred to as a preliminary alcohol screening test or “PAS” test, is optional. That is not to say that a driver will not have to perform any test.

Once a person has been lawfully arrested for a DUI, meaning the officer does have the requisite probable cause to make the arrest, the driver must submit to either a breath test or a blood test under California law. Not doing so can lead to increased penalties with both the court as well as the California DMV.

Speaking of the California DMV, when a person is caught driving with a blood alcohol content of 0.08 percent or more, it triggers an action by the DMV to determine whether the driver’s license should be suspended. The driver or their attorney must contact the DMV within 10 days to request a hearing and stop the automatic suspension of the driver’s license. If the hearing is lost, then the person’s license will be suspended, the time of which will be dependent upon prior DUI’s and whether the driver refused the required breath or blood test. If the hearing is won, albeit unlikely, the driver’s driving privileges are saved…for now.

After the arrest, the driver must challenge the DUI in court. If convicted, the driver faces some serious consequences. For a first time DUI, the driver is facing a minimum of $390 in fines, which will increase to about $2,000 after court fees are included, three years of informal probation, a three-month DUI course, additional license suspension time, and a DUI on their criminal record. Now, these are minimums. A driver could face a whole host of other penalties including jail of up to six months.

Since this post is about the basics, I won’t get into the penalties for a second or more DUI, or other penalties for various DUI scenarios.  

Needless to say, even the basics are extremely complicated. A driver absolutely should not try to tackle a DUI case on their own. They should hire an experienced California DUI attorney who has studied California DUI law and who practices it day in and day out. Simply put, having a California DUI attorney can be the difference between going to jail and not.

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