Tag Archives: California DUI
Most people know that in California, a person cannot drive with a blood alcohol content of 0.08 percent or more. Some know that, additionally, a person can be charged separately with “driving under the influence” if the officer observed facts that would lead a prosecutor to believe that the person couldn’t drive like a sober person regardless of their blood alcohol content. But few people, however, are aware of California’s least known DUI law.
It is actually illegal in California to drive a vehicle while addicted to a drug.
Under California Vehicle Code section 23152(c), “[i]t is unlawful for any person who is addicted to the use of any drug to drive a vehicle.”
When I first learned that this law existed, I asked myself the same questions that you’re probably asking yourself right now: If an addict is not under the influence at the time of driving, how can still be prosecuted for a DUI? Shouldn’t the law only punish those who actually pose a risk to the roads because of current intoxication?
In 1965, the California Supreme Court justified the law in the case of People v. O’Neil.
In looking at the legislative intent in drafting the law, the court concluded, “when an individual has reached the point that his body reacts physically to the termination of drug administration, he has become ‘addicted’ within the meaning and purpose of [23152(c)]. Although physical dependency or the abstinence syndrome is but one of the characteristics of addiction, it is of crucial import in light of the purpose of [23152(c)] since it renders the individual a potential danger on the highway.”
Although it’s a stretch, the court concluded that a person who is an addict and going through withdrawals can be a danger to the roads. So if that’s the case, can a person who is an addict, but not going through withdrawals, still be arrested, charged, and convicted? According to the California Supreme Court, yes.
“The prosecution need not prove that the individual was actually in a state of withdrawal while driving the vehicle. The prosecution’s burden is to show (1) that the defendant has become ‘emotionally dependent’ on the drug in the sense that he experiences a compulsive need to continue its use, (2) that he has developed a ‘tolerance’ to its effects and hence requires larger and more potent doses, and (3) that he has become ‘physically dependent’ so as to suffer withdrawal symptoms if he is deprived of his dosage.”
Although this section of the vehicle code is rarely enforced, California technically can continue to punish drivers who are addicted to a drug even though they may not be, at the time of driving, under the influence of a drug.
Apparently some parts of the California Vehicle Code like this section doesn’t exist to protect the public from unsafe drivers, but rather punish people with arbitrary labels who can and do drive safe.
Many people know Nevada, particularly Las Vegas, as the obvious exception to widely accepted last call time of 2 a.m. and some know that a few states such as New York, Hawaii, and Alaska have later last calls than 2 a.m. California’s last call is 2 a.m. One senator hopes to extend the last call in certain California cities such as Los Angeles to 4 a.m.
Just to be clear before I move on, “last call” refers to the last time for which a bar or restaurant can sell alcohol to patrons.
The bill, which was introduced by Sen. Scott Wiener and entitled Let Our Communities Adjust Late Night Act, would allow municipalities to extend last call to 4 a.m. with the approval of the California Department of Alcoholic Beverage Control. The bill provides the flexibility to allow an extension of last call to certain cities or “specific areas” of a town. It also would allow an extension only on certain days of the week or only on specific holidays.
A similar bill by Sen Mark Leno was rejected in 2013 by the Senate Committee on Governmental Organization.
Not so surprisingly, Mothers Against Drunk Driving (MADD) are opposed to extending the last call time just as they were back in 2013.
"MADD supports uniform closing times for establishments that serve alcohol to avoid creating the dangerous possibility that patrons will bar-hop for that one last drink — a dangerous scenario that all too often increases the risk of drunk driving," national spokeswoman for the group, Becky Iannotta, said in an email to LA Weekly.
According to Weiner, the extra two hours would provide an enormous amount of extra revenue to the hospitality industry in California. In a statement Weiner said that the law would allow cities to “benefit economically and culturally from a strong nightlife presence.”
Amongst the supporters of the bill is the California Restaurant Association and the California Music & Culture Association.
“Nightlife is a major economic and cultural driver in California,” said the California Music & Culture Association’s co-chair, Ben Bleiman, in a statement. “This bill represents a crucial opportunity for California’s cities and towns to choose to join the ranks of those across the country and the world offering truly world-class nightlife for their residents and visitors.”
The group Taxpayers for Improving Public Safety argued in 2013, when Sen. Leno attempted to introduce his bill, that staggering the last call times in California would lessen the burden on law enforcement and public transportation because not all bargoers and drunks would be hitting the streets at the same time.
Generally, when a person is arrested on suspicion of driving under the influence in California, it is a misdemeanor charge. Misdemeanors are punishable by no more than a year in jail. Sometimes, however, a California DUI can be charged as a felony, meaning that it can be punishable by more than a year in jail.
So when does a California DUI become a felony?
The first way that a California DUI can become a felony is if a drunk driver causes death or injury. California Vehicle Code section 23153 makes it unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, or with a blood alcohol content of 0.08 percent or higher to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.
A California DUI causing injury is known as a “wobbler.” This means that it can be charged as either a misdemeanor or a felony. Whether a prosecutor charges a violation of California Vehicle Code section 23153 as a misdemeanor or a felony depends on several considerations such as the level of intoxication, the seriousness of the injury, the defendant’s prior criminal history, and any other aggravating factors.
If a drunk driver causes the death of someone and the drunk driver has not suffered any prior DUI convictions, the defendant will more likely be charged with vehicular manslaughter while intoxicated or gross vehicular manslaughter while intoxicated under the California Penal Code.
However, if a DUI results in a death and the defendant has suffered a prior DUI conviction within ten years, they can and most likely will be charged with second degree murder. This is known as the “Watson Murder Rule.” In short, the court’s view is that, because the person suffered prior convictions, they knew it was dangerous, yet they did it anyways knowing the risk to life.
The second way that a California DUI can be a felony is when a person has suffered three prior DUI convictions within the past ten years. Priorable DUI charges include driving under the influence (California Vehicle Code section 23152), driving under the influence with injury (California Vehicle Code section 23153), wet-reckless (California Vehicle Code section 23103.5), and out-of-state convictions that qualify as a priorable conviction. Out-of-state DUI convictions qualify as a prior DUI if they would be considered a DUI had the arrest occurred in California.
To prove priorable convictions the prosecutor may use court records from the prior cases as well as Department of Motor Vehicle records. The prosecutor may also use “expunged” (California Penal Code section 1203.4 dismissal) priors in enhancing a DUI charge if the conviction occurred within the 10-year period.
Lastly, a California DUI can become a felony if a person suffered a prior felony DUI within ten years. The priorable felony offense can be a conviction of California Vehicle Code section 23152 (fourth or more DUI), California Vehicle Code section 23153 (DUI causing death or injury), California Penal Code section 192 (vehicular manslaughter), or California Penal Code section 191.5 (vehicular manslaughter while intoxicated or gross vehicular manslaughter while intoxicated).
Many people know that a California DUI is a “priorable” offense. This means that if a person is arrested and convicted of a subsequent California DUI within ten years, the penalties by operation of law increase.
Generally, a first-time California DUI conviction carries three to five years of summary (informal) probation, up to six months in jail, between $390 and $1,000 in fines, completion of a court-approved three month DUI program, and a six-month license suspension.
A second-time California DUI conviction carries three to five years of summary probation, a minimum of 96 hours to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court-approved 18 month DUI program, and a two-year license suspension.
A third-time California DUI conviction carries three to five years of summary probation, a minimum of 120 days to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court approved 30-month DUI program, and a three-year license revocation.
With this understanding, the question arises: Can a prior out-of-state DUI conviction be used to make a current California DUI a “second offense” and allow the court to increase the penalties?
It depends on whether the facts in the prior out-of-state DUI case would have constituted a DUI in California, under California law.
For example, Florida’s DUI law reads, “A person is guilty of the offense of driving under the influence… if the person is driving or in actual physical control of a vehicle within this state and…[t]he person is under the influence of alcoholic beverages…when affected to the extent that the person’s normal faculties are impaired…”
The wording of Florida’s statute may prohibit a past Florida conviction from being used to make a California DUI a “second offense” for two reasons.
The first problem is that Florida’s statute requires that a person impaired “to the extent that the person’s normal faculties are impaired.” This standard is less strict than California. California requires that a person be impaired to an appreciable degree. Thus, a person may be deemed impaired under Florida’s standard, but not necessarily under California’s.
The second problem is that Florida’s statute also requires that someone drive or is “in actual physical control of a vehicle.” This makes Florida what is called a “dominion and control state.” A person can have dominion and control over a vehicle by simply being in the driver’s seat. California’s DUI law, on the other hand, requires that a person actually drive the vehicle. Therefore, a person can be convicted under Florida’s DUI law by sitting in the driver’s seat while intoxicated. However, someone sitting in the driver’s seat while intoxicated cannot be convicted under California’s DUI law.
Therefore, if a person was convicted five years ago in Florida for a DUI under Florida law because they were found drunk in the driver’s seat of their vehicle, but not driving, that conviction cannot be used to make a current California DUI a “second offense” to increase the penalties because California DUI law requires that the person actually drive the vehicle.
If, however, that same person was pulled over after driving and are convicted of a Florida DUI, that prior Florida DUI conviction can be used to make the current California DUI a “second” offense.
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.