Breath or Blood Test After a California DUI Stop?

Thursday, October 19th, 2017

Let’s imagine a common DUI scenario.

A person is stopped on suspicion of a California DUI. The person stopped has read my many posts telling readers that the field sobriety tests are optional and should not be submitted to. So they politely decline the field sobriety tests. Then the officer requests an on-scene breathalyzer known as the “preliminary alcohol screening” test or PAS test. In addition to my posts reminding readers that this too is option, the officer also informs the driver that the PAS test is optional. So this too is politely declined by the driver. Lastly, the officer advises the driver that they are under arrest on suspicion of a California DUI and that, by law, they must submit to a chemical test which can either be a breath or a blood test.

Which test should the driver choose? Breath or blood?

The DUI blood test is much more accurate than the DUI breath test. The blood test is far less likely than a DUI breath test to produce a false reading. Another benefit of a DUI blood test is that the law requires that a sample of the blood is saved for future testing by the DUI suspect’s defense attorney. The defense attorney can have the sample tested by its own blood analyst to contradict the results of the prosecutor’s analyst. This is called a “blood split” and it is commonly used in DUI defense.

The blood test, however, is not infallible. See my previous post:

The Dirty Skin Defense

Since the blood test is more accurate, if a person knows that they have not had much to drink and they are fairly certain that they are under the legal limit of 0.08 percent, then a blood test might be the better option. On the other hand, the blood test might not be the best for someone who is clearly over the legal limit because it will be more difficult to dispute the test results.

 Unlike the blood test, the breath test is rather unreliable. Breath tests can provide false readings for several reasons. See Lawrence Taylor’s post:

Are Breathalyzers Accurate?

Although California DUI attorneys cannot dispute the reliability of breathalyzers as a whole during a DUI trial, they can provide evidence that the particular breathalyzer used in an individual case was inaccurate.

Unlike the blood test, the breath test may be a better option for someone who knows they are likely over the legal limit because it will be easier for a California DUI attorney to refute the results. However, many people who are actually under the legal limit may still test over the legal limit because of the same inaccuracies.

Simply put, if you are fairly confident that your blood alcohol content will below the legal limit of 0.08 percent, you’re probably better off opting for the blood test because it will accurately show that you were, in fact, under the legal limit. However, if you think there is a chance that you could be above the legal limit, you might be better off opting for a breath test so that your attorney can challenge the results if you test above the legal limit.

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California Drunk Driver Faces Homicide Charges for Killing Officer

Friday, August 25th, 2017

A California driver is being held on homicide charges for allegedly driving under the influences and striking an off-duty Modesto Police Department sergeant who was riding his bike.

According to investigators, 38-year-old Sgt. Michael Pershall was riding his bicycle on Tuesday evening when he was struck from behind by a vehicle. The vehicle then crashed into a fire hydrant. The driver of the vehicle, 32-year-old Matthew Gibbs of Modesto, California, was subsequently arrested on suspicion of driving under the influence.

Gibbs was booked into the Stanislaus County Jail and is being held without bail.

Court records show that Gibbs was arrested for a misdemeanor DUI in 2015. That case, however, was dismissed.

Gibbs is facing a homicide charge as well as two charges of DUI causing injury.

Homicide merely refers to the killing of another human being and encompasses murder charges, voluntary manslaughter charges, and involuntary manslaughter charges. It is still unclear exactly what homicide charge Gibbs faces.

Prior to 1981, a person who killed someone while driving under the influence could not be charged and convicted of murder. However, the landmark case of People v. Watson changed that.

California Penal Code section 187(a) provides that “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” Malice can be expressed or implied, and implied malice is present when the circumstances attending the killing show an abandoned and malignant heart.

So what does that mean?

Simply put, implied malice is when a person knowingly engages in an act that is dangerous to human life with a conscious disregard for human life.

The court in Watson found that if the facts surrounding the DUI support a finding of “implied malice,” second degree murder can be charged. In other words, if a person engages in driving under the influence when they know that it is dangerous to human life to do so, and they kill someone, they can be charged with murder.   

Now the question becomes, “Did the person know it was dangerous to human life to drive drunk?”

While we all know that it’s dangerous to drive drunk, since Watson, courts started expressly advising people who have been convicted of DUI, on the record, that it is, in fact, dangerous to drive drunk. This was not because the court actually thought that the defendant didn’t know it, but rather to ensure that the prosecutor could charge murder instead of manslaughter upon a subsequent DUI causing the death of someone.

Gibbs was only arrested for a prior DUI, but never convicted. Therefore, there’s a good chance that judge never gave Gibbs the “Watson advisement.” Thus, if the prosecutor wants to charge Gibbs with murder, they must find some other way to prove that Gibbs knew it was dangerous to drive while under the influence and that he ignored that danger.

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Two DUI’s in Less than Three Hours

Thursday, June 15th, 2017

A Wisconsin man was arrested twice in about two and a half hours for driving under the influence according to Ashwaubenon, Wisconsin Public Safety. What’s more, he’s only 18 years old.

18-year-old Preston Bierhals was on his way home from a graduation party last week when he lost control of his vehicle and struck a light pole. Bierhals told responding officers that he was trying to make a phone call when he lost control of his car.

His blood alcohol content was later determined to be 0.157 percent.

At the time, Bierhals’s license was suspended.

“The legal limit for him is zero, but he was still above the 0.08, he was over 0.10 actually both times,” said Capt. Jody Crocker.

Bierhals was booked for “operating while intoxicated” (OWI), which is the Wisconsin equivalent of California’s “driving under the influence” (DUI).

Instead of keeping Bierhals to sober up, officers released him to someone who signed a Responsibility Agreement not to allow him to drive a vehicle.

“They signed an affidavit that says to us that they will take that responsibility in lieu of this person sitting in jail for the next 12 hours. Here of course, that didn’t work,” said Capt. Crocker.

Why didn’t it work? Well, because less than three hours later, an officer working traffic detail for a triathlon that morning spotted Bierhals driving and recognized him from the arrest just hours prior.

The officer stopped Bierhals once again and administered field sobriety tests to which Bierhals failed again. And again he was arrested on suspicion of OWI.

This time, Bierhals’s blood alcohol content was a 0.121. This is consistent with the average rate of alcohol metabolism (burn-off) of 0.015 percent per hour, assuming no more alcohol was consumed since the first arrest.

In Wisconsin, prosecutors cannot file charges for a second drunk driving offense until the citation Bierhals received for the first OWI is resolved.

According to Capt. Crocker, law enforcement is looking into whether charges should be filed against the person whom Bierhals was released to.

Some of you may be thinking, “What could happen to someone like that?”

Well, here in California a minor who is caught driving with alcohol in their system can face several charges and penalties.

California Vehicle Code section 23136 makes it illegal for a minor to have a blood alcohol content of 0.01 percent or greater while driving. This is knowns as California’s “Zero Tolerance” law for underage drivers. Under this law, a minor faces a one-year suspension of their driver’s license.

California Vehicle Code section 23140 makes it illegal for a minor to have a blood alcohol content of 0.05 percent or greater while driving. Unlike section 23136, this section is an infraction which can result in fines of up to $100 and a one-year suspension of their driver’s license.

However, in Bierhals’s case, had it occurred here in California, prosecutors would have likely charged him with the standard adult DUI under California Vehicle Code section 23152 (driving under the influence and driving with a blood alcohol content of 0.08 percent or greater). A violation of section 23152 is a misdemeanor which carries a three to nine month DUI program, three years of summary probation, up to $1000 in fines, up to six months in jail, and a six-month suspension of driving privileges.

Of course, Bierhals is facing the penalties for a second-time DUI as well. A second time DUI, here in California will also be charged as a misdemeanor, but this time, he’s facing between 96 hours and one year in jail, an 18-month DUI program, and two-year suspension of driving privileges.

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In California it is Actually Illegal to Drive While Addicted

Thursday, March 30th, 2017

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.

 

 

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San Diego Begins Using Mouth Swabs to Detect Drugged Drivers

Thursday, March 23rd, 2017

I’ve been writing for some time now that roadside drug tests for suspected DUI of drugs stops are not far off. The increase in drug usage and the growing acceptance of marijuana has law enforcement agencies and law makers clamoring for a device that can quickly and accurately test whether drivers are under the influence of drugs. While current devices are not quite yet capable of telling law enforcement how intoxicated a driver might be, they can say whether a driver has drugs in their system. And San Diego became the latest city to use such devices roadside.

Last week, San Diego police began using roadside oral swabs to test drivers for the presence of marijuana, cocaine, methamphetamine, amphetamine, methadone, opiates, and benzodiazepines. The oral swabs cannot, however, test the amount of drugs in the driver’s system nor can it test for the driver’s level of intoxication.

The inability to test for quantity of drug or intoxication is legally important because, under California law, a person can only be arrested, charged, and convicted of a California DUI if they are “under the influence of a drug.” This means that a person’s physical or mental disabilities are impaired to such a degree that they no longer have the ability to drive with the caution characteristic or a sober person of ordinary prudence under the same or similar circumstances.

With the swab test only able to indicate the presence of one of the drugs listed above, a prosecutor must still prove that a person was not driving with the care of that of a sober person. This is done with officer testimony of poor driving patterns, failure of field sobriety tests, and visual symptoms of drug impairment.

Although many, including Mothers Against Drunk Driving, often forget, the mere presence of drugs in a driver’s system does not necessarily mean that they are driving under the influence. Tetrahydrocannabinol (THC), the active component in marijuana, for example, can stay in a person’s system for up to several weeks after the smoking or ingestion of marijuana. While, the THC may still be present, the person may no longer be “under the influence.”

San Diego began using the oral swab test, called Dräger 5000, after officials met with authorities in Colorado which legalized recreational marijuana in 2014.

Under San Diego protocol, law enforcement will only request the oral swab after they suspect that the driver might be under the influence of a drug. And before that, the officer must have probable cause to even stop the driver in the first place.

Like the preliminary screening alcohol test (PAS) test in DUI of alcohol cases, the oral swab test is also optional. And like the PAS test, it is never suggested that a driver voluntarily submit to the test. Never give law enforcement and prosecutors any more information than they already have.

Only after a person is arrested must they submit to a chemical test and if law enforcement suspects that a person was driving under the influence of a drug, they’ll have to take a blood test.

According to a study by the California Office of Traffic Safety, 38 percent of drivers killed in vehicle collisions during 2014 tested positive for either legal or illegal drugs. This is up six percent from 2013. While this may seem like a high number, testing positive does not necessarily mean that those drivers were actually under the influence and impaired by a drug.

Although drugged driving is and will always be a problem, we can’t continue to arrest people for driving for the mere presence of drugs in their system because presence does not mean impairment.

 

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