Has a Marijuana Breathalyzer Finally been Developed?

Friday, August 10th, 2018

As predicted, recreational marijuana is here in California. California joined Nevada, Oregon, Washington, Colorado, Maine, Vermont, Massachusetts, and the District of Columbia in legalizing both medical and recreational marijuana. Thirty states and the District of Columbia have legalized medical marijuana. The trend of states in the expanding legalization of marijuana has had tech companies scrambling to become the first to develop a marijuana breathalyzer.

However, a California company has recently claimed to have cracked the code.

California Vehicle Code section 23152(e) makes it illegal to drive a vehicle while under the influence of drugs including marijuana. Unlike California’s DUI of alcohol law, there is no legal limit for marijuana, or more specifically, tetrahydrocannabinol (THC) the psychoactive component of marijuana. Therefore, a person can only be arrested and convicted of a marijuana DUI if the ingestion of marijuana impairs a person’s ability to drive a vehicle as a sober person would under similar circumstances.

To prove that a person is driving under the influence of marijuana, a prosecutor can use officer observations of driving patterns, observations during the traffic stop, performance on field sobriety tests, and the presence of THC in any blood test done.

Although THC can be detected in quantities of nanograms per milliliter of blood, the quantification is unlike alcohol in that the degree of impairment is unrelated to the amount of THC in a person’s blood. With alcohol, there is a fairly accurate correlation between a person’s blood alcohol content and how impaired they are. Therefore, unlike alcohol where prosecutors only need to prove that a person’s BAC was above a 0.08 percent, with marijuana, prosecutors can only prove that a person was “under the influence.”

Since “under the influence” is an extremely subjective standard, it is often very difficult to prosecute DUI of marijuana cases. This is especially true if the driver refused to perform the field sobriety tests and/or the officer did not observe driving that would be indicative of someone who is under the influence of marijuana.

Hound Labs, located in Oakland, California, is hoping to bridge the gap for officers and prosecutors.

“We are trying to make the establishment of impairment around marijuana rational and to balance fairness and safety,” said Hound Labs CEO Mike Lynn.

The company is claiming that it has developed a breathalyzer that can detect whether a subject has ingested marijuana in the last two hours, which many to consider the peak time for marijuana impairment after ingestion.

“When you find THC in breath, you can be pretty darn sure that somebody smoked pot in the last couple of hours,” Lynn says. “And we don’t want to have people driving during that time period or, frankly, at a work site in a construction zone.”

If accurate, Hound Labs would be the closest to developing this type of technology. However, thus far, no company has yet developed a machine to detect actual impairment.

According to Lynn, law enforcement are trying to determine who is impaired as opposed to “”somebody who smoked maybe yesterday or a few days ago and is not impaired. They’re not in the business of arresting people that are not impaired when it comes to marijuana. That makes no sense at all.”

Several law enforcement agencies will begin testing Hound Lab’s breathalyzer this fall. “They’re interested in it providing objective data for them at the roadside,” says Lynn. “That’s really the key, objective data at the roadside — just like we have for alcohol.”

For those of you who think that it is safe to smoke some marijuana and get behind the wheel, be aware that law enforcement could be out with a new roadside tool at their disposal to confirm that you have smoked within two hours, that is if Hound Labs’s new device does that it claims it can do.

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California’s Least Known DUI Law: Driving While Addicted

Friday, June 29th, 2018

The most widely known California DUI law is Vehicle Code section 23152(b) which makes it illegal to drive with a blood alcohol content of 0.08 percent or higher. Some people realize that if a person is arrested for a DUI, they will likely also be charged with Vehicle Code section 23152(a) which makes it illegal to drive “under the influence,” meaning that the driver cannot drive as a reasonable sober person would. Very few people, however, are aware of one of California’s more obscure DUI laws; driving while addicted.

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.”

The purpose of DUI law is to protect the public from drivers who, at the time of driving, are under the influence. So you may be asking yourself the same question that I asked myself the first time I learned of this law: If an addict is not under the influence at the time of driving, how can they still be prosecuted for a DUI? Shouldn’t the law only punish drivers who actually pose a risk to the roads because of current intoxication?

In the 1965 case of People v. O’Neil, the California Supreme Court upheld the law and explained that it, like the other, better-known DUI laws, also protects the public.

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.”

In other words, the court concluded that a person who is an addict and going through withdrawals can be a danger to the roads. This conclusion presumes that all addicts at all times go through withdrawals and can still be arrested, charged, and convicted of a California DUI. While this presumption is false because not all addicts are always suffering from withdrawals, the California Supreme Court went on to say prosecutors, however, do not need to prove that the driver was suffering from withdrawals at the time of arrest.

“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.”

If you ask me, the California Supreme Court is contradicting itself. In essence, it is saying that the purpose of the law is to protect the public from addicts who are suffering from withdrawal symptoms while driving, yet it doesn’t require that the addict be suffering from the withdrawal symptoms at the time of driving.

Although this section of the vehicle code is rarely enforced, law enforcement and prosecutors 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.

So, again I ask, “Shouldn’t DUI law punish people who actually pose a risk to the public?” Apparently, according to the California Supreme Court, the answer is no.

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What Happens When a Person Under the Age of 21 Gets a DUI?

Friday, May 25th, 2018

I am currently in the midst of a California DUI case where my client was under the age of 21 at the time of their arrest. At the beginning of their case, my client asked me what could happen to him. Unfortunately, it’s a common question as many people who are not legally allowed to drink are caught driving with alcohol in their systems.

As most of us know, the age at which someone is legally allowed to have alcohol is 21-years-old. Although the age of majority is 18, for purposes of this article, I’ll refer to a person under the age of 21 as a “minor.”

Under California Vehicle Code section 23136, otherwise known as California’s “Zero Tolerance” law, it is illegal for a minor to drive with a blood alcohol content of 0.01 percent or more in their system. It does not matter whether the alcohol in the minor’s system came from an alcoholic beverage or some other source like medicine. Nor does it matter whether the minor was “under the influence.” The minor cannot have any alcohol in their system while driving. Fortunately, however, a violation of Vehicle Code 23136 is non-criminal and only results in a one-year suspension of driving privileges through the California Department of Motor Vehicles.

Although not a criminal matter, a minor facing a suspension under California Vehicle Code section 23136 may still want to hire an attorney to fight the DMV suspension. In the event that a suspension cannot be avoided, the attorney can assist the minor obtain a “restricted license” to allow them to go to and from essential locations such as work, school, and the doctor’s office.

If, however, a minor is caught driving with a blood alcohol content of 0.05 percent or higher, they can be charged with an infraction under Vehicle Code section 23140. The penalty if someone is convicted of a violation of section 23140 is a one-year suspension of driving privileges, a fine of $100, and, if the person is over the age of 18, a mandatory alcohol education program of three months of more.

In addition to fighting the license suspension, as was the case with a violation of California’s Zero Tolerance law, a lawyer can help the minor fight the infraction under section 23140 using the same arguments commonly used in an adult DUI case.

If the minor is either under the influence of alcohol or caught driving with a 0.08 percent blood alcohol content or more in their system, a prosecutor can charge the minor with the standard DUI charges under California Vehicle Code sections 23152(a) and 23152(b) – misdemeanor driving under the influence and misdemeanor driving with a BAC of 0.08 percent, respectively.

A person, including a minor, is under the influence of alcohol if their physical or mental abilities are impaired to such a degree that they no longer have the ability to drive with the caution characteristics of a sober person of ordinary prudence under the same or similar circumstances.

In addition to being charged with driving while under the influence, a minor can also be charged with driving with a blood alcohol content of 0.08 percent or more.

The penalties for either standard DUI offenses under sections 23152(a) or 23152(b) include a criminal misdemeanor conviction (which remains on a person’s criminal record), suspension of driving privileges, three to five years of summary (informal) probation, a fine between $390 and $1,000, an alcohol education program of three, six, or nine months, up to six months in jail. The penalties can also include non-mandatory conditions such as a Mothers Against Drunk Driving Victim Impact Panel, a hospital and morgue program, or AA meetings.

It shouldn’t take me to tell you that if anyone, including a minor, is charged with the standard DUI offenses under Vehicle Codes 23152(a) and 23152(b), they should seek the assistance of a skilled California DUI attorney. There is too much as stake not to.

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Choosing the Right California DUI Attorney

Thursday, May 3rd, 2018

The day that a person is arrested on suspicion of driving under the influence is very often the worst day of their life. The legal process to come, for many, is not much better than the arrest itself. This is precisely why it would be difficult to understate the importance of choosing the right DUI attorney to fight your California DUI charges.

Many of my prior posts talk about the complexities and intricacies of the criminal law process. Other posts I’ve written about talk about the potential consequences of driving under the influence which can include probation, thousands of dollars in fines and fees, a license suspension, drug and alcohol programs, an ignition interlock device, a permanent criminal record, and even jail. With so much at stake in the middle of one of the most complex processes in society, why wouldn’t a person seek the help and advice of a trained DUI attorney? You certainly wouldn’t want an unqualified doctor performing a surgery on you, or worse, attempt the surgery yourself.

So how does someone who has been arrested on suspicion of a California DUI choose the right attorney for them?

Like many things, the first step is research. Reach out to several attorneys. Many offer free consultations. Check user-based rating websites like Avvo.com or Yelp.com to see what others have said about a lawyer’s services. Check the California Bar Association’s website at Calbar.org to check if a lawyer has had any disciplinary action taken against them for misconduct. Ask family and friends for referrals.  If someone you know has used an attorney in the past and were happy with the services the attorney provided, that attorney might be a good option.

However, just because an attorney came recommended from a family member or a friend on one matter might not necessarily mean that they’re a good fit for someone else’s DUI case. After a lawyer becomes licensed to practice law, they are legally allowed to practice any and all areas of law. This, however, does not necessarily mean that they are qualified to practice any area of law. Many lawyers are known as “general practitioners.” General practitioners practice everything from personal injury law to real estate law to estate planning and possibly even criminal defense, which may include DUI law. While the law, in general, is complicated, DUI law is complicated in its own right. Understanding the nuances of DUI law and the science involved is crucial in defending a DUI case. If I’m hiring an attorney to represent me for a DUI, I want a lawyer who defends DUI cases day in and day out, not a lawyer who may defend one DUI case every couple of months.

Attorneys, like other service providers, rely on people hiring them to survive as a business. As such, many attorneys are salespeople. Unfortunately, the reputation of salespeople runs true with many attorneys as well. Some lawyers will tell you what you want to hear to make the sale. They might claim that they can help because the case is a “slam dunk.” I have been practicing DUI defense for some time now and I can tell you firsthand that no case is a slam dunk. In fact, very few things in law are black and white. DUI defense lawyers don’t know the facts of the case, other than what the potential client tells them, until the first court date. In fact, many times what the potential client tells the lawyer is very different than what is in the police report. Therefore, when a person contacts a lawyer for the purpose of hiring them for representation in a California DUI case, the lawyer lacks the information necessary to predict the outcome of a case. Furthermore, it is actually illegal for a lawyer to guarantee an outcome.

Lastly, it shouldn’t come as a shock to anyone that lawyers can cost a lot of money. However, having said that, you’re paying for someone with the experience to help you make it through one of the most difficult times of your life. Make your decision to hire a lawyer based on experience, not cost. Fees for California DUI lawyers can range from $1,000 to $10,000. DUI defense lawyers almost always charge flat fees, not hourly fees. Often, the price of a DUI lawyer corresponds with their experience and what is included in the service. Sometimes, however, it isn’t. Make sure that you’re getting what you’re paying for.

Suffice it to say, it’s not an easy process to find the right California DUI attorney, but one that incredibly important nonetheless. Do your homework, make sure that the attorney is qualified, and make sure that you are comfortable with them.

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LAPD Officer Charged with DUI Murder

Tuesday, April 24th, 2018

A Los Angeles Police Department officer was arrested last week on suspicion of three counts of murder as the result of a suspected DUI-related collision in Whittier last fall.

On September 26, 2017, Edgar Verduzco, 27, was allegedly speeding in the carpool lane under the influence of alcohol on the 605 freeway in Whittier, California, when his Chevy Camaro collided into the rear of a Nissan. The Nissan burst into flames and Verduzco’s vehicle went on to hit a second vehicle.

A family of three – Mario Davila, 60, Maribel Davila, 52, and their son, Oscar Davila, 19 – were the occupants of the Nissan and all three died as a result of the collision. The occupant of the second vehicle suffered minor injuries. Verduzco suffered a broken nose.

Before the collision, Verduzco posted a video on Instagram from a bar and included the hastag #Dontdrinkanddrive. The video depicted a male in a police uniform with a badge with the name “Verduzco.” The video also showed an animated person sitting in a car which appeared to be sitting on the bar counter with beers.

Although the LAPD could not verify the authenticity of the post or the account’s owner, KTLA reported that other videos on the account show a Chevy Camaro and a police officer which appears to be Verduzco in an LAPD patrol car.

For anybody else, officers responding to a collision where drunk driving was suspected would have whipped out their breathalyzers quicker than a gunslinger in the old west. Suspiciously, however, the officers who responded to the collision did not give Verduzco a breathalyzer to determine his BAC at the scene even though, according to California Highway Patrol, he showed signs of intoxication. Instead, a blood test was later conducted and Verduzco was subsequently released on bail pending the outcome of the blood test.

Although it is unclear whether the blood result is in, Verduzco was re-arrested at a friend’s house in Long Beach last week and was booked on three counts of second degree murder, three counts of gross vehicular manslaughter while intoxicated and drunk driving causing injury.

Last Friday, Verduzco continued his arraignment to May 16th. However, it was not before Judge Deborah S. Brazil set his bail at $6.1 million.

It is unclear why Verduzco is being charged with murder in addition to the “lesser-included” vehicular manslaughter. If you’ve read my numerous posts on a DUI-murder charge (also known as “Watson murder”), you’ll know that to charge murder, prosecutors need to prove that the driver was expressly aware of the dangers of driving drunk, yet they did so anyways. This is usually proven when the driver suffered a prior DUI conviction and is admonished on the dangers of driving drunk. Since there is no indication that Verduzco suffered a prior DUI conviction, my guess would be that his position as a law enforcement officer, whose job it is to arrest people on suspicion of DUI, makes him expressly aware of the dangers of driving drunk.

Verduzco is an Army veteran who joined the LAPD in 2015 after returning from a tour of duty in Afghanistan.

“There’s never an excuse for driving under the influence, and if Officer Verduzco is found guilty of whatever he is accused of, then he should suffer the consequences for his reckless actions,'’ said the Los Angeles Police Protective League in a statement issued shortly after the collision.

“My heart goes out to the victims and families so tragically impacted by Verduzco’s criminal actions,” said police Chief Charlie Beck. “Police officers have a moral and legal obligation to abide by the laws that they enforce. [The] arrest demonstrates how seriously we take that obligation.

Stay tuned for updates.

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