Tag Archives: drunk driving law
Last week, a school bus driver from Paradise, California was arrested on suspicion of driving under the influence of alcohol after several students riding on her bus, as well as parents of children on that bus, reported that she may have been drunk.
Students and their parents called 911 to report that the school bus driver, Desiree Ann Abrams, was speaking loudly, interacting inappropriately with the students, and smelled as though she had been drinking.
“When we got on the bus that day, she was kind of slurring her words. I thought she was just having a really good day but when I sat down she was stopping people and asking them questions what’s your middle name, how old are you, you’re looking pretty good today,” Dustin Jones, an eighth-grader at Paradise High School, told local news outlet KRCR.
When CHP officers arrived, they observed signs commonly associated with being intoxicated and determined that Abrams was driving under the influence.
According to law enforcement, no students were on board of the bus at the time of the DUI stop because they had already been dropped off at their regular stops.
“I thought she was just joking around until I saw she got arrested then I believed it,” said Phenix Rye, a junior at Paradise High School.
Paradise Unified School District confirmed the incident.
“A Paradise Unified School District bus driver was arrested on 11-15-19. District Administration was present at the scene and confirmed that students were safe and secure. We are grateful for the prompt response of both the Butte County Sheriff’s Office and the California Highway Patrol as well as the courageous actions of students and families. As always, student safety remains our top priority. Resources will be made available for students that may need additional support. Thank you for your understanding and support in this ongoing process.”
Abrams is out on bond and facing DUI charges and child endangerment.
Not only is Abrams looking at the punishment under California’s DUI law, she is also looking at additional penalties because of the danger that she placed the student in.
Under California Vehicle Code section 23572, California’s child endangerment DUI enhancement law, a first time DUI conviction where a minor under the age of 14 is in the car will bring an additional 48 hours in a county jail. A second time DUI conviction will bring an additional 10 days in jail. A third time will bring an additional 30 days in jail. A fourth will bring an additional 90 days. Furthermore, these penalties are to be served consecutively, not concurrently with the underlying DUI penalties.
The prosecutor need only prove that the driver was driving under the influence and that there was a minor child under the age of 14 in the car when that person drove.
The students being transported by Abrams, however, were high school students whose ages generally range from 14 to 18. If so, how can Abrams be charged with child endangerment for a DUI if the enhancement only applies to children under the age of 14?
Often times, prosecutors will charge child endangerment as a separate and whole charge against a person under the Penal Code, not as a mere enhancement to a DUI under the Vehicle Code.
California Penal Code section 273(a) makes it illegal for an adult to 1.) cause or permit a minor to suffer unjustifiable physical pain or mental suffering, 2.) cause or permit a minor to be injured, or 3.) cause or permit a child to be placed in a dangerous situation.
The crime of child endangerment, if a misdemeanor, carries up to one year in county jail and up to a $1,000 fine. However, if the risk to the child or children included death or “great bodily injury,” a felony child endangerment conviction carries two, four, or six years in a California state prison, and a fine of up to $1,000.
It should be noted that a person arrested for a DUI with a child in the car cannot be punished under both the Vehicle Code’s enhancement law and the Penal Code’s child endangerment law. Thus, if Abrams is found guilty, she’ll be punished for the DUI, and either the child endangerment enhancement or a separate child endangerment conviction.
I’ve been saying and writing about it for years; breathalyzers are inaccurate. Now, The New York Times, in a bombshell report confirmed exactly that.
According to the report, “The Times interviewed more than 100 lawyers, scientists, executives and police officers and reviewed tens of thousands of pages of court records, corporate filings, confidential emails and contracts. Together, they reveal the depth of a nationwide problem that has attracted only sporadic attention.”
With so much at stake, including jail, you’d think that there would be more than mere “sporadic attention.”
Yet, the report found numerous inconsistencies with maintenance procedures of breathalyzer machines, inconsistencies within the machines themselves, and an over reliance on inaccurate data produced by breathalyzers.
In Colorado, for example, police had continued using a chemical solution that had long been expired when prepping the machines. The expired solutions caused inaccurate results. In another example, a former manager created his own chemical solution inconsistent with the standard chemicals used in the solution. In some instances, there were no standards on how to prepare and operate the machines.
The report also found that the manufacturing process of the breathalyzer machines also create inaccuracies. For example, testing revealed that some machines produced a result even though the software programed into the machine occurred. Some tests revealed that accuracy of reading was affected by external factors such as the temperature of a person’s breath, whether they’ve consumed breath mints, or whether they’ve recently brushed their teeth, to name a few.
Despite the known inaccuracies, breathalyzer machines continue to often be the deciding factor in a DUI conviction.
In 2013, the California Supreme Court held that, although breathalyzers are generally inaccurate, scientific evidence challenging the accuracy of breathalyzers in California is not admissible as evidence in DUI trials.
The holding comes from the 2007 DUI stop of Terry Vangelder. Vangelder was stopped for speeding in San Diego. Although having admitted to consuming some alcohol, Vangelder passed field sobriety tests. Vangelder then agreed to a preliminary screening alcohol test (an optional roadside breathalyzer) which indicated that Vangelder’s blood alcohol content was 0.086 percent. Based on that, Vangelder was arrested and transported to the police station where he submitted to a chemical breath test (a required post-arrest breathalyzer). This breath test showed a blood alcohol content of 0.08 percent. Vangelder then submitted to a blood test which indicated that his blood alcohol content of 0.087 percent.
At trial, Vangelder called Dr. Michael Hlastala, a leading authority on the inaccuracies of breathalyzers.
“They are (inaccurate),” Dr. Hlastala testified before the trial judge. “And primarily because the basic assumption that all of the manufacturers have used is that the breath that [is] measured is directly related to water in the lungs, which is directly related to what’s in the blood. And in recent years, we’ve learned that, in fact, that’s not the case.”
The judge however, did not allow the testimony and Vangelder was found guilty. Vangelder appealed and the appellate court reversed the decision in 2011. San Diego City Attorney, Jan Goldsmith, then appealed the appellate court decision arguing that such testimony would undermine California’s a per se law making it illegal to drive 0.08 percent blood alcohol content or higher.
Unfortunately, the California Supreme Court sided with Goldsmith.
“[T]he 1990 amendment of the per se offense was specifically designed to obviate the need for conversion of breath results into blood results — and it rendered irrelevant and inadmissible defense expert testimony regarding partition ratio variability among different individuals or at different times for the same individual,” Chief Justice Tani Gorre Cantil-Sakauye wrote for the court. “Whether or not that part of expired breath accurately reflects the alcohol that is present only in the alveolar region of the lungs, the statutorily proscribed amount of alcohol in expired breath corresponds to the statutorily proscribed amount of alcohol in blood, as established by the per se statute.”
The Court went on to say that, “Although Dr. Hlastala may hold scientifically based reservations concerning these legislative conclusions, we must defer to and honor the legislature’s reasonable determinations made in the course of its efforts to protect the safety and welfare of the public.”
Simply put, the California Supreme Court is willfully ignoring scientific evidence simply because the legislature was well-intentioned.
Although drivers can no longer challenge the accuracy of breathalyzers in general, a driver who has been arrested for a California DUI can still challenge the accuracy of the specific breathalyzer machine used on them.
If you’re anything like me, the speed with which technology is advancing is almost too much to keep up with. No doubt, while some technology is proving to be a detriment to society, like the diminishment of person-to-person interaction, other technology serves to benefit technology, like the various ways lives can be saved as a result of technology. Two law makers are hoping that new technology can stop drunk driving and save lives in the process.
Recall the post Can Alcohol Sensors in All Cars Eliminate Drunk Driving? where I discussed the prospect of introducing alcohol sensing technology into all new vehicles available for purchase.
Since then, as expected, alcohol sensing technology has advanced and Tom Udall, a democratic senator from New Mexico, and Rick Scott, a republican senator from Florida, have said in a recent interview with Reuters that they plan on introducing bi-partisan legislation making the technology a requirement for all new vehicles off the lot.
“This issue has a real urgency to it,” Udall said in an interview with Reuters. “The industry is often resistant to new mandates. We want their support but we need to do this whether or not we have it – lives are at stake.”
According to the National Highway Traffic Safety Administration (NHTSA), almost 30 people die in the United States as a result of drunk driving. In 2017, that amounted to 10,847 fatalities involving drunk driving.
The technology that Udall and Scott are referring to are devices implanted within a steering wheel or a push-button ignition that can detect the blood alcohol content of a driver through infrared lights shined through the driver’s finger tips. They are also looking at sensors that monitor a driver’s eye movement and breath. Whatever the method, should the technology detect a blood alcohol content higher than the legal limit, the driver will not be able to start their vehicle.
A similar bill has been introduced in the U.S. House of Representatives by Debbie Dingell, a Democrat, that would require setting rules for advanced vehicle alcohol detection devices by 2024.
The NHTSA has invested over $50 million spanning 10 years in similar technology to what Udall and Scott are seeking to implement. The technology is already undergoing limited field testing in Maryland and Virginia, according to Udall.
Earlier this year, Volvo announced plans to install cameras and sensors in its vehicles by the early 2020’s to monitor the driver for distractions, errors, and even drunk driving. And should the technology detect anything that could result in a collision, the vehicles internal system would limit the vehicle’s speed, alert the “Volvo on Call” assistance service, or slow down and parking the car.
Udall and Scott’s Reduce Impaired Driving for Everyone Act, or RIDE Act, can be read here.
According to a group of researchers at the University of California, Davis, people who have been convicted of a California DUI are at a higher risk for committing violent gun crimes.
Building upon prior research that suggested a correlation between alcohol and gun violence, researchers from the university monitored nearly 80,000 people who purchased guns between 2001 and 2013. They found that nearly three percent of gun purchasers with a prior California DUI conviction later committed a violent gun crime. Additionally, according to the researcher’s finding, which were published in the Journal of the American Medical Association, only 0.05 percent of people without any prior DUI conviction went on to later commit a violent gun crime.
Can DUI convictions help keep guns out of the hands of people prone to violence?
October 2, 2019. Los Angeles Times – Drinking and driving is already a deadly cocktail. New research finds that adding gun ownership to the mix heightens the risk for violent outcomes.
A study that set out to track about 80,000 legal gun purchasers in California found that handgun buyers with a DUI on their record were more likely to go on to be arrested for a violent crime. That was the case even if driving under the influence of alcohol was the only criminal conviction in his or her past.
In the roughly dozen years after purchasing a gun in 2001, Californians who had already been convicted of drunk driving were 2.5 times more likely than those with no DUI convictions to be arrested on suspicion of murder, rape, robbery or aggravated assault, according to the study published this week in JAMA Internal Medicine. If the range of violent offenses was broadened slightly to include crimes like stalking, harassment or child neglect, handgun buyers with a prior DUI were more than three times likelier than those with no DUI conviction to be arrested.
The new findings come as the California Assembly considers a bill that would revoke a person’s right to own a gun for 10 years if he or she has been convicted of two or three (depending on the offense) misdemeanors involving alcohol in a span of three years.
Senate Bill 55 was passed in May by a vote of 26 to 10. It is opposed by Gun Owners of California, a gun rights group, and by the American Civil Liberties Union, which argues the bill would disproportionately affect black people and fails to address the “root causes” of substance abuse and violent behavior.
Under California law, people who have a felony conviction can’t receive a gun license from the state. In addition, people with misdemeanor convictions for crimes involving violence, hate, the unlawful use of firearms and certain other things aren’t eligible to receive a license for 10 years. SB 55 would add convictions for public intoxication, disorderly conduct under the influence of alcohol, and drunk driving to that list.
The new research goes some way toward filling a gap in research that prompted then-Gov. Jerry Brown to veto an earlier version of the bill in 2013. In blocking the proposed law, Brown wrote that he was “not persuaded that it is necessary to bar gun ownership on the basis of crimes that are non-felonies, non-violent and do not involve misuse of a firearm.”
The study comes from researchers at UC Davis’s Violence Prevention Research Program. Its findings suggest that denying gun ownership rights to those with a history of drunk driving convictions would reduce violent crimes and might save lives. In 2017, 14,542 homicides and more than 400,000 violent victimizations involved the use of a firearm.
But the researchers did not draw a causal line between drunkenness and criminal violence. Although roughly a third of all firearms deaths in the United States are thought to have involved alcohol, these new findings do not suggest that alcohol itself prompts or predisposes a gun owner to victimize others.
Instead, they suggest that, across broad populations, many people who engage in risky behavior involving alcohol will also engage in the kinds of risky behavior that endanger other people’s lives. And in cases where heavy drinking and gun access are combined, impaired judgment might heighten the risk that an individual predisposed to violent behavior will act out.
In that sense, the new findings zero in on a subgroup of gun owners who may have driven some of the sobering findings of a 2011 study by Dr. Garen Wintemute, the director or the Violence Prevention Research Program and senior author of the new report.
Drawing from a survey of Americans’ risk behaviors, Wintemute found that gun owners in general were twice as likely as those who do not own guns to drink heavily, and 2.5 times more likely to get behind the wheel after having drunk, by their own admission, “perhaps too much.”
The new study makes clear that lawless behavior is not the norm among gun owners. The researchers were able to track 65,387 Californians between the ages of 21 and 49 who bought a handgun legally in 2001 and could still be found in the state in 2013. Of those overwhelmingly male and mostly white gun buyers, 1,495 — fewer than 2% — had a prior conviction on a drunk driving charge. And just over 14% of that small group of gun owners were arrested for violent crimes during the 12-year study period.
That is much higher than the 3% rate at which gun buyers with no DUI or other convictions went on to be arrested for a violent crime. (After adjusting for factors such as age, gender and ethnicity, the researchers found the risk for those with a prior DUI conviction was 2.5 to three times higher than those with no such conviction.)
In focusing on DUIs, “we’ve identified a risk factor for future violence among people who buy handguns, and the association is fairly strong — an almost threefold increase in risk,” said study leader Rose M.C. Kagawa, an assistant professor of emergency medicine at UC Davis.
At the same time, she acknowledged, the number of gun sales blocked by a measure like SB 55 would be small, as would the number of violent crimes prevented.
“It’s a bit of a balancing act,” Kagawa said.
Such reasoning riles Sam Paredes, executive director of Gun Owners of California.
Using past or present behavior as a predictor of future violent acts — “that whole concept is very difficult,” he said.
“You’re being stripped of your rights because someone believes you are a danger in the future?” Paredes said. “I cannot even contemplate what the future consequences of such a perspective could be. It’s not just guns. This could translate to all manner of things.”
A prior conviction for drunk driving seems to be a better predictor of future criminal violence than a prior conviction for other, non-alcohol-related, nonviolent misdemeanors, the study results suggest, but just by a little bit. Lawful buyers of handguns with a conviction like that on their rap sheet were more than twice as likely as buyers with squeaky clean records to be arrested for a violent crime over the next dozen years.
“These findings unmistakably support the pending California DUI convictions legislation,” according to an editorial that accompanied the study.
Though the number of potential wrongdoers barred from gun ownership “may seem small,” the broad adoption of such laws “has the potential to avert larger numbers of acts of firearm violence,” wrote the editorial authors, a trio of injury prevention experts from the University of Pennsylvania and Columbia University.
Adoption of a federal law like SB 55 — an unlikely prospect in the current Congress — would “decisively signal that, as a nation, we are as intolerant of mixing alcohol and firearms, so-called drunk firing, as we are of drunk driving,” they wrote.
As I’ve said in the past, while I’m not the biggest proponent of guns and gun ownership, it troubles me that legislators are attempting to use DUI convictions to prevent gun ownership.
Given the numbers, it is difficult to argue that there is at least some correlation. However, based on those same numbers, there are a lot of people out there who have been convicted of a California DUI that have not subsequently engaged in a violent act involving a firearm.
Surprisingly, I agree with Sam Paredes. Predicting future gun violence based on a weak, albeit real, relationship to a DUI conviction seems like a step too far. What’s more, stripping an entire class of people (who all made a mistake, but by no means are all at risk for future gun violence) of their constitutional right based on what a few within the class might do sometime in the future should not be law.
South Carolina, a state that carries the unfortunate honor of having one of the highest rates of DUI-related deaths in the country, also has one of the most unique DUI laws in the country. But it’s not a law that you would have expected, such as a lower BAC limit or unusually high punishment for a DUI. Rather, the law requires that law enforcement video record all DUI stops.
The law and the repercussions for not following the law has led to law enforcement, prosecutors and even the media to call the law a “camera loophole” that allows drunk drivers “off the hook.”
This week, WBTW News13 reported on this so-called “loophole.”
News13 investigates: ‘Camera loophole’ still letting drunk drivers off the hook
May 9, 2019 – WBTW News13 – South Carolina’s per-mile rate of DUI fatalities is among the highest in the nation every year.
A report released last year ranks the Palmetto State second in the U.S. for drunk driving deaths.
Police and prosecutors say current state law is putting you and your family in danger, because drunk drivers that should be getting convictions are walking away scot-free.
They say one contributing factor is a loophole in the state’s DUI law. It’s called the “camera loophole.”
News13 investigated the camera loophole in 2016. Since then, there has been little effort to fix the law.
The South Carolina chapter of Mothers Against Drunk Driving released a three-year report last year. It found that DUI cases that were resolved in less than a year resulted in a 52 percent conviction rate compared to 33 percent in cases that dragged on for more than a year.
South Carolina law requires police to videotape DUI traffic stops. Any small misstep could jeopardize a case — if the driver stumbles out of frame, the driver’s feet can’t be seen, or the shot is too dark.
One video shows a Horry County officer giving a field sobriety test to a man who ran off the side of the road. He can’t walk in a straight line, and the officer said he also failed an eye test.
But because you can’t clearly see his face, Horry County Solicitor Jimmy Richardson said this situation probably wouldn’t hold up in court.
“You’re not all the way on. Or, if your feet as you get closer to the car cut off for a second then that throws the case out,” Richardson said.
You read that correctly: a blip, static, or stumble doesn’t just get the video dismissed, it can get the whole case dropped.
PFC Shon McCluskey with the Myrtle Beach Police Department said a lot of effort goes into setting up the perfect shot.
“It is a process. We’ve actually joked around at times saying sometimes you feel like you have to have an entire live PD scene with you to get every aspect of the case to make sure that everything is perfect.”
McCluskey said he takes extra precaution to make sure his dash cam video frame is wide enough and that there is nothing blocking the shot. But some things are out of his control.
“We’re not working in perfect environments out here every day. It’s not always sunny, it’s not always calm. Sometimes it can be a little windy, it can be rainy.”
Efforts at the legislative level in recent years to change the video requirements have failed. Bills introduced in the House and Senate in 2015 adding more wiggle room to the video requirements never moved out of committees.
None have been introduced in the current session.
News13 asked Jimmy Richardson why little progress has been made.
“Some of my best friends are in the legislature,” Richardson replied, “So present company excluded, about 40 percent of our legislature are attorneys. Only two or three of them are former prosecutors, the other 39.9 percent are defense attorneys. And this is where defense attorneys make their money. So, I would suggest that’s probably why the law is so complicated.”
Attorney and South Carolina Senator Stephen Goldfinch said it’s so complicated, because lawmakers are trying to balance the constitutional rights of everyone.
“Even if they are the lowest of the low, the murderers, the DUI drivers that kill people, the people that none of us want to protect, we have a legal duty, a constitutional duty to protect,” Goldfinch said.
Goldfinch said video evidence isn’t being tossed out of cases as often as law enforcement and advocates claim, but he admitted there are problems with the law.
“There are cases out there that show us that there have been problems in past history in regards to the loophole that you’re talking about,” Goldfinch said. “And I think there are some cases where we could probably close that loophole on. But we’ve got to be careful not to interject ourselves into the middle of the court system and the judicial system and the province of the judge.
Richardson also said that closing any DUI loopholes may need to come from the judges instead of the lawmakers.
“Case law will probably be the way to change that, saying that it doesn’t have to be 100 percent, it’s what is reasonable under the circumstances,” Richardson said. “And just with those four or five words you fix the entire system.”
But is it really fair to call the South Carolina law a loophole?
The purpose of the law is transparency, plain and simple, and for good reason. At a time when the public trust in law enforcement is waning, due in large part to police getting caught engaging in less-than-honest interactions with people, transparency with law enforcement is absolutely essential.
I can tell you firsthand that there is a problem with law enforcement fabricating information in DUI police reports. I have personally handled a case where the police deliberately took a DUI suspect out of dashboard camera range to perform the field sobriety tests, stated in the police report that the suspect failed the tests, and then the person’s blood alcohol content later turned out to be only 0.02 percent, well below the legal limit and an extremely strong indication that the suspect was sober. When handling the case, the prosecutor, who I personally knew, admitted that this was a problem she had seen with several DUI cases.
Let me simplify what I’ve just said. The police deliberately tried concealing their own lie just to put someone in jail for a DUI when that person wasn’t even drunk!
This South Carolina law is not “loophole.” It is ensuring transparency to protect the rights of the public. And if people who are actually driving drunk are “let off the hook,” it’s not because there’s a problem with the law. Rather, it’s because there’s a problem with law enforcement’s ability to abide by the law.
Here are some suggestions: Give better training to your officers, invest in some better dash cam equipment, or better yet, get some body cameras.
Personally, and I hope you would agree, I would rather see law enforcement take a few extra steps towards ensuring transparency than see wrongful DUI arrests by police who just want to add a notch on their belt.