Former NFL Star Sues Bar for Son’s DUI Death

Thursday, January 19th, 2017

Former New England Patriot and Los Angeles Raider star, Brian Holloway, is suing a Florida bar after Holloway’s son was killed in a DUI related collision after leaving the bar.

Max Holloway, son of Brian Holloway, frequented Panini’s Bar and Grill in Lutz, Florida. On October 26, 2016, Max Holloway, was at Panini’s drinking until 2:30 in the morning at which time he left in his vehicle.

Not far from his condo, Max lost control of his vehicle and crashed into a nearby home. He was killed in the collision.

Under Florida law, a person or a business can be held liable for injuries or damages caused by a habitual alcohol drinker whom was served by that person or business.

Laws like Florida’s are called “dram shop laws.”

Not to say that the bar was right to continue to serve Max Holloway, but to hold them liable for the decision he made to drive while under the influence seems to be rather unfair.

Fortunately, California sees it the same.

While other states such as Florida may hold a bar liable for injuries caused by a drunk driving customer, in California it is the customer’s willful decision to drink and then drive which is the cause of any subsequent DUI collision. Thus, in California, bars and restaurants are shielded from liability when a customer over drinks, drives away, and causes injury or damage.

California’s “Dram Shop Laws” (California Civil Code section 1714) read as follows:

(b) It is the intent of the Legislature to . . . reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.

(c) Except as provided in subdivision (d), no social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.

(d) Nothing in subdivision (c) shall preclude a claim against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person under 21 years of age, in which case, notwithstanding subdivision (b), the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.

As you can see, the laws are different if the customer is under the age of 21. It is the responsibility of bar to ensure that their customers are of legal drinking age before serving them alcohol. People under the age of 21 are legally deemed incapable of making good decisions regarding alcohol use…like the decision not to drive after drinking at a bar.

While California’s law differ from other states with respect to civil liability, like Florida, a bar may be held criminally liable if they serve alcohol to an “obviously intoxicated person.”

According to California Business and Professions Code section 25602(a), “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.”

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Pilot Arrested for DUI

Wednesday, November 23rd, 2016

An Indiana man was recently arrested on suspicion of driving under the influence. It was later discovered that he was on his way to the Indianapolis airport. The man, identified as Robert Harris III, is a commercial pilot.

According to police, Harris’ eyes were bloodshot, his speech was slurred, and he had trouble with coordination. In fact, according to court documents, field sobriety tests could not be completed because Harris almost fell over while trying to walk. It was later determined that his blood alcohol content was 0.29 percent.

It is unclear if Harris was scheduled to fly that evening and the airline for which Harris was employed refused to comment on the matter.

While federal regulations require that pilots follow an 8-hour “bottle to throttle” rule, some airlines require a 12-hour period between a pilot’s last drink and flight. Also, according to the Federal Aviation Administration, a pilot must report an alcohol-related conviction, suspension, revocation, and/or failed breath test within 60 days.

Since federal aviation regulations do not require a person to hold a driver’s license to fly a plane, the arrest and a subsequent conviction for driving under the influence does not necessarily preclude piloting aircraft following the arrest and/or conviction.

“The FAA (Federal Aviation Administration) does not hesitate to act aggressively when pilots violate the alcohol and drug provisions of the Federal Aviation Regulations,” said FAA spokesperson Elizabeth Cory. “Airlines are required to have random testing programs in place.”

“The FAA evaluates these cases on an individual basis, which could affect the pilot’s certificate eligibility,” said Cory.

Not surprisingly, this did not settle well with Mothers Against Drunk Driving (MADD).

“I would have assumed the FAA would have similar sanctions to the state of Indiana and withholding their license to operate a motor vehicle whether that’s a plane or car,” said MADD spokesperson Lael Hill. “It’s a little bit concerning knowing someone accused of a crime and is allegedly drinking and driving and could have their driver’s license taken away and not their pilot’s license or certificate.”

Hypothetically, had Harris had been on his way to the airport to fly, what would have happened had he flown an airplane under the influence?

First off, the California Vehicle Code does not apply to aircraft. Rather, crewmembers of civil aircrafts, including pilots, are governed by the FAA. Title 14 of the Code of Federal Regulations section 91.17 states that, “no person may act or attempt to act as a crewmember of a civil aircraft within 8 hours after drinking alcohol, while under the influence of alcohol, while using any drug that affects the person’s faculties in any way contrary to safety, or while having an alcohol concentration [BAC] of 0.04 or greater in a blood or breath specimen.”

Furthermore, the FAA requires random alcohol screenings of pilots and are subject to an implied consent law similar to California’s DUI implied consent law.

Similarly, California Public Utility Code section 21407 reads, “It is unlawful for any person to operate an aircraft in the air, or on the ground or water in a careless or reckless manner so as to endanger the life or property of another. In any proceeding charging operation of aircraft in violation of this section, the court in determining whether the operation was careless or reckless shall consider the standards for safe operation of aircraft prescribed by federal statutes or regulations governing aeronautics.”

California penalties for a first time FUI include a county jail sentence of 30 days to six months, and/or a fine of $250 to $1,000.  Federal penalties, on the other hand, are far more severe and can include up to 15 years in federal prison and up to $250,000.

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Challenging the Breathalyzer in a California DUI Case

Tuesday, September 20th, 2016

The breathalyzer is the most commonly used method for testing the blood alcohol content of suspected drunk drivers in California. Yet, both myself and Lawrence Taylor have written on more than a few occasions about the inaccuracies of the breathalyzer. Such inaccuracies include, but are not limited to an inability to differentiate between blood alcohol and “mouth alcohol,” elevated temperatures causing elevated BAC readings, and certain diets causing elevated readings.  

So can a person suspected of driving under the influence of alcohol in California challenge the accuracy of breathalyzers in court?

Notwithstanding the widely proven fact that breathalyzers are generally inaccurate, the California Supreme Court in 2013 ruled that scientific evidence refuting the accuracy of breathalyzers in general in California DUI cases are inadmissible.

The issue arose when a California trial court agreed with the prosecutor and excluded the testimony of a defense expert of Terry Vangelder who would have testified that breathalyzers, in general, can be inaccurate.

In 2007, California Highway Patrol pulled over Vangelder for allegedly going 125 miles per hour 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 Californi’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."

I’m sorry, but I read that to say, “We recognize that science is important in determining the accuracy of breathalyzers, but we’re not going to undermine the legislature because of its good intent.”

Legislators are not scientists.

The effect of the decision was that people suspected of a California DUI can no longer offer evidence that breathalyzers, in general, are inaccurate. People suspected of a California DUI can, however, still challenge the accuracy of a particular breathalyzer.

Seems to me that the California Supreme Court doesn’t want accuracy in California DUI cases.

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Do “Dominion and Control” DUI Laws Incentivize Drunk Driving?

Monday, September 12th, 2016

Despite what some think, drunk driving doesn’t necessarily involve driving. In some states a person can actually be arrested, charged and convicted of drunk driving even when the person didn’t drive their vehicle. Such states have what are called “dominion and control” DUI laws. Under “dominion and control” DUI laws, if a person is intoxicated and have dominion and control of their vehicles with the mere ability to drive, they can be arrested, charged, and convicted of that state’s DUI laws.

Simply put, “dominion and control” DUI laws create the possibility of someone getting arrested, charged, and convicted of a DUI when they’re trying to sober up in their vehicle and have absolutely no intent to drive.

Having said that, the question arises, “Do ‘dominion and control’ DUI laws give people incentive to actually drive drunk?”

This question is currently being asked by law makers in New Jersey.

Steve Carrellas, director or government and public affairs for the New Jersey chapter of the National Motorists Association, considered the repercussions of such a scenario.

“But then they’ll say, ‘Well, I have more of a chance of getting arrested doing the right thing than I do attempting to drive home, so I’m going to drive home.’ What a mixed message,” said Carrellas.

“I think it has to be looked to on a case-by-case basis,” said New Jersey Assemblyman John McKeon.

McKeon says it appears the law needs redefining.

“I’m going to consider it now that this topic is swirling around and there seems to be a lack of consistency. I’m going to do it in an intelligent way, though. We’ll have special hearings in the Legislature and hear what law enforcement has to say, hear what attorneys have to say that specialize in that field and try to come up with something that’s consistent,” he said.

Carrellas and McKeon are right to question the law. Lawmakers, be it the courts or our legislators, have a duty to create laws to deter bad behavior and not punish good behavior. First off, we don’t want to punish people who deliberately attempt to avoid driving drunk by sleeping it off in the car. And we most certainly don’t want to give incentive people to drive drunk.

Fortunately, we here in California don’t have that problem. California is not a “dominion and control” DUI law state. In California, the law requires that a person actually drive a vehicle. In 1991, the California Supreme Court in the case of Mercer v. Department of Motor Vehicles held that the word “drive” in California’s DUI law means that the defendant volitionally and voluntarily moved the vehicle. The court has held that even a “slight movement” is enough to meet the element of driving.

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Turning a Blind Eye to DUI

Monday, August 29th, 2016

Put yourself in the following situation: You and your friend, Vary Waysted agreed to go out to the local watering hole for the evening. This time, however, is Vary’s turn to be the designated driver. Half way into the evening, you notice Vary at the bar ordering a drink, but you do nothing. You know he shouldn’t have any alcohol because he was to be driving the both of you home, but still you do nothing. Sure enough, on the drive home Vary is stopped on the way home and arrested on suspicion of a California DUI.

You may be thinking to yourself that you would never allow that, that you would’ve spoken up and admonished Vary for not staying absolutely sober. But believe it or not, this is an extremely common phenomenon and it, unfortunately, is the cause of many drunk driving incidences and arrests.

Still don’t believe me? The Colorado Department of Transportation (CDOT) recently offered a brewery tour as part of a social experiment which demonstrated that turning a blind eye to drunk driving actually does happen.

Denver, Colorado is quickly becoming one of America’s epicenters for craft breweries. And a group of beer enthusiasts signed up to partake in tour of three of its breweries. Unbeknownst to the beer enthusiasts was that the transportation for the tour was a bus driven by an actor hired by the CDOT and the tour guide was also an actor.

With hidden cameras documenting the tour, the participants enjoyed their beers. None of the participants, however, seemed to care too much that their bus driver was enjoying beers right alongside them.

Fortunately, the driver was only drinking non-alcoholic beer. To drive the point home, the tour guide, who was similar to the driver in height and weight was actually drinking the alcoholic beer. After three 16-ounce beers, the tour guide had a blood alcohol content of 0.10 percent.

In a news release, the CDOT said "even small amounts of alcohol can land you a DUI."

"The experiment confirmed for us that many adults underestimate the dangers associated with driving after having a few drinks," CDOT spokesman Sam Cole said in a statement. "The participants never expressed concern that their driver was drinking and driving."

So why do so many people willfully choose to ignore information and situations which may be harmful to themselves or others?

As I’ve mentioned before, I have a background in psychology. While my focus on the law has long since overshadowed my focus on psychology, my interest does get piqued when psychology intersects with DUI law.

Humans turn a blind eye to information and situations which may be harmful to themselves or others when doing so is easier than facing the scary, hostile, and/or objectionable consequences of acknowledging and confronting the situation.

Let’s go back to our scenario. Instead of turning a blind eye, you confront Vary Waysted about ordering the drink when he was supposed to be the designated driver. The confrontation leads to an argument, but eventually Vary acquiesces to remaining sober. Although Vary doesn’t talk to you for the rest of the evening, both of you make it home safe and DUI-free.

Before turning a blind eye to DUI, ask yourself, “Would I rather have someone upset with me for a little while or run the risk of being involved in a DUI-related accident?”

 

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