Lung Condition Causes Woman to Fail Breathalyzer

Thursday, April 5th, 2018

According to the American Lung Association, Chronic Obstructive Pulmonary Disease, commonly referred to as COPD, which includes chronic bronchitis and emphysema, is a chronic lung disease that makes it difficult to breathe. And according to the World Health Organization, COPD affects 65 million people worldwide. COPD, however, affected one Canadian woman in an unexpected way; it caused her to fail a breathalyzer.

Connie McLean, a 64-year-old woman from New Brunswick, Canada, who suffers from COPD, said that the condition can make everyday living difficult.

“When I’m carrying in wood, I can only carry in a couple sticks at a time and I usually have to stop and get some air before I go and get some more,” she said last week. “And shoveling is even worse.”

Early last month, McLean was pulled over by local law enforcement. The officer asked her if she had been drinking. McLean responded that she had a beer that afternoon. At that point, the officer produced a breathalyzer to try and determine her blood alcohol content.

As a result of the COPD, McLean could not produce a strong enough of a breath sample to provide a breathalyzer reading.

“I tried several times, but due to COPD and mucous in my airway I wasn’t successful,” she said. “And he just almost hollered, ‘You’re not trying, you’re under arrest and you’re going to jail.’”

McLean was charged with refusing to comply with the breathalyzer test which resulted in her vehicle being impounded for 30 days and her driver’s license being suspended for 90 days.

“It makes perfect sense to us that if you have severe COPD that it would be impossible to exhale for any length of time,” said Henry Roberts of COPD Canada. “I would hope the police would show some compassion to people who have difficulty breathing.”

McLean has a court date next month and intends on fighting the charge.

McLean’s predicament is not an unusual one, even here in the United States. Often, people are unable to provide a sufficient breath test for a number of health-related reasons. Breathalyzers require deep lung air, known as alveolar air, to be able to produce a blood alcohol content reading. If a person does not advise an officer of the health issue that might prevent them from providing alveolar air, the officer may believe that the person is deliberately trying to provide a sufficient breath sample.

California courts have found that an inference can be made that a person is deliberately attempting to avoid providing a sufficient breath sample if the facts permit. If such an inference is made, the court treats it as a refusal.

Fortunately, here in California, a driver is not required to give a breath sample for a roadside breathalyzer, commonly referred to as a “preliminary alcohol screening” test or “PAS” test. Refusing it will not result in additional penalties with either the court or the DMV. In fact, many DUI attorneys like myself recommend politely refusing the PAS test.

Of more importance, however, is the mandatory “chemical test” under California’s “implied consent law.” Under the implied consent law, a driver must submit to a chemical test once they are lawfully arrested on suspicion of a DUI. The chemical test can be either a breath or a blood test. Only for a refusal of the chemical test, not the PAS test, may a driver be punished.

Here in the California, a refusal of a chemical test can result in jail time, a longer DUI program, and/or a longer license suspension.

Let’s hope that reason prevails in the Canadian courts for McLean’s sake.

 

Thanks to my student, David Hong, for sending me this story!

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San Clemente Woman Faces DUI Vehicular Manslaughter Charges After OC Crash

Thursday, March 29th, 2018

A few weeks ago, I posted on the different ways that a DUI can be charged as a felony. One of the ways is if a DUI-related collision causes death or injury to another person. Additionally, if the DUI leads to the death of someone, the driver could also be facing felony vehicular manslaughter charges, possibly even second degree murder charges.

27-year-old Bani Duarte, of San Clemente, found this out the hard way when her Hyundai Sonata rear-ended a Toyota causing it to burst into flames. Three of the occupants were killed and one seriously injured.

In the early morning hours of Thursday, March 29th, a Toyota carrying four Las Vegas residents was stopped at Pacific Coast Highway and Magnolia Street in Huntington Beach. That’s when Duarte collided with the vehicle causing it to burst into flames.

Alex Martinez, 20, of Huntington Beach, witnessed the collision and described the incident with the OC Register.

“Martinez…was in a car with his friends returning from the gym when they saw the woman’s white vehicle swerving, at times speeding and hitting sidewalks.

‘She went to the far right side of the lane and hit the sidewalk really bad and that’s when we decided to call the cops,’ Martinez said Thursday.

“He told police he believed it was a drunken driver going northbound on Pacific Coast Highway. He and his friends followed the woman’s car until it stopped on metered parking by Orange Street.

“Martinez and his friends pulled up to Duarte and asked if she was okay, he said.

“‘I told her she hit two sidewalks back there and she said “Really? No way,”’ he said. Martinez’s friends offered her a ride home. She turned them down and soon was off driving again.

“As she approached Magnolia Street, he said, there was a red car stopped in a middle lane of the intersection. She braked, but then sped up and hit the car which immediately caught fire, Martinez said.

“Martinez said he and his friends reported the crash to police and saw someone leave the red car. He described the male as appearing to be unhurt.

“‘I think he was in shock because he walked towards us all confused, not really knowing what just happened,’ he said. ‘So he sat down and we asked him if there were other people in the car and he said there was three more in the car.’

“‘The car was already in flames and the backseat doors were just crushed by the impact.’

“Martinez said he and his friends and some others who stopped at the crash tried to help but couldn’t get to the people inside. Firefighters extinguished the blaze as Duarte remained in her car after the crash, he said.

“‘I felt powerless and guilty,’ Martinez said.

“He said he was told by officers on scene that the fatalities appeared to be teenagers. Some social media posts have also indicated the victims were young people visiting the area for Spring Break. Huntington Beach police did not release information about the ages or identifies of the victims.

“Martinez described the experience as traumatizing.

“‘Such young people dying in the worst possible way.’ Martinez said. ‘They had their whole life ahead of them and for it to be taken away by a drunk driver is just awful.’”

News outlets have reported that the victims were Las Vegas high school students on spring break. The victims have also since been identified as AJ Rossi, Dylan Mack, and Brooke Hawley. The injured passenger was identified as Alexis Vargas.

Duarte will certainly be facing felony DUI with injury charges and vehicular manslaughter charges. It is unclear, however, whether Duarte will be facing murder charges. Prosecutors will increase the charges to murder if Duarte has previously been convicted of a DUI-related conviction.

I’ll take this opportunity to remind readers that it is easy to jump to conclusions about the guilt of Duarte (and all DUI defendants for that matter), especially given the facts of the incident. However, the law requires that we presume that people are innocent until they are proven guilty beyond a reasonable doubt by a prosecutor or until they accept a plea deal. If Duarte is, in fact, guilty, I am not defending her actions, I am merely reiterating one of the most fundamental canons of American criminal law.  And if she is guilty of what she is being accused of, then she will be punished within the confines of the law.

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Should California Have a Legal Limit for DUI of Marijuana?

Friday, March 23rd, 2018

Prop. 64 is in full swing here in California. While medicinal marijuana has been legal in California since 1996, recreational marijuana is now available for adults who are at least 21-years-old, subject to certain limitations. Up to an ounce of marijuana can be purchased per day and consumed in private locations. The private location cannot, however, be in a vehicle whether you are the driver or the passenger. More importantly for us, a person still cannot drive while under the influence of marijuana.

To be legally under the influence of marijuana a person’s mental or physical abilities are impaired to a degree that they can no longer drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstance.

This definition of impairment is the same for a DUI of alcohol as well. However, with a DUI of alcohol, a person need not be under the influence as long as they have a blood alcohol content of at least 0.08 percent at the time of driving. The purpose behind this rule is that science has established a strong correlation between a blood alcohol content of 0.08 percent or higher and the definition of impairment spelled out above.

Alcohol, which is water-soluble, is absorbed and eliminated from the body relatively quickly. In most circumstances, if a person consumes alcohol during an evening of drinking, the alcohol should be eliminated by the following morning.

The same, however, cannot be said of marijuana. When someone consumes marijuana, the “high” comes from tetrahydrocannabinol (THC) and can last several hours. THC is fat-soluble and can stay in a person’s system for weeks, possibly longer, even though the “high” has long since worn off. As such, there’s little to no correlation between the amount of THC in a person’s system and whether they meet the definition of being under the influence stated above.

Notwithstanding the lack of a correlation between the amount of THC in a person’s system and degree of impairment, Washington State, which has also legalized recreational marijuana, set a limit of 5 nanograms of THC per milliliter of blood in a person’s system.

Lt. Rob Sharpe, who works for the Washington State Patrol’s impaired driving unit, told the Los Angeles Times he believes establishing a legal limit for pot is a necessity.

“If I don’t know how much marijuana I can consume and safely drive, how can I be held to a standard that it’s unsafe to drive?” he asked.

The problem with Washington’s “per se” limit is that a regular user of marijuana can have 5 nanograms of THC per milliliter of blood weeks after having consumed marijuana.

It doesn’t take a lawyer or a judge to tell you that the purpose of DUI laws, whether they’re for DUI of alcohol or DUI of marijuana, is to protect the driver and the public as a whole from impaired driving because that is what’s dangerous. And now that marijuana is legal in both California and Washington, as well as a number of other states, it is no different than alcohol. Like alcohol, a person should be free to consume something that they are legally allowed to consume without fear of being arrested for a DUI days or weeks later.

To have a per se limit for THC, as Washington does, would allow law enforcement to arrest someone for a DUI of marijuana weeks after they have consumed marijuana even though they are no longer impaired. It would be the same as if law enforcement arrested someone for a DUI of alcohol weeks after a night of drinking when they haven’t had a drop of alcohol since that night.

Should there be a per se legal limit for marijuana? Absolutely not, at least not until science can determine how impaired someone is when they’ve consumed marijuana.

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Drunk Driving on St. Patrick’s Day

Thursday, March 15th, 2018

It’s that time of year again when the green beer flows like wine, corned beef and cabbage are consumed for breakfast, lunch, and dinner, and failing to wear something green can lead to unwanted pinches. Yup, I’m talking about St. Patrick’s Day. While most Americans celebrate Irish heritage on March 17th, the day actually commemorates the arrival of Christianity in Ireland as well as marks the death of the holiday’s namesake, Saint Patrick, the patron saint of Ireland.

Synonymous with the holiday is the consumption of copious amounts of alcohol, be it the green beer mentioned above, an Irish coffee (coffee with Irish whiskey and Irish cream), an “Irish Car-Bomb” (dropping a shot of ½ Irish whiskey and ½ shot of Irish cream into a ¾ pint of Guinness), or just a good-old frosty pint of the Irish dry stout, Guinness.

Needless to say, law enforcement is well aware that people will be drinking excessively, especially since St. Patrick’s Day falls on a Saturday this year. Consequently, they will be out in full-force to nab drunk drivers from the streets. Expect saturation patrols and DUI checkpoints in high traffic areas.

“Don’t let a day of celebration turn into a day of tragedy. If you drive impaired, you risk your life and the lives of others on the road,” California Highway Patrol Commissioner Warren Stanley said in a statement. “Plan ahead before the party begins by designating a sober driver or making arrangements for a taxi or ride-hailing service.”

According to CHP, last year saw three people killed and 66 people injured in DUI-related collisions in California on St. Patrick’s Day. What’s more, CHP arrested 148 people on suspicion of driving under the influence. 

Don’t count on Irish luck to get you out of a DUI should you hop behind the wheel after having one too many green beers. There are somethings that you can do to make sure that stay out of jail on St. Patrick’s Day.

Appoint a designated driver. It’s not enough, however, to merely appoint the DD. You need make sure that they remain sober. Being a designated driver means actually remaining sober, not just drinking less that their passengers. There have been several instances this past year where designated drivers have been arrested on suspicion of driving under the influence.

If neither you nor your friends are willing to be a designated driver, consider public transportation. This includes taxi cabs and busses as well as ride-sharing apps like Uber and Lyft. Be aware, however, that getting a cab, Uber, or Lyft might be as difficult as finding a four-leafed clover since St. Patrick’s Day is one of the busiest days of the year for cab, Uber, and Lyft drivers.

Lastly, as unappealing as it might be, the only surefire way to avoid a DUI is to not drink if you plan to drive this St. Patrick’s Day.

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Elevating a California DUI to a Felony

Thursday, March 8th, 2018

The vast majority of California DUI’s are misdemeanors, which means by law a person cannot serve more than a year in jail. And most people who are convicted of a California misdemeanor DUI will never serve that much time, if any at all. However, if a person is arrested, charged, and convicted of a felony DUI, they most certainly will be facing jail, possibly even prison time.

So how does a California DUI get elevated to a felony?

The first way that a California DUI can get elevated to a felony is if the person has suffered three prior DUI-related convictions within the past 10 years. Prior DUI-related convictions include driving under the influence (California Vehicle Code section 23152), driving under the influence with injury (California Vehicle Code section 23153), reckless driving involving alcohol (“wet-reckless”) (California Vehicle Code section 23103.5), and out-of-state convictions that qualify as a priorable conviction. An out-of-state DUI conviction will qualify as a prior DUI in California if it would be considered a DUI had the arrest occurred in California.

A prosecutor can introduce court records from prior cases as well as DMV records to prove the prior DUI convictions. It should also be noted that the prosecutor may also use “expunged” prior DUI-related convictions as way to elevate the current DUI as long as it occurred within the 10-year period.

The second and most common way that a DUI gets elevated from a misdemeanor to a felony is when a DUI results in the injury of another person. California Vehicle Code section 23153 makes it illegal 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. Simply put, this means that the driver was under the influence of alcohol or drugs, they broke a law or acted in a negligent manner and caused injury to another person.

Although DUI with injury is a “wobbler,” meaning it can be charged as either a felony or a misdemeanor, it will almost always be charged as a felony. In fact, I’ve seen prosecutors file DUI’s as felonies when the victim suffered a chipped tooth, a broken finger, and even soft tissue damage. A skilled DUI attorney may be able to negotiate the DUI down to a misdemeanor. However, whether the prosecutor is willing to file or reduce the charge to a misdemeanor will depend on several considerations including, but not limited to, the seriousness of the injury, the level of intoxication, and prior criminal history.

If a person drives under the influence and, as a result, causes the death of another person, they may be charged with either manslaughter, which can be a wobbler depending on the specific Vehicle Code section being alleged, or murder, which is a felony.

A DUI resulting in death will be charged as manslaughter if the driver has not suffered any prior DUI-related convictions. If, however, the driver has suffered a prior DUI-related conviction, they will likely be charged with second degree murder under California’s “Watson Murder Rule.” Under Watson, the California Supreme allowed murder to be charged in a subsequent DUI resulting in death because the driver was made aware of the dangers of drunk driving after having been sentenced on the prior DUI. It is almost as if the court is saying, “We warned you, you did it anyways, and now look at what happened.”

Last, but not least, a California DUI can become a felony if a person suffered any prior felony DUI within ten years. The priorable felony offense can be a conviction of any of those listed above; California Vehicle Code section 23152 (fourth or more DUI), California Vehicle Code section 23153 (DUI causing 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).

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