Should California Lower its BAC Limit?

Friday, March 29th, 2019

It’s not a novel question. Should California lower the blood alcohol content limit before someone can be arrested, charged, and convicted of a DUI in the state?

Although a nationwide blood alcohol content limit was suggested prior, it was not until 2001 that the Department of Transportation said it would cut funding to states that did not maintain a blood alcohol content limit of 0.08 percent for DUI cases. As a result, all states adopted a 0.08 percent blood alcohol content limit. However, as of January 1st of this year, Utah became the first state to lower the blood alcohol content limit to 0.05 percent making it the strictest in the country.

A new bill introduced in California hopes to follow in Utah’s footsteps.

Introduced by Assemblywoman Autumn Burke (D-Marina del Rey), AB1713, otherwise known as Liam’s Law, would lower California’s BAC limit to 0.05 percent.

The bill was named in honor of a 15-month old who was struck and killed by a drunk driver in 2016 when his aunt was pushing his stroller across Hawthorne Boulevard. Liam was the son of former mixed martial art fighter Marcus Kowal and his wife, Mishel Eder. Since then, both have been pushing for a lower BAC limit and Burke said that she had been influence by them.

“Every year, we see drunk drivers kill or injure our friends and loved ones because they thought they were OK to drive,” said Assemblyman Heath Flora (R-Ripon), who co-authored the bill and who also introduced a bill to increase the penalties for repeat DUI offenders. “Lowering the [blood alcohol content] limit to .05 percent has [been] shown to decrease DUI-related traffic fatalities by serving as a deterrent to folks driving drunk in the first place.”

Flora is referring to studies that suggest people begin to start feeling the effects of alcohol at 0.04 percent, and which have been used by the National Transportation Safety to justify its support of a 0.05 percent limit.

According to the National Highway Traffic Safety Administration, a male weighing 140 pounds would be at, or close to, a 0.08 percent blood alcohol content having had three drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.08 percent blood alcohol content having had just two drinks within an hour. Regardless of gender, your blood alcohol content will not be as high if you weigh more. Conversely, your blood alcohol content will be higher if you weigh less.

On the other hand, male weighing 140 pounds would be at, or close to, 0.05 percent blood alcohol content having had two drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.04 percent blood alcohol content having had just one drink within an hour.

Of course, these figures are approximate and depend on several factors which include, but are not limited to, whether the person ate, what they ate, what they drank, and how fast they drank it. But based on these approximate numbers, we can see that for both males and females, the difference between a 0.08 and a 0.05 percent blood alcohol content is about one less drink in an hour.

This raises another question: Is this law merely changing the definition of “drunk” to cast a wider net, thus creating more “criminals”?

“When (a bill) is first introduced, the 10,000-foot view is, ‘This is a law that’s tough on drunk driving. It should pass pretty easily,’” said Jackson Shedelbower, spokesman for the American Beverage Institute. “But in reality, it’s not tough on drunk driving. It’s punishing moderate, social drinkers. It’s focusing traffic safety resources away from people who are the real problem toward people who aren’t the problem.”

Shedelbower went on to say that most DUI-related collisions are caused by drivers with BAC levels higher than 0.05 and repeat offenders, and that having a BAC level of 0.05 is less impairing than talking on a hands-free cell phone while driving.

Should the bill become law, many could be arrested after having a single drink and certainly when they’re not even drunk. I’m sorry, but I thought DUI laws were meant to protect against impaired driving. I’m not so sure that the hoped effect of the bill is worth the collateral consequence of arresting, charging, and convicting non-impaired drivers.  

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School Bus Driver DUI with 26 Students Onboard, Abandons Bus and Students

Thursday, March 21st, 2019

When parents send their children off to school, they expect that the adults in charge maintain a certain level of care and maintain a level of responsibility towards the children once in their care. It is not outrageous to think that that expectation extends to the time that the children are onboard a school bus traveling to and from school.

Sadly, one school bus driver broke parents’ and children’s trust with her erratic driving caused by alleged intoxication.

On March 1, a Pennsylvania school bus driver, later identified as Lori Ann Mankos, was driving 26 middle and high school students home around 2:50 p.m. Initial reports mentioned a disturbance on the bus that caused Mankos to pull the bus into a gas station. There, she parked the bus, exited, and handed the keys to a gas station employee and proceeded to walk away.

As shocking as this seems, thankfully no children were harmed. Some parents picked their children up from the gas station and others were taken home by a different bus driver.

A further investigation revealed that this seemingly innocuous, but nonetheless irresponsible, act by a school bus driver was far worse than merely abandoning the bus at the gas station. The police reported that soon after the students were picked up by Mankos, some of the students noticed a change in Mankos’s driving pattern. She wasn’t taking the usual route to the students’ home. Additionally, the students became concerned when Mankos took a right-hand turn too fast and the bus ended up almost halfway into the opposing lane. The students then started to record their wild ride and protested the erratic driving. This, apparently was the disturbance that caused Mankos to pull the bus into the gas station.

Students reported that in response to their protests, Mankos swore at them and flipped them off. In one of the videos recorded by the students, she can be heard asking if the children preferred that she stop the bus and the students call their parents to pick them up. When they agreed to her suggestion, she parked at a nearby gas station where she then proceeded to hand her keys to the station attendant and walk away. She initially refused to let the students off the bus, but the students were able to open the emergency door and get themselves out of the bus. She can be heard telling the students to “go f**k themselves.”

Police found Mankos at her residence and took her into custody. She has been charged with DUI, one count of careless driving, one count of reckless driving, and 26 counts of child endangerment (one count for each student aboard the bus).

Mankos’s mother told reporters that her daughter hadn’t been herself since she started to drive that bus route and that she believed that her daughter had a nervous breakdown.

Information has not been released regarding what substances may have been the cause of Mankos’s erratic behavior or if she has suffered any previous DUI convictions. However, in a profession where the primary responsibility is to children and their wellbeing, one would hope that the school district and bus contractor will take this opportunity to be more selective with their employees or perhaps provide better emotional and/or mental health support for their employees.

“This is not what we expect of any of our drivers,” said a spokesman for the bus contractor, Cincinnati-based First Student, which employs the driver. “Our first priority is the safety of the students, which is why we sent a reliever bus to pick them up and take them to their homes once we found they were stranded. All students are safe and accounted for. If there’s appropriate action warranted against the driver as a result of this investigation, that action will be taken.”

“Nothing like this has ever happened before in my 28 years with the district,” Northampton School District Superintendent Joseph Kovalchik told the Morning Call. “We’re extremely upset by this, but very thankful that none of the students were hurt.”

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Man Arrested for DUI for Falling Asleep while Tesla in Autopilot Mode

Thursday, December 6th, 2018

Last week, California Highway Patrol arrested a driver for DUI after he had fallen asleep in his Model S Tesla while it drove down Highway 101 in autopilot mode.

A CHP officer spotted a grey Tesla going about 70 miles per hour on Highway 101 near Redwood City. As the officer approached the vehicle, he also noticed that it appeared the driver of the Tesla was asleep behind the wheel. CHP then closed traffic on the highway and proceeded to slow the Tesla by pulling a patrol vehicle in front of it and slowing down, thus causing the Tesla to slow down.

The driver of the vehicle eventually awoke to the CHP stopping his vehicle. Once stopped, responding officers suspected that the driver was under the influence and had the driver perform field sobriety tests, which he allegedly failed.

“It’s great that we have this technology; however, we need to remind people that…even though this technology is available, they need to make sure they know they are responsible for maintaining control of the vehicle,” CHP spokesman Art Montiel said.

In January of this year, CHP arrested a driver who was found passed out behind the wheel of a Tesla on San Francisco’s Bay Bridge. According to CHP, the driver’s blood alcohol content was more that double the legal limit. The man claimed he wasn’t responsible because the vehicle was in autopilot.

While fully autonomous vehicles may be in the offing, no major car manufacturer has yet to develop a fully autonomous vehicle for public consumption. In fact, Tesla warns that its autopilot features are not fully autonomous. “Autopilot is intended for use only with a fully attentive driver,” a Tesla spokes person told the Washington Post earlier this year. Rather, auto pilot systems are designed to detect obstructions in the road and, if necessary, bring the vehicle to a halt if the driver does not respond in time.

In fact, a goal of Elon Musk is to have fully autonomous vehicles in the near future.

“We aimed for a very simple, clean design, because in the future – really, the future begins now – the cars will be increasingly autonomous,” Musk said in July of last year. “So, you won’t really need to look at an instrument panel all that often. You’ll be able to do whatever you want: You’ll be able to watch a movie, talk to friends, go to sleep.”

This, however, raises an interesting legal dilemma.

California law requires that a drunk driver be in physical control of the vehicle and must cause the vehicle to move in the slightest amount. Are drunk drivers who are in autopilot really in physical control of the vehicle and cause it to move if the car is in autopilot? At least right now, the answer is a likely yes.

Drivers still need to operate a vehicle in autopilot to a certain degree. As Tesla’s spokesperson pointed out, Tesla’s autopilot feature still requires a fully attentive vehicle to take control of the vehicle to engage in maneuvers that are not available in autopilot. Just because a vehicle has autopilot mode does not mean that it is autonomous.

The question will become even trickier when fully autonomous vehicles are introduced to the public. If a vehicle is fully autonomous, then there is no need for a driver to be in any kind of control of the vehicle. On the other hand, a driver (now a passenger of a fully autonomous vehicle) will still need to input coordinates and tell the vehicle where to go, which can raise the argument that the passenger is, in fact, in control of the vehicle.

You can see how this technology can raise interesting legal questions. I suppose we’ll just have to 1.) wait for fully autonomous vehicles, and 2.) see what the legislature and/or courts do to define what it means to be “in control” of a fully autonomous vehicle.

Until then, drinking and getting behind the wheel of a vehicle while in autopilot mode will still land you a DUI in California.

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Drunk Driver Thanks Police for “Saving Her Kid from Her”

Thursday, November 22nd, 2018

A drunk driver told police that she had a reason to be thankful this Thanksgiving right after she was arrested for a DUI.

A drunk Crystal Elaine McMillan, of Indiana, apparently flew into a fit of rage after she discovered that her friend would not be cooking a turkey for Thanksgiving this year. That friend was the passenger in McMillan’s truck. Between them sat McMillan’s 6-year-old son.

As McMillan approached an intersection, swerving from lane to lane, her passenger told her to “slow down.” McMillan, still mad at her friend, said, “I’ll show you” and proceeded to speed up. By the time she reached the intersection the light had turned red. McMillan collided with a vehicle turning left in the intersection.

McMillan fled, but was apprehended after a man called police saying a drunk woman was on his property. McMillan reportedly told police that she was too drunk to attempt field sobriety test. She admitted to drinking before the crash. She also, however, admitted to drinking after the collision because she “knew she was going to jail.”

Following her arrest, McMillan thanked the arresting officer for “saving her kid from her.”

McMillan was charged with three counts of felony reckless endangerment and DUI, amongst a host of other charges.

While I can’t tell you what McMillan is looking at in Indiana, what I can say is that a DUI with a child in the car in California is no walk in the park.

Not only is a person looking at the punishment under California’s DUI law, which can carry up to 6 months in jail and a fine of up to $1,000 for a first time DUI, they are also looking at additional penalties under California Vehicle Code section 23572, also known as California’s DUI child endangerment enhancements.

Under California Vehicle Code section 23572, 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 you were driving under the influence and that there was a minor child under the age of 14 in the car while you drove.

This Thanksgiving be thankful for what you have. You never when those things your thankful for might be taken from you by a drunk driver.

 

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Should You Take a Breathalyzer During a California DUI Stop?

Thursday, October 4th, 2018

There are many misconceptions about what a person should and shouldn’t do during a DUI stop, not the least of which is whether a person should submit to the breathalyzer test. Unfortunately, the answer, like many things in law, is much more complicated than simply “yes” or “no.”

There are actually two breathalyzer tests that can be taken during a California DUI stop. The first is the roadside breathalyzer, often called a preliminary screening alcohol test or “PAS” test, and the second is the “chemical breath test.”

Under California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”

Like the other field sobriety tests that officers hope will give them reason to believe that the driver is intoxicated, the roadside breath test is optional. Having said that, many people don’t even know that the other field sobriety tests are optional. These tests include the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. All field sobriety tests, including the roadside breathalyzer, are optional. Although the officer might threaten to arrest you, stand your ground and politely refuse all field sobriety tests. They are only meant to give the officer the evidence they need to arrest you.

In fact, the officer must advise the driver that the roadside breath test is optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”

Whether the driver has submitted to the roadside breathalyzer or not, the officer must determine if the person is intoxicated and thus should be arrested.

If the officer has the required probable cause to make an arrest for a DUI, whether through the field sobriety tests, the PAS test, or any other information, California’s Implied Consent Law kicks in. Herein lies the difference between a roadside breath test and a chemical test.

Under California’s Implied Consent law, which is codified in California Vehicle Code section 23612(a)(1)(A), “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”

Simply put, if you have a license and you drive in California, you have impliedly consented to submit to the chemical test after you have lawfully been arrested for a DUI, which can either be a breath test or a blood test. If the driver is like me and hates giving blood, then they must provide a breath test. Conversely, if a person opts against the breath test, they must submit to the blood test.

So, to answer the question that is the title of this article, you do not have to (nor do I recommend) submitting to the pre-arrest roadside breath test. However, after someone is arrested, they must do either a breath test or a blood test.

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