Increased Penalties for a High BAC

Monday, October 26th, 2015

When it comes to a California DUI, sentence there is a difference between driving drunk and driving really drunk.

It is not uncommon for a person to be caught driving drunk with a blood alcohol content of more than 0.15 percent. Unfortunately, it is also not uncommon for a person to be caught driving drunk with a blood alcohol content of more than 0.20 percent.

When this happens, in addition to being charged with the normal California DUI charges under California Vehicle Code section 23152 (a) and 23152(b), the prosecutor will also include what is known as a “special allegation” in the complaint. As a result of the “special allegation,” the person arrested for a California DUI is now actually facing increased penalties.

California Vehicle Code section 23578 sets forth the special allegation when a person’s blood alcohol content is 0.15 to 0.19 percent.

“In addition to any other provision of this code, if a person is convicted of a violation of Section 23152 or 23153, the court shall consider a concentration of alcohol in the person’s blood of 0.15 percent or more, by weight, or the refusal of the person to take a chemical test, as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation.”

In my experience, there are a number of common enhanced penalties that a prosecutor seeks when there is a special allegation that a person’s BAC was 0.15 or more. Those enhancements include, but are not limited to, a longer DUI program, AA meetings as a condition of probation, AA meetings as a condition of being released on their own recognizance pending the outcome of their case, MADD’s Victim Impact Panel, and/or a Hospital and Morgue Program.

When a person’s blood alcohol content is 0.20 percent or more, California Vehicle Code section 23538(b)(2) provides:

“The court shall refer a first offender whose blood-alcohol concentration was 0.20 percent (.20%) or more, by weight, or who refused to take a chemical test, to participate for at least nine (9) months or longer, as ordered by the court, in a licensed program that consists of at least 60 hours of program activities, including those education, group counseling, and individual interview sessions described in Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code.”

Although section 23538(b)(2) specifically mentions a 9-month DUI program (called AB1353), there’s a good chance that the prosecutor will be pushing for an 18-month program (called SB38). The longer DUI program would be in addition to any of the other increased penalties I mentioned above.

When a California DUI case includes special allegations such as these, it is important and especially advantageous to the DUI-arrestee that an experienced California DUI attorney not only fight the underlying DUI charges, but the special allegations as well.  




Is a Marijuana Breathalyzer in the Offing?

Monday, September 14th, 2015

Many are saying that California will be the next state in the Union to legalize recreational marijuana. If their predictions are correct, that would make California the sixth state to do so. Currently, Washington, Colorado, Alaska, Oregon, and Washington D.C. have all legalized recreational marijuana. Although California has not yet legalized recreational marijuana, it has decriminalized marijuana and allows the use of medical marijuana for medical purposes.

With California and other states on the cusp of legalization of recreational marijuana, law enforcement agencies are clamoring for technology that will help them determine how stoned someone is for purposes of driving under the influence.

In June of this year, Cannabix Technologies Inc., a company based out of Vancouver, issued an update on what it hopes to be the first widely used marijuana breathalyzer. According to Cannabix’s website, a prototype has been developed and is currently undergoing testing. According to the company’s founder, retired Canadian police officer Kal Malhi, the device will be able to detect the use of marijuana within two hours.

Lifeloc, a Colorado-based company which already makes and distributes alcohol breathalyzers is also in the race to develop a marijuana breathalyzer.

"I think the first breathalyzer on the market will be a simple ‘yes’ or ‘no’ for the presence of THC at the time of the test, and in that sense it won’t provide a quantitative evidential measure," Barry Knott, the chief executive of Lifeloc, told Reuters.

If developed, the new marijuana breathalyzer would replace the rather inefficient blood test to determine how much THC (tetrahydrocannabinol), the active component of marijuana, is in a person’s system.

Many states that have legalized marijuana either recreationally or medically have set a "per se" limit, or bright line rule on how much THC can be in a person’s system while driving ranging from 0 to 5 nanograms per milliliter of blood.

It is well known that the "per se" limit for how much alcohol can be in a person’s system is 0.08 percent blood alcohol content. With alcohol, there is a fairly strong correlation between blood alcohol content and intoxication. In other words, there is a high probability that a person with a 0.08 blood alcohol content is feeling the effects of alcohol intoxication such that they cannot operate a vehicle as a reasonable and sober person would.

So can the same be said for nanograms of THC per milliliter of blood? Unfortunately, no.

Notwithstanding "per se" THC limits in many states, the correlation between nanograms of THC per milliliter of blood and marijuana intoxication is extremely weak.

Unlike alcohol, THC is fat soluble which means that it leaves the body at a much slower rate. In fact, chronic users of marijuana can have THC in their blood weeks after use. Alcohol, on the other hand, is water soluble and dissipates at a rate of about 0.015 percent per hour. This means that, depending on how much alcohol someone drank, a person can sober up within hours.

This means that someone who has smoked marijuana three weeks ago can still be arrested in states with a "per se" THC limit even though they are no longer under the influence of marijuana and perfectly sober.

It is unclear whether the marijuana breathalyzers currently being developed will quantify how much THC is in a person’s system. Not that it matters. The amount of THC in a person’s system has nothing to do with how intoxicated they are and, consequently, how much of a danger they are to the roads.

Until a marijuana breathalyzer can determine how intoxicated someone is, we run the risk of arresting sober people for DUI. 


The DUI Turns 118 Years Old

Monday, September 7th, 2015

September 10th marks the 118th birthday of the DUI arrest. As September 10th approaches, I would be remiss not to post a little bit of history of the DUI and what it has become since.

118 years ago, on September 10th 1987, a London taxi driver by the name of George Smith became the first person to be arrested for driving under the influence after he crashed his vehicle into a building. Smith pled guilty and was fined 25 shillings. By today’s standards, 25 shillings amounts to about 40 British pounds which is about 67 U.S. dollars.

Today, DUI laws seem almost as ubiquitous as cars themselves. That, however, was not always the case. Prior to 1910, no state had any law against driving drunk. That changed when, in 1910, New York became the first stated to adopt a law against driving under the influence of alcohol. Of course, at that time, science had not allowed law enforcement to know what a person’s blood alcohol content was. Consequently, the law could not provide a per se blood alcohol content limit like we have today. Rather, a determination of whether a driver was intoxicated was left to the interpretation arresting officer.

The difficulties facing law enforcement in determining whether a person was drunk and, if so, how drunk took a step forward in 1938. That year Indiana University professor, Rolla Harger invented the “drunk-o-meter” in an attempt to quantify intoxication. The person being tested would blow into a balloon. The balloon was then attached a tube containing chemicals and the air in the balloon released. The alcohol in the air from the balloon would react to the chemicals and create a color. The higher the alcohol content, the greater the change in color.

The “drunk-o-meter” became the predecessor to the modern breath test. In 1954, Robert Borkenstein, chairman of Indiana University’s department administration, invented a more portable device than Harger’s “drunk-o-meter” and that also actually measured a subject’s blood alcohol content. The device would come to be known as the “breathalyzer.”

In 1939, Indiana became the first state to pass a law that made it illegal to drive with a specific blood alcohol content. At that time, the legal blood alcohol limit was 0.15 percent. Other states began to follow suit.

The late 70’s and early 80’s saw an influx of public awareness on the dangers of drunk driving. Much of this awareness was due to the creation of the group Mothers Against Drunk Driving (MADD) in 1980. The group was founded by Candy Lightner after her 13-year-old daughter was killed by a drunk driver. The group has since pushed for tougher legislation regarding DUI laws and penalties.

MADD’s efforts did indeed begin to impact DUI laws throughout the country. In 1984, The National Minimum Drinking Age Act was passed. It required that states pass legislation raising the legal drinking age to 21.

MADD’s influence also partly led to the lowering of the legal blood alcohol limit to 0.08 percent in all states.

In 2013, the National Transportation Safety Board (NTSB) voted to recommend that states lower their blood alcohol limits to 0.05 percent. Whether states adopt the recommendation is yet to be seen.

Currently, in California the legal limit is 0.08 percent. A person can also be charged and convicted of a DUI if they are “under the influence” even though they may not be above a 0.08 percent.

The statutory minimum sentence for a first-time DUI conviction is three years of informal probation, $390 in fines and fees plus penalties and assessments, and a 3-month DUI program. While this is the minimum, punishments may also include AA meetings, a MADD-sponsored “Victim Impact Panel,” a “Hospital and Morgue Program,” or CalTrans.


But They Didn’t Read Me My Miranda Rights!

Tuesday, May 26th, 2015

Often those who have been arrested for a DUI believe that their case will simply be thrown out because officers did not recite their Miranda rights before incriminating statements are made or even at all. In fact, many of my own clients have expressed such with the exclamation, “But they didn’t read me my Miranda rights!”

Those clients have watched the movies and T.V. shows so they know that Miranda rights must be recited. And they might even be able to recite the Miranda rights themselves. Few, however, know when the law requires that officers give the Miranda rights.

Law enforcement is required to give the Miranda rights before a “custodial interrogation.” The idea is that, if a person does not know they have a right to remain silent, any confession they give while in custody cannot be voluntary.

This necessarily requires two things to trigger the Miranda warnings: 1.) custody, and 2.) an interrogation.

First, let’s talk about an interrogation. An interrogation for purposes of Miranda warnings occurs when officers do anything likely to elicit an incriminating response. Certainly this includes questions pretty standard in DUI stops; “Where are you coming from?” “How many drinks have you had today?” “When was your last drink?”

The question of when a custody occurs during a DUI stop, however, is not as straight forward.

A custody occurs when a suspect is under the physical control of an officer. However, a custody can also occur when a reasonable person would not feel free to leave the officer’s presence.

While someone suspected of a DUI cannot drive away from an officer after a DUI stop, the period following a DUI stop is deemed to be a “preliminary investigation,” not a custody. An arrest (ie. custody) cannot be made until an officer has probable cause to believe that the person is driving drunk. When an officer pulls someone over, they do not have probable cause to arrest someone. They get their probable cause through the statements that DUI suspects give during this preliminary investigation and inevitable failure of field sobriety tests.

Truth is that probable already likely exists before the questioning occurs when the officers observe driving that is indicative of intoxication, blood shot watery eyes, slurred speech, and notice the odor of alcohol. Few officers, however, will admit that they had probable cause before they began questioning the driver.

Consequently, most DUI suspects are placed in custody for purposes of Miranda and DUIs right before they are placed in the squad car and hauled off to jail.

Unfortunately, this means that, by the time officers are required to give the Miranda warnings during a DUI stop, the damage has already been done. Since most incriminating statements and responses to officer questioning are made before a DUI suspect is placed in custody, they are admissible as evidence in a DUI case.

God forbid, if you’re ever stopped and the officer begins asking questions about whether you’ve been drinking, do not give them any more ammo than they already have. Miranda does not yet apply and your statements will be used against you. Simply reply, “I respectfully decline to answer any questions under the 5th amendment. Am I under arrest or am I free to leave?”


Can You Fail Field Sobriety Tests While Sober?

Monday, May 11th, 2015

I have never seen a police report say that a California DUI suspect “passed” the field sobriety tests performed after a DUI stop. Does that mean that all of those suspects were intoxicated? No.

This necessarily means that people can fail field sobriety tests while sober. But how?

Unfortunately it’s not all that difficult.

Field sobriety tests are notoriously unreliable. Yet law enforcement agencies continue to employ the Horizontal Gaze Nystagmus (HGN) Test, the Walk-and-Turn Test, and the One-Leg Stand Test to determine intoxication. These are the tests that the National Highway Traffic Safety Administration has designated as standard. Other tests include the Rhomberg Balance Test, the Finger-to-Nose Test, and the Finger Tap Test.

Field sobriety tests are used to gauge a person’s coordination, balance, and simple motor skills after they have consumed alcohol. And while they may, in fact, test coordination, there are a number of reasons why a sober person might fail a field sobriety test.

Needless to say, most people are both stressed and nervous when they are pulled over and asked to step out of their vehicle. The stress and nervousness inevitably make it difficult to concentrate. Yet officers regularly fail a person for having trouble following the field sobriety test instructions.

A person who is intoxicated may likely exhibit trouble with balance. Lack of balance is what officers look for when a suspected drunk driver performs field sobriety tests. However, balance can be affected by many things, one of which is inner ear problems. The inner ear contains a small organ called the labyrinth that helps us maintain balance. When the labyrinth is disrupted, so too is that person’s balance. Some of the things that can disrupt the labyrinth include infections and illness, head trauma, age, and tumors, to name a few.

Physical problems and disabilities can also affect a person’s performance on field sobriety tests. Physical problems such as knee pain or lower back pain may make it difficult to, say, walk heel to toe in a straight line or stand on one leg perfectly still for 30 seconds.

For the same reasons, people who are older or who are overweight may also have trouble performing field sobriety tests that require coordination and balance.

While it may be dangerous to drive while tired, it is not illegal like driving under the influence. However, lack of sleep can cause many of the same symptoms as intoxication. When people are tired they can experience poor balance, lack of coordination, and trouble with motor skills. What’s more, when someone is sleep deprived and tired, they exhibit bloodshot, watery eyes. Unfortunately, bloodshot, watery eyes are amongst law enforcement’s favorite indicators of intoxication.

Perhaps one of the most powerful factors affecting a person’s purported performance on field sobriety tests is the officer’s interpretation of that person’s performance. Law enforcement officers have already decided that a person is intoxicated even before the person performs the field sobriety test. As a result, the officers are going to see what they expect (or want) to see.

I could go on with many other reasons why sober drivers fail field sobriety tests, but that would make this post extremely lengthy. Suffice it to say, field sobriety tests are unreliable and sober people do fail them.

Having said that, drivers have a right not to and should not ever agree to perform field sobriety tests because they will fail whether they were intoxicated or not.