Tag Archives: DUI conviction
We often spend so much time talking about unique DUI-related topics, many of which discuss the complicated intricacies of DUI’s and DUI law, that we forget to go back and just remind our readers about the basics of a California DUI. Therefore, every so once in a while, I like to go back and just discuss the basics of a California DUI. Before I go any further, I’ll preface this post by saying that the below information is not for DUI’s where aggravating circumstances were present such as prior DUI convictions, collisions, injuries to third parties, an unusually high BAC, a refusal of a chemical test, and so on.
In order to be stopped and arrested on suspicion of a California DUI, officers need probable cause to believe that a person is driving under the influence. For an officer to have probable cause, they need to have reasonable and trustworthy facts that a person is driving under the influence. Officers obtain the probable cause needed to make a DUI arrest by observing poor driving patterns, observing signs of intoxication (slurred speech, smell of alcohol, bloodshot eyes), poor performance on field sobriety tests, and/or failure of a pre-arrest breathalyzer known as a “preliminary screening alcohol test” (PAS test).
A driver can limit the probable cause that the officers are looking for by taking steps to enforce their rights. If pulled over on suspicion of driving under the influence, the driver should not say anything to police except to invoke their 5th Amendment right to remain silent and request an attorney. The field sobriety tests are optional and should not be performed. See any of our numerous articles on the inaccuracies of field sobriety tests. Lastly, the PAS test is also optional and also should not be taken. By limiting the probable cause, the driver will give their defense attorney the ability to argue that the arrest was illegal because the officer did not have the required probable cause to make the DUI arrest.
I should note that a driver will likely still be arrested whether they take measures to protect their rights or not. Again, the purpose of protecting your rights is to help with the DUI defense in court, not to prevent an arrest. I repeat, the officers will almost always still make the arrest.
Once arrested, the driver will be required to submit to a chemical test which can either be a breath or a blood test. Do not confuse this test with the roadside breathalyzer (PAS) test. The PAS test is optional. The chemical test is required, but is only required after a driver is lawfully arrested.
After the driver is arrested, they will be held until they sober up and released with a court date. In the time between the arrest and the court date, the law enforcement agency will send its police report to the appropriate prosecuting agency to make the decision about whether to file charges.
If a DUI is charged, it will typically be under California Vehicle Code section 23152(a) and/or 23512(b). Simply put, Vehicle Code 23152(a) makes it illegal to drive while under the influence of alcohol and Vehicle Code 23152(b) makes it illegal to drive with a blood alcohol content of 0.08 percent or higher. If a person is arrested having been suspected of driving while under the influence of an intoxicant other than alcohol, they will likely be charged with California Vehicle Code section 23152(e).
The filing of charges triggers a criminal case in the appropriate courthouse. The court will schedule a hearing called an arraignment. At arraignment, the DUI suspect, who is now a DUI defendant, will enter a plea, be advised of their rights, and the charges pending against them.
Following the arraignment, there may be several or no pretrial hearings to allow the prosecutor and any defense attorney, either private or a public defender, to assess the merits of the case and negotiate a plea deal. A plea deal may include a reduction in charges to a “wet reckless,” “dry reckless,” or some other lesser charge. It may also include a reduction in sentence.
If no deal can be reached, the case proceeds to a trial where the prosecutor will have to prove to a jury beyond a reasonable doubt that the DUI defendant drove a vehicle either under the influence of alcohol, under the influence of a drug, or with a blood alcohol content of 0.08 percent or higher.
If the jury finds the person not guilty, the DUI defendant will suffer no legal penalties. However, if the finds the person guilty, they face a minimum of three years of summary probation, a fine between $390 and $1,000 plus penalties and assessments, and a three-month drunk driving program known as AB-541, and up to six-month in county jail. Other penalties that a defendant might face are a longer DUI program, a longer probationary period, a hospital and morgue program, a Mothers Against Drunk Driving Victim Impact Panel, AA meetings, and a SCRAM device (alcohol detecting anklet).
I’ve only scratched the surface of the basics of a California DUI, and I haven’t even mentioned the DMV consequences of a DUI arrest and/or conviction, which, by itself, could take up several stand-alone articles. See any number of previous posts about the DMV consequences of a DUI.
Needless to say, just the basics of a DUI are extremely complicated. Factor in other intricacies not mentioned here and it goes without saying that a person who has been stopped, arrested, and charged with a DUI should absolutely not try to take on the system by themselves. Hire a qualified and experienced DUI attorney who knows the process inside and out, and who will give you the best chance at a favorable outcome.
In the years that President Trump has led from the Oval Office, there have been significant changes to former President Obama’s policies. One of the changes being to the Deferred Action for Childhood Arrivals program, better known by many as DACA. This program, which allowed children who were brought to the United States before the age of 16 by undocumented immigrant parents to apply for deferred status and remain in the United States, was formally rescinded by Trump in 2017.
Under the current policy, for a DACA-eligible immigrant to gain deferred status to continue to stay in this country, they cannot have a felony conviction, a significant misdemeanor conviction, or three or more misdemeanor convictions. They must also pose no threat to national security or public safety. These eligible immigrants are referred to as “Dreamers.” However, under the current policy, there was no path to legal residency or ultimately citizenship.
Democrats have authored a bill to be considered by the House that would affect the process of gaining permanent residency for Dreamers and the conditions that would disqualify them from completing the process. Part of the new bill allows Dreamers to be deported if they have a felony DUI offense, three or more misdemeanor offenses, or if their DUI record can be interpreted by the Secretary of Homeland Security to be a threat. Although this is the main focus of the bill, there is also a section in the bill that allows the Secretary of Homeland Security to grant waivers for undocumented immigrants in regards to up to two DUI misdemeanors being counted against them if they have not had similar convictions in the 10 years leading up to their application for legal status. On the flip side, the Secretary may also deny someone’s legal status with one DUI offense if that offense leads to the belief that the person can be considered a public threat.
Supporters of this bill feel that it would be hypocritical for Congress to hold the Dreamers to a different standard than themselves. There have been several members of Congress who have a history of DUI and, for them, apologies seemed to have sufficed to allow them to continue in their positions. Examples of current members include Texas Representative Kevin Brady who pled no contest to a DUI charge in 2005, Idaho Senator Mike Crapo who pled guilty to DUI in 2013, and former Rhode Island Representative Patrick Kennedy who pled guilty to DUI in 2006.
Opposition to the bill feels that this new bill does not consider the severity of DUI convictions. Ohio Representative Chabot was quoted, “We should not be passing laws which shield drunk drivers from removal or reward them for their dangerous conduct by fast tracking them to get a green card.”
Committee Chairman Jerrold Nadler of New York feels that “people make mistakes and laws and policy decisions should reflect that. [They are] no more or no less a public safety threat than a member of Congress who has a DUI conviction from several years ago.” Nadler continued, “This legislation is intended to recognize reality, that these people are Americans, that they are Americans in every sense except for a piece of paper, and to say, to imply, there’s one standard for members of Congress with a DUI conviction and another … where a single DUI can automatically expel them from the country is wrong.”
As an immigrant myself with permanent residency I agree that it does seem unfair to judge a person from a past DUI conviction when that mistake was just that; a mistake. Although I agree that society as a whole should be well aware of the seriousness and consequences of driving under the influence, setting a different standard for those children who had no say in coming into this country to begin with and have known no other home but this country, seems to be unfair. Obviously, if a Dreamer racks up multiple DUI, misdemeanor, or felony convictions, then at that point they would start to pose a threat to society, and the Secretary of the Department of Homeland Security might have cause to deny legal status. Whether the bill passes or not, let’s hope that even the prospect of the bill becoming law is enough to deter Dreamers from getting behind the wheel while under the influence.
So far in 2019, the Bellingham Police Department of Washington state has seen 110 DUI arrests through April 19, 2019. That is approximately one DUI arrest per day. According to Lieutenant Claudia Murphy that’s a 134% increase from the 47 arrests made in the same period in 2018.
It is not that there is all of a sudden a huge increase in the number of drivers who appear to be imbibing and getting behind the wheel, but rather that the Traffic Division of the Bellingham Police Department is emphasizing on what they believe is the first step in keeping their community safe. According to Sergeant Carr Lanham, the department’s success in achieving this arrest rate has much to do with the $20,000 grant they received from the Washington Traffic Safety Commission’s Target Zero Program.
The Target Zero Program aims to achieve “Zero Deaths & Zero Serious Injuries by 2030.” The grant money allowed the department to train their officers in recognizing drug use through a mentoring program with the department’s drug recognition expert, Officer Zack Serad. According to Sgt. Lanham, the grant and mentoring program allowed Officer Serad to take other officers with him to gain knowledge and experience in properly spotting and processing impaired drivers as well as allow him to do ride-alongs with other officers. Serad was also able to focus on training other officers in testing for intoxicants other than alcohol.
In addition to the mentoring program, increased staffing has allowed for more officers to be on duty on the streets during the peak DUI hours which Lt. Murphy has also credited for the higher arrest rates. Murphy has also attributed the “success” to a more “mature” staff in comparison to 2018.
The Bellingham Herald called this “an impressive start to 2019.” But is it really?
Sure, the number is much higher than last year, but the number doesn’t necessarily reflect the number of convictions. We have no real data about how many of these arrests are legitimate DUI arrests. Other counties in the area are not seeing this huge jump in arrest numbers. Remember, an arrest means nothing without a conviction because without a conviction a driver suspected of DUI is innocent.
We recently posted an article about “experts” in the police force being used in court (see article Should Courts Allow Cops to be “Experts” in Drug Intoxication for DUI Cases). Is a mentoring program by a police force drug recognition expert enough to gain the proper knowledge and experience to have made such a huge impact on the arrest rate? Or is there a possibility that, as a result of the mentoring program and focus on DUIs, the officers are a bit more quick to arrest drivers with DUI? If you recall from the article, “proficient” in the eyes of law enforcement is a 43% to 49% accuracy rate.
It would be interesting to know how the mentoring program may have focused on recognizing marijuana use as recreational use of marijuana has been legal in the state of Washington since 2012. Washington state does not utilize roadblocks as part of their system in controlling impaired drivers so it would also be interesting to receive more details about how the officers are even able to spot impaired drivers on the road. Sure, having more officers out on the roads will raise the probability of an impaired driver being recognized, but to the extent of a 134% increase? Seems a bit suspicious.
If in fact, a majority of the arrested drivers were legitimately impaired and the Bellingham police force was able to get them off the streets so that other drivers can have a safer environment to drive, then all the power to them. Being able to get the potentially dangerous drivers off the roads is an incredible feat, but if these numbers are just a façade making it look like they are 134% more effective than last year at catching drunk drivers, then we may need to take another look at a breakdown of this number.
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.
According to a new study by the American Addiction Centers, drunk driving among the veteran population is up 60% since 2014.
According to the study’s authors, “Since 2014, the percentage of U.S. vets identified as driving while drunk increased from 1.6 percent to 2.5 percent,” almost a 60 percent hike. The study, after having identified the veteran community as already at risk for excessive drinking, went on to say, “there’s no denying that American veterans contribute to the nationwide epidemic of drunk driving.”
The study further found that drunk driving among veterans occurred most often in California, Kentucky, and Washington D.C., whereas prevalence rates were lowest in Virginia, Alaska, and Utah.
The authors of the study suggest that a cause in the increased drinking habits and prevalence rates of DUI’s amongst the veteran community are from dealing with post-traumatic stress disorder (PTSD) and depression following trauma suffered during active duty.
“The percentage of depressed veterans who at some point have been involved in an episode of binge drinking has increased substantially between 2014 and 2016,” said the study. Over 25 percent of “American veterans who self-identified as depressed” were linked to binge drinking. What’s more, the veterans suffering from depression “are more than twice as likely to be linked with drunk driving” than those veterans without mental health issues.
In addition to the mental health concerns as a contributing factor for the spike in DUI’s amongst the veteran community, a recent survey by the Department of Defense Health Related Behaviors found that one in three active duty military members met the characteristics for hazardous drinking and alcohol used disorder.
Recognizing active military and veterans as a vulnerable portion of the population to alcohol abuse and driving under the influence, the legislature recently amended California Penal Code section 1001.80 to allow military members to participate in a pre-trial diversion program to avoid a DUI conviction.
What is a pre-trial diversion program?
Pre-trial diversion is the process by which a court postpones criminal prosecution to allow a defendant to participate in a program that addresses the underlying root cause of the criminal conduct. If the program is successfully completed, the criminal proceedings halt and the case is dismissed.
Although pre-trial diversion exists for a number of other offenses, they don’t generally apply to DUI’s.
Pre-trial diversion which has been offered to a military member, veteran or active, who has been arrested and charged with a California DUI will involve, at a minimum, a substance abuse course as part of the program. If the program is successful, the military member will avoid a DUI conviction and all of the consequences that come with a DUI conviction.
However, if the court determines that the military member is unsuccessful in the program, criminal proceedings will continue and, if they are convicted, they will be subject to the same consequences as anyone else caught driving under the influence.
Not all veterans are eligible for pre-trial diversion. The Penal Code specifically states that only veterans that may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or any other mental health issues as a result of having served in the military.