Tag Archives: DUI conviction
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.
It was only a couple of months ago that tens of thousands of breathalyzer results were called into question in Massachusetts, affecting countless DUI cases. It appears New Jersey is dealing with a similar issue now that the state’s highest court ruled that 20,667 breathalyzer results were faulty and therefore inadmissible in the DUI cases where the results were used to secure convictions.
The ruling stems from a case that begun more than two years ago after the attorney for a woman by the name of Eileen Cassidy was notified by the state that the breath results were possibly faulty. At the time the attorney was notified, Cassidy was two weeks into a 180-day sentence on a third-time DUI. Cassidy then filed a lawsuit which led to the appointment of a special master to determine the reliability of the breathalyzer results.
Cassidy’s lawsuit led to the charging of Sergeant Marc W. Dennis with falsely certifying that he had followed proper calibration procedures when calibrating breathalyzers used in DUI stops. The court, in its recent ruling, concluded that the results of the breathalyzers calibrated by Dennis, called Alcotests, were untrustworthy.
“Confidence in the reliability of instruments of technology used as evidence is of paramount importance,” Justice Walter Timpone wrote for the court. “Unfortunately, alleged human failings have cast doubt on the calibration process.”
In addition to determining that the results of the breathalyzers were faulty, the court also vacated Cassidy’s conviction. Unfortunately, Cassidy passed away from cancer in March, never allowing her to see her case vacated by the court.
That, however, didn’t stop her attorney, Michael R. Hobbie, from continuing to fight for her.
While the court vacated Cassidy’s conviction, the New Jersey Supreme Court failed to enunciate in its ruling who could challenge their conviction or exactly how to challenge their conviction.
“With respect to the other 20,667, their cases weren’t vacated,” said Hobbie. “They just going to get notified that the breath test in their case has been deemed inadmissible and they should seek whatever remedy is available to them.”
County prosecutors have already notified thousands of people whose cases may have been affected by the faulty breathalyzer results. The New Jersey Supreme Court, however, has now ordered state authorities to notify everyone whose faulty breath test was used in their case that the results are inadmissible.
“We’ll be issuing guidance shortly for our county prosecutors and municipal prosecutors over how to handle those cases,” said Gurbir Grewal, the New Jersey attorney general.
Although the court declaring the results of the breathalyzers inadmissible is a step in the right direction, ask yourself: How much is it going to cost those people affected by the faulty breathalyzer to legally challenge their conviction (after many, I’m sure, have already spent thousands of dollars to fight the underlying DUI charge in the first place)? As I’ve pointed out many times in previous posts and as I’m sure you’re aware, lawyers are not cheap. Should these people have to bear the burden, financial or otherwise, to remedy something that would not have occurred but for the actions of a corrupt law enforcement officer trying to secure convictions of people who may have been innocent?
Sergeant Dennis was indicted in 2016 and is currently facing criminal charges.
People very often ask whether it’s possible to get a wet reckless in their DUI case without even knowing what a wet reckless is or what it entails. They do, however, know that it’s something better than a DUI conviction. While they are correct in that it is better than a DUI charge, there are some very important distinctions between a DUI and a wet reckless.
First, it’s important to explain exactly what a wet reckless is.
A prosecutor cannot charge a wet reckless from the outset. It can only be reduced from a DUI charge. If it is offered and the driver accepts, the driver will be pleading guilty or no contest to California Vehicle Code section 23103 pursuant to section 23103.5 which reads, ““A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving…If the prosecution agrees to a plea of guilty or nolo contendere to a charge of [reckless driving] in satisfaction of, or as a substitute for, an original charge of a violation of [DUI], the prosecution shall state for the record a factual basis for the satisfaction or substitution, including whether or not there had been consumption of an alcoholic beverage or ingestion or administration of a drug, or both, by the defendant in connection with the offense. The statement shall set forth the facts that show whether or not there was a consumption of an alcohol beverage or the ingestion or administration of a drug by the defendant in connection with the offense.”
In other words, a driver who takes a wet reckless is pleading guilty (or no contest) to reckless driving involving alcohol.
A wet reckless is one of several reductions to a DUI charge that a prosecutor might offer as incentive to get the driver to take a plea deal. Typically, the wet reckless is only offered if there are issues with the prosecutor’s case that might make it difficult for them to win at trial. For example, a wet reckless might be offered when it is determined that the driver’ blood alcohol content is close to the legal limit of 0.08 percent.
In addition to looking better on paper than a DUI conviction, there are a number of other benefits to the wet reckless.
If a person is convicted of a second-time DUI within 10 years, they face a mandatory minimum of 96 hours in jail. If a person is convicted of a third-time DUI within 10 years, they face a mandatory minimum of 120 days in jail. However, if a person is convicted of only a wet reckless when they’ve suffered prior DUI convictions within a 10-year period, there is no mandatory minimum jail sentence. For example, if a person is convicted of a DUI in 2010 and then a wet reckless conviction in 2018, there is no mandatory minimum jail for the wet reckless.
On the other hand, if a person is convicted of a wet reckless and then suffers a DUI within 10 years of the wet reckless conviction, the wet reckless will be treated as though it was a DUI prior. For example, a person is convicted of a wet reckless in 2010 and then suffers a DUI conviction in 2018, they are facing are facing a mandatory minimum of 96 hours in jail.
Other possible advantages of the wet reckless include a shorter probationary period, lower fines and fees, and a shorter DUI program. I say possible because it depends on what the prosecutor offers as a sentence to the wet reckless reduction.
Lastly, a wet reckless conviction does not trigger the 6-month suspension with the DMV. The license will still be suspended, however, if the driver loses the DMV’s administrative per se action.
Canada considers driving under the influence a very serious crime, so much so in fact, that they consider it an “indictable offense.” This is the functional equivalent to a felony under California law. Unlike California where a DUI is, for the most part, considered a misdemeanor for a first, second, and third offense and punishable up to a year in jail, as an indictable offense in Canada, a DUI is punishable up to five years in jail.
Because all DUI’s are, for all intents and purposes, considered felonies, anybody convicted of a DUI or even a wet reckless is excludable from entry into Canada.
Notwithstanding a DUI conviction, however, a person can currently enter Canada if they are “deemed rehabilitated.” To be deemed rehabilitated, the maximum term of imprisonment for the DUI conviction was less than 10 years (which it almost always is unless you’ve been convicted of certain felony DUI’s), the sentence for the California DUI conviction was completed at least 10 years ago, and no other indictable offenses were committed during those 10 years. If someone meets these criteria, they do not need to do anything further to gain entry into Canada, although it would be a good idea to have proof of this when trying to cross the border.
In other words, to gain entry into Canada, you must have completed your sentence more than 10 years ago and you cannot have picked up any more “indictable offenses” since.
This, however, may soon change under a new Canadian law which would make it even harder to enter Canada with a DUI on the books.
The new law which will take effect this October is part of Canada’s Cannabis Act, which legalizes recreation marijuana.
“Those people that have been entering into Canada after that 10 years had passed can now have that undone and now become inadmissible again,” said immigration attorney Jamie Fiegel who is a partner at the law firm Fiegel & Carr, which specializes in immigration cases in Canada and the United States.
Under the new law, people will no longer be able to automatically enter Canada following the 10 year-wait period.
“There will be no time period that will be able to be passed that would allow you to automatically regain the right. You will have to file at the Canadian consulate in order to regain the right to enter back into Canada,” said Fiegel.
Fiegel is referring to what is called “individual rehabilitation,” otherwise known as “rehabilitation by application.” The first requirement is that at least five years must have passed since the completion of the sentence for a California DUI conviction. It gets tricky however in trying to calculate the five-year wait period. The five-year wait period can be calculated in the following ways: 1.) five years from the date of sentencing if given a suspended sentence; 2.) five years from the date a fine was paid if given a suspended sentence and a fine; 3.) five years from the end of a prison term with no parole; 4.) five years from the end of parole or probation if sentenced to either; or 5.) five years from the end of a driver’s license suspension.
If someone meets the criteria needed for individual rehabilitation, they will need to fill out an application and submit it to a Canadian visa office located in the U.S. The application requires the applicant to explain why they are rehabilitated. The submission of the application for individual rehabilitation also requires a non-refundable application fee that will also be increasing in October.
While our neighbors to the north might have a reputation for being friendly, they most certainly are not when it comes to past DUI convictions, eh.
If you plan on traveling to Canada and you have a DUI on your record, regardless of how long ago it was, I suggest you contact an immigration attorney to make sure you’re not turned away at the border.