Former NFL Star Sues Bar for Son’s DUI Death

Thursday, January 19th, 2017

Former New England Patriot and Los Angeles Raider star, Brian Holloway, is suing a Florida bar after Holloway’s son was killed in a DUI related collision after leaving the bar.

Max Holloway, son of Brian Holloway, frequented Panini’s Bar and Grill in Lutz, Florida. On October 26, 2016, Max Holloway, was at Panini’s drinking until 2:30 in the morning at which time he left in his vehicle.

Not far from his condo, Max lost control of his vehicle and crashed into a nearby home. He was killed in the collision.

Under Florida law, a person or a business can be held liable for injuries or damages caused by a habitual alcohol drinker whom was served by that person or business.

Laws like Florida’s are called “dram shop laws.”

Not to say that the bar was right to continue to serve Max Holloway, but to hold them liable for the decision he made to drive while under the influence seems to be rather unfair.

Fortunately, California sees it the same.

While other states such as Florida may hold a bar liable for injuries caused by a drunk driving customer, in California it is the customer’s willful decision to drink and then drive which is the cause of any subsequent DUI collision. Thus, in California, bars and restaurants are shielded from liability when a customer over drinks, drives away, and causes injury or damage.

California’s “Dram Shop Laws” (California Civil Code section 1714) read as follows:

(b) It is the intent of the Legislature to . . . reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.

(c) Except as provided in subdivision (d), no social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.

(d) Nothing in subdivision (c) shall preclude a claim against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person under 21 years of age, in which case, notwithstanding subdivision (b), the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.

As you can see, the laws are different if the customer is under the age of 21. It is the responsibility of bar to ensure that their customers are of legal drinking age before serving them alcohol. People under the age of 21 are legally deemed incapable of making good decisions regarding alcohol use…like the decision not to drive after drinking at a bar.

While California’s law differ from other states with respect to civil liability, like Florida, a bar may be held criminally liable if they serve alcohol to an “obviously intoxicated person.”

According to California Business and Professions Code section 25602(a), “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.”

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California Law Attempts to Prevent Marijuana Use While Driving

Thursday, January 5th, 2017

As many of you now know, California passed proposition 64 this past November making recreational marijuana use and possession legal. According to Senator Jerry Hill, D-San Mateo, and Assemblyman Evan Low, D-Campbell, proposition 64 contains a loophole that they intend to close.

Last week, the legislators introduced Senate Bill 65 which will criminalize smoking marijuana while driving. Although Proposition 64 legalized the recreational use and possession of marijuana, it still made it illegal to have an open container of marijuana in a vehicle. Proposition 64 did not, however, address the use of marijuana while driving according to Hill and Low.

If you recall from previous posts, Hill has been known to introduce legislation aimed at preventing drunk driving. Last year he passed a law requiring ignition interlock devices for convicted drunk drivers who wished to reinstate their licenses.

“I have a real passion for solving our impaired driving in California from substance abuse,” Hill said. “I don’t want to go in a positive direction on one end and open up the door for deaths on the other end.”

One complaint that opponents have to Senate Bill 65 is that it also bans consumption of cannabidiol, the component of marijuana which is often used by those suffering from chronic pain or to alleviate the symptoms associated with cancer. Cannabidiol does not contain THC (tetrahydrocannabinol), which is the chemical in marijuana that causes impairment.

As I see it, another problem with Senate Bill 65, if passed, is that if a person is arrested for driving while smoking marijuana, they will also inevitably be arrested on suspicion of driving under the influence of marijuana. While a person may have been caught smoking while driving, it doesn’t necessarily mean that they are “under the influence” of marijuana.

To be under the influence of marijuana, the person’s use of marijuana caused their mental or physical abilities to become impaired such that they can no longer drive a vehicle with the same caution of a sober person, using ordinary care, under similar circumstances.

While police can utilize field sobriety tests, if the person agrees, to assess whether motor skills are impaired, there is no way to determine how “high” a person is after smoking marijuana. As I’ve said in many previous posts, this is different from alcohol where these is a correlation between a person’s blood alcohol content and impairment. No such correlation exists with marijuana.

Therefore, if Senate Bill 65 is passed, a person arrested for smoking while driving not only faces misdemeanor charges under that law, but they can also inevitably expect DUI of marijuana charges as well.

You can be sure I’ll be keeping my eyes on the progress of this one.

 

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California DUI with Out-of-State Priors

Thursday, December 1st, 2016

Many people know that a California DUI is a “priorable” offense. This means that if a person is arrested and convicted of a subsequent California DUI within ten years, the penalties by operation of law increase.

Generally, a first-time California DUI conviction carries three to five years of summary (informal) probation, up to six months in jail, between $390 and $1,000 in fines, completion of a court-approved three month DUI program, and a six-month license suspension.

A second-time California DUI conviction carries three to five years of summary probation, a minimum of 96 hours to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court-approved 18 month DUI program, and a two-year license suspension.

A third-time California DUI conviction carries three to five years of summary probation, a minimum of 120 days to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court approved 30-month DUI program, and a three-year license revocation.

With this understanding, the question arises: Can a prior out-of-state DUI conviction be used to make a current California DUI a “second offense” and allow the court to increase the penalties?

It depends on whether the facts in the prior out-of-state DUI case would have constituted a DUI in California, under California law.

For example, Florida’s DUI law reads, “A person is guilty of the offense of driving under the influence… if the person is driving or in actual physical control of a vehicle within this state and…[t]he person is under the influence of alcoholic beverages…when affected to the extent that the person’s normal faculties are impaired…”

The wording of Florida’s statute may prohibit a past Florida conviction from being used to make a California DUI a “second offense” for two reasons.

The first problem is that Florida’s statute requires that a person impaired “to the extent that the person’s normal faculties are impaired.” This standard is less strict than California. California requires that a person be impaired to an appreciable degree. Thus, a person may be deemed impaired under Florida’s standard, but not necessarily under California’s.

The second problem is that Florida’s statute also requires that someone drive or is “in actual physical control of a vehicle.” This makes Florida what is called a “dominion and control state.” A person can have dominion and control over a vehicle by simply being in the driver’s seat. California’s DUI law, on the other hand, requires that a person actually drive the vehicle. Therefore, a person can be convicted under Florida’s DUI law by sitting in the driver’s seat while intoxicated. However, someone sitting in the driver’s seat while intoxicated cannot be convicted under California’s DUI law.

Therefore, if a person was convicted five years ago in Florida for a DUI under Florida law because they were found drunk in the driver’s seat of their vehicle, but not driving, that conviction cannot be used to make a current California DUI a “second offense” to increase the penalties because California DUI law requires that the person actually drive the vehicle.

If, however, that same person was pulled over after driving and are convicted of a Florida DUI, that prior Florida DUI conviction can be used to make the current California DUI a “second” offense.

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Pilot Arrested for DUI

Wednesday, November 23rd, 2016

An Indiana man was recently arrested on suspicion of driving under the influence. It was later discovered that he was on his way to the Indianapolis airport. The man, identified as Robert Harris III, is a commercial pilot.

According to police, Harris’ eyes were bloodshot, his speech was slurred, and he had trouble with coordination. In fact, according to court documents, field sobriety tests could not be completed because Harris almost fell over while trying to walk. It was later determined that his blood alcohol content was 0.29 percent.

It is unclear if Harris was scheduled to fly that evening and the airline for which Harris was employed refused to comment on the matter.

While federal regulations require that pilots follow an 8-hour “bottle to throttle” rule, some airlines require a 12-hour period between a pilot’s last drink and flight. Also, according to the Federal Aviation Administration, a pilot must report an alcohol-related conviction, suspension, revocation, and/or failed breath test within 60 days.

Since federal aviation regulations do not require a person to hold a driver’s license to fly a plane, the arrest and a subsequent conviction for driving under the influence does not necessarily preclude piloting aircraft following the arrest and/or conviction.

“The FAA (Federal Aviation Administration) does not hesitate to act aggressively when pilots violate the alcohol and drug provisions of the Federal Aviation Regulations,” said FAA spokesperson Elizabeth Cory. “Airlines are required to have random testing programs in place.”

“The FAA evaluates these cases on an individual basis, which could affect the pilot’s certificate eligibility,” said Cory.

Not surprisingly, this did not settle well with Mothers Against Drunk Driving (MADD).

“I would have assumed the FAA would have similar sanctions to the state of Indiana and withholding their license to operate a motor vehicle whether that’s a plane or car,” said MADD spokesperson Lael Hill. “It’s a little bit concerning knowing someone accused of a crime and is allegedly drinking and driving and could have their driver’s license taken away and not their pilot’s license or certificate.”

Hypothetically, had Harris had been on his way to the airport to fly, what would have happened had he flown an airplane under the influence?

First off, the California Vehicle Code does not apply to aircraft. Rather, crewmembers of civil aircrafts, including pilots, are governed by the FAA. Title 14 of the Code of Federal Regulations section 91.17 states that, “no person may act or attempt to act as a crewmember of a civil aircraft within 8 hours after drinking alcohol, while under the influence of alcohol, while using any drug that affects the person’s faculties in any way contrary to safety, or while having an alcohol concentration [BAC] of 0.04 or greater in a blood or breath specimen.”

Furthermore, the FAA requires random alcohol screenings of pilots and are subject to an implied consent law similar to California’s DUI implied consent law.

Similarly, California Public Utility Code section 21407 reads, “It is unlawful for any person to operate an aircraft in the air, or on the ground or water in a careless or reckless manner so as to endanger the life or property of another. In any proceeding charging operation of aircraft in violation of this section, the court in determining whether the operation was careless or reckless shall consider the standards for safe operation of aircraft prescribed by federal statutes or regulations governing aeronautics.”

California penalties for a first time FUI include a county jail sentence of 30 days to six months, and/or a fine of $250 to $1,000.  Federal penalties, on the other hand, are far more severe and can include up to 15 years in federal prison and up to $250,000.

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How Long Does a Prosecutor have to File California DUI Charges?

Monday, November 7th, 2016

A person is arrested on suspicion of driving under the influence here in California. They are booked and released with a citation when law enforcement believes they have sobered up. The citation includes a court location and a date upon which the person must appear for their arraignment. About a month goes by and the person appears on the date indicated on the citation, but is surprised to learn that their case is not on the court’s calendar. They are given a slip proving that they appeared and told to keep their eyes open for a notification in the mail from the prosecutor’s office letting them know that charges have been filed.

After this scenario plays out, two questions arise from clients; 1.) Is this common? and 2.) How long do I have to wait?

Let’s tackle the first question.

When law enforcement gives the citation to the person who has been arrested on suspicion of driving under the influence, they don’t actually know that the case will be filed on the date indicated in the citation. Typically, the date is set at least a month, sometimes several months, in advance. This gives law enforcement and prosecutor time to do several things before the court date.

Following, the arrest the officers must prepare the police report on the DUI arrest. This includes the actual written report, the interview of witnesses, the examination of evidence, and the preparation of any video footage.

Once the law enforcement agency completes its report, their file is sent to the prosecuting agency. Here in Southern California, the prosecuting agency is usually a City Attorney or a District Attorney. The prosecuting agency then reviews the file which was given to them by the arresting law enforcement agency and determines if there is enough evidence to file charges.

Often is the case that, by the time this process is complete, the date written on the bottom of the citation has come and gone. Once the prosecutor has all of the information they need and actually make the decision to file California DUI charges, they’ll issue a notification to the person letting them know that charges have been filed and give them a new court date.

So, to answer the first question, unfortunately the answer is yes, it is common and more common than people know.

On to the second question; “How long does the prosecutor have to file the charges?” In other words, how long must a person have to anxiously wait for those charges to be filed?

California Penal Code section 802 states, “Except as provided in subdivision (b), (c), or (d), prosecution for an offense not punishable by death or imprisonment in the state prison shall be commenced within one year after commission of the offense.” Subsections (b), (c), and (d) are not applicable to DUI cases.

Therefore, the prosecutor has one year from the date of arrest to file misdemeanor DUI charges. This is what is called a “statute of limitations.”

Unfortunately, many people mistakenly believe that because the prosecutor hasn’t filed charges by the date on the citation, that the prosecutor has forgotten or that the case just simply and magically disappears. Not so. They have a year.

Additionally, people whom DUI charges have been filed against them within that year, but fail to go to court for years afterwards are also mistaken in believing that they can’t face charges because it is past the statute of limitations. As long as the charges were filed within that year, the charges remain and the person likely has a warrant out for their arrest.

At least in my experience, prosecutors very rarely “forget” to file charges. While it may be common for the date on the citation to come and go, it is not common for that year to come and go without charges being filed. It’s not a matter of if, it’s a matter of when.

 

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