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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How Do Police Spot Drunk Drivers?

Monday, October 24th, 2016

Most of the time, officers don’t know that a person is actually drunk when they pull that person over. You can bet, however, that they’re suspicious. It’s not just the commission of a traffic violation itself that gives them suspicion. It could very well be a number of things.

So what do officers look for when spotting a suspected drunk driver?

Because people who are under the influence have trouble with vision and balance, they often have trouble driving in a straight line. This means that they may weave through traffic, cannot stay in their own lane, drift, straddle one side of a lane, swerve, and/or make wide turns. The California Court of Appeals has held that “pronounced weaving within a lane provides an officer with reasonable cause to stop a vehicle on suspicion of driving under the influence where such weaving continues for a substantial distance.”

Drivers who are under the influence also often have trouble gauging speed and distances. As a result, many drunk drivers have trouble stopping their vehicles as a sober person would. This includes stopping their vehicle too far from a curb or a stop sign as well as stopping their vehicle too suddenly.

Similarly, drunk drivers may also have trouble accelerating and often accelerate abruptly rather than gradually. They might also have trouble maintaining a consistent speed. Now it would be unreasonable to expect a person to maintain the speed perfectly, however the speed of drunk drivers often fluctuates more drastically than one might reasonably expect of a sober driver.

What I’ve mentioned are what officers look for, but what about what they listen for? I’m not talking about the sound of drunk drivers. I’m talking about anonymous tips from callers who may suspect that a person is driving under the influence. Can an officer use an anonymous tip to help him or her “spot” a drunk driver?

In the recent case of Navarette v. California, the United States Supreme Court held that an anonymous tip can give law enforcement the authority to pull someone over on suspicion of driving under the influence. This is true even though it is impossible to verify the reliability of the tip and the officer has not witnessed any driving that would indicate intoxication.

Like I said at the beginning of this post, these are the things that give officers the authority to pull someone over with only the suspicion that they may be driving under the influence. These things alone, however, are not enough to give the office the probable cause to arrest the person on suspicion of driving under the influence.

Once pulled over for the reasons mentioned above, the officer can substantiate their suspicion that the driver is under the influence with their own observations in making the stop. These are the pieces of information that have become as common in DUI police reports as the officer’s name, namely the smell of alcohol, the slurring of words, and the bloodshot and watery eyes of the driver. The officer can then further substantiate their suspicion and produce the probable cause needed to make the DUI arrest if the driver agrees to and fails field sobriety tests and/or produces a pre-arrest breathalyzer result above a 0.08 blood alcohol content.

Whether you’ve had a drink or not, be mindful of what the prying eyes of law enforcement officers are looking for in spotting drunk drivers.

 

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Is there such a thing as Attempted DUI?

Tuesday, October 11th, 2016

It’s not a common question, but one that I was asked about during a criminal law class that I teach: Is there such a thing as attempted DUI?

“When might this scenario present itself,” you might ask.

Imagine a scenario when a person is extremely drunk at a bar. After leaving the bar, the person enters their vehicle, but cannot start it because they are drunkenly using the wrong key. Unbeknownst to the person, a police officer was outside of the bar and witnessed the whole thing.

The officer can’t arrest the person for a DUI because in California, the law requires that the person actually drive their vehicle. But can the officer arrest the person for attempting to drive drunk?

In People v. Garcia, law enforcement found the defendant in her vehicle which was in the fast lane of the highway with the hazard lights on. As her vehicle began to roll backwards, the defendant unsuccessfully attempted to start the engine. She was, however, able to put the vehicle in park. Law enforcement observed the entire thing and arrested the defendant.

After the defendant was convicted, the court of appeals determined that the crime of “attempt” can be applied to a California DUI.

According to the California Penal Code, an “[a]ttempt requires a specific intent to commit the crime, and a direct but ineffectual act done towards its commission.”

Driving under the influence is, what is called, a “general intent” crime because it only requires that a person intend to commit the act of driving, but not necessarily driving while drunk. A “specific intent” crime, on the other hand, requires that a person intent to commit a crime. Theft, for example, is a specific intent crime because it requires that the person have the specific intent to steal the property of someone else. But very few people intend on driving while drunk. Rather, they intend to drive while they also happen to be drunk. It is subtle, but very important distinction.

The court in Garcia essentially ruled that an attempted California DUI is a specific intent crime. In other words, a person can specifically intend on attempting to commit the crime of driving under the influence, not just the act of driving. This ruling begs the question: If a person can specifically intend to attempt to drive while under the influence, then can the mere fact that they are drunk negate their specific intent to commit a crime?

This may sound a little confusing, so let me put it in other terms. Let’s say a person becomes so drunk that they “black out,” but are still conscious. That person then steals his neighbor’s lawn gnomes because, in his drunken state, he thinks it will be funny. If he is prosecuted for theft, the prosecutor would have to prove that the person had the mental state to specifically commit the crime of theft. This may be difficult for the prosecutor to do if the person was “blacked out” drunk.

So let’s recap. A California DUI is a general intent crime because a person doesn’t intent to drive under the influence. However, when they attempt to drive under the influence, but unsuccessfully do so, it is a specific intent crime where a prosecutor must prove that a person actually intended on committing a crime of attempted DUI. The intoxicating effects of alcohol consumption can serve to negate the specific intent needed to commit the crime of attempted DUI.

So where does that leave us? Unfortunately, I don’t know and I don’t think the court knows either.

The court in Garcia went on to say that it was “not unmindful that there might be some troublesome questions which will have to be resolved in a later case.”

 

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