Sobering Up by Sleeping in Your Car

Thursday, February 1st, 2018

It’s not an unlikely scenario when a person leaves a bar too drunk to drive and they decide to sleep in their car until they sober up. Kudos to the person for having the wherewithal to avoid driving when drunk. But if a law enforcement officers happens upon the sleeping bar patron, the question becomes whether they can be arrested, charged, and convicted of a California DUI.

Some states hold that a person can be arrested, charged, and convicted of a DUI if they are in “dominion and control” of their vehicle with the ability to drive the it, even though they may not have actually driven it.

Fortunately, California is not a “dominion and control” state, meaning that prosecutors here in California must prove that the person actually drove their vehicle.

The California Supreme Court in the case of Mercer v. Department of Motor Vehicles in 1991 held that the word “drive” in California’s DUI law means that the defendant volitionally and voluntarily moved the vehicle. The court has held that even a “slight movement” is enough to meet the requirement that the defendant drove the vehicle as long as it was voluntary.

Does this mean that a person who is sleeping in a car while under the influence can completely avoid criminal charges? No.

If a person is found sleeping in their car, it is likely that any arresting officer did not see the person drive. Therefore, there may not be any direct evidence for a prosecutor to prove that a person drove. A prosecutor, however, can use circumstantial evidence to prove that the person drove to where they were found while under the influence and then fell asleep.

For example, if an intoxicated person is sleeping in their vehicle in the middle of the road or at the scene of a collision (yes, it happens more often than you would think), then the prosecutor can raise those facts to create the inference that the person had driven. In other words, the prosecutor would argue that it is reasonable to infer that the defendant drove.

On the other hand, if those facts do not exist that would create the inference that the defendant drove then the prosecutor is going to have difficult time proving that the person actually drove the vehicle while being under the influence. This scenario presents itself from time to time as well. But the person may still be charged with another crime such as drunk in public.

In the 1966 case of People v. Belanger, officers found the intoxicated defendant asleep in his vehicle which was located in a parking lot. Although the facts in that case were not enough to create the inference that the defendant had driven to the location while under the influence because he could have driven there sober, drank, and then fell asleep, the officers did arrest the defendant for drunk in public.

The Court concluded that, in order to prevent the defendant from waking up and driving drunk, they needed to arrest him on suspicion of being drunk in public.

Bottom line is that no person should be in a vehicle when they’re intoxicated whether they’ve driven it or not. A prosecutor may still be able to prove a case for driving under the influence or, in the event that they cannot create the inference that person drove, the person is still facing drunk in public charges.

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Toddler Killed in Suspected DUI-Related Collision

Thursday, January 25th, 2018

“This accident was so violent, that even though it was a rear end accident, it injured everyone in the vehicle and also killed a one-year-old,” John Tyler of the California Highway Patrol said.

Tyler was referring to a collision that occurred this past weekend in Lemoore, California where 50-year-old Rodney Klamerus crashed into the back of a family’s Nissan. Three adults were in the Nissan along with one-year-old Liliana Valencia who was in her car seat.

All three adult passengers in the Nissan and Klamerus were transported to nearby hospitals. Valencia was transported to a hospital, but was later pronounced dead.

“We’re not sure exactly why, possibly due to his impairment, but he failed to slow down as this vehicle was ahead of him. And this vehicle turned northbound onto [Highway] 41, established itself in the lane, and was rear-ended shortly thereafter,” Tyler told KFSN.

Although investigators were unable to speak with Klamerus due to the severity of his injuries, he is facing several felony DUI charges which will likely include DUI-related homicide charges.

Homicide merely refers to the killing of another human being and encompasses murder charges, voluntary manslaughter charges, and involuntary manslaughter charges. It is still unclear exactly what homicide charge Klamerus faces.

Prior to 1981, a person who killed someone while driving under the influence could not be charged and convicted of murder. However, the landmark case of People v. Watson changed that.

California Penal Code section 187(a) provides that “Murder is the unlawful killing of a human being…with malice aforethought.” “Malice” refers to the deliberate intention to unlawfully kill someone else. However, malice can be also be “implied” and implied malice exists when a person knowingly engages in an act that is dangerous to human life and they engage the act with a conscious disregard for human life. It is almost as if the court is saying that the drunk driver might as well have intended to kill someone because they knew it was dangerous to drive drunk, yet they did it anyways.

The court in Watson found that if the facts surrounding the DUI support a finding of “implied malice,” second degree murder can be charged when the DUI led to the death of someone else. In other words, if a person engages in driving under the influence when they know that it is dangerous to human life to do so, and they kill someone, they can be charged with murder.  

Now the question becomes, “Did the person know it was dangerous to human life to drive drunk?”

While we all know that it’s dangerous to drive drunk, since Watson, courts started expressly advising people who have been convicted of DUI, on the record, that it is, in fact, dangerous to drive drunk. This was not because the court actually thought that the defendant didn’t know it, but rather to ensure that the prosecutor could charge murder instead of manslaughter upon a subsequent DUI causing the death of someone.

Whether Klamerus will be charged with murder or some lesser homicide charge will depend on whether prosecutors can prove that he expressly knew that, by driving drunk, he could kill someone, but decided to drive drunk anyways.

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Drunk Drivers Say Personal Breathalyzers Helped them Prevent Driving Drunk Again

Friday, December 1st, 2017

This past August, the Colorado Department of Transportation gave 475 personal smartphone breathalyzers to people who had been convicted of a DUI. In addition to the obvious objective of preventing drunk driving, the Colorado Department of Transportation also wanted to see if, in fact, having the breathalyzer actually helped keep them from driving drunk again.

After recently surveying those people who were given breathalyzers, the Colorado Department of Transportation’s results showed that having a personal breathalyzer helped those people avoid driving drunk. In fact, a whopping 90 percent said that having a breathalyzer helped them avoid driving drunk and 94 percent said that they would recommend a personal breathalyzer to others who regularly drink alcohol.

The Colorado Department of Transportation teamed up with BACtrack, who created the smartphone breathalyzer, during the informal study. The breathalyzer is linked to a smartphone app through Bluetooth. If the user determines that they cannot legally drive, the smartphone app can order them a taxi or Uber.

I’ve written a few times on the benefits of purchasing a personal breathalyzer.

Like those handed out by the Colorado Department of Transportation, people can buy breathalyzers that can either be attached directly to a smartphone or connect to smartphone through Bluetooth and will run buyers between $100 and $150.  

Other, less expensive, breathalyzers can come on keychains and can cost buyers as low as $15. Like many things, quality comes with price and the results of these novelty breathalyzers are questionable at best and decrease in accuracy after time.  

Some breathalyzers are handheld and resemble those commonly associated with the breathalyzers used by law enforcement. Those breathalyzers range widely in terms of price and quality. Some come as low as $50 and some can go as high as a few hundred dollars. Obviously, the less expensive handheld breathalyzers have lower quality, but those more expensive handheld breathalyzers are the ones used by law enforcement because of their accuracy and may even be approved by the Food and Drug Administration (FDA). Law enforcement grade breathalyzers have an accuracy range of plus or minus 0.002 percent which means that if a person is a 0.08 percent, the breathalyzer results can range between 0.078 percent and 0.082 percent.

I purchased my own personal handheld breathalyzer to experience first-hand what I’ve been writing about. I didn’t break the bank, but I did spend $60 on the lower end of the legitimate handheld breathalyzers. After having a few drinks, I gave it a go. While I don’t know what my actual blood alcohol content was because different readings were provided, I can say that the multiple readings ranged by about 0.03 percent. In other words, using that range, a person could register between a 0.095 percent and 0.65 percent, or between a 0.18 percent and 0.12 percent, or between 0.26 and 0.23 percent. After a few months of use, the breathalyzer stopped working and I need to send it to the manufacturer.

While on the face of it, it might seem as though this range is too large to help drivers know whether they are okay to drive because if a person is actually at a 0.08 percent, the breathalyzer reading can show results as high as 0.095 percent and as low as 0.065 percent. Having said that, if a person knows that a breathalyzer is less than accurate and shows a blood alcohol content of 0.065 percent, they may know that they might actually be at a 0.08 percent and abstain from driving. And bear in mind that this is one of the less accurate handheld breathalyzers.

At a minimum, having a personal breathalyzer might help people bridge the gap between how a person perceives what their intoxication level is and what their blood alcohol content is. And while many breathalyzers might not provide an accurate reading, it might still prevent people from driving merely knowing that they are close to the limit. And knowing a range is certainly better than knowing nothing and making a stupid guess.

 

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Utah Council Recommends No Changes to New 0.05 BAC DUI Law

Wednesday, November 22nd, 2017

In March of this last year, I wrote about Utah’s efforts to lower their state’s blood alcohol content limit to 0.05 percent rather than the current nationally consistent limit of 0.08 percent.

In 2013, the National Transportation Safety Board (NTSB) voted to recommend that states lower their blood alcohol limits to 0.05 percent and cited studies that have shown that impairment can occur with a blood alcohol content of 0.05 percent. As of earlier this year, it seemed as though Utah would be the first to implement the lower BAC limit into its state law.

After some backlash from the hospitality industry, Utah Governor Gary Herbert indicated his desire to soften DUI penalties under the new lower BAC law. However, the state’s Substance Use and Mental Health Advisory Council recently voted to keep the lower BAC change in the law without softening any penalties.

SALT LAKE CITY (Associated Press) — A state council studying Utah’s new law setting the country’s strictest DUI threshold is backing away from recommending any changes, despite Gov. Gary Herbert’s wish to soften some penalties following a backlash from the state’s hospitality and ski industry.

The state Substance Use and Mental Health Advisory Council voted unanimously to support the new 0.05 percent blood alcohol limit scheduled to take effect next year after learning that law enforcement officials and Gov. Gary Herbert’s office disagree on how the state could soften penalties for those convicted of a DUI under the lower limit.

The stalemate makes it tougher for legislators and Herbert, who had hoped to make changes to the law in the wake of the backlash and concerns that the lower limit could target responsible drinkers after one alcoholic beverage.

The law lowering Utah’s DUI blood alcohol limit to 0.05 percent from 0.08 percent created a political problem for leaders who worry the strict new limit exacerbates Utah’s reputation as a Mormon-dominated state that’s unfriendly to those who drink alcohol.

Herbert, a Republican, signed the law this spring but said he would call lawmakers into a special session to address unintended consequences. The governor said in September that he’d like to see a tiered punishment system, with lighter penalties for a DUI between 0.05 percent and 0.08 percent.

At Herbert’s request, a committee of prosecutors, law enforcement and officials and others has been working since spring to draft possible changes to the law, which were presented Tuesday to the substance use council.

Paul Boyden, an attorney in the Salt Lake County District Attorney’s Office, said the DUI study committee that he helped lead suggested changing the law so that drivers with a 0.05 to 0.07 blood alcohol limit faced some lighter penalties — such as no mandatory jail time — than a full-fledged DUI.

But the penalties would be harsher than Utah’s lesser crime of impaired driving — an offense that Boyden said most drivers arrested for DUI are convicted of because they strike plea deals with prosecutors.

Drivers convicted of having a 0.05 blood alcohol limit would still face fines of at least $1,330, lose their driver’s license for at least 90 days, and be required to have an ignition interlock device for a year.

Ron Gordon, a member of Herbert’s staff and the executive director of the state Commission on Criminal and Juvenile Justice, said the governor felt the plan didn’t lighten the penalties enough.

Herbert, who is traveling in Israel this week, could not be reached for comment, Kirsten Rappleye, a spokeswoman for his office, said the governor’s position hasn’t changed from when he signed the legislation and he would like to see changes made before the bill takes effect.

Proponents of the 0.05 limit, including the National Transportation Safety Board, say people start to become impaired with a first drink and shouldn’t be driving and the lower limit will discourage people from thinking they can drink up to a point and drive safely.

"If we pass 0.05, people will live that would otherwise die if we do nothing," said Art Brown, president of the Utah chapter of Mothers Against Drunk Driving. "If you walk away from it the way it’s written, you can see it will diminish the effectiveness up and down about getting the impaired driver off the road."

At a blood-alcohol content of 0.05 percent, a driver may have trouble steering and have a harder time coordinating, tracking moving objects and responding to emergencies, according to the National Highway Traffic Safety Administration.

The new law means a 160-pound man could be over the 0.05 limit after two drinks, while a 120-pound woman could exceed it after a single drink, according to data from the California Department of Motor Vehicles.

However, a number of factors, including how much a person has had to eat and how fast they’re drinking, can affect their blood alcohol levels.

If Utah passes the lower limit BAC law, let’s hope that it doesn’t become a trendsetter for the rest of the states. For many people, a 0.05 percent blood alcohol content limit will mean that they’ll be subject to a DUI after only a glass of wine with dinner and who are clearly not under the influence nor a danger to the streets.

The purpose of DUI laws is to keep the streets safe, not to punish people who are not impaired with an arbitrary and subjective standard.

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Wet Reckless vs. California DUI: What are the Differences?

Friday, November 17th, 2017

People who have been charged with a California DUI always ask whether it’s possible to get the case reduced to a wet reckless. They often ask this question without even knowing what the difference is between a DUI and a wet reckless, except that it’s a reduced charge. While it’s true that it is a reduction to a DUI charge, there are a number of other differences.

The wet reckless if the first of several reductions that are sometimes offered in lieu of a DUI. The wet reckless is usually offered when the flaws in the prosecution’s case are relatively small. For example, the wet reckless is often offered when the chemical breath or blood test shows that the driver’s blood alcohol content is at a 0.08 percent or close. Further reductions may be offered when there is no chemical test and/or there is little evidence that the driver was “under the influence. Rather than risk losing at a trial, the prosecutor may offer a wet reckless or another reduction merely to secure a conviction.

If, however, the problems in the prosecution’s case are more than minor, the prosecutor may offer to reduce the DUI charge to a “dry reckless” or an “exhibition of speed.” Discussions on these, I’ll save for another day.

Unlike these other charges, the wet reckless can only be offered as a reduction. In other words, a prosecutor cannot file a criminal complaint with a wet reckless listed as a charge.

If the wet reckless is offered as a reduction and a DUI defendant accepts the reduction, they’ll  be pleading guilty or no contest to California Vehicle Code section 23103 pursuant to 23105.5 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.”

Simply put, a defendant who is convicted of a wet reckless is deemed to be guilty of reckless driving involving alcohol.

Now that we’ve clarified exactly what a wet reckless is, let’s talk about the benefits of it.

Well, first off, it’s not a DUI. There is an obvious stigma attached to a DUI conviction and a wet reckless simply isn’t a DUI.

Another benefit to a wet reckless reduction is that there are no mandatory sentencing enhancements. In other words, if a person is convicted for a second-time DUI within 10 years, they face a minimum of 96 hours in jail. If a person is convicted for a third DUI within 10 years, they face a minimum of 120 days in jail. However, when a person is convicted of a wet reckless when they’ve suffered prior DUI convictions within a 10 year period, there is no mandatory minimum jail sentence. If however a person suffers a DUI conviction within 10 years of a wet reckless conviction, the wet reckless will be used to increase the sentencing enhancements of the current DUI and subsequent DUI convictions.

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.

The last advantage to a wet reckless conviction is that it does not trigger a 6 month driver’s license suspension with the DMV. It should be noted, however, that a license may still be suspended through the DMV’s admin per se suspension which occurs if a person does not request a DMV hearing within 10 days of their DUI arrest or they lose their DMV hearing. Therefore, the only way to completely avoid any license suspension following a DUI arrest is to request the DMV hearing within 10 days of the arrest, win the DMV hearing, then get the DUI charge reduced to a wet reckless.

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