Could Extending Last Call in California Increase DUI Incidences?

Thursday, February 23rd, 2017

Many people know Nevada, particularly Las Vegas, as the obvious exception to widely accepted last call time of 2 a.m. and some know that a few states such as New York, Hawaii, and Alaska have later last calls than 2 a.m. California’s last call is 2 a.m. One senator hopes to extend the last call in certain California cities such as Los Angeles to 4 a.m.

Just to be clear before I move on, “last call” refers to the last time for which a bar or restaurant can sell alcohol to patrons.

The bill, which was introduced by Sen. Scott Wiener and entitled Let Our Communities Adjust Late Night Act, would allow municipalities to extend last call to 4 a.m. with the approval of the California Department of Alcoholic Beverage Control. The bill provides the flexibility to allow an extension of last call to certain cities or “specific areas” of a town. It also would allow an extension only on certain days of the week or only on specific holidays.

A similar bill by Sen Mark Leno was rejected in 2013 by the Senate Committee on Governmental Organization.

Not so surprisingly, Mothers Against Drunk Driving (MADD) are opposed to extending the last call time just as they were back in 2013.

"MADD supports uniform closing times for establishments that serve alcohol to avoid creating the dangerous possibility that patrons will bar-hop for that one last drink — a dangerous scenario that all too often increases the risk of drunk driving," national spokeswoman for the group, Becky Iannotta, said in an email to LA Weekly.

According to Weiner, the extra two hours would provide an enormous amount of extra revenue to the hospitality industry in California. In a statement Weiner said that the law would allow cities to “benefit economically and culturally from a strong nightlife presence.”

Amongst the supporters of the bill is the California Restaurant Association and the California Music & Culture Association.

“Nightlife is a major economic and cultural driver in California,” said the California Music & Culture Association’s co-chair, Ben Bleiman, in a statement. “This bill represents a crucial opportunity for California’s cities and towns to choose to join the ranks of those across the country and the world offering truly world-class nightlife for their residents and visitors.”

The group Taxpayers for Improving Public Safety argued in 2013, when Sen. Leno attempted to introduce his bill, that staggering the last call times in California would lessen the burden on law enforcement and public transportation because not all bargoers and drunks would be hitting the streets at the same time.

 

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Company Behind Personal Breathalyzer Settles Dispute with FTC

Thursday, January 26th, 2017

I’ve never hidden my belief that if a personal breathalyzer can prevent a DUI, it should be used. That being said, it seems the company behind one of the most popular personal breathalyzers on the market has settled with the Federal Trade Commission (FTC) over false claims of its accuracy.

On the fifth season of ABC’s hit show “Shark Tank,” CEO and founder of Breathometer Inc., Charles Michael Yim, won over the “shark” investors with an invention called the “Breathometer” that allowed users to a detect their own blood alcohol content through their smart phone. The device attached to smartphone, would be blown into by the user, and the smartphone would calculate the BAC through an app. Yim’s pitch included the prospect that the Breathometer could prevent incidences of driving under the influence of alcohol.  The investors were so impressed with Yim’s invention that they offered up a $1 million dollar investment in exchange for a 30% stake in his startup.

The Breathometer became a consumer hit partly due to advertisements which claimed that the devices accuracy was backed up by government-lab grade testing. According to the FTC, sales for the Breathometer totaled $5.1 million.

However, more than three years after the episode aired, the FTC announced that Yim and Breathometer Inc. had settled a claim that the device “lacked scientific evidence to back up their advertising claims.” The complaint also alleged that the company knew that one variation of the Breathometer, the Breeze, “regularly understated” blood alcohol content levels.

While Yim and Breathometer Inc. did, in fact, settle with the FTC, they did not admit or deny the FTC’s allegations.

Under the settlement with the FTC, Yim and Breathometer Inc. are barred from making claims of the device’s accuracy unless the claims are supported through “rigorous testing.” The company also agreed to notify purchasers of the product to offer full refunds.

“People relied on the defendant’s products to decide whether it was safe to get behind the wheel,” Jessica Rich, director of the FTC’s Bureau of Consumer Protection, said in a statement. “Overstating the accuracy of the devices was deceptive — and dangerous.”

Breathometer recognized the settlement on its website by stating, “We feel it is important to clarify that this settlement does not undermine our achievements in creating quality consumer health devices.”

Kevin O’Leary, one of the Shark Tank investors, responded to the settlement by stating that the company proactively stopped the manufacturing of the Breathometer in 2015 before the FTC’s initial inquiry.

I stand by my assertion that a personal breathalyzer is a good way to prevent a DUI. Just do some research beforehand on the reliability of what you purchase. According to digitaltrends.com, the best personal breathalyzer for 2016 was the BACtrack S80 Professional Breathalyzer which will run you $125. According to the website, the best smartphone breathalyzer was the BACtrack Mobile Smartphone Breathalyzer at $98, the best portable breathalyzer was the BACtrack Keychain Breathalyzer Portable starting at $26, and the best budget breathalyzer was the VastarAB120 Professional at $20.

Better to spend $125 (at most) to prevent a DUI than to spend the thousands of dollars it will cost you if you are arrested on suspicion of a DUI.

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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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Medical Marijuana Patients Can Now Fight DUI Charges in Arizona

Friday, January 13th, 2017

A recent decision by the Arizona Court of Appeals held that medical marijuana patients who have been arrested for driving under the influence of marijuana can fight the charges by arguing that they were not stoned enough to drive.

In 2013 Nadir Ishak was stopped by Mesa police when they saw his vehicle drift into another lane. The officer who arrested Ishak testified that Ishak admitted to using marijuana that morning and that his eyes were bloodshot and watery.

It was later determined that Ishak had a concentration of 26.9 nanograms of tetrahydrocannabinol (THC) per milliliter of blood.

Ishak was charged with driving while impaired and driving with marijuana in his system. During trial, Ishak wanted to inform the jury that he possessed a state-issued medical marijuana card at the time of his arrest. The trial judge, however, denied his request. The trial judge also determined that Ishak bore the burden of proving that he was not under the influence. Ishak was subsequently convicted and sentenced to 90 days in jail.

Ishak appealed arguing that the denial prevented him from having a fair trial.

The Arizona Court of Appeals, in a 2-1 decision, agreed with Ishak and concluded that the jury should have been made aware that Ishak was medical marijuana user. Additionally, the court also concluded that prosecutors, not defendants, must prove that a medical marijuana license-carrying driver was actually under the influence of the marijuana, not merely driving with the drug in their system.

In 2010, Arizona voters approved the Arizona Medical Marijuana Act which does not absolve stoned drivers from being charged for driving under the influence of marijuana. However, the Act also said that a medical marijuana user cannot automatically considered under the influence of the drug “solely because the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.”

What’s more, the Arizona Supreme Court in 2015 held that medical marijuana users charged with a DUI can argue “that the concentration of marijuana or its impairing metabolite in [his or her body] was insufficient to cause impairment.”

The prosecutor in Ishak’s case argued that the Arizona Medical Marijuana Act requires medical marijuana users who are arrested on suspicion of driving under the influence prove through expert testimony that the THC in their system was insufficient to cause impairment. He also argued that it is irrelevant whether Ishak was actually impaired.

What ever happened to the fundamental canon of American criminal jurisprudence, “innocent until proven guilty?” Although I can’t say that it surprises me that a DUI prosecutor would actually argue “guilty until proven innocent.”

Fortunately, however, Arizona Appellate Judge Diane Johnson, who wrote for the majority, disagreed with the prosecutor.

"Nothing in the statute … requires a cardholder to present expert testimony (or precludes a cardholder from offering non-expert testimony) on the question of whether the cardholder was impaired due to THC,'’ wrote Johnson. "And, according to evidence here, there is no scientific consensus about the concentration of THC that generally is sufficient to impair a human being.”

I’m happy to say Judge Johnson got it right.

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Spiked Drink Land Pro Soccer Player DUI

Thursday, December 15th, 2016

I’m a huge fan of England’s top flight soccer league, the English Premier League. While my team is Chelsea F.C. (go Blues!), I keep up with other players and teams. And like many other die-hard fans of the English Premier League, I was surprised when one of the league’s best players was caught driving drunk. Why was I surprised that Yaya Touré, of Manchester City F.C.,  was caught driving drunk? Because he is known for refusing alcohol due to his Muslim religion.

Touré was charged in late November for an incident in which he was pulled over by police for driving with passengers while having a blood alcohol content of twice the legal limit in England of 0.08 percent.

So if Touré doesn’t drink alcohol, how did he get caught driving under the influence? Touré believes that his drink was spike at the party that he had left.

“Over the last two weeks there has been some confusion as to why I was charged with drink driving, as it is well known that I am a Muslim and do not drink,” said Touré on his website. “I have always refused alcohol. Anyone who knows me or follows football will have seen me refuse champagne for Man of the Match performances because of my commitment to my religion.”

Although Touré did not dispute the charges and was ultimately sentenced to a license suspension and a whopping £54,000 fine, he explained to the court that he had not intentionally consumed alcohol.

According to The Telegraph who was present in court for Touré’s sentencing, Touré “told magistrates he had no idea he had been drinking, even though he conceded his Diet Coke tasted odd, and although he felt ‘tired’ he had not suspected he was tipsy.

“He told the court that he had been to a house party where he had poured himself what he thought was Diet Coke from a jug, but later discovered it was mixed with brandy.

“He had been the ‘designated driver’ on the night of the party and drove his car with passengers in it, claiming he just felt tired, despite being double the drink-drive limit.

“He told the court he thought his drink tasted different but only later found out he had been pouring himself a pre-mixed drink.”

Did Touré have to accept responsibility if he unknowingly became intoxicated and then got behind the wheel?

At least here in California, possibly not.

The California jury instruction CALCRIM 3427 states, “A person is involuntarily intoxicated if he or she unknowingly ingested some intoxicating liquor, drug, or other substance, or if his or her intoxication is caused by the force, duress, fraud, or trickery of someone else, for whatever purpose [without the fault on the part of the intoxicated person].” A person who has been involuntary intoxicated cannot be convicted of a crime according to California Penal Code section 24 which states, “All persons are capable of committing crimes except…[p]ersons who committed the act charged without being conscious thereof.”

Touré would have to prove that he became intoxicated through no fault of his own. For example, the defense is not available if he intended to drink alcohol, but someone spiked his drink with more alcohol than you knew of. This might also mean that he had no reason to believe that the drink was spiked or that he had no reason to believe he was intoxicated when he decided to drive.

Based on his statement, he didn’t intent to drink alcohol, however he may have had reason to believe his drink was spiked.

However, the California Court of Appeals in People v. Scott (1983) 146 Cal.App.3d 823, has held that the mistake of fact defense can be based on involuntary intoxication. The mistake of fact defense can be used if you act under an honest and reasonable mistake of fact and commit a crime. This does not apply if you are mistaken of the law. For example, you cannot use the defense if you mistakenly believe the law prohibited you from driving with a .10 or above instead of .08 or above BAC, and you have a .09 BAC. On the other hand, if you honestly and reasonably, but mistakenly believe that you have not ingested any intoxicating substances, you may be able to use the mistake of fact defense.

 

 

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