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.”



Does Uber Really Reduce Drunk Driving?

Tuesday, August 9th, 2016

Logic tells us that with the increased use of ride-sharing apps like Lyft and Uber that there would a lower number of drunk driving arrests. I’ve been saying it since they’ve become available: If you’re too drunk, don’t drive. Take alternative means of transportation like Lyft and Uber. And it seems like people have been.

In 2015 Uber collaborated with Mothers Against Drunk Driving (MADD) to commission a study on the impact of Uber on drunk driving. The study found that DUI arrests and accidents fell significantly in areas where Uber was available.

“In California, Uber’s home state and largest market, drunk-driving crashes fell by 60 per month among drivers under 30 in the markets where Uber operates following the launch of uberX,” the study authors stated. “That’s an estimated total of 1,800 crashes prevented since July 2012.”

Last month, however, the American Journal of Epidemiology published a study that contradicted Uber and MADD’s initial claims.

The study compared DUI related deaths on weekends and holidays in U.S. counties before the introduction of ride-sharing apps and after. Researchers from the University of Southern California and Oxford University focused on statistics from the 100 most populated metropolitan cities in the U.S.

The study concluded that there was no significant reduction in drunk driving deaths before and after the introduction of Uber and other ride-sharing apps.

“We found that the deployment of Uber services in a given metropolitan county had no association with the number of subsequent traffic fatalities, whether measured in aggregate or specific to drunk-driving fatalities or fatalities during weekends and holidays,” wrote the researchers. Study co-author David Kirk told the Washington Post the report indicates “there’s still tons of room for improvement when it comes to reducing drunk driving fatalities.”

The authors speculated on the reasons behind their findings:

“The average inebriated individual contemplating drunk driving may not be sufficiently rational to substitute drinking and driving for a presumably safer Uber ride,” said the study’s authors. “[I]t is also possible that many drunk drivers rationally conclude that it is too costly to pay for an Uber ride (or taxi) given that the likelihood of getting arrested for drinking and driving is actually quite low.”

Uber spokesperson, Brooke Anderson, responded to the recent study in an email to the Washington Post:

“We’re glad Uber can provide an alternative to drunk driving and help people make more responsible choices. Our ridership numbers show that trips peak at times when people are more likely to be out drinking and 80% of riders says that Uber has helped them personally avoid drinking and driving.”

Whether the research points to a reduction in DUI-related fatalities or not, one thing remains sure. Taking an Uber or other ride-sharing app is always a better option than driving drunk.


Kansas Supreme Court Rules Chemical Test Refusal Not Criminal

Monday, February 29th, 2016

This past Friday the Kansas Supreme Court ruled that it is unconstitutional to criminalize a chemical test refusal following a DUI arrest in that state.

Prior to the ruling, refusing a chemical test could land a person a misdemeanor or a felony charge depending on how many times they had refused in the past.

The Kansas Supreme Court ruling comes on the heels of the United States Supreme Court’s announcement that they’ll decide the same issue for a Minnesota law which also made it a crime to refuse a chemical test after a DUI arrest. Let’s hope that the United States Supreme Court takes a page from the Kansas Supreme Court’s ruling when the time comes.

The Kansas Supreme Court’s 6-1 decision found that chemical tests are essentially searches and, as such, it was unconstitutional to punish someone for exercising their constitutional right to refuse that search without a warrant.

“Once a suspect withdraws consent, whether it be express consent or implied (under the statute), a search based on that consent cannot proceed,” the court held.

A common argument in favor of implied consent laws articulated in numerous previous court decisions was that a state’s compelling interest in combating drunk driving outweighed the “relatively minor” infringement on our 4th amendment right to be free from unreasonable searches and seizures. The Kansas Supreme Court, however, held exactly the opposite.

I agree. If the 4th Amendment doesn’t protect searches of our bodies, what does it protect?

Not surprisingly, Mothers Against Drunk Driving disagrees. “Obviously MADD’s position is that driving is a privilege and not a right,” said Christopher Mann, former police officer and member of the national board of directors for MADD. “We support penalties for refusing to take chemical tests. We think law enforcement members need to have all the tools at their disposal to keep our roads safe from drunken drivers who kill about 10,000 people a year.”

I too agree that we need to keep our roads safe from drunk drivers, but not at the expense of our constitutional rights.

California too has an implied consent law requiring that drivers who have been lawfully arrested on suspicion of driving under the influence submit to a chemical test. Although California does not make it a separate criminal offense to refuse a chemical test like Kansas or Minnesota, it does allow prosecutors to allege a “refusal enhancement” to the criminal DUI charge.

If a person is found to have refused a chemical test in California, they face a one-year license suspension through the DMV, additional jail time, a longer DUI program, a MADD Victim Impact Panel lecture, and/or a hospital and morgue program.


Can Alcohol Sensors in All Cars Eliminate Drunk Driving?

Monday, June 8th, 2015

Last week federal officials said that new technology which could be installed in all new cars in the next five years could eliminate drunk driving.

The new technology, however, isn’t doing anything we’re not already doing: preventing a vehicle from being started by someone who has a blood alcohol content above the legal limit. What is different is the method by which this is being accomplished.

Passive breath sensors or touch-sensitive contact points on a starter button or gear shift would immediately register the blood alcohol content of a driver. Unlike the ignition interlock devices, which require a driver to blow into a tube to provide a breath sample and start a car, drivers of vehicles with the new technology need not do anything for a BAC level to be detected.

“The message today is not ‘Can we do this?’ but ‘How soon can we do this?’ ” said Mark Rosekind, administrator of the National Highway Traffic Safety Administration (NHTSA). “It is a huge step forward.”

Although cost estimates of the new technology have not yet been made, officials anticipate the costs, once the sensors go into general production, to be comparable to the cost of seat belts or air bags; about $150-$200 per vehicle.

Unlike other safety features like backup cameras, which the NHTSA made mandatory beginning in 2014, the new alcohol detection technology would not be required by automakers. Instead, the technology would be offered as an upgrade to new vehicles.

“These devices have to be quick, accurate and easy to use for the automakers to put them on their platforms,” said Bud Zaouk who runs the laboratory where the technology is being developed.

Developers are still working on refining the technology to ensure accuracy. Their goal is also to allow the technology to produce blood alcohol readings in less than a second and to work for at least 10 years or 157,000 miles without calibration or maintenance.

Not surprisingly, Mothers Against Drunk Driving (MADD) has expressed its support for the new technology. Colleen Sheehey-Church, president of MADD, addressed an audience at NHTSA.

“This is the future,” she said, gesturing toward a vehicle equipped with prototype detection gear, “when drunk drivers will be unable to drive their cars. If this technology was available in 2004, my son, Dustin, might be alive today.”

Sheehey-Church’s son died in the back seat of a car when the driver  who was drunk drove into a river in 2004.

In all that I’ve heard and read about the new technology, the NHTSA has yet to address some glaring problems.

Unlike an ignition interlock device, which is intended to only detect the blood alcohol content of the driver, the passive alcohol detection devices will be detecting alcohol located in the air of the vehicle whether it’s coming from the driver’s seat, passenger’s seat, or even the back seats.

If such is the case, what’s the point of having a designated driver? In fact, this is just the tip of the iceberg of questions yet to be addressed.

Will the technology detect alcohol coming from something other than a drunk driver such as mouthwash, perfumes, or hand sanitizer? Will bartenders have to shower and change clothes before heading home after a shift? Will the technology work with open windows? What about convertibles or motorcycles?

If you ask me, let’s just focus on self-driving cars to reduce drunk driving.


Can I Trick a Breathalyzer?

Monday, February 23rd, 2015

One of the more common questions I get regarding breathalyzers is “Can I do anything to trick the breathalyzer?”

Although it is true that breathalyzers are, by themselves, inaccurate, many people are mistake when they believe that they can trick a breathalyzer into producing a lower reading. In fact, many of the “tricks” that people believe will lower the breathalyzer will have no effect on the reading or may actually increase the reading.

Here are some of the more common methods used by people in trying trick the breathalyzer and their effects on the breath results.

Burping into the Breathalyzer:

This trick is based on the mistaken belief that gas from the stomach contains less alcohol in it than air from the lungs. However, according to a 1992 study from the University of Wisconsin, belching into the breathalyzer had no effect on the blood alcohol content reading.

Use Breath Spray or Mouthwash:

Both breath sprays and mouthwashes contain alcohol. Although the breathalyzer is intended to test the air which comes from deep in the lungs, it can also collect air from the mouth as well. Thus, using a breath spray or a mouthwash could increase the blood alcohol reading than what it would otherwise have been.

Sucking a Penny:

The belief is that the metals of a penny will react with the alcohol causing a breathalyzer reading to be so high that there is no conclusion other than that the breathalyzer was malfunctioning. The air that is exhaled into the breathalyzer comes from deep within the lungs. This air is called alveolar air. The copper located in the mouth would not affect the alcohol content found in the alveolar air. This was confirmed by Discovery Channel’s Mythbusters. In a 2003 episode, the hosts Adam Savage and Jamie Hyneman tested this trick and busted it. The pennies had no effect on the breathalyzer.

Eating your Underwear:

Yes, you read that correctly. David Zurfluh, an 18-year-old from Stettler, Alberta, Canada ripped the crotch out of his underwear and stuffed it into his mouth in the hopes that he could reduce the reading on the breathalyzer. Zurfluh has not been the only one. Others have made the same mistake of believing that fabric in the mouth from articles of clothing will absorb the alcohol in the mouth, thus reducing the blood alcohol content reading. As I previously said, the air that is exhaled in the breathalyzer comes from deep in the lungs and fabric in the mouth will not will not affect the reading.

Drinking Caffeine:

Many people believe that they can sober up by drinking coffee. When someone who has been drinking alcohol then drinks caffeine, they are only attempting to make themselves more alert or energized. Being alert has no effect on a person’s blood alcohol content which is what the breathalyzer tests for.

Holding your Breath:

According to the study, “How Breathing techniques Can Influence the Results of Breath-Alcohol Analysis,” holding your breath for 30 seconds before blowing into a breathalyzer can increase the blood alcohol content reading by 15.7 percent.


The least well known trick is the only one which has been shown to reduce the blood alcohol content reading of breathalyzers. According to the same study above, hyperventilating for 20 seconds prior to taking a breath test reduced the blood alcohol content reading of the breathalyzer by 10.6 percent. Simply put, the hyperventilating DUI suspect is replacing the alcohol gas located in the lungs with fresh air.