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What is the per se blood alcohol content (BAC) in California? Most people know it is, with certain exceptions, 0.08%. Above that limit and a driver is considered per se under the influence of alcohol.

Which number is greater: 0.08% (0.0008) or 0.013% (0.00013)? If you answered 0.0008, congratulations, you remember your eighth-grade math. Perhaps the Redlands Police Department and the San Bernardino County District Attorney’s office need to have a math refresher course.

In late 2022, a retired airline pilot was driving home after a restaurant dinner where he had one glass of wine. He found himself in a DUI checkpoint. That is where his nightmare began. While it is unclear from reports what prompted an officer manning the checkpoint to have the retired pilot step out of his vehicle and perform preliminary screening tests and then blow into the preliminary alcohol screening (PAS) device, after doing so, the officer informed the pilot that he blew almost double over the legal limit of 0.08%.  The pilot was arrested, booked, and spent the night in jail. While at the police station a blood draw was also conducted.

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So say many experts who have studied the U.S. (including California’s) DUI limit of 0.08 percent. The only state that has a lower limit is Utah, which has a 0.05 percent per se limit.

After Utah lowered it limit in 2018, there was a near 20 percent decrease in fatal car crashes according to the National Highway Traffic Safety Administration. Although this decrease in fatal car crashes in Utah continues to be widely reported, The Salt Lake Tribune reports that this trend seen from 2018 and 2019 may have been short-lived. There has been a slight upward trend in Utah road fatalities since, but this may be attributable to a number of factors—then again, so might the decrease seen in 2018 and 2019.

Nevertheless, there is evidence also that some Utah drivers have adjusted their behavior since the enactment of the lower DUI limit. In a focus group conducted by the Utah Department of Public Safety, 22 percent of drivers who drink said they now look for alternative ways to get home after drinking, rather than driving themselves.

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Driving under the influence with a child under the age of 14 can result in a punishment enhancement and may also result in child endangerment charges. But there are other potential consequences to this offense of which most people are unaware. Among those potential consequences is being added to the Child Abuse Central Index (CACI). Most people are unaware of the database unless they find themselves added to it.

First an explanation of what CACI is. CACI is a database maintained by the California Department of Justice. It contains records of individuals who have been reported and investigated for child abuse or neglect in the state of California. The CACI is a confidential database but can be shared with certain agencies such as law enforcement, child protective services, and organizations that conduct background checks for positions involving children. Even most volunteer organizations that include children as clients will check the CACI data base on an individual who applies to volunteer with that organization.  It is important to note that being added to the CACI database does not require a conviction of child abuse but only a substantiated report of “severe neglect” of the child.

A conviction for driving under the influence with a child under the age of 14, and especially if that conviction included a child endangerment offense, may result in that driver being added to the CACI database. Why? Because driving under the influence with a child in the car may be considered severe neglect. The term “severe neglect” is defined by the law under which the CACI database is regulated as a situation where a person having the care and custody of a child willfully causes or allows the person or health of the child to be put in a situation where that child’s health is endangered. (Penal Code Section 11165.2, subd. (a).)  Driving while under the influence with a child in the car is considered criminal negligence, even if the driver believes he or she is able to drive safely while under the influence and is therefore willful conduct. That is, if the conduct was reckless or deviated from what an objective and reasonable person would consider safe making the conduct is criminally negligent and therefore willful under the eyes of the law.

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As we enter one of the biggest holiday periods in California, it might be time for an important PSA:

DON’T DRINK OR TAKE DRUGS AND DRIVE.

Last July 4th holiday period (June 30 through July 4), over 1,200 drivers were arrested for driving under the influence. Unfortunately, 90 individuals also lost their lives during that period due to alcohol or drug impaired driving. This year we are likely to see higher numbers since the 4th of July holiday period is longer than it was in 2023.

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In California, many convictions can be “expunged.” (The common term most people use is “expungement,” but it’s not actually an expungement, as will be clear as you read further.)

In most cases, an individual (defendant) convicted of DUI will be eligible to petition the court for this relief. Upon a successful petition, the court permits the defendant to withdraw a plea of guilty and enter a plea of “not guilty,” or on a guilty verdict the court will set aside the guilty verdict. Thereafter, the court dismisses the accusation (complaint) filed against the defendant.

There are several requirements:

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A Story:

Michelle was involved in a serious accident at an Orange County intersection. Witnesses reported that Michelle caused the accident when she ran a red light. The occupant of the vehicle Michelle hit was killed. Michelle was injured and transported by ambulance to the hospital. At the hospital, a nurse administered a narcotic to Michelle to subdue her pain. The narcotic affected Michelle’s awareness.

Shortly after she arrived at the hospital, a police officer who was assigned to investigate the accident responded to Michelle’s hospital bed to question her about the accident. As the officer spoke with Michelle, he believed he smelled the odor of alcohol on her breath. The officer asks Michelle if she had been drinking prior to the accident. Michelle told the officer she had one glass of wine with dinner an hour before the accident. The officer asks Michelle to submit to a breathalyzer test, but given her compromised state, she was unable to complete the test. Due to the effect of the narcotics, the officer was unable to ascertain whether she was under the influence prior to her arrival at the hospital.

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Whether you think this is a good thing or another step towards a “Big Brother” future, there is an effort to make drunk driving detection a standard feature in all new cars.  New technologies allow impaired driving detection through sensors that can monitor the driver’s eye movement as well as touch and breath sensors that detect alcohol. We already have breath sensors (Ignition Interlock Devices (IIDS)) that many who are convicted of drunk driving are required to install. Reportedly there are approximately 250 such technologies which use smell, touch, camera and/or audio or visual detection.  New regulations may mean that in the future all new cars will be required to install some sort of impaired driving device.

Congress has passed a bill that requires the National Highway and Transportation Safety Administration (NHTSA) to issue a regulation by 2026 that all new passenger vehicles include equipment that monitors for impairment of the driver. This does not mean that all 2026 passenger vehicles are going to be equipped with this technology; the 2026 deadline-if it holds-only requires the NHTSA to issue a regulation.

If the vehicle detects impairment, the new cars must include a means for limiting the driver’s further operation of the vehicle. It is not clear by what mechanism the car could limit the operation of the vehicle. The provision terms the requirement “a national safety standard for passive, advanced impaired driving prevention system.” Some fear that there will be a remote-controlled or automatic “kill switch”. This is unfounded but not outside the realm of possibility since the NHSTA hasn’t issued the regulations yet.  Obviously, the car won’t be disabled amidst traffic. But whatever the technology, it will likely be some form of continuous driver monitoring.

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The holidays are upon us – don’t ruin your merriment by driving under the influence. Now is the time to consider your plans. Do you have a designated driver? Is ride sharing an option? Or how about resolving not to drink more than one drink (or none is better) at that Christmas party? Drinking impairs a person’s judgment and that is often why someone gets behind the wheel when they shouldn’t. You should have a plan for your holiday celebrations that includes a strategy for getting back home without getting behind the wheel if you are going to drink.

California law enforcement typically see a 20 to 30 percent increase in DUI arrests during the holidays. One of the reasons for the increased arrests is that most law enforcement agencies across the state intensify their patrols for impaired drivers. At certain dates during the holiday period, when drinking and partying is most prevalent, law enforcement agencies initiate what is termed “maximum enforcement periods.” The other reason for the increase DUI arrests during the holiday is obvious: people are attending parties or otherwise socializing.

Getting arrested for a DUI may be the “second best” outcome next to getting home safely. Driving under the influence can have far more devastating outcomes as everyone knows. Yet, we do it anyway. We all make mistakes. If you find yourself pulled over after drinking even one drink, you risk a DUI.

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According to the National Highway Traffic Safety Administration (NHTSA) 13,384 people died in drunk driving related incidents in 2021 (the latest year for which the statistic is available).  This number, according to the NHTSA, represents one-third of all traffic-related fatalities and equates to approximately 37 individuals who die per day as a result of drunk driving.  Approximately 40 percent plus of the drunk drivers who were killed were ages 16 to 24 years old, with 21 to 24 -year-olds having the most drunk driving accidents in the United States. According to Mothers Against Drunk Driving (MADD), 1 in 4 teen vehicle accidents involve alcohol. This is not surprising since this is the age group that is most high risk and presents a disproportionate number of dangers to society.

There is a mix of news in California. Let’s start with some good news. Per the California DMV Annual Report of the California DUI Management Information System (2022) (DUI MIS Report), DUI arrest rates have decreased significantly: more than halved since 2010 from 823 per 100,000 licensed drivers in 2010 to 357 in 2020. Alcohol related vehicle fatalities have also decreased but less so. DUI-related crash fatalities represented 39.1 percent of all traffic fatalities in 2010 and 31.8 percent in 2020. Alcohol related injuries though saw a slight increase from 10.6 percent of all crash injuries in 2010 to 11.4 percent in 2020. Unfortunately, drug related vehicle fatalities have nearly quadrupled over the past 25 years.

Repeat offender convictions have decreased significantly. This is good news and suggests that treatment for those with serious alcohol addiction is becoming more effective and better utilized. California courts have recognized that repeated punishments for DUI offenders with alcohol addictions is not always a successful approach. Collaborative courts allow the repeat DUI offender, under strict individualized supervision and treatment, to avoid incarceration and other punitive measures in favor of rehabilitative treatment. Research has shown this approach to be effective and to reduce repeat offenders from re-offending after successful completion of a DUI court program.

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If you have been arrested for a DUI in California, you may be wondering if the police can search your vehicle. The answer is not always straightforward. In general, the police can only search your vehicle if they have probable cause to believe that the search will yield evidence of a crime. This means that they must have a reasonable belief that you have committed a crime, and that the evidence of that crime is in your vehicle.

Here are some examples:

Scenario One: You have been stopped for a traffic violation. The officer smells alcohol on your breath and believes you are over the per se limit of 0.08% BAC. You are placed under arrest for DUI. Can the officer then search your vehicle?

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