Articles Posted in DUI

IMMIGRATION CONSEQUENCES OF A DUI

Soon-to-be president Trump has stated that he intends to enforce deportation of certain immigrants. Might a DUI threaten the immigration status or residency of an immigrant in this country? The answer is yes. Under current law, even a person residing in this country legally but who is not a citizen can be deported for certain DUI offenses. That these laws will be more vigorously enforced than they are now is likely. While the laws governing immigration are very complicated, a DUI can affect a person’s immigration status in the U.S.

The key term the courts use to determine whether an offense such as a DUI is a deportable offense is whether it is a “crime of moral turpitude.” Among the categories of deportable offenses are these so-called crimes of moral turpitude. This is a catch-all phrase, which is not defined by statute but rather left to the courts to interpret. The courts have found that multiple DUIs, a DUI on a suspended license, a driving under the influence of drugs, a DUI with a child in the car and a DUI on top of another charge are all crimes of moral turpitude. While courts have held that a simple first-time DUI is not a crime of moral turpitude, a DUI conviction that includes an aggravating factor such the ones described above is and the driver can face deportation or revocation of his or her visa. The conviction may also prevent an immigrant from obtaining or renewing a visa or green card and can result in the denial of an application for United States citizenship.

DOES THE PASSAGE OF PROP 64 MEAN MORE HIGH DRIVERS ON THE ROAD?

Now that Prop 64 has passed, will we see more drivers under the influence on California roads? Maybe. But as I discussed in previous posts, unlike alcohol, there is no definitive way to test for the immediate presence of THC (the chemical in marijuana and marijuana derivatives that makes a person “high”) in a person’s system. Furthermore, while the DUI laws make it illegal to drive under the influence of marijuana, whether a driver is under the influence is a subjective assessment made by the detaining officer and unless the car is reeking of pot, the evidence may be difficult to prove in court. While science and the legislature are working on better testing and specific statutory limits, the state is currently in the predicament where recreational use of marijuana is legal, much like alcohol use, but the laws controlling driving under the influence of marijuana are ambiguous.

The critics of Prop 64 pointed out that the proposition does not include a DUI standard for marijuana. Colorado has, for example, included in their statute a driving under the influence of marijuana threshold of 5 nanograms of THC. Still, as I previously discussed, scientists have not come up with a device as accurate as a roadside breathalyzer and that is problematic. Colorado may lead the way though as the police there are now testing five types of oral fluid testers that allow the police to check a driver’s saliva for THC at the time of the traffic stop. And even though there is no threshold standard for marijuana in a driver’s system (similar to the .08% BAC in the DUI laws) at the present time, that does not mean the Legislature cannot enact a law with such a standard—and they most certainly will.

With the popularity of ride-sharing apps that make it convenient and inexpensive to “hail” a ride in most urban areas, common sense would say that the incidence of DUI arrests and drunken driving accidents would decrease accordingly. After all, one of the best uses of these apps is to have a designated driver on-call. And, indeed, as I discussed in an earlier post on this blog, there are studies that preliminarily confirm that ride sharing apps have decreased the incidence of drunken driving and all the dangers associated with it, in particular the incidence of traffic fatalities caused by drunken drivers.

But a recent study found that the ride sharing apps have not had much of an impact at all on traffic fatalities, including those caused by drunken drivers. In a recent study released by the American Journal of Epidemiology, researchers from the University of Southern California and the Oxford University collected data for 100 different metro areas between 2005 (pre-ride sharing) and 2014. Controlling for a variety of factors that could affect the study, the researchers found that ride-sharing had no statistically significant impact on the number of drunk-driving fatalities. Several factors may explain these results. In particular, ride sharing vehicles represent a tiny percentage of the vehicles on the road. Additionally, the judgment of a driver who has had too much to drink may affect the driver’s ability to understand that he or she should let someone else do the driving.

While this study got quite a bit of press, it seems to be the only one so far that has found no impact—at least as far as drunk driving fatalities—since the advent of ride-sharing. Then again, it seems to be the only well-designed study so far on this question.

NEW LAW WILL REQUIRE IGNITION INTERLOCKING DEVICES FOR MOST DUI OFFENSES

A new law, scheduled to go into effect across the state on January 1, 2019, will put ignition interlock devices (IID) in almost every vehicle driven by someone who was convicted of drunk driving. IIDs are akin to a breathalyzer installed in a vehicle. The devices include a small camera that shows who is blowing into it and have other mechanisms that prevent the driver from any attempts to defeat the device. They are, in fact, pretty much fool-proof.

The new law is, in one way, less restrictive because it will give first time DUI offenders, who caused no injuries by his or her drunken driving, an option of installing an IID for six months with full driving privileges. As the law stands now, a first time (non-injury) DUI offender can only drive on a restricted license usually for a period 4 to 6 months. With the new law, if a person declines the IID, he or she will be subject to a one-year restricted license. .A restricted license allows the driver to only drive to and from work or school and to DUI-ordered treatment programs.

DUI OFFENDERS OFTEN HAVE AN ADDICTION

After 20 years of defending DUI cases I am convinced that many of the individuals who have been arrested for driving under the influence of alcohol or drugs — and especially those who have been arrested for DUI more than once — have an addiction and are in need of treatment. Statistics indicate that on average, the person who is arrested for DUI drove drunk 80 times before his or her first arrest. While it is true that some drivers are just unlucky find and themselves arrested for drunk driving after say a family gathering or other occasion where the driver uncharacteristically had a little too much to drink, most drivers who end up on the other side of my desk have a drinking or drug problem.

I don’t write this to judge or accuse; my goal here is to help. The courts and the DMV almost always order DUI classes and perhaps attendance at AA meetings but I have seen all too many multiple DUI offenders walk into my office. Clearly, the DUI classes and AA meetings don’t always work.

It’s summer travel season and maybe you are planning a trip to another country. Don’t let your R&R be ruined by a driving under the influence arrest. You may not be aware of this but most countries have harsher DUI laws than those in the United States. Now, how strictly those laws are enforced may be another matter but here’s the low down:

In Canada, the BAC threshold runs from 0.05% to 0.08% depending on the province. Same in Mexico, where the BAC limit is determined by state and can run between 0.04% and 0.08%, but the national limit is 0.08% for those states that do not impose their own law.

Going to Europe? You might want to lay off the alcohol altogether if you are driving. In Scandinavia, for example, you can be arrested for a DUI with just a 0.02% BAC (Norway and Sweden). Denmark is slightly more lenient with a 0.05% BAC threshold. Elsewhere in Europe, the BAC reading at which you can be arrested for drunken driving is generally 0.05% although many European countries have a lower threshold if you are involved in an accident. For example, in Germany you can be arrested for drunken driving if you are involved in an accident (regardless of fault) with a BAC of 0.03%. Only Malta and the U.K. have a 0.08% BAC threshold; the rest of the countries run between 0.00% and 0.05%. (Yes, 0.00%: in the former Eastern bloc countries of Hungary, The Czech Republic, Slovakia and Croatia you can be arrested for drunken driving with any amount of alcohol in your system.)

Here’s a DUI arrest scenario I occasionally encounter in my practice: A client is arrested for driving under the influence in a private parking lot, for example, or on a street in a gated community, or even in the client’s own driveway and wants to fight the DUI arrest by arguing that the traffic stop and arrest did not occur on a public road. Many people are incorrectly informed that the driving under the influence laws require that the vehicle was being driven on a public street or highway. That misunderstanding is not without some foundation; until the early 1980’s the California Vehicle Code made it illegal to drive under the influence “upon a highway or upon other than a highway areas in which are open to the general public.” But that wording has long since been removed from the DUI statutes.

The scenario will sometimes go something like this: The police, following behind the driver, turned on their lights and sirens to initiate a stop but the driver only minutes from home, turned into her gated community with the police still following behind, or pulled into his driveway where the police then effected their detention upon the driver in his driveway. My client will want to fight the stop thinking it is unlawful to arrest a person on their private property without a warrant. While this may hold true in certain arrests, it is not the case in DUI arrests.

The problem with the argument is that the driver cannot evade arrest by simply continuing on until private property is reached. A driver “may not defeat a detention or arrest which is set in motion in a public place by fleeing to a private place.” (People v. Lloyd (1989) 216 Cal.App.3d 1425, 1430.)