Articles Posted in DUI

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Many people don’t know that a DUI conviction may have other consequences beyond the driver’s license suspension, probation, and mandatory DUI classes. In California, there is a huge body of administrative law, much of it quasi-criminal. The immediate administrative per se suspension of a DUI arrestee’s driver license is an example of an administrative law. Although the courts have ruled that most administrative laws that sanction an individual are constitutional, many, if not most, of the quasi-criminal administrative laws do not afford the individual the same due process protections that the United States and California Constitutions guarantee in a criminal prosecution.

Many who are arrested for DUI in California will only experience the administrative consequences of a per se suspension of his or her driver’s license and DMV sanctions. However, what many don’t understand is that a DUI goes on the person’s criminal record and that can trigger other administrative sanctions in California.

For example, a person convicted of a DUI—even a first-time DUI—and who works as a child caregiver, or even just volunteers in an after-school program, will very likely hear from their employer that the State of California will no longer allow him or her on the premises. In other words, a childcare employee could find themselves barred from their place of employment simply because he or she was arrested and convicted of a first-time DUI.

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Your parents or grandparents might remember the days when a drunk driver was given a warning and then escorted home by the police and told to sleep it off. Maybe you watched Mad Men and wondered if drunk driving was just a way of life back in the 60s. Until late in that decade, drunk driving laws relied on the officer’s subjective evaluations, rather than on the chemical tests that are now mandated by the law, to determine whether someone was driving under the influence of alcohol. Thus, it was not unusual, especially outside of large urban areas, for the police to find “old Jimmy” weaving his truck on his way home again and either drive him home or give him a slow-moving escort.   At worst, most drunk drivers could expect fines and a lecture by a judge. Back then, there was no driving license suspension or mandatory drunk driving courses.

While chemical tests were available, California law did not mandate that a driver submit to a chemical test. It was not until the late 60s that the legislature enacted what is called the “implied consent” law. Implied consent laws were based on the premise that a driver using the roads in California impliedly consents to a blood alcohol test if he or she is legally arrested for suspicion of drunk driving. Even with the enactment of the implied consent law, the penalties for drunken driving were nowhere near as severe as they are today.

Another influence on the California DUI laws was the increasing involvement of the federal government on the state’s drunk driving policies. In 1967, the federal government issued new standards, which for the first time included drunk driving standards. These standards required the states to develop drunk driving laws to achieve a reduction in traffic accidents caused by drunken driving. Back then, and until 1990, the threshold for drunk driving was .10% blood alcohol content. The federal government enforced theses standards by withholding federal highway funds to any state that did not comply with the new standards.

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Did this Napa school bus driver take a wine tasting detour? A school bus driver in Napa was recently arrested for driving under the influence after she damaged the undercarriage of her bus with 28 students on board. Fortunately, none of the students were injured.

As hard as it is to believe that a school bus driver would be driving under the influence, this Napa driver is not the only one. The same week the Napa driver was arrested, another bus driver was arrested for driving under the influence of prescription drugs in Boulder County, Colorado after she lost control of her bus, which resulted in the serious injury to two of the eight children on board.

A month before these two incidents, a school bus driver in Lincoln Rhode Island stumbled off her bus after having driven students from school. She was arrested for drunk driving.

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Super Bowl Sunday is right around the corner. Time for gathering around the big screen with chips and beer, lots of beer. And time for the CHP to be out in full force.

The Super Bowl Sunday roads are notoriously plagued with drivers impaired by alcohol. In fact, the Auto Club of Southern California looked at five years (2009-2013) of California road accident data and found a 77 percent increase in alcohol-related death and injuries on the Super Bowl Sunday roads. It is wise to be cautious on the roads on Super Bowl Sunday and a no-brainer to refrain from getting behind the wheel if you have been drinking.

Most people are not so unfortunate as to end up in an alcohol-related accident on Super Bowl Sunday but for those who are, the results can be tragic. That is reason enough to never drink and drive—if you are under the influence of alcohol (or drugs) and cause an accident, you will face severe consequences. And if you kill or severely injure someone, you will have to live with that for the rest of your life.

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WHAT HAPPENS IF YOU REFUSE TO SUBMIT TO A CHEMICAL TEST AFTER A DUI ARREST?

Most California drivers are aware that the law does not convey the same Constitutional rights, which are normally afforded to an arrestee, when the person is arrested for driving under the influence. For example, the driver does not have an immediate right to an attorney or the right to remain silent. Most important, a driver lawfully arrested for suspicion of driving under the influence must submit to a chemical test or face a mandatory suspension of his or her driver’s license.   This is known as the “implied consent” law. Even when a driver refuses the test but then changes his or her mind and submits, it will still be considered a refusal.

The law requires that the arresting officer clearly advise the driver that a refusal will result in a suspension of the driver’s license to drive. (Vehicle Code §23612(a)(1)(D).) However, the warning is enough; the officer is not required to obtain the driver’s acknowledgement that the driver understands the consequences of refusal.

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The trend is clear: States are legalizing the recreational or medical use of marijuana. In fact, twenty-three states plus the District of Columbia have legalized the use of marijuana in some form. Yet most state laws have not established clear methods or guidelines to assist law enforcement when they suspect a driver is under the influence of marijuana. It is easy enough for law enforcement to run chemical test for drivers suspected of driving under the influence of alcohol, but what chemical test can the officer employ if he or she suspects the driver is high on pot. Beyond that, is there even a legal amount of THC (the principal active component of marijuana) that the state allows while driving? Measuring driving impairment due to the influence of marijuana is not quite as easy to determine as alcohol impairment. Unlike alcohol, THC is not easily measured in the field and to complicate things, it can remain in the body long after its effects have worn off.

Methods for detecting and arresting someone for driving under the influence of marijuana are not only technically problematic but implicate individual due process rights. There are presently only two reliable methods for testing whether someone has recently used marijuana: blood and urine testing. The presence of THC in urine is not a reliable indicator of driving impairment since THC can remain in the urine long after its effects have worn off. A blood test can detect elevated concentrations of THC that may be consistent with recent use; however, such tests are a reliable indicator of recent use only within the first hour or so of that use. When a law enforcement officer suspects someone is driving under the influence of marijuana, they cannot perform a blood test on the spot; rather, they must transport the driver to a location where a tech can draw blood. By time this is accomplished, it isd quite likely that the THC levels in the blood have decreased considerably.

Currently several states have laws that prohibit a driver from having any detectable amounts of THC in their system; this is problematic and is certainly begging to be challenged in the upper courts as the mere presence of THC does not indicate impairment. Two states (Washington and Montana) have established a per se limit of THC that may be in a drivers system with levels above that limit, without any other indication that the driver is impaired, as grounds for an arrest for driving under the influence. Again, a court challenge may soon be waiting in the wings.

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THE “RISING BLOOD ALCOHOL” DEFENSE

If you are arrested for driving under the influence of alcohol and your blood alcohol level is only slightly above the legal threshold of 0.08%, your attorney might consider what is called the “rising blood alcohol” defense. Without getting into the scientific details, this defense asserts that at the time you were driving, your blood alcohol level was lower than the level you registered at the time of your arrest.

Depending on a number of circumstances including your weight, whether you were drinking on an empty or full stomach, and other factors, the alcohol you imbibe can take 30 minutes to an hour or more to rise to its peak blood alcohol level in your body.

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A BETTER WAY TO TREAT DUIs

You have probably heard that the so-called “War on Drugs” has been lost. Increasingly law enforcement and the courts are recognizing that punishment does not resolve the offender’s drug addictions. New sentencing schemes are being developed that focus less on punishing the chronic drug offender than addressing the underlying cause of his or her arrest, i.e., drug addiction.

Although many people don’t put alcohol in the same category as drugs because alcohol is legal, it is actually one of the most potent drugs available. Some individuals are addicted to alcohol and it is a drug addiction even though we call it “alcoholism.”

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THE ONE DRINK AN HOUR RULE

Have you ever heard of the “One Drink an Hour Rule?” According to this rule, if have only drink per hour, your blood alcohol level (BAC) will remain under the legal DUI limit of .08%. (One drink is roughly defined as 1 1/4 ounce of hard liquor, one beer or one glass of wine.) Is this true?

Well, it depends. There is actually no hard and fast rule and a variety of factors can affect your BAC. Things such as your weight, whether you’re eating while you are drinking, and whether you are male or female will influence your blood alcohol level. For example, a female who weighs 110 pounds and has only two drinks in two hours will almost certainly have a BAC of over .08%, while a man weighing over 210 pounds might not register a BAC of over .08% until he has had four drinks during those two hours. Different body types process alcohol differently for several reasons, including body fat content and the concentration of the liver enzyme that breaks down the alcohol. Hormones may also be a factor.

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california supreme court holds that circumstantial evidence of intoxication may be considered in dui hearings

A driver was pulled over in Orange County by the CHP when the officer observed her car swerving erratically. Upon contacting the driver, the officer observed indications that she had been drinking alcohol. The officer performed various field sobriety tests on the driver, the result of which further indicated to the officer that the driver was under the influence of alcohol. The driver was placed under arrest and it was determined by a breath test that she had a blood alcohol level near the threshold legal limit of .08%. A later blood draw indicated a blood alcohol level slightly over the limit at .096%.

She exercised her option to have a DMV Administrative Per Se Hearing to challenge the automatic suspension of her driver license. At the hearing, an expert testified on her behalf. According to the expert, the blood alcohol tests suggested that here blood alcohol level was rising and that at the time of the stop, her blood alcohol level was not at the legal limit of .08%. The expert’s testimony is technical and not relevant for purposes here. Suffice it to say that the gist of the driver’s argument was that she introduced evidence of a fact that rebutted the presumption that she was driving under the influence but the administrative hearing officer and the trial court discounted that evidence (the expert’s testimony) in part by relying on the reports made by the CHP officers who stopped her. The Supreme Court was ultimately tasked with deciding whether the trial court erred by considering the circumstantial evidence established by the officers’ reports of their observations. On April 6, 2015, the Supreme Court issued its ruling where it held that the trial court did not err.

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