Articles Posted in DUI

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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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Drugged Driving, A Growing Threat

 

Drugged driving is a dangerous trend on US highways. According to The National Highway Traffic Safety Administration, there is a significant increase in drivers driving with illegal, prescription and over-the-counter drugs in their system. Part of this may be due to the fact that people don’t realize that, just because you have a prescription for a drug, doesn’t mean that it is legal to drive while under it’s influence. The same holds true for some over-the-counter drugs. While they are not illegal, if you are driving while under it’s influence and it affects your driving, you are driving under the influence.   The drug showing the greatest increase is marijuana or THC, most likely due to it’s recent legalization in some states. However, the two most common prescription drugs found in fatality and serious accidents are benzodiazepines and opiates.

 

Although drug-impaired driving is evident in all age groups, the focus seems to be on teens and seniors. According to the NHTSA, two-thirds of senior drivers take five or more medications daily that may affect their driving. Also disturbing is that approximately 23 percent of all fatally injured drivers who test positive for drugs are younger than 25.

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DOUBLE JEOPARDY? DUI ADMINISTRATIVE SANCTIONS AND CRIMINAL PUNISHMENT

An arrest for DUI with a blood alcohol level (BAC) over 0.08% triggers two entirely separate proceedings: 1) a DMV administrative per se hearing/determination with possible license suspension and 2) a criminal hearing that also carries a possible license suspension. It can happen that the DMV suspends a driver’s license pursuant to the DMV administrative per se determination and then a court conviction on the DUI triggers another license suspension. Usually, these suspensions will run concurrently, but not always.

How can a driver essentially be punished twice for the same offense? Isn’t this double jeopardy? Well, according to the United States Supreme Court, it is not. (Hudson v. United States, 522 U.S. 93 (1997).) The reasoning behind the Supreme Court’s decision has to do with the nature of the “punishment.”

The DMV suspension is considered a sanction that is civil rather than criminal. The California Courts have held that the statutory provisions concerning the DMV administrative per se license suspension have the intent to protect the public rather than punish the licensee. Therefore, when a driver’s license is suspended administratively by the DMV, the driver is not being criminally punished. You might be thinking….well, if it walks like a duck…. but the courts have reasoned otherwise.

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ORANGE COUNTY COURT CLERK BUSTED FOR “FIXING” DUI CASES

Many of us are familiar with the blatant corruption in some countries where you just pay off the cop that stopped you and be on your merry way. Well, Orange County apparently has its own version of corruption, a court clerk who we might call “The Fixer”.

According to news reports, an unidentified court clerk was fixing DUI charges… for a hefty fee. This clerk was charging thousands of dollars to drivers who were facing DUI and misdemeanor traffic cases in Orange County courts to alter their case record. Among the alterations were changes to case records to create fake plea bargains to a lesser charge, dismissed charges and lowered penalties.

The fixed cases go back to 2006 and are reported to involve over 1,000 cases. It was first discovered late this winter when a single missing document in a DUI case triggered an investigation. The deception was brazen as this clerk not only made up a plea bargain but also “assigned” to the defendants a defense attorney who never actually represented the defendant. The clerk achieved this fraud by figuring out how to enter the computerized court system and make the unauthorized changes.

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DRIVING UNDER THE INFLUENCE OF MARIJUANA

 

Just as it is illegal to drive under the influence of alcohol, it is illegal to drive under the influence of marijuana. It does not matter if the driver has a Medical Marijuana Identification Card; it is still a violation to drive while under the influence of any substance, including marijuana, if that substance affects your ability to drive safely. The statute[1] itself is vague and requires the subjective observations of the officer.

An arrest for driving under the influence of marijuana is treated much the same as an arrest for drunk driving except that the arresting officer will not suspend the driver’s license to drive immediately upon arrest. However, if the driver is convicted of the charge, the court will inform the DMV of the conviction and the DMV will proceed on suspension of the driver’s license to drive and the driver will be required to take DUI classes.

But just how does the prosecution prove that someone was driving under the influence of marijuana? After the arrest, the driver’s blood or urine will be tested for the presence of THC (tetrahydrocannabinol). But detection of THC in a person’s system does not establish evidence that the driver was impaired by this substance. The compound THC, which is the chemical that causes a person to get “high” on marijuana, can stay in a person’s system long after the high has worn off. In fact, THC can stay in a person’s system for days. Therefore, it is not enough for the prosecution to establish that the person had THC in his or her system at the time of the arrest, there must be a connection between the THC levels detected in the driver’s system and his or her driving impairment. Even the National Highway Traffic Safety Administration has stated that it is difficult to establish the effects of THC in a person’s blood and his or her driving performance.[2]

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Driving Under the Influence of Drugs

California has strict laws when it comes to driving under the influence of alcohol and/or drugs. Drugs, as defined by California law, include anything other than alcohol that may affect a person’s brain, muscles or nervous system. It is considered driving under the influence if a drug, prescription or otherwise, affects your ability to drive like a sober person.

The District Attorney may file criminal charges for driving under the influence of prescription drugs, over the counter drugs or illicit drugs. This is often surprising to my clients when they come to me with proof of a legal prescription. What I explain to my clients is that just because you have a doctor’s prescription to take a certain drug, that does not make it ok to drive while you are under the influence of that prescription drug. There are many types of medication that have an affect on our thinking, seeing and motor skills. For this reason, people are advised not to drive when taking certain types of medication.

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Defending a DUI in Orange County is a specialized field of law, which requires an experienced defense lawyer. Understanding the science associated with blood alcohol testing, as well as understanding evidentiary law, combined with criminal and constitutional law, is of key importance when defending someone who has been charged with driving under the influence. Equally as important, is understanding the rules and guidelines that the Orange County law enforcement agencies must adhere to when stopping and ultimately arresting someone.

An attorney who possesses these qualifications will have a good understanding of how to uncover the weaknesses in the evidence and in the prosecution’s case. Every arrest and every DUI case is different, but an aggressive DUI defense lawyer will always strive to minimize the impact that a DUI has on a person’s life, in every case. The focus should always be to attempt to reduce the charges or have them dropped altogether.

While some DUI cases are fairly simple and straightforward, there are those that are more complicated and require review and examination by a good DUI defense attorney in order to determine what, if anything can be done to minimize the negative impact that the arrest, and potential conviction, may bring.

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There is an interesting case out of Livingston County where a man was arrested and charged with DUI and then the case later dismissed.  According to the article, the man was involved in an accident and asked to take a breathalyzer test at the scene.  This, after the officer at the scene said he smelled alcohol on the man’s breath.  The man refused and was arrested, taken to the police station, booked and blood drawn.  Apparently, in Livingston County, once someone is arrested and the case submitted to the District Attorney, they must go ahead and file formal charges.  This is unfortunate for the individual in this situation because, even though it was later proved that he was not DUI, he now has an arrest on his record and a history of having a DUI filed in Court.   It is the right of any individual to refuse to take a roadside breath test and to refuse to submit to a field sobriety test.  However, when someone refuses, it usually results in being arrested and taken to the station where you are then required by law to submit to blood, breath or urine testing.  So as is the case with this individual, his blood results did prove that he was not DUI, but he was then faced with having the arrest and charges on his record.

In California, and more specifically Orange County, the District Attorney will usually wait until the results of the blood test are available before deciding whether or not to file charges.  This seems to make much more sense.  For the DA to file charges just based on the police officer’s opinion that the individual was, or may have been under the influence, doesn’t seem to make much sense knowing that if they wait for the results, they will have scientific proof one way or the other.

For someone to refuse to take a roadside breath test or submit to a field sobriety test, may make the individual look guilty or give an officer a reason to doubt sobriety.  So why would someone, who knows that they are not under the influence, refuse to submit to such roadside tests?  There are some who feel that the roadside hand-held breathalyzers are unreliable and may produce false results.  There are those who may refuse to submit to field sobriety tests merely due to the fact that they have balance issues and know that they will be unable to pass the test.  So there are legitimate reasons that people refuse these roadside tests, and as mentioned above, it is their right to do so.

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Recent statistics have shown that there are approximately 13,000 DUI arrests in Orange County alone, out of nearly 200,000 in the State of California. In some years, more than 90 percent of Orange County DUI arrests result in conviction.

A conviction of DUI carries severe and long lasting effects on a person’s life. An experienced DUI defense attorney can help to minimize the consequences of being arrested and charged with driving under the influence.

DUI, or driving under the influence, charges are typically charged as misdemeanors. However, some DUI’s can be charged as felonies. A DUI that is charged as a Felony DUI, usually involves DUI manslaughter; DUI causing serious injury; 3rd DUI conviction within 10 years; and 4th DUI conviction at any time. Drunk drivers who cause injury, or DUI with injury is sometimes referred to as a “wobbler” charge, which means that it can be charged as either a felony or misdemeanor. However, prosecutors typically pursue the charge that carries the most punishment. An experienced criminal defense attorney, or DUI defense attorney, will have the knowledge and experience to determine the likelihood of getting the felony reduced to a misdemeanor. A conviction of felony DUI carries a much more serious punishment than a misdemeanor DUI. A misdemeanor first offense DUI can be punishable by up to six months in the county jail, whereas a felony DUI can carry a year or more in state prison sentence.

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Could A New Law In Colorado Make 3rd DUI’s In California A Felony?

There is a proposed new law being considered in Colorado, which would make a third DUI a felony. Representatives of Weld County are reintroducing a bill that would make a third offense for driving under the influence a felony. If this law passes, and the results prove to be beneficial to the public in reducing DUI’s, it could have an impact on other states, including California. The proposed law would allow prosecutors to seek class 4 felony charges for people charged with their third DUI within seven years or their fourth during any time period. If passed, the bill would also lengthen the time period convicted drunk drivers are required to have interlock devices installed in their vehicles. Rather than one year, it may be as many as five years.

It appears that Colorado is cracking down in a serious way on people who drive while intoxicated. California, Orange county specifically, is extremely strict when it comes to DUI and thus, may be watching Colorado carefully to see how this all plays out. Orange County is continually trying to come up with new ways to seek out and crack down on individuals who drive under the influence of alcohol or drugs.

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