Articles Posted in DUI

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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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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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