Articles Posted in DUI

In California, a first-time driving under the influence (DUI) is a misdemeanor offense. However, there are a few exceptions where even a first time DUI may be charged as a felony.

Under Vehicle Code section 23550.5, subdivision (b) a conviction for a first time DUI within a ten-year period can result in a felony conviction punishable by imprisonment in state prison if the defendant had been previously convicted of gross vehicular manslaughter while intoxicated (Penal Code section 191.5) or vehicular manslaughter (Penal Code section 192.5). While section 191.5 has the element of intoxication, section 192.5 does not. Furthermore, while the DUI statutes generally have a ten-year look back window in prosecuting multiple DUI offenses, section 23550.5(b) does not.

Example: In 2008, Henry, then 18 years old was racing his car in an unlawful exhibition of speed in violation of Vehicle Code section 23109. His vehicle went out of control and broadsided another vehicle killing both occupants in that vehicle. Henry was not intoxicated. He was convicted on two counts of vehicular manslaughter (Penal Code section 192.5). Twelve years later, Henry was arrested for driving under the influence pursuant to Vehicle Code section 23152, subdivisions (a) and (b). It was his first ever DUI arrest. Normally a first time DUI is a misdemeanor and very rarely, if ever, is punished by any jail time at all. But because Henry had a historical conviction of vehicular manslaughter, his DUI was charged as a felony and he faced a potential sentence of imprisonment.

A DUI arrest may surprise the casual drinker. That happened to my client Linda. She is not a big drinker but several years ago she had two glasses of wine while out to dinner. She drank those glasses over the hour-long dinner and thought she was fine to drive. She exited the parking lot onto PCH and got stopped because she failed to use her turn signal. Linda is a small woman and those two glasses of wine put her just over the BAC limit of 0.08%. She was shocked when she got arrested for driving under the influence.

But this post is not about Linda. This post is about most of the DUI clients that come to my office: almost all suffer from alcohol abuse to some degree or another.

Perhaps that is you. And perhaps you have resolved to address your drinking with the new year … as perhaps you have done at the beginning of previous new years. The task may seem overwhelming…how to admit you may have a problem, where to start? For some people, the barrier is the belief that they must quit drinking altogether and that is not something they desire. The prevailing wisdom for many years has been that any alcohol abuse is a sign of alcoholism and the only way to conquer alcoholism is abstinence from alcohol. In recent years, that paradigm is being questioned.

Is driving while high on marijuana as dangerous as driving under the influence of alcohol? Obviously, how much alcohol or marijuana matters. A driver who has a .19 blood alcohol content (BAC) is almost certainly going to be a more dangerous driver than someone who took two hits of marijuana.

There are far fewer studies on the effects of driving under the influence of marijuana compared to the years of research on how alcohol affects a driver. Experts who study the impacts of driving while high are still sorting it out. One thing is clear: fatal vehicular accidents involving a driver under the influence of cannabis have increased, more than doubling from 2000-2018.  In those years, fatal accidents involving a driver under the influence of marijuana went from 9% to 22%. The percentage of drunk driving fatalities during those years remained about same.

While marijuana-involved fatalities have increased, there is evidence that driving under the influence of cannabis is less deadly than driving under the influence of alcohol. Several studies have suggested that a driver who is high on marijuana is around twice as likely to be involved in a fatal accident as compared to a sober driver. That is a matter of concern. However, it is estimated that a drunk driver is almost 18 times more likely to be involved in a fatal accident!

On New Year’s Day 2021 in Central California, a driver with twice the legal limit of 0.08% blood alcohol concentration (BAC) in his system was speeding at approximately 90 mph on a two-lane roadway. He lost control of his vehicle and crossed over the centerline causing a head-on collision with a truck traveling in the other lane. In the truck was one adult and seven children. The collision caused the truck to combust and all eight occupants in the truck died, as did the drunk driver.

This tragic incident and many that preceded it, prompted the National Highway Traffic Safety Administration (NHTSA) to recommend that all new vehicles be required to be equipped with an alcohol impairment detection system. According to the NHTSA one in three traffic fatalities involve an impaired driver. AT present, there is no standard chemical testing for cannabis impairment or a in-field method for detecting drug impairment, such devices, such as ignition interlock devices (IID),  are primarily effective for alcohol impairment. However, there is already technology that can detect whether a driver is alert by tracking the driver’s face and eyes and by lane veering. Such technology not only detects impairment but whether a driver is dozing off or otherwise to inattentive to drive safely.

The NHTSA has actually gone one step beyond recommending that vehicle manufacturers incorporate these devices and has asked that the federal government require that all new vehicles be equipped with these devices. The NHTSA is likely to see its recommendations become law.

The news of the DUI arrest of Paul Pelosi, Nancy Pelosi’s husband, has been splashed all over the news this week. Mr. Pelosi was arrested for driving under the influence of alcohol after his Porsche was hit by another vehicle. Fortunately, the collision was minor, and no one was hurt

This incident serves as a warning to those who think they are fine to drive after a few drinks. Maybe such a driver can drive within the lines and within the speed limit. Maybe that slightly inebriated driver stops at all the stop signs and red lights and remembers to turn on the headlights. Maybe that driver does everything right. But then an unplanned event happens. Most often, it is exactly what happened to Mr. Pelosi: another driver causes an accident. Or it may be that an animal, say a deer, runs in front of the driver’s vehicle causing the driver to swerve or otherwise causing an incident that catches the attention of law enforcement. Maybe a pedestrian or bicyclist crosses the street too close to the driver’s on-coming vehicle causing an incident. You get the picture. Any number of unforeseen events, events that were not a direct result of the driver’s conduct, can trigger an encounter with law enforcement, which can trigger a DUI.

Under due process laws, an officer must have reasonable suspicion to initiate a traffic stop. In other words, the officer must witness the driver violating a traffic law – it could be as simple as a broken taillight – but in most cases, an officer cannot stop vehicles without reason. (An exception is a sobriety checkpoint.)  If the officer can articulate a reasonable suspicion for the stop, if the officer reasonably suspects the driver to be under the influence, he or she will initiate a DUI investigation.  The officer must be able to articulate what caused the belief that the driver was under the influence. That could be slurred speech, the smell of alcohol or marijuana, blood shot eyes and so on.  The bar gets a bit higher if the officer determines that the driver should be arrested for DUI.  That is, the officer must have probable cause to arrest the driver for DUI. This requires specific facts for the arrest. This may be the same observations that triggered the investigation,  but is often poor performance on FSTs (which I have discussed elsewhere, the informed driver should always decline).

On again, off again. There has been much confusion surrounding diversion for misdemeanor DUIs. You may have read my earlier post where I discussed the differing opinions in the county superior courts. If not, a brief recap is as follows:

On January 1, 2021, a new law took effect which allows superior court judges to order diversion for most misdemeanors instead of a conviction. (Penal Code section 1001.95.)  If the defendant successfully fulfills the diversion order, the misdemeanor charge is dismissed forever more. As the law Is written there is a handful of misdemeanor offenses that are not eligible for diversion. Driving under the influence is listed among the exceptions.

However, there was a law already on the books, Vehicle Code section 23640, that stated a DUI charge cannot be suspended or stayed by the superior court in order to allow the defendant to participate in a rehabilitation program, nor can the court dismiss the charge upon the offender’s successful completion of such a program. This appeared to be a conflict with the new misdemeanor diversion law, at least for those charged with DUI.

For foreign nationals living or visiting the United States on a temporary basis, a DUI arrest has consequences that may affect the individual’s right to enter the U.S. in the future.  A non-immigrant visa holder faces the same legal consequences that citizen or permanent resident faces after DUI arrest, but with a big twist: Whether on a tourist (visitor) visa, student (study) visas, or employment visa, a DUI arrest may result in the automatic revocation of the visa.  The DUI arrest of an individual on a nonimmigrant visa, if not successfully challenged, can also result in difficulties on application to enter the U.S. in the future. It could even result in a denial of future entry into the U.S.

The United States government does not look kindly on temporary visitors and residents driving under the influence (that might be an understatement).  Under the United States Department of State policy, a nonimmigrant’s visa may be automatically revoked upon an arrest for DUI; not a conviction, just an arrest! (Although a conviction will also result in automatic revocation of the visa,) The policy allows the non-immigrant visa holder to remain in the United States for the duration of the visa, but once the individual leaves the United States, the visa is revoked and cannot be renewed. Should the individual desire to return to the U.S., an entirely new visa application process is required and due to the DUI arrest (or conviction) the individual will be required to undergo evaluation by a panel physician designated by the consular office for the presence of a “mental disorder;” here, that disorder would be alcohol dependence or abuse. This requirement applies if there has been one single arrest for D.U.I. with three calendar years or a DUI conviction at any time in the visa applicant’s history.

What does this mean for an individual in California (or anywhere in the U.S.) on a nonimmigrant visa who is arrested for DUI? First and foremost, it means that individual must contact a DUI defense attorney immediately. Since many visas are of short duration, there is a particular urgency to address the DUI arrest. The nonimmigrant has due process rights as long as he or she is in the U.S. Once outside the U.S., due process rights no longer operate.