Articles Posted in DUI

We know that sleep walking is a genuine disorder. It is a state of combined sleep and wakefulness leaving the sleepwalker is in an attenuated state of consciousness.  Those with the disorder can even perform complex tasks behaviors while sleeping such as moving furniture around, cooking, or cleaning. In rare cases, according to the American Alliance for Healthy Sleep and other organizations devoted to sleep studies and education, a sleepwalker may get in his or her car and drive away.

In a 2012 appellate case, a driver who was convicted of driving under the influence of drugsunder Vehicle Code section 23152(a), alleged that he was sleep driving and therefore not criminally liable. The driver who had taken prescription Ambien prior driving his car. He was observed driving erratically. When detained by the police, the driver appeared coherent and was cooperative, but he had glassy eyes, was swaying, and his speech was slow and slurred, but he did not smell of alcohol. The officer concluded that the driver was under the influence of drugs. The blood test results showed that the driver had zolpidem in his system. Zolpidem is marketed under the brand name Ambien. The driver’s blood test results indicated that the driver had taken more than the recommended dosage of the drug. According to both the prosecution and defense experts at trial, sleep driving can be a rare side effect of taking Ambien. Indeed, among the warnings on the Ambien label, is that it can cause sleep driving.

At trial, the driver argued that he acted (drove) while legally unconscious. Unconsciousness can be a complete defense to a criminal charge. (Penal Code §26.)  To be legally unconscious does not require that a person be unable to respond or walk, and so on but only that the person is not conscious of acting. For example, someone could perform an unlawful act while suffering from a delirium or after unknowingly ingesting a drug (for example, drinking punch not knowing it is laced with LSD, as happened in an actual California case), or after being taking a prescription drug. But that last example, which would seem to apply here, has a catch. The defense of unconsciousness is only available if it is not induced by voluntary intoxication. (Penal Code §22.) This exception makes sense: someone who decided to get drunk or high should not them be able to use the defense that he or she was not aware. The driver here voluntarily took the Ambien and he had admitted that he knew Ambien can cause sleep driving. Knowing the potential effect is key.

While most DUI charges conclude with a plea bargain, some DUI defendants chose to put their case before a jury.  A trial before a jury of his or her peers is the DUI defendant’s right under the U.S. and California Constitutions. Whether the DUI is charged as a felony or a misdemeanor, the defendant has this right to a jury trial.

When would a jury trial be a better choice?

There are situations where a defendant might choose to go to trial on a DUI charge. Some examples include: When the prosecution refuses to negotiate on a charge even though the prosecution’s evidence is less than certain, when the charges are serious felony charges (such as DUI enhancements), when the BAC evidence is right on the threshold, or when a commercial driver’s license in on the line.

In the last of my three-part series about Dave’s misadventuresafter an afternoon of beer and barbeque at a friend’s, we come to another possible defense Dave may have following his arrest for DUI and a hit and run. To summarize: Dave ran into his neighbor’s car on his way home from the barbeque and fearing that he stood a chance of getting arrested for DUI if he stopped and reported the mishap, he made the decision to go straight home and hope for the best. Perhaps he planned to go tell his neighbor after he sobered up a bit, but it was too late; another neighbor, Millicent, saw the accident and reported it to the police. When the police arrived at Dave’s house, Dave decided to “hide” upstairs and his wife covered for him. The police, suspecting Dave was in the house and that he had been drinking, conducted an unwarranted search of the house after Dave’s wife refused to consent to the search.

In my previous blog, I discussed Dave’s potential defense based on the unlawful search of his house. Even though this presents a strong defense argument, the judge still might not grant Dave’s motion to suppress the search.

Dave has another potential defense: the police never witnessed him driving; they are basing their arrest for DUI on Millicent’s report that she saw him driving. Let’s start with the Penal Code. Section 836 of the Penal Code does not permit an officer to make a warrantless arrest for a misdemeanor unless the misdemeanor took place in the officer’s presence. Dave’s DUI, his first,was a misdemeanor. Does that mean that the officers’ arrest was unlawful under Penal Code Section 836? Well, not always.

Last week I discuss a hypothetical, but realistic, scenario where our driver, Dave, hit a neighbor’s car on the way home after enjoying an afternoon barbeque with friends. Dave had had a few beers so he worried that if he stopped and reported the accident, he might also end up with a DUI.I wouldn’t advise anyone to do what Dave did, but he decided to drive home and avoid the consequences.

Unfortunately for Dave, his neighbor, Millicent, witnessed Dave backing up and driving off after he hit the car. When she saw the damage done to the car and believing she recognized Dave as the culprit, she called the police. When the police arrive, Dave runs upstairs and his wife answered the door. She denied any knowledge of the accident even though there was damage to their car now parked in their driveway that was consistent with the neighbor’s report. Dave’s wife even went so far in her attempts to protect her husband to say that she had just brought the car home after running errands. She denied the police request to search the house. The police, believing that Dave was inside, searched anyway and found Dave. Dave was arrested and later charged with DUI, hit and run, evading arrest, and DUI test refusal. Dave might be in trouble… or maybe not.

If the search of Dave’s house without an arrest was unlawful, the evidence obtained subsequent to the arrest must be suppressed. If the evidence is suppressed, there is no case against him. (The hit and run might survive but the other charges would not.) Was the search unlawful?

Driving under the influence is most commonly associated with younger drivers under the influence of alcohol, but if you are a regular reader of this blog, you know that unlawful DUI includes not only driving under the influence of alcohol but also driving under the influence of drugs, both legal drugs (including prescription drugs) and illegal drugs. Driving under the influence of drugs is becoming an increasingly dangerous occurrence on our roads and highways. According to the Center for Disease Control and Prevention (CDC) drugs (legal and illegal) account for 16% of all motor vehicle crashes. The National Institute of Drug Abuse (NIDA) estimates that 11% of fatal vehicle crashes involved a driver under the influence of a drug or drugs.

With our aging population, another fact must be addressed: older adults are more likely to be taking prescription drugs that may affect their ability to drive safely. This is a sensitive topic that hasn’t received much attention. The NIDA cited a study that found more than one-quarter of drugged drivers involved in fatal crashes were over the age of 50.   As the NIDA observed: coupled with mental decline and the slowdown in the ability of an older adult’s system to process drugs, the use of prescription drugs can lead to the unintended driving under the influence by older adults.

And just because the drug is prescribed does not mean the older driver can’t be arrested for a DUI. This is especially true if the driver causes an accident or worse.

WHOA COWBOY; YOU CAN’T RIDE YOUR HORSE DRUNK DOWN THE 91 FREEWAY.

Being arrested for driving under the influence doesn’t always happen when are driving a car. As I previously discussed, you can get a DUI while driving a golf cart, riding a bike, or operating a boat or jet skis. Here’s a new one: Riding a horse while under the influence.

Yes, indeed. This past weekend, a man on a white horse was arrested for riding his horse on the 91 Freeway. Riding a horse down the freeway is unlawful enough, but this knight on his white horse was suspected of being drunk, very drunk. His initial blood alcohol screening registered a .021% BAC.

DUI School

When a driver is convicted on a DUI, his or her term of probation will include a requirement to complete a DUI program. On a typical first-time conviction, the driver will be required to complete a 3- to 4-month, 30-hour program. In some instances, the court may order a shorter program of 12 hours if the offense was reduced to a “wet reckless” or for other reasons, such as a conviction on a below .08% BAC. However, if the driver’s BAC was over .19% or if there were extenuating circumstances, such as reckless driving or an accident coincident to the DUI, the court may order a 6-month, 42-hour program or even a 9-month, 56-hour program.

In straight DUI conviction, without enhancements, the 6-month and 9-month programs are generally ordered only on a second or third DUI (within ten years). A driver convicted of a third (or more) DUI within ten years will be ordered to complete an 18-month, 64-hour program or even a 30-month DUI program.

A while back, I wrote a piece on my criminal website blog about donkeys serving time in jail. Now, we have a dog arresting a DUI suspect…. Well, sort of.

Last week, police attempted to stop a suspected DUI driver in Orange County. The police had been alerted because they received reports that the driver had hit a trash bin. The driver made the poor decision to keep on driving, entering the 55 freeway then driving onto the 91 before exiting. At some point he stopped, but by now this had become a full-on police action, with a K-9 unit and even a SWAT team called in.

A stand-off ensued but after 4 ½ hours, it was the police dog who took down the recalcitrant DUI suspect. Reportedly, when the suspect came to a stop, surrounded by police vehicles, he made threats to harm the officers. The suspect apparently had mixed feelings as he kept opening and closing his car door. This gave the police dog an opportunity to move in. The dog took multiple punches from the suspect but just kept at him. This allowed the police to move in and taser the suspect. The suspect was arrested and taken in an ambulance where he was being treated for dog bites. The police report he was suspected of driving under the influence of drugs but did not give any more information.

IT WAS MY CAR’S FAULT

It was sure to come soon. A San Francisco driver was arrested for DUI last week after he was found sleeping behind the wheel of his stalled Tesla smack dab in the middle of the Bay Bridge. The driver pleaded his innocence to the officers on the basis that his Tesla Model S was on autopilot. Nope, not so fast—at least for now. While the “self-driving” ability of the vehicle may have caused the driver to believe he could use the car as his “designated driver” or at least use that as an excuse when the cops found him, the Tesla isn’t yet ready for prime-time self-driving capabilities. For now, the self-driving cars have all the driver controls and requires an alert driver in control of the vehicle, even if it is presumably driving itself.

But this poses an interesting question that law makers will have to address in the near future when self-driving cars really are self-driving with no driver required. Yes, that is coming.