Articles Posted in DUI

There is no question that a lot of people are killed by drunk drivers. If we took all drunk drivers off the road, there would be around 1,000 people who wouldn’t have died last year alone on California roads according to National Highway Traffic Safety Administration (NHTSA) statistics. While California has some of the nation’s toughest drunk driving laws (although certainly not the toughest), this hasn’t stopped drunk drivers. In fact, according to the NHTSA, 30% of the people who die in traffic fatalities in this state are caused by drunk driving. That statistic has not been fairly consistent over the past decade. This rate as measured across the states runs from a whopping 42% in Wisconsin to a low of 19% in Utah.

Mothers Against Drunk Driving (MADD) would like to see California’s DUI laws toughened up. Other than the recent ignition interlocking device legislation, California’s DUI laws have not significantly changed since the reform of DUI laws in the 1980’s and 90’s. Our next-door neighbor, Arizona, has the toughest DUI laws in the nation. Yet, according to NHTSA data, Arizona’s fatality rate in alcohol-impaired-driving crashes is slightly more (at 31%) than the California rate of 30% and that has not changed over the last decade. South Dakota, which has the most lenient drunk driving laws in the nation, comes in a bit higher at 33%, but that is significantly lower than states such as Connecticut (39%), Texas (38%), and Alaska (36%), which have DUI laws that are even more strict than California’s.

This suggests that tougher laws and increased penalties may not be the answer. We all want to see the number of people killed by drunk drivers decrease but the solutions aren’t necessarily as simple as tougher laws. I would bet that even if the BAC threshold is lowered to 0.05% and significant mandatory jail time is enacted for even a first-time DUI, we won’t see a large decrease in drunk driving and the tragedies it causes. Consider that even cops, judges, and prosecutors drive drunk. If anyone should understand the legal consequences, they should be at the top of the list.

You know all about drinking responsibly, soon we will be hearing about serving responsibly. Perhaps you recall the tragic incident in San Diego two years ago when a drunken U.S. Marine driving his vehicle on the wrong side of the rode hit a car head on in which two UCSD medical students were traveling, killing both young women. Three other medical students in the car were injured. That accident prompted the victim’s classmates to lobby for legislation that would make it mandatory for alcohol servers to receive training about the effects of alcohol and how to serve responsibly.

A bill that passed in the California Assembly mandating alcohol responsibility training for bartenders was recently signed into law by Governor Brown. The new law, known as the Responsible Beverage Service (RBS) Training Program Act of 2017, requires the development of a statewide training program that will be administered by designated providers and will be mandatory education for any persons who will be serving alcohol. Alcohol servers will be required to complete this training in order to receive a required “Alcohol Server Certification.” The law requires that these programs be in operation on or before January 1, 2020. By July 1, 2021, all establishments that employ alcohol servers must require their servers to be certified.

The law broadly defines the parameters of the education but leaves it to the Department of Alcoholic Beverage Control to develop the curriculum. The training must include information on the laws and regulations related to alcoholic beverage control and information on how alcohol affects the body. The training can be done in person or online. Presumably, it will include testing to make sure the student understands the information before the certificate is awarded. The certificate will be good for three years. Anyone who serves alcohol but fails to have or maintain a valid certificate will be subject to disciplinary action; however, the violation is not grounds for any criminal action.

A couple of weeks ago, a complaint was filed in the United States District Court (for the Northern District of Georgia) alleging that the three complainants were subject to a violation of their Fourth Amendment rights when they were arrested and held in jail cells for hours all because a police officer trained as a Drug Recognition Expert (DRE) believed they were driving under the influence of marijuana. None of the three ended up testing positive for marijuana. Not only were the complainants’ liberties infringed but as the complaint noted, all three now have a record of arrest, which will stay with them for life and which they will now have to explain to potential employers, landlords, schools and others.

The complaint alleges these abuses by the same officer, but the violations alleged against the officer have certainly occurred in other jurisdictions, including California. I discussed the role of DREs and the increasing use of these so-called experts in recognizing drivers who are under the influence of drugs in a previous post. In California, as in Georgia, DREs go through many hours of training and employ multi-step protocol in determining whether a driver is under the influence of drugs. But as the federal complaint alleges, the DRE protocol has not been rigorously and independently validated.

The DRE protocol is not fool-proof and much of the expert’s determination is subjective. For example, do those watery eyes and balance issues indicate the driver is high on pot or are they just symptoms of the driver’s allergies? In fact, the protocol itself requires the DRE to form an opinion. Based on the DREs opinion, a driver can be subjected to arrest, detention and chemical testing. Sounds sort of reasonable; how else can the police get drugged drivers off the road if there is no reliable chemical roadside test?

DUIs are unfortunately routine in the Orange County courts. Usually the offender is punished with license suspension and probation and required to attend DUI education classes. But DUIs are often a symptom of a deeper problem. Two alternative courts in Orange County attempt to address the root causes of DUIs.

VETERAN’S COURT

Military veterans face difficulties that most of us do not. Not many of us see our buddies get killed or face the harrowing situations many soldiers experience in the combat arena.  As a consequence, many veterans who have participated in wars abroad come home suffering from post-traumatic stress disorder (PTSD), traumatic injuries including brain injury (TBI), and/or difficulties coping. It is estimated that between 10 to 20 percent of all veterans suffer from PTSD, which can be added to the many veterans who have been physically injured and disabled. Often these war experience or the injuries suffered cause the veteran to become depressed. Whether as a way of coping with physical or psychological trauma, a significant number of affected veterans turn to alcohol or drugs or become addicted to medications prescribed for pain.

EVEN POLICE OFFICERS, DISTRICT ATTORNEYS, AND JUDGES GET ARRESTED FOR DUI

How can we explain all the people who should know better getting DUIs? Never mind the average driver, who should know better, what about the cops, the firefighters, the attorneys, even the judges who get DUIs. It happens all the time in California and in every state. In Austin Texas, the District Attorney—not a district attorney—but the District Attorney, an elected official who was the head of the District Attorney’s Office in that city of over 1 million people, was arrested for driving while intoxicated (DWI) in 2013. She was driving in a bike lane (good thing there were no bikers in the lane) for more than a mile and was also observed veering into oncoming traffic. When she was stopped by the police, they found an opened bottle of vodka on the front seat. Her BAC was 0.239! Folks, that is three times the limit and near the level that results in alcohol poisoning and loss of consciousness.

Perhaps some of these people think they are “above the law” or that they can use their influence to get out of a drunk driving arrest. But I suspect it is more likely that many of our public servants, be they police officers, firefighters, judges, district attorneys or representatives in the Legislature who have been arrested for DUI have an addiction. As with many repeat offenders who drive drunk even though they have been convicted of DUI one or more times and know the consequences will be progressively more severe, still get behind the wheel after drinking, it is the addiction that overrules common sense.

IF YOU ARE HIGH, DON’T DRIVE

Driving under the influence of marijuana is an evolving subject of concern to safety experts and law enforcement. Last week I wrote about the difficulties California and other states are having establishing at what levels marijuana use presents a driving risk and how those risks are assessed. There is yet to be a consensus. This has happened before. In the 1930’s and 40’s as automobile ownership reached the masses, there was no general agreement among the states regarding drunken driving and until the 1950’s no reliable way to measure a driver’s level of inebriation. Before the advent of the breathalyzer, whether someone was too drunk to be on the road was left to the subjective decision of law enforcement and all too often, that mean the officer would just follow the driver home to make sure he or she made it home safely.

With the legalization of marijuana, we face similar dilemmas, and just like the early days when drunken driving laws were evolving, there is yet to be a reliable method to test a driver for marijuana testing and there is no agreed-upon limit where THC levels are considered too high to drive. In the mid-twentieth century, there were honest debates about whether a moderately intoxicated driver was dangerous and most states, even up to the late 1960’s, did not prosecute a driver if his or her BAC was under 0.15%. Statistical analysis and scientific studies later established that a BAC over 0.08% makes a driver dangerous and the trend is going lower, towards a 0.05% BAC threshold.

Even though recreational use of marijuana is now legal in California, it is still unlawful to drive its influence. (Vehicle Code §23152(f).) While the “per se” law makes a driver presumptively “under the influence” of alcohol at 0.08% BAC, how does the law define a driver under the influence of marijuana? The legal standard is that the driver’s ability to drive, with the same caution of a person who is not high under the same circumstances, is appreciably affected or impaired by the influence of marijuana. But there are two problems with this standard as far as it concerns driving under the influence of marijuana:

• The Legislature has set no legal “per se” threshold by which a driver is presumptively under the influence of marijuana to the extent that the driver’s ability to drive safely is compromised and
• There is no reliable test that can determine how much marijuana has been consumed by a driver or even when the consumption took place.

One of the unanticipated and rarely discussed fallouts after getting a DUI is depression. Many, most often those with a first-time DUI, report signs of depression after getting the DUI, such as deep sadness followed by anger and then sadness again. They often spend a lot of time ruminating over their stupidity and feel like losers. They are ashamed to share the details of their arrest and conviction and subsequent emotions with friends and family. This is more common than you would imagine.

Unfortunately, for some— often it is those who feel they have a reputation to protect— the feelings can even turn suicidal. I will tell everyone reading this: a DUI is a pain, it costs you a lot of money, and it can seriously crimp your lifestyle for a while but it too shall pass. I will also remind you that many otherwise responsible people have a DUI on their record. Heck, even one of our former presidents (at least one, maybe more) had a DUI in the past.

The healthy way to deal with a DUI, particularly if it is your first, is to see it as an opportunity: 1) you got a free pass because your drunken driving didn’t kill anyone, 2) you got a wake-up call alerting you to the personal consequences and hopefully will carry that lesson for the rest of your life, and 3) the DUI might alert you to an alcohol problem you previously refused to admit. I don’t mean to sound judgmental, I have had many DUI clients through my door and I understand the many circumstances that ended in their DUI arrest; none of us is perfect.