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ROADSIDE MOUTH SWAB DEVICE TESTS FOR SEVEN DRUGS IN A DRIVER’S SYSTEM

Police are increasingly concerned about drivers who are under the influence of drugs (DUID), especially since marijuana has been legalized in the state. California Vehicle Code section 23152(e) makes it unlawful for someone to drive under the influence of any drug and as I discussed previously, this includes prescription and even over-the-counter drugs if that drug affects a person’s ability to drive safely. But unlike driving under the influence of alcohol, there is no quantitative standard by which this influence can be measured, it is up to the subjective determination of the cop and other evidence, including observations and the results of a blood test.

While there is no current method of road side testing for drugs that measure how much of a drug is in a person’s system, a new device, with a rather ominous sounding name. the Dräger DrugTest 5000, is currently being deployed in Los Angeles and San Diego and sure to soon appear in other California cities. This device can test for the presence of seven drugs from a simple mouth swab. The device is a compact, easy to use mobile drug screening machine that allows a police officer, who upon reasonable suspicion of DUID, to request a mouth swab from the driver, which is then placed in the machine. The swab is mixed with a vial of testing solution and after about six to eight minutes it will print out a receipt that shows negative or positive results for marijuana, cocaine, opiates, methamphetamine, amphetamine, methadone and benzodiazepines. In addition to road-side use, the device is being employed at DUI checkpoints.

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A BRIEF HISTORY OF DUI LAWS

A couple of generations ago, drunk driving was almost acceptable. You’ve probably heard about “one for the road” — it was a common refrain at parties and bars and the phrase was often used in songs and movies during the last century. Maybe you saw the many Mad Men episodes depicting the various characters driving while way too inebriated. That wasn’t artistic license, that happened back then – a lot. And it was not uncommon to hear the “funny” anecdotes like the one about old Uncle Joe driving home so drunk that he hit a tree. When the local sheriff arrived, they woke up Uncle Joe, who was slumped over the steering wheel snoozing, and escorted him home to sleep it off—warning him to lay off the booze as they left.

Yet, driving under the influence of alcohol has been unlawful almost since the time the first automobile hit the road. The first state to enact a law that made it illegal to drive under the influence of alcohol was New Jersey, although some claim New York had a law before New Jersey. The New Jersey law, enacted in 1906 had no specific threshold level. If the cop thought you were too drunk to be driving, you were arrested (or perhaps sent home with a warning). Other states soon followed New Jersey’s lead. I suppose since most people still got around in carriages during those day and horse and buggy driver could just as easily be arrested for drunken driving as the dapper gentleman driving a new-fangled horseless carriage.

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DUI LAWS ARE STRICT FOR THOSE HOLDING A COMMERCIAL DRIVER’S LICENSE

A big rig carrying a load of steel beams and a crane flipped over on the 101 near San Rafael this past week. The accident, which blocked three of the four lanes, happened at 8 a.m. during the height of rush hour on a Monday morning. Yes, big rigs flip over, our freeways get blocked, sometimes even during rush hour. But there was something striking about this accident: the driver of the big rig had a blood alcohol level at five times the legal limit for commercial drivers. At 8:00 in the morning! Now, that is frightening. Miraculously, no one was seriously injured or killed. The driver was booked on felony DUI charges and. If convicted, he will probably be searching for a new line of work once he serves his sentence.

Although we normally think of the DUI blood alcohol content (BAC) threshold as .08%, for commercial-licensed drivers the limit is lower. Anyone who holds a commercial driver’s license is considered DUI if his or her BAC is .04% or higher. If a driver with a commercial license is convicted of driving with a BAC of over .04%– even if the driver wasn’t driving a commercial vehicle at the time of the DUI arrest—his or her commercial driver’s license will be suspended for at least one year (three years if driving a vehicle carrying hazardous materials). This is a straight suspension on the commercial license, no exceptions. If it is the commercial-licensed drivers second DUI for driving at .04% BAC or above, the law requires that the commercial driver’s license be revoked for life. These laws apply to a commercial driver who is driving under the influence of drugs also.

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DUI CHARGES CAN BE FILED UP TO ONE YEAR AFTER A DUI ARREST              

When a person is arrested for suspected misdemeanor DUI, he or she is typically booked at the police station, issued a citation to appear in court, and released once someone comes to pick them up. The citation to appear in court concerns the criminal charges, not the DMV administrative sanctions. The citation advises the arrestee of the court location and date in which he or she is to appear. If the arrestee does not appear on that date, a bench warrant for his or her arrest will probably be issued. The bench warrant is usually recalled once the person does appear in court.

But what if the person appears in court on the date and time stated on the citation and the clerk informs him or her that the case is not on the court’s calendar. It happens. Unfortunately, that doesn’t mean that the arrestee somehow lucked out and the criminal charges disappeared. Rather, what it probably means is that prosecutor just hasn’t gotten around to filing the charges.

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HOW ACCURATE ARE FIELD SOBRIETY TESTS?

One of the first things an officer will ask a driver to do when he or she suspects the driver is under the influence is to perform field sobriety tests or FSTs for short. In California, drivers are not required to submit to these tests but the officer is not required to inform the driver that the tests are not required. Consequently, most drivers will submit to the tests, either thinking they must or because they are afraid to say no, or because they believe they can pass the FSTs and be on their merry way (that’s a false assumption). FSTs are almost designed to be failed—even many entirely sober people will “fail” the tests—and the only real purpose of FSTs is to give the officer a reason to arrest the driver and to provide the prosecution with evidence.

But how accurate are FSTs anyway? The Standardized Field Sobriety Test, which is endorsed by the National Highway Traffic and Safety Administration (NHTSA), and used in California, consists of three separate tests: The Horizontal Gaze Nystagmus (HGN), the Walk and Turn (WAT). and the One-Leg Stand (OLS). The HGN measures eye movements in which the officer is looking for three indicators that suggest alcohol impairment. The WAT is the one most people associate with roadside drunk driving tests: the driver is asked to walk heel-to-toe in a straight line and to return in the same manner. The OLS requires the driver to stand with one foot approximately six inches off the ground and to count to 30. Any swaying, loss of balance, or inability to stay on one foot for 30 seconds may indicate alcohol impairment. According to the NHTSA, these three tests accurately detect alcohol impairment in 91% of all cases. According to the NHTSA, non-standard FSTs are unreliable.

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A TOSTITOS BREATHALYZER?

In strange DUI news, Tostitos, yeah, the corn chips, is marketing a limited-edition “Party Safe” version of its Tostitos chip bag that …. get this: serves as a breathalyzer. Well, not really a breathalyzer but the bag contains a sensor that will detect alcohol on a person’s breath. If the sensor detects alcohol on the person’s breath, the bag’s logo design that includes a green circle will turn the circle red with a warning message “Don’t Drink and Drive.” An Uber code, which can be tapped by a smartphone to send out a driver to the location (using near-filed communication technology) will also appear on the bag. And in order to entice the drinker to call Uber instead of driving, the Uber code includes a discounted Uber ride. Gimmicky, you bet. But Tostitos (and Uber) may be on to something.

While this particular technology is rudimentary and doesn’t actually measure the blood alcohol content, as a breathalyzer does, it does detect whether there is alcohol on a person’s breath. You might surmise that the person already knows if he or she has been drinking, but this serves as a not-so-subtle reminder that maybe they shouldn’t be driving. The Tostitos bag was produced in limited quantities specifically for the Super Bowl but might this be a harbinger of things to come?

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IS A PERSON’S DRIVING ABILITY AFFECTED BY MARIJUANA?

As the laws and law enforcement scramble to keep up with the rapidly changing laws on marijuana use, researchers are asking the question: How does marijuana affect driving ability? The answer to this question has important implications for the establishment of driving under the influence of marijuana thresholds such as those already in place for driving under the influence of alcohol.

As to be expected, law enforcement organizations with an anti-drug agenda, say that any amount of marijuana use significantly impairs driving ability but studies, perhaps with a less biased point of view, have not yet definitively answered the question. The primary psychoactive ingredient in marijuana, THC, affects a person’s coordination, sensory and time perceptions (according to the National Institute on Drug Abuse (NIDA)). These brain activities are important in driving so it would stand to reason that marijuana use would affect a person’s ability to drive safely.

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So, you are out with your buddies at the golf course on a beautiful Southern California day–putting along in your golf cart, knocking in a few balls and beers – ah, this is the life. Maybe you are having too much fun because you and your buddies are getting a little rowdy—enough to trigger a complaint. Suddenly the good life goes bad as you see one of Orange County’s finest approaching you and your buddies. “Step out of the golf cart please.” Next thing you know, the officer is conducting field sobriety tests on you.

Does this sound far-fetched? Well, an arrest for driving a golf cart under the influence can and has happened in this state. Under California law, it is unlawful to drive a vehicle while under the influence of alcohol, which as everyone knows is defined as more than 0.08% BAC. You are certainly driving as defined by California’s vehicle code and a golf cart is a vehicle. As defined in Vehicle Code section 670, a vehicle is “a device by which any person or property may be propelled, moved, or drawn upon a highway.” A golf cart is such a device under this broad definition but what about that “highway” part? Under California law, “highway” means any public street or roadway. Technically speaking, a golf cart could motor down a “highway,” even if these vehicles are usually confined to the links.

The DUI laws in California once made it illegal to drive a vehicle while under the influence on highways or other areas open to the general public. But in 1982, the law was changed to prohibit simply driving under the influence without any reference as to where. The courts have held that the wording of the statute means that it is unlawful to drive under the influence anywhere in California and that includes private property and even golf courses.

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In what must be a record—I have certainly never seen this in my almost 25-year career defending DUIs—an Orange County man was recently arrested for DUI, his ninth in six years! Several news outlets even reported that it was actually his tenth DUI arrest in six years. This driver is (or was) a successful businessman with a company that employs over 50 people and at one time, he was paying a driver $50,000 a year to drive him around.

On January 29, after crashing his vehicle into an electrical box in Placentia, police responded and found the driver to be under the influence. Not only was he driving under the influence but he was driving on a suspended license (for prior DUIs) and he was also cited for not having an ignition interlock device on his vehicle. (I am not sure why an IID would be ordered if his license was suspended but perhaps the court had ordered the IID when, and if, his license was reinstated.)

The driver clearly has an addiction problem. Despite being sentenced to prison for his seventh DUI in 2014, he received an eighth DUI in 2015 and was sentenced to prison again. He entered rehab and agreed to take Vivitrol, a drug that is used to help with drug and alcohol dependencies. He was under Post-Release Community Supervision, when this recent DUI occurred. Post-Release Community Supervision is a type of probation supervision that is offered to non-violent offenders, mostly to relieve the California prison overcrowding.

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WEARABLE BLOOD ALCOHOL MONITORS

You’ve seen the ankle bracelets that some people are ordered by the court to wear to monitor their whereabouts while under house arrest. And you are probably aware of the Ignition Interlock Devices (IID) that are being ordered in many counties in California after conviction on a DUI. Here’s a new one that will probably become a new tool in the state’s ever sophisticated ways to regulate drunk driving: Wearable Blood Alcohol Monitors.

Several wearable blood alcohol monitors have been developed and will soon be available to law enforcement and the public. One of these devices—a type of skin patch— has been developed by UC San Diego engineers. It is described as a “temporary tattoo” that sticks to the skin and electrochemically detects alcohol levels through the wearer’s sweat. Maybe they decided to describe it as a “tattoo” rather than a skin patch to make it sound more appealing. In order to read the results, a small electronic circuit board is connected to the tattoo by a magnet and the results are communicated via Bluetooth.

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