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NO, A CALIFORNIA MAN DID NOT GET ARRESTED DRIVING UNDER THE INFLUENCE OF CAFFEINE

Maybe you read the many news stories recently about the Solano County man who was stopped and arrested for DUI when an officer observed him driving erratically, so erratically that it was reported he almost caused several accidents. He field tested a 0.00% blood alcohol level but he was still arrested and taken in for a blood test because the officer suspected he was under the influence of a substance other than alcohol. The blood test came back positive…. for caffeine, nothing else, and boy did the media run with it. This story got so much traction it was even reported by CNN and other big-time news outlets.

What many of the news stories neglected to report is that the police believe he was under the influence of a substance that did not show up on the toxicology tests. The Solano County District Attorney even made it clear that he was not arrested for the caffeine in his system. But that didn’t stop the media from reporting the sensationalist headline: “CALIFORNIA MAN ARRESTED, CHARGED WITH DRIVING UNDE THE INFLUENCE OF CAFFEINE,” neglecting to mention (or leaving it as an afterthought at the bottom of the article) that the district attorney said it was not the caffeine that prompted the DUI charge. You can almost bet that this will become an urban myth with people swearing that you can be arrested for driving under the influence of caffeine.

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A DUI WILL PROHIBIT YOU FROM VOLUNTEERING WITH CHILDREN

For five years Kayla volunteered with a local after-school reading program helping disadvantaged children improve their reading skills. Because the volunteer position was working with children, Kayla had to get the state-required clearance, which consisted of a fingerprint criminal background check, known as a “live scan.”

After Kayla got a DUI, the volunteer program was informed that Kayla’s clearance was revoked and that effective immediately, she could no longer volunteer with the program. Kayla was surprised to say the least. What does a first-time DUI have to do with helping under-privileged children learn to read? In order to continue as a volunteer, Kayla would have to apply for a criminal record exemption. Kayla was humiliated; she felt like she had just been accused of being a child molester.

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REPEAT DUI OFFENDERS AND THE GENE CONNECTION

Most people learn the lesson the first time: After one DUI conviction, they cease drinking and driving. As I have discussed on this blog, a DUI not only results in a suspension of your driving privileges, criminal probation, mandatory DUI classes, and costs you a bunch of money, but it also can jeopardize your job and even make you unqualified for certain volunteer positions. So why would anyone drive drunk again after getting a DUI? Well, according the National Highway Traffic Safety Administration, approximately 33 percent of all DUI convictions are for repeat offenses. In California, that means any DUI conviction after the first in a ten year period. We might make the reasonable assumption that a portion of this 33 percent—probably a good portion— are people who are addicted to alcohol (or drugs as the case may be). Repeat DUI offenses are, in my experience, the telltale sign of an addiction.

Continuing with my theme on my criminal website blog, maybe these repeat DUI offenders struggle not only with the psychological addiction but actually are in a battle with their own genetic makeup. The “alcoholism gene” is a controversial subject and no one such gene or genetic profile has yet to be identified. However, research clearly points to a genetic component in alcoholism. Just as we are born with a certain color eyes or skin because it is part of our genetic structure, so too, we are born with certain personality traits. As research has recently shown, personality traits are identifiable on a person’s genome and certain personality genomes overlap with mental illnesses. Thus, a person who has a gene variation that predicted a neurotic personality, which is one of the five well-established personality traits (there are five: extraversion, neuroticism, agreeableness, openness to experience and conscientiousness), shared the gene variation that predicted clinical depression and generalized anxiety disorder.

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THERE’S A KILLER ON THE ROAD

Here’s an unfortunate statistic you don’t want to brag about: California has the top four of the top ten U.S. metropolitan areas with the highest DUI fatality rate per capita. Those areas: #1 San Bernardino, #2 Riverside, #3 Fresno, and #4 Sacramento have the highest rate of DUI fatalities in the entire country. San Bernardino’s rate is six times higher than the national rate! It’s neighbor, Riverside, has a rate that is three times higher.

The Department of Transportation estimates that approximately one-third of all traffic fatalities involve a drunk driver and that approximately 30% of all drivers in California who died in a car crash were over the legal limit of .08%. The overwhelming number of these fatalities were individuals between the ages of 21 to 34.

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IMMIGRATION CONSEQUENCES OF A DUI

Soon-to-be president Trump has stated that he intends to enforce deportation of certain immigrants. Might a DUI threaten the immigration status or residency of an immigrant in this country? The answer is yes. Under current law, even a person residing in this country legally but who is not a citizen can be deported for certain DUI offenses. That these laws will be more vigorously enforced than they are now is likely. While the laws governing immigration are very complicated, a DUI can affect a person’s immigration status in the U.S.

The key term the courts use to determine whether an offense such as a DUI is a deportable offense is whether it is a “crime of moral turpitude.” Among the categories of deportable offenses are these so-called crimes of moral turpitude. This is a catch-all phrase, which is not defined by statute but rather left to the courts to interpret. The courts have found that multiple DUIs, a DUI on a suspended license, a driving under the influence of drugs, a DUI with a child in the car and a DUI on top of another charge are all crimes of moral turpitude. While courts have held that a simple first-time DUI is not a crime of moral turpitude, a DUI conviction that includes an aggravating factor such the ones described above is and the driver can face deportation or revocation of his or her visa. The conviction may also prevent an immigrant from obtaining or renewing a visa or green card and can result in the denial of an application for United States citizenship.

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DOES THE PASSAGE OF PROP 64 MEAN MORE HIGH DRIVERS ON THE ROAD?

Now that Prop 64 has passed, will we see more drivers under the influence on California roads? Maybe. But as I discussed in previous posts, unlike alcohol, there is no definitive way to test for the immediate presence of THC (the chemical in marijuana and marijuana derivatives that makes a person “high”) in a person’s system. Furthermore, while the DUI laws make it illegal to drive under the influence of marijuana, whether a driver is under the influence is a subjective assessment made by the detaining officer and unless the car is reeking of pot, the evidence may be difficult to prove in court. While science and the legislature are working on better testing and specific statutory limits, the state is currently in the predicament where recreational use of marijuana is legal, much like alcohol use, but the laws controlling driving under the influence of marijuana are ambiguous.

The critics of Prop 64 pointed out that the proposition does not include a DUI standard for marijuana. Colorado has, for example, included in their statute a driving under the influence of marijuana threshold of 5 nanograms of THC. Still, as I previously discussed, scientists have not come up with a device as accurate as a roadside breathalyzer and that is problematic. Colorado may lead the way though as the police there are now testing five types of oral fluid testers that allow the police to check a driver’s saliva for THC at the time of the traffic stop. And even though there is no threshold standard for marijuana in a driver’s system (similar to the .08% BAC in the DUI laws) at the present time, that does not mean the Legislature cannot enact a law with such a standard—and they most certainly will.

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When parents send their kids off to college one of their biggest concerns is drunk driving. We worry that even though little Johnny or Suzie never got into trouble in high school, they might find the new-found freedom and new friends too much to resist. It is no secret that drinking is a big problem on college campuses. But what about drunk driving?

One thing we can be sure of is that this generation is more aware of the dangers and consequences of driving while intoxicated than previous generations were. But that doesn’t always stop the teenaged brain, especially one that is influenced by alcohol or other drugs, from making poor decisions. Hopefully, their decisions will not be as stupid as the Texas A & M freshman who recently ran smack into a cop car while driving under the influence of alcohol. But wait, it gets better. Why did she hit the cop car? Well, she was busy taking a nude snapchat photograph of herself driving to send to her boyfriend. Yes, college students don’t always use the best judgment.

Approximately 6.1% of the DUI arrests are arrests of those between the ages of 18 and 20 according to the latest DMV Annual Report. (Under the “zero tolerance” laws, a person under the age of 21 will be arrested for any amount of alcohol in their system.) The good news is that the rate of arrests for DUI for this age group has been steadily declining. The bad news is that this age group represents only about 2.5% of California’s population so the arrests in this age group are disproportionate to their representation in total state population.

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The “future” of self-driving cars is here. In Pittsburg, Uber is currently testing their fleet of self-driving cars. Pittsburg Uber customers can now order a self-driving car although during this test period, there is a safety driver at the wheel. Experts predict that self-driving cars will become a common sight on the road by 2020. Sometime in the very near future (say before 2025), self-driving cars will be available for purchase by the public. I don’t mean the type of semi-self-driving car Tesla has already introduced; I am talking about cars without a steering wheels or foot pedals!

While self-driving cars will supposedly be accident-free, I imagine that will be a long way down the road as we will probably have human-driven cars sharing the road for some time to come. I don’t envisage circumstances where we will suddenly have accident-free roads just because some cars are self-driving. Traffic cops will probably have jobs for at least another generation.

Now as an attorney who defends drivers arrested for driving under the influence, my first thought is how this will play out with the DUI laws. Imagine this scenario: Joe Partyboy takes his self-driving car out for a night on the town. Even though he is not driving it, he does have some control over the car because, after all, he has to tell it where to go. He orders his car take him to a number of bars and by time he is ready to go home, he is very drunk. He stumbles into his self-driving car and manages to input “go home” on the car’s navigation controls. On the way home, another car, the old-fashioned kind, hits Joe’s driverless car. He stumbles out of the car just about the time a police cruiser pulls up. Can Joe be arrested for DUI?

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DUI STATISTICS

Since 1989, the California DMV is legislatively mandated to produce an annual report that analyzes data regarding driving under the influence of alcohol and/or drugs. The most recent report, the 2015 Annual Report of the California DUI Management Information System, analyzes data from 2003 to 2013. This report gives us an objective look at DUI realities in the state.

We can start with the rate of DUI arrests over the ten year span. From 2003 through 2013, the rate of DUI arrests per 100,000 licensed drivers has been fairly consistent at a little under 1%, with a noticeable bump in 2008 and a significant decline in 2012-2013.

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With the popularity of ride-sharing apps that make it convenient and inexpensive to “hail” a ride in most urban areas, common sense would say that the incidence of DUI arrests and drunken driving accidents would decrease accordingly. After all, one of the best uses of these apps is to have a designated driver on-call. And, indeed, as I discussed in an earlier post on this blog, there are studies that preliminarily confirm that ride sharing apps have decreased the incidence of drunken driving and all the dangers associated with it, in particular the incidence of traffic fatalities caused by drunken drivers.

But a recent study found that the ride sharing apps have not had much of an impact at all on traffic fatalities, including those caused by drunken drivers. In a recent study released by the American Journal of Epidemiology, researchers from the University of Southern California and the Oxford University collected data for 100 different metro areas between 2005 (pre-ride sharing) and 2014. Controlling for a variety of factors that could affect the study, the researchers found that ride-sharing had no statistically significant impact on the number of drunk-driving fatalities. Several factors may explain these results. In particular, ride sharing vehicles represent a tiny percentage of the vehicles on the road. Additionally, the judgment of a driver who has had too much to drink may affect the driver’s ability to understand that he or she should let someone else do the driving.

While this study got quite a bit of press, it seems to be the only one so far that has found no impact—at least as far as drunk driving fatalities—since the advent of ride-sharing. Then again, it seems to be the only well-designed study so far on this question.

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