by

Driving under the influence of marijuana (DUIM) is certain to become the new watchword on California highways. Medical marijuana has been a presence in California for many years and the use of recreational marijuana may become legal if California voters approve a proposed November 2016 ballot initiative. But at present, California law has no “per se” law governing the act of driving under the influence of marijuana as it does for driving under the influence of alcohol.

As everyone knows, having a blood alcohol level over .08% while driving in California creates the legal presumption of driving under the influence. Whether you think you are affected by the alcohol in your system or not, if you have a .08% blood alcohol content, you are driving under the influence under the law, no “ifs, ands, or buts.” That is the “per se” law. However, if the cops suspect you are driving under the influence of marijuana, there is no per se law in California. In other words, in order to be convicted of driving under the influence of marijuana, the prosecution must prove you could not safely drive due to marijuana intoxication by the circumstantial evidence. That may soon change.

The move is on to enact a per se law in California that would make any driver who tests positive for a certain amount of THC presumptively driving unlawfully under the influence. Currently only Colorado and Washington State—two states that have legalized the recreational use of marijuana— have per se DUIM laws. In both states, a driver who tests with more than 5 nonograms of THC per millimeter of blood is presumed to be DUIM. As I discussed in a previous post, testing for THC is burdened by a lack of reliable and accurate testing methods. However, scientists are working hard to develop methods to test for THC levels that officers can use in the field.

Continue reading →

by

A couple of month ago I blogged about the difficulty law enforcement has proving that someone is driving under the influence of marijuana. The cops may suspect the person of driving under the influence of marijuana but because there is not a readily available and reliable chemical test as there is for alcohol it is sometimes difficult for the prosecution to secure a conviction.

That may soon change. A bill introduced in the California Senate in February 2016 would allow officers to use a hand-held electronic device which is able to test for the presence of marijuana and other drugs by use of an oral swab. The bill, if it becomes law, will allow chemical testing for drugs in the same way that chemical tests for alcohol are now used. As with alcohol testing, refusal to submit to the drug test would result in enhanced penalties including the mandatory suspension of the person’s license to drive for one year. The bill, SB 1462 is currently in committee.

Critics of the swab testing maintain that the technology is unproven and that the accuracy of such tests has not been scientifically demonstrated. The swab tests are being used in test programs around the country, including in some California counties. These programs are being monitored by the federal government. Should SB 1462 become law, there will surely be challenges to the swab tests and it may take years for the challenges to wind their way through the appellate courts.

Continue reading →

by

The Marijuana Laws Are A-Changin’

Back in 1964 when Bob Dylan sang “The Times They Are A-Changin’,” marijuana was called the “killer weed” and even simple possession was a felony in California carrying a sentence of one to ten years. Now over 60 years later, the citizens of California will decide whether to legalize the recreational use of marijuana. The wheels of change grind slowly.

California was the first state to enact laws allowing the regulated sale, cultivation, and use of medical marijuana. Since then, other states have pushed forward and made the recreational use of marijuana legal. Recreational use is now legal in Oregon, Washington, Colorado, and Alaska, as well as the District of Columbia. California has its own ballot initiative, which will be before the voters in the 2016 elections. If the initiative passes, the recreational use of marijuana will become legal.

Continue reading →

by

Every day, approximately 30 people are killed by a drunk driver in this country. That translates into somewhere around 11,000 people killed every year by a drunk driver. That’s almost one-third of all traffic-related deaths in this country. If you drink and drive, you could be this country’s next murderer. Let that sink in before you get behind the wheel after one too many.

Sadder still, of over 1,000 children under the age of 14 who are killed in a traffic accident each year, approximately 20% involve a drunk driver and over half of those children were riding in the car with the drunk driver. That’s over 500 children each year who are killed when an irresponsible adult decides it’s okay drive impaired with a child in the car.

According to the CDC, there are hundreds of millions of driving under the influence episodes. When that is considered, only a very tiny percentage of drunk drivers ever cause a traffic-related death. And that is the kind of thinking that convinces someone who shouldn’t be driving to do so anyway: “I’m okay to drive; I only had three glasses of wine.” “I’ve left this bar many times and I can drive home just fine.” “What’s the chance I’ll get caught; I can drive without weaving.” Think about the 11,000 mothers, fathers, daughters, sons, brothers, and sisters who leave behind a grieving family every year; are they just a very small statistic?

Continue reading →

by

Its springtime and Daylight Saving Time is back on the clocks — time to take the bikes out of the garage and head down to the beach. One of the joys of living in California is cruising on the many bike paths, stopping along the way for a beer or two. Be careful! You can get arrested for riding a bike under the influence.

Under California Vehicle Code section 21200.5, it is illegal to ride a bike on a public road, path, or sidewalk while under the influence of alcohol or drugs. Although the statute does not specify a threshold blood alcohol level, the level applied to motorist (0.8% BAC) is the presumed threshold level for biking as well since the vehicle code provides that cyclists are subject to the same responsibilities as are drivers. (It is possible, however, to be considered under the influence at less than .08% BAC.)

When an officer stops a cyclist suspecting that the cyclist is under the influence, the officer will usually ask the cyclist to perform a field sobriety test (just like the tests used when a driver is suspected of being under the influence.) You should know that the law does not require you to submit to a field sobriety test when you are stopped on your bicycle or driving your car. In DUI cases, even without the field sobriety test, if the officer has reasonable suspicion that you are under the influence, he or she will arrest you and conduct a chemical test, to which the law provides the driver must submit. However, section 21200.5 does not require the police officer to conduct any chemical tests for drugs or alcohol. Curiously enough, section 21200.5 does permit the person arrested for cycling under the influence to request a chemical test, which must then be performed if requested. Since an officer can arrest the cyclist simply on probable cause to believe the cyclist is under the influence, this provision in the statute provides the cyclist with an immediate defense (presuming he or she is not under the influence).

Continue reading →

by

Let’s say you have a party and one of your guests becomes obviously intoxicated. Your intoxicated guest then leaves the party and on his drive home causes an accident where another person is injured. Are you responsible? Is a bar responsible if one of its patrons gets drunk, drives away and causes a serious accident?

There are laws in many states that attach civil liability to a business establishment that sells alcohol when one of its patrons causes injury after drinking alcohol sold by the establishment. Similarly, many states provide that a social host can be held liable for the injuries caused by his or her drunken guests. In some states the law even provides for harsh criminal penalties. Surprisingly, California’s laws are not that severe when it comes to civil or criminal liability for the serving of alcohol to a guest or patron.

Unlike many states, in California a business establishment cannot be held civilly liable under California’s liability law, which does not hold business establishments to the strict liability standard (Civil Code §1714). Similarly, a social host also cannot be held civilly liable. However, there are a few notable exceptions.

Continue reading →

by

Many people don’t know that a DUI conviction may have other consequences beyond the driver’s license suspension, probation, and mandatory DUI classes. In California, there is a huge body of administrative law, much of it quasi-criminal. The immediate administrative per se suspension of a DUI arrestee’s driver license is an example of an administrative law. Although the courts have ruled that most administrative laws that sanction an individual are constitutional, many, if not most, of the quasi-criminal administrative laws do not afford the individual the same due process protections that the United States and California Constitutions guarantee in a criminal prosecution.

Many who are arrested for DUI in California will only experience the administrative consequences of a per se suspension of his or her driver’s license and DMV sanctions. However, what many don’t understand is that a DUI goes on the person’s criminal record and that can trigger other administrative sanctions in California.

For example, a person convicted of a DUI—even a first-time DUI—and who works as a child caregiver, or even just volunteers in an after-school program, will very likely hear from their employer that the State of California will no longer allow him or her on the premises. In other words, a childcare employee could find themselves barred from their place of employment simply because he or she was arrested and convicted of a first-time DUI.

Continue reading →

by

Your parents or grandparents might remember the days when a drunk driver was given a warning and then escorted home by the police and told to sleep it off. Maybe you watched Mad Men and wondered if drunk driving was just a way of life back in the 60s. Until late in that decade, drunk driving laws relied on the officer’s subjective evaluations, rather than on the chemical tests that are now mandated by the law, to determine whether someone was driving under the influence of alcohol. Thus, it was not unusual, especially outside of large urban areas, for the police to find “old Jimmy” weaving his truck on his way home again and either drive him home or give him a slow-moving escort.   At worst, most drunk drivers could expect fines and a lecture by a judge. Back then, there was no driving license suspension or mandatory drunk driving courses.

While chemical tests were available, California law did not mandate that a driver submit to a chemical test. It was not until the late 60s that the legislature enacted what is called the “implied consent” law. Implied consent laws were based on the premise that a driver using the roads in California impliedly consents to a blood alcohol test if he or she is legally arrested for suspicion of drunk driving. Even with the enactment of the implied consent law, the penalties for drunken driving were nowhere near as severe as they are today.

Another influence on the California DUI laws was the increasing involvement of the federal government on the state’s drunk driving policies. In 1967, the federal government issued new standards, which for the first time included drunk driving standards. These standards required the states to develop drunk driving laws to achieve a reduction in traffic accidents caused by drunken driving. Back then, and until 1990, the threshold for drunk driving was .10% blood alcohol content. The federal government enforced theses standards by withholding federal highway funds to any state that did not comply with the new standards.

Continue reading →

by

CAN A BREATHALYZER DEVICE BE TRICKED?

You may have heard the “tricks” to defeating a breathalyzer test: place a copper penny under your tongue when you blow into the device, drink mouthwash before being tested (surreptitiously, of course), eat breath mints, hold your breath or use other breathing techniques before or during blowing, burp while blowing into the machine (however that would be accomplished), and some other wacky tricks. None of them will work!

The breathalyzer, as it is commonly called, actually describes a number of different breath testing devices that use a variety of techniques to measure the blood alcohol concentration (BAC) in a person’s blood. The device might employ a chemical test, but some devices use infrared spectroscopy or fuel cell technology. All of these devices require the subject to blow into a mouthpiece. The breath tested comes from the subject’s lungs.

Continue reading →

by

Did this Napa school bus driver take a wine tasting detour? A school bus driver in Napa was recently arrested for driving under the influence after she damaged the undercarriage of her bus with 28 students on board. Fortunately, none of the students were injured.

As hard as it is to believe that a school bus driver would be driving under the influence, this Napa driver is not the only one. The same week the Napa driver was arrested, another bus driver was arrested for driving under the influence of prescription drugs in Boulder County, Colorado after she lost control of her bus, which resulted in the serious injury to two of the eight children on board.

A month before these two incidents, a school bus driver in Lincoln Rhode Island stumbled off her bus after having driven students from school. She was arrested for drunk driving.

Continue reading →