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Super Bowl Sunday is right around the corner. Time for gathering around the big screen with chips and beer, lots of beer. And time for the CHP to be out in full force.

The Super Bowl Sunday roads are notoriously plagued with drivers impaired by alcohol. In fact, the Auto Club of Southern California looked at five years (2009-2013) of California road accident data and found a 77 percent increase in alcohol-related death and injuries on the Super Bowl Sunday roads. It is wise to be cautious on the roads on Super Bowl Sunday and a no-brainer to refrain from getting behind the wheel if you have been drinking.

Most people are not so unfortunate as to end up in an alcohol-related accident on Super Bowl Sunday but for those who are, the results can be tragic. That is reason enough to never drink and drive—if you are under the influence of alcohol (or drugs) and cause an accident, you will face severe consequences. And if you kill or severely injure someone, you will have to live with that for the rest of your life.

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Is this a trend? The DUI arrests made in Orange County during the 2016 New Year’s holiday was almost half the number of DUI arrests during the 2015 New Year’s holiday. Los Angeles County also saw a decrease in DUI arrests although not as sharp a decline as that in Orange County. So too in San Diego where DUI arrests were slightly down from last year. This might be explained by fewer checkpoints this year than last but there is also the possibility that the increasing popularity of ride sharing apps such as Uber and Lyft are encouraging more people to leave the car keys at home on New Year’s Eve.

In fact, several studies have indicated that ride sharing programs are directly responsible for a decrease in drunken driving crashes among drivers under the age of 30 and a 3.6 to 5.6 percent decline in deaths caused by drunken driving. The research was conducted by studying DMV records from different markets before ride sharing entered that market and comparing those records to records after ride sharing entered each particular market studied.

While the verdict is not in, early studies do suggest that ride sharing programs can take credit for a decrease in drunk driving. Mothers Against Drunk Driving agree: “We definitely do believe that Uber, or any other ride-sharing company, has helped us in our fight against drunk driving,” said Natasha Thomas, a program director for MADD.. “They offer reliable, right-to-the-minute services to help people get home safe instead of getting behind their wheels intoxicated,” she added.

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WHAT HAPPENS IF YOU REFUSE TO SUBMIT TO A CHEMICAL TEST AFTER A DUI ARREST?

Most California drivers are aware that the law does not convey the same Constitutional rights, which are normally afforded to an arrestee, when the person is arrested for driving under the influence. For example, the driver does not have an immediate right to an attorney or the right to remain silent. Most important, a driver lawfully arrested for suspicion of driving under the influence must submit to a chemical test or face a mandatory suspension of his or her driver’s license.   This is known as the “implied consent” law. Even when a driver refuses the test but then changes his or her mind and submits, it will still be considered a refusal.

The law requires that the arresting officer clearly advise the driver that a refusal will result in a suspension of the driver’s license to drive. (Vehicle Code §23612(a)(1)(D).) However, the warning is enough; the officer is not required to obtain the driver’s acknowledgement that the driver understands the consequences of refusal.

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The trend is clear: States are legalizing the recreational or medical use of marijuana. In fact, twenty-three states plus the District of Columbia have legalized the use of marijuana in some form. Yet most state laws have not established clear methods or guidelines to assist law enforcement when they suspect a driver is under the influence of marijuana. It is easy enough for law enforcement to run chemical test for drivers suspected of driving under the influence of alcohol, but what chemical test can the officer employ if he or she suspects the driver is high on pot. Beyond that, is there even a legal amount of THC (the principal active component of marijuana) that the state allows while driving? Measuring driving impairment due to the influence of marijuana is not quite as easy to determine as alcohol impairment. Unlike alcohol, THC is not easily measured in the field and to complicate things, it can remain in the body long after its effects have worn off.

Methods for detecting and arresting someone for driving under the influence of marijuana are not only technically problematic but implicate individual due process rights. There are presently only two reliable methods for testing whether someone has recently used marijuana: blood and urine testing. The presence of THC in urine is not a reliable indicator of driving impairment since THC can remain in the urine long after its effects have worn off. A blood test can detect elevated concentrations of THC that may be consistent with recent use; however, such tests are a reliable indicator of recent use only within the first hour or so of that use. When a law enforcement officer suspects someone is driving under the influence of marijuana, they cannot perform a blood test on the spot; rather, they must transport the driver to a location where a tech can draw blood. By time this is accomplished, it isd quite likely that the THC levels in the blood have decreased considerably.

Currently several states have laws that prohibit a driver from having any detectable amounts of THC in their system; this is problematic and is certainly begging to be challenged in the upper courts as the mere presence of THC does not indicate impairment. Two states (Washington and Montana) have established a per se limit of THC that may be in a drivers system with levels above that limit, without any other indication that the driver is impaired, as grounds for an arrest for driving under the influence. Again, a court challenge may soon be waiting in the wings.

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THE “RISING BLOOD ALCOHOL” DEFENSE

If you are arrested for driving under the influence of alcohol and your blood alcohol level is only slightly above the legal threshold of 0.08%, your attorney might consider what is called the “rising blood alcohol” defense. Without getting into the scientific details, this defense asserts that at the time you were driving, your blood alcohol level was lower than the level you registered at the time of your arrest.

Depending on a number of circumstances including your weight, whether you were drinking on an empty or full stomach, and other factors, the alcohol you imbibe can take 30 minutes to an hour or more to rise to its peak blood alcohol level in your body.

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California DMV Administrative Per Se Hearings

As previously discussed on this website (here and here), a DUI arrest results in two separate proceedings: The Administrative Per Se Hearing and a criminal court hearing. Even if the criminal case is dismissed, the driver can still find his or her California driver license suspended by the DMV and be subjected to other administrative orders. How is this? In a nutshell, California law provides that the DMV can suspend the license of a driver who is arrested for a blood alcohol level over the legal limit regardless of any criminal (DUI) proceedings. The process is separate from any criminal court case and essentially gives the DMV as much or more power than a superior court judge. In fact, every year the DMV suspends or revokes the licenses of drivers whose DUI arrest never resulted in criminal charges or whose criminal cases were dismissed for lack of evidence.

Several appellate cases have challenged this process but, for the most part, the DMV hearing regime remains intact. Last year, the California DUI Lawyers Association decided to take another approach. They filed a civil lawsuit on behalf of California taxpayers against the California Department of Motor Vehicles. The lawsuit alleges that DMV Administrative Per Se Hearing Officers have a conflict of interest because not only are these hearing officers the decision maker regarding the suspension (or revocation) of the DUI arrestee’s license but the hearing officer also represents the DMV, in effect, as the DMV’s prosecutor. A fair analogy would be allowing the district attorney to also be the judge in a criminal case. This, the lawsuit contends, is a violation of due process.

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HOW LIKELY IS IT THAT I WILL GO TO JAIL IF I AM ARRESTED FOR DUI?

Even a first-time DUI carries a potential sentence in California of up to six months in county jail but such a sentence is rarely, if ever, handed down. A driver who is arrested for a first-time DUI may end up in the “drunk tank” after booking but that is usually the only time he or she will spend behind bars for the offense.   Most often, a driver convicted on a first-time DUI (within a ten year period) will be sentenced to a period of probation and ordered to attend DUI classes. Some counties in California will also sentence a first-time DUI offender to complete community service. But a jail sentence? In 99.9% of the cases, the offender will not receive a jail sentence.

However, spending time between three walls and the fourth wall of bars becomes increasingly likely with subsequent DUI convictions (if the convictions occurred within a ten-year period of time). In fact, a third DUI carries mandatory minimum jail time of 120 days although some counties will allow the offender to serve the sentence under a work-release program or house arrest, or sometimes even by serving the sentence by “volunteering” in a community service program.

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A BETTER WAY TO TREAT DUIs

You have probably heard that the so-called “War on Drugs” has been lost. Increasingly law enforcement and the courts are recognizing that punishment does not resolve the offender’s drug addictions. New sentencing schemes are being developed that focus less on punishing the chronic drug offender than addressing the underlying cause of his or her arrest, i.e., drug addiction.

Although many people don’t put alcohol in the same category as drugs because alcohol is legal, it is actually one of the most potent drugs available. Some individuals are addicted to alcohol and it is a drug addiction even though we call it “alcoholism.”

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THE ONE DRINK AN HOUR RULE

Have you ever heard of the “One Drink an Hour Rule?” According to this rule, if have only drink per hour, your blood alcohol level (BAC) will remain under the legal DUI limit of .08%. (One drink is roughly defined as 1 1/4 ounce of hard liquor, one beer or one glass of wine.) Is this true?

Well, it depends. There is actually no hard and fast rule and a variety of factors can affect your BAC. Things such as your weight, whether you’re eating while you are drinking, and whether you are male or female will influence your blood alcohol level. For example, a female who weighs 110 pounds and has only two drinks in two hours will almost certainly have a BAC of over .08%, while a man weighing over 210 pounds might not register a BAC of over .08% until he has had four drinks during those two hours. Different body types process alcohol differently for several reasons, including body fat content and the concentration of the liver enzyme that breaks down the alcohol. Hormones may also be a factor.

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california supreme court holds that circumstantial evidence of intoxication may be considered in dui hearings

A driver was pulled over in Orange County by the CHP when the officer observed her car swerving erratically. Upon contacting the driver, the officer observed indications that she had been drinking alcohol. The officer performed various field sobriety tests on the driver, the result of which further indicated to the officer that the driver was under the influence of alcohol. The driver was placed under arrest and it was determined by a breath test that she had a blood alcohol level near the threshold legal limit of .08%. A later blood draw indicated a blood alcohol level slightly over the limit at .096%.

She exercised her option to have a DMV Administrative Per Se Hearing to challenge the automatic suspension of her driver license. At the hearing, an expert testified on her behalf. According to the expert, the blood alcohol tests suggested that here blood alcohol level was rising and that at the time of the stop, her blood alcohol level was not at the legal limit of .08%. The expert’s testimony is technical and not relevant for purposes here. Suffice it to say that the gist of the driver’s argument was that she introduced evidence of a fact that rebutted the presumption that she was driving under the influence but the administrative hearing officer and the trial court discounted that evidence (the expert’s testimony) in part by relying on the reports made by the CHP officers who stopped her. The Supreme Court was ultimately tasked with deciding whether the trial court erred by considering the circumstantial evidence established by the officers’ reports of their observations. On April 6, 2015, the Supreme Court issued its ruling where it held that the trial court did not err.

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