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Even one DUI has the potential to affect a parent’s right to custody of their child. Whether in Family Law Code child custody adjudications or Welfare and Institutions Code dependency hearings, a DUI can affect how the court will decide on a child custody matter. This is especially true if the child was in the car with the parentwhen he or she was arrested for DUI or if the DUI was aggravated by circumstances such as an accident, a hit-and-run,injuries, or other DUI sentencing enhancements.

In a child custody battle between parents, a DUI can be used by one parent against the other to convince the court that the parent is a risk to the child. If the parent has more than one DUI, this may be especially convincing evidence and the more recent the DUI or DUIs, the more detrimental to the child it might be in the eyes of the court. The decision of the court in any child custody case is what is in the best interests of the child or children. The judges have great latitude in making this decision.

Will a parent lose custody over one DUI? Probably not, but the apportionment of physical custody time to a parent with a DUI might be impacted. Will multiple DUIs or aggravated DUIs cause a parent to lose custody? Almost certainly if the DUI was committed with the child in the car and likely if the parent has multiple DUIs.

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We know that sleep walking is a genuine disorder. It is a state of combined sleep and wakefulness leaving the sleepwalker is in an attenuated state of consciousness.  Those with the disorder can even perform complex tasks behaviors while sleeping such as moving furniture around, cooking, or cleaning. In rare cases, according to the American Alliance for Healthy Sleep and other organizations devoted to sleep studies and education, a sleepwalker may get in his or her car and drive away.

In a 2012 appellate case, a driver who was convicted of driving under the influence of drugsunder Vehicle Code section 23152(a), alleged that he was sleep driving and therefore not criminally liable. The driver who had taken prescription Ambien prior driving his car. He was observed driving erratically. When detained by the police, the driver appeared coherent and was cooperative, but he had glassy eyes, was swaying, and his speech was slow and slurred, but he did not smell of alcohol. The officer concluded that the driver was under the influence of drugs. The blood test results showed that the driver had zolpidem in his system. Zolpidem is marketed under the brand name Ambien. The driver’s blood test results indicated that the driver had taken more than the recommended dosage of the drug. According to both the prosecution and defense experts at trial, sleep driving can be a rare side effect of taking Ambien. Indeed, among the warnings on the Ambien label, is that it can cause sleep driving.

At trial, the driver argued that he acted (drove) while legally unconscious. Unconsciousness can be a complete defense to a criminal charge. (Penal Code §26.)  To be legally unconscious does not require that a person be unable to respond or walk, and so on but only that the person is not conscious of acting. For example, someone could perform an unlawful act while suffering from a delirium or after unknowingly ingesting a drug (for example, drinking punch not knowing it is laced with LSD, as happened in an actual California case), or after being taking a prescription drug. But that last example, which would seem to apply here, has a catch. The defense of unconsciousness is only available if it is not induced by voluntary intoxication. (Penal Code §22.) This exception makes sense: someone who decided to get drunk or high should not them be able to use the defense that he or she was not aware. The driver here voluntarily took the Ambien and he had admitted that he knew Ambien can cause sleep driving. Knowing the potential effect is key.

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Typically, a first-time DUI will result in a 3-year informal probation (also called summary probation) term. The probation, while informal (meaning you do not have to report to a probation officer), requires that the probationer comply with the probation terms or face a revocation of the probation.  In a first-time DUI, the terms will almost always include attending DUI classes and perhaps some type of program such as AA. It might include a requirement to complete community service and the installation of an ignition interlocking device (IID)on the probationer’s vehicle. It will most certainly require that the probationer obey all laws.  Furthermore, a DUI probation prohibits the probationer from driving with anyalcohol in his or her system—in other words, the DUI probationer is subject to a zero-tolerance rule. Violating any one of the probation terms is a violation of probation and technically, that means the judge can revoke the grant of probation and order the defendant to serve a term of incarceration in county jail.

In actuality, a judge rarely sends a DUI probationer to jail for violating probation, but the consequences of the violation can nonetheless be very unpleasant.   This is particularly so if the violation is due to a 2nd DUI while on probation for the first. Not only will the defendant face the statutorily required punishment for his or her repeat DUI (which is harsher than the punishment for a first-time DUI), but the judge may order additional penalties on the 2nd violation.  On the other hand, with the help of a good DUI defense attorney, the judge might choose to disregard the violation.

Obviously, it is a bad idea to drink even a little bit and then drive when on DUI probation. Quite often, a second DUI—especially when it happens while on DUI probation—is a red flag indicating that the driver has an alcohol addiction. While most judges aren’t going to give the defendant a pass because he or she has an alcohol abuse problem, many judges do recognize that more punishment probably won’t resolve the problem.

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While most DUI charges conclude with a plea bargain, some DUI defendants chose to put their case before a jury.  A trial before a jury of his or her peers is the DUI defendant’s right under the U.S. and California Constitutions. Whether the DUI is charged as a felony or a misdemeanor, the defendant has this right to a jury trial.

When would a jury trial be a better choice?

There are situations where a defendant might choose to go to trial on a DUI charge. Some examples include: When the prosecution refuses to negotiate on a charge even though the prosecution’s evidence is less than certain, when the charges are serious felony charges (such as DUI enhancements), when the BAC evidence is right on the threshold, or when a commercial driver’s license in on the line.

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In the last of my three-part series about Dave’s misadventuresafter an afternoon of beer and barbeque at a friend’s, we come to another possible defense Dave may have following his arrest for DUI and a hit and run. To summarize: Dave ran into his neighbor’s car on his way home from the barbeque and fearing that he stood a chance of getting arrested for DUI if he stopped and reported the mishap, he made the decision to go straight home and hope for the best. Perhaps he planned to go tell his neighbor after he sobered up a bit, but it was too late; another neighbor, Millicent, saw the accident and reported it to the police. When the police arrived at Dave’s house, Dave decided to “hide” upstairs and his wife covered for him. The police, suspecting Dave was in the house and that he had been drinking, conducted an unwarranted search of the house after Dave’s wife refused to consent to the search.

In my previous blog, I discussed Dave’s potential defense based on the unlawful search of his house. Even though this presents a strong defense argument, the judge still might not grant Dave’s motion to suppress the search.

Dave has another potential defense: the police never witnessed him driving; they are basing their arrest for DUI on Millicent’s report that she saw him driving. Let’s start with the Penal Code. Section 836 of the Penal Code does not permit an officer to make a warrantless arrest for a misdemeanor unless the misdemeanor took place in the officer’s presence. Dave’s DUI, his first,was a misdemeanor. Does that mean that the officers’ arrest was unlawful under Penal Code Section 836? Well, not always.

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Last week I discuss a hypothetical, but realistic, scenario where our driver, Dave, hit a neighbor’s car on the way home after enjoying an afternoon barbeque with friends. Dave had had a few beers so he worried that if he stopped and reported the accident, he might also end up with a DUI.I wouldn’t advise anyone to do what Dave did, but he decided to drive home and avoid the consequences.

Unfortunately for Dave, his neighbor, Millicent, witnessed Dave backing up and driving off after he hit the car. When she saw the damage done to the car and believing she recognized Dave as the culprit, she called the police. When the police arrive, Dave runs upstairs and his wife answered the door. She denied any knowledge of the accident even though there was damage to their car now parked in their driveway that was consistent with the neighbor’s report. Dave’s wife even went so far in her attempts to protect her husband to say that she had just brought the car home after running errands. She denied the police request to search the house. The police, believing that Dave was inside, searched anyway and found Dave. Dave was arrested and later charged with DUI, hit and run, evading arrest, and DUI test refusal. Dave might be in trouble… or maybe not.

If the search of Dave’s house without an arrest was unlawful, the evidence obtained subsequent to the arrest must be suppressed. If the evidence is suppressed, there is no case against him. (The hit and run might survive but the other charges would not.) Was the search unlawful?

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After an afternoon barbeque party, Dave gets in his car and heads home.  As he turns the corner on his street, he hits the side of a car parked on the corner. Dave had more than a few beers at the party and he figures that if he sticks around, he stands a good chance of getting a DUI. So, Dave quickly backs up, and speeds down the street to his home where he parks his car in the driveway and runs inside. His neighbor Millicent heard the collision and peeked through her front window. She saw Dave backing up and thought she recognized him (and his car) as a neighbor down the street. When she sees the damage to the parked car, she calls the police and reports the incident. She tells the dispatcher that she believes the driver of the car was a neighbor who lives down her street and she describes the neighbor’s car.

The police arrive and spot the car described by the neighbor parked in Dave’s driveway. They feel the hood of the parked car and find that it is still warm. They see front-end damage consistent with the damage they noted on the car parked down the street. The officers knock on Dave’s front door and Dave’s wife, Susan, answers. By this time, Dave was upstairs vigorously rinsing his mouth out with mouthwash. On his way upstairs, he had briefed his wife on what happened and told her, “If the police come, don’t tell them I am here.”

The police ask Dave’s wife whose car is parked in the driveway. She tells them it belongs to her and her husband and in an effort to protect her husband, she tells them she just brought it home from grocery shopping. When questioned, she tells them the damage they observed on the front end is from a previous fender bender. Based on Millicent’s report, the police don’t buy Susan’s story. They ask if her husband is home. She tells them he is not. The police remain suspicious. As the police question Susan, the police hear footsteps upstairs.

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Alcohol addiction afflicts many individuals and no doubt, is one of the main factors in many DUIs. But what about marijuana? Is marijuana also addictive? Now that recreational marijuana is legal in California, will we start seeing an increasing number of multiple driving under the influence of marijuana offenders and an increasing number of crashes caused by marijuana-influenced drivers?

According to the National Institute on Drug Abuse (NIH), a person with “marijuana use disorder” uses marijuana frequently and often experiences withdrawal symptoms if he or she stops using the drug. This disorder, according to NIH, afflicts approximately 30 percent of those who are marijuana users. Some individuals with Marijuana Use Disorder cannot stop using the drug; these individuals become addicted to marijuana. The NIH reports that approximately 9 percent of marijuana users will become addicted. In 2015, approximately 40 million people in the United States have marijuana use disorder. Extrapolating from that number, there are approximately 432,000 individuals addicted to marijuana in California. (This is a rough estimate.) Of course, this number pales in comparison to the estimates of the number of alcoholics in California— approximately 5 million—but now that the use of recreational marijuana is legal, it is reasonable to suspect that more Californians will find themselves addicted to the drug?

We have no doubt that alcohol impairs a person’s ability to drive safely, but there are conflicting studies regarding the effects of marijuana use on driving ability.  However, the potency of marijuana has been steadily strengthening over the years, foreboding the possibility of not only more addicts but increasingly dangerous effects on the ability of a high driver to drive safely.

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The vehicle code, section 23152(b) makes it unlawful to drive with “0.08 percent or more, by weight, of alcohol in [a driver’s] blood.” You might immediately note that most DUIs are charged based on a breathalyzer measurement, not a blood measurement. I previously discussed how breathalyzers measure the alcohol content in a person’s blood but to complicate matters, the alcohol weight in a person’s breath must be translated into an equivalent blood weight measurement . If you continue reading section 23152(b) it states, “percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.”

These different measurements of alcohol by weight depending on whether the test was of blood or breath is known as “partition ratio variability.” The more accurate measurement of BAC is by measurement of alcohol content in the blood. Breath analysis loses some accuracy and though rigorous scientific testing, test established that the average amount of alcohol in 230 liters of breath is equivalent to what would be found in the 100 milliliters of the same subject’s blood. This may vary from person to person on either side of the scale. To allow for possible variations among individuals and to give the benefit of the doubt to the driver, the California legislature, set the conversion at 210 liters of breath to 100 milliliters of blood, or a ratio of 2,100 to one.

Before it was amended in 1990, section 23152(b) defined blood alcohol concentration (BAC) only in terms of “grams of alcohol per 100 milliliters of blood.” Because, then as now, many DUI charges were based on breathalyzer results, the breath results had to be converted using the standard 2,100 to one ratio. But because the partition ratio was not written into the statute, a common DUI defense was based on the effect of partition ratio variability factors. Following amendment of the law, the California Supreme Court held that the amended language was meant to criminalize driving with the specified blood alcohol level or the specified breath-alcohol level. In other words, the amendment did not simply provide an alternate method for calculating BAC but was meant to make it unlawful to drive with an .08 percent or more BAC as measured per 210 liters of breath.

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Driving under the influence is most commonly associated with younger drivers under the influence of alcohol, but if you are a regular reader of this blog, you know that unlawful DUI includes not only driving under the influence of alcohol but also driving under the influence of drugs, both legal drugs (including prescription drugs) and illegal drugs. Driving under the influence of drugs is becoming an increasingly dangerous occurrence on our roads and highways. According to the Center for Disease Control and Prevention (CDC) drugs (legal and illegal) account for 16% of all motor vehicle crashes. The National Institute of Drug Abuse (NIDA) estimates that 11% of fatal vehicle crashes involved a driver under the influence of a drug or drugs.

With our aging population, another fact must be addressed: older adults are more likely to be taking prescription drugs that may affect their ability to drive safely. This is a sensitive topic that hasn’t received much attention. The NIDA cited a study that found more than one-quarter of drugged drivers involved in fatal crashes were over the age of 50.   As the NIDA observed: coupled with mental decline and the slowdown in the ability of an older adult’s system to process drugs, the use of prescription drugs can lead to the unintended driving under the influence by older adults.

And just because the drug is prescribed does not mean the older driver can’t be arrested for a DUI. This is especially true if the driver causes an accident or worse.

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