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.

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.

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.

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.

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?

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.

DUI ARREST RATE (per 100,000 licensed drivers):

2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
809 792 786 849 863 906 880 823 752 712 651

If this rate continues to trend lower, then ride sharing could quite possibly have a role in the decrease.

Unfortunately, the alcohol-related crash fatalities increased substantially in 2012 and 2013, 7.3% and 2.4% respectively. And it is, let’s say, sobering to learn that in 2012 and 2013, approximately 39% of all traffic fatalities were alcohol related.

For every driver arrested for a DUI, about 75%, end up being convicted. That rate has been consistent with a low of 73.3% in 2011 and a high of 79.4% in 2004. I would suspect that a number of those not convicted were first-time DUI arrestees who, with the help of a skilled defense attorney, were able to plea down the charge to a reckless driving or other non-DUI traffic offense. Orange County has a much higher conviction rate than most counties at 84.6%! In fact, only two California counties have a higher conviction rate: Marin (85.2%) and Ventura (84.9%). I am sure that is no reflection on Orange County defense attorneys, who are among the best in the state, but rather a demonstration of a zealous district attorney’s office.

The median age of drivers arrested for DUI in 2013 was 31 for males and 30 for females. Speaking of gender, almost 77% of the drivers arrested for DUI in 2013 were male.

The majority of DUI convictions involved a driver who tested at between .10 and .19 BAC, with the median BAC being .16%; that is double the legal BAC threshold of .08%.

Most of the drivers arrested for DUI were first offenders (73.8%). The number of repeat offenders (one DUI conviction or more within a ten year look back period) has decreased considerably since 1989. In 1989, the look back period was only seven years, yet the rate of repeat offender arrests stood at 37%. In 2012, it was 26.2%. I suspect that the increasingly strict enforcement of DUI laws and harsher penalties over the intervening years can account for the decrease. Once burned, you’d have to be addicted to alcohol to drive drunk again.

There is much more to be gleaned by this study; perhaps I’ll blog more about these statistics when the 2016 report is published. While these reports cannot explain causes, the statistics are useful for discovering trends. I look forward to seeing what they next report reveals.

William Weinberg is an experienced criminal defense attorney who is available to speak with you about your particular DUI matter. You can contact Mr. Weinberg at his Irvine office at 949-474-8008 or emailing him at bill@williamweinberg.com.

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.

You would expect that the Glendale mother who recently ran over her 7 year old while she was driving under the influence would be charged not only with DUI but child endangerment. But you don’t necessarily have to injure your child to get slapped with child endangerment charges if you are driving drunk.

In the case of the Glendale mother, she ran over her child’s leg as she left a parking stall at a grocery store with her son clinging to the passenger side door. Fortunately, the child did not suffer significant injuries but his mother was booked for felony DUI and child endangerment. This mom is probably going to prison and she will certainly lose custody of her children, perhaps permanently.

DUIs may be charged as a felony whenever there is bodily injury to another person caused by a vehicle being driven by someone under the influence (Vehicle Code §25153). A person convicted of felony DUI with injury can be sentenced to up to four years in prison.

NEW LAW WILL REQUIRE IGNITION INTERLOCKING DEVICES FOR MOST DUI OFFENSES

A new law, scheduled to go into effect across the state on January 1, 2019, will put ignition interlock devices (IID) in almost every vehicle driven by someone who was convicted of drunk driving. IIDs are akin to a breathalyzer installed in a vehicle. The devices include a small camera that shows who is blowing into it and have other mechanisms that prevent the driver from any attempts to defeat the device. They are, in fact, pretty much fool-proof.

The new law is, in one way, less restrictive because it will give first time DUI offenders, who caused no injuries by his or her drunken driving, an option of installing an IID for six months with full driving privileges. As the law stands now, a first time (non-injury) DUI offender can only drive on a restricted license usually for a period 4 to 6 months. With the new law, if a person declines the IID, he or she will be subject to a one-year restricted license. .A restricted license allows the driver to only drive to and from work or school and to DUI-ordered treatment programs.

The National Highway Traffic Safety Administration (NHTSA) studies the effectiveness of DUI counter measures and publishes reports on the findings. You may be surprised to learn that one of the most effective deterrents to driving under the influence is DUI checkpoints. You probably know what a checkpoint is; most likely, you have probably also driven through one.

In what is described as high-quality studies, the NHTSA reports that publicized checkpoints reduce alcohol-related fatalities, injuries, and property damage crashes each by about 20%. You might think that the police want to keep the locations of their DUI checkpoints a secret in order to snag unsuspecting drivers but that is not correct. According to the NHTSA, the purpose of the checkpoints is not to increase arrests but to deter drunken driving by increasing the perceived risk of getting arrested for DUI. To that end, the effectiveness of checkpoints depends on well-publicized and highly visible checkpoints conducted on a regular basis.

In one particularly compelling study, a year-long program of weekly checkpoints in two West Virginia counties resulted in a 70% fewer drivers with BACs over the drunken driving threshold in those counties as compared to West Virginia counties that did not operate the weekly checkpoints.