DUI OFFENDERS OFTEN HAVE AN ADDICTION

After 20 years of defending DUI cases I am convinced that many of the individuals who have been arrested for driving under the influence of alcohol or drugs — and especially those who have been arrested for DUI more than once — have an addiction and are in need of treatment. Statistics indicate that on average, the person who is arrested for DUI drove drunk 80 times before his or her first arrest. While it is true that some drivers are just unlucky find and themselves arrested for drunk driving after say a family gathering or other occasion where the driver uncharacteristically had a little too much to drink, most drivers who end up on the other side of my desk have a drinking or drug problem.

I don’t write this to judge or accuse; my goal here is to help. The courts and the DMV almost always order DUI classes and perhaps attendance at AA meetings but I have seen all too many multiple DUI offenders walk into my office. Clearly, the DUI classes and AA meetings don’t always work.

CALIFORNIA NOT THE STRICTEST STATE ON DRIVERS UNDER THE INFLUENCE

WalletHub recently tallied up the states from the strictest to the most lenient on DUIs. You may be surprised to learn that according to WalletHub’s methodology, California was among the most lenient on DUIs. WalletHub identified 15 key metrics and assigned weighted points to each metric. The key metrics included minimum jail time for 1st and 2nd offenses, the point at which a DUI becomes an automatic felony, minimum fines, automatic license suspension duration, average insurance rate increase after a DUI, and other factors. California ranked among the more lenient states, coming in #34 out of 50 overall.

So where did California rank high? Well, as you might guess given that we have among the most expensive auto insurance rates in the nation, the only metric where California ranked #1 was the average insurance rate increase after a DUI. Indeed, the Auto Club of Southern California reports that a DUI will run a 1st time offender an average of $10,000 more in insurance costs over the ten year look-back period. Let’s just say that Uber or Lyft—even many rides over—will be cheaper than one DUI.

OCEANSIDE WOMAN DRIVING DRUNK HITS MAN AND CONTINUES TO DRIVE WITH THE DEAD MAN IN HER FRONT PASSENGER SEAT

A recent and particularly gruesome DUI incident in Oceanside made news around the world. In the early morning of June 27, a 29-year-old woman who was driving under the influence veered onto the sidewalk and hit a homeless man near her home in Oceanside. She was driving so fast that the impact forced the man through the woman’s windshield, tearing off his clothes as he flew through the windshield, falling crumpled up in the passenger seat. But it gets worse than that. The woman continued driving for about one-half to one mile with the dead man in her front seat. The man’s leg had been severed from his body and went flying through the rear windshield landing on the trunk of the car. After she stopped her car, she got out and walked away. She walked home but she didn’t get away for long; her husband called the cops.

The driver’s blood alcohol level was tested two hours after the crash and registered twice the legal limit. She is facing four felony charges: Gross Vehicular Manslaughter while Intoxicated (Penal Code §191.5(a); Hit and Run (Vehicle Code §20002); Driving with Measurable Blood Alcohol Causing Injury and DUI with Injury (Vehicle Code §§25153(a) & (b)). The judge set her bail at $1.5 million.

It’s summer travel season and maybe you are planning a trip to another country. Don’t let your R&R be ruined by a driving under the influence arrest. You may not be aware of this but most countries have harsher DUI laws than those in the United States. Now, how strictly those laws are enforced may be another matter but here’s the low down:

In Canada, the BAC threshold runs from 0.05% to 0.08% depending on the province. Same in Mexico, where the BAC limit is determined by state and can run between 0.04% and 0.08%, but the national limit is 0.08% for those states that do not impose their own law.

Going to Europe? You might want to lay off the alcohol altogether if you are driving. In Scandinavia, for example, you can be arrested for a DUI with just a 0.02% BAC (Norway and Sweden). Denmark is slightly more lenient with a 0.05% BAC threshold. Elsewhere in Europe, the BAC reading at which you can be arrested for drunken driving is generally 0.05% although many European countries have a lower threshold if you are involved in an accident. For example, in Germany you can be arrested for drunken driving if you are involved in an accident (regardless of fault) with a BAC of 0.03%. Only Malta and the U.K. have a 0.08% BAC threshold; the rest of the countries run between 0.00% and 0.05%. (Yes, 0.00%: in the former Eastern bloc countries of Hungary, The Czech Republic, Slovakia and Croatia you can be arrested for drunken driving with any amount of alcohol in your system.)

CONTINUOUS MONITORING OF ALCOHOL LEVELS—THE SCRAM DEVICE

Most people in California are aware that there is a device that may be ordered installed in person’s vehicle upon conviction of driving under the influence of alcohol. This device, called an Ignition Interlock device or IID is a mechanism that prevents a person from starting a vehicle without first blowing into the device, which registers any alcohol in the person’s system. If any alcohol is registered, the vehicle will not start. Some counties in California require that this device be installed— even for first time DUIs— but in most California counties, ordering the installation of a IID is left to judgment of the court.

Most people in California are not aware, however, of another alcohol monitoring device that may be ordered by the court in DUI cases. This device, called a Secure Continuous Remote Alcohol Monitor or SCRAM device is an ankle bracket that continuously monitors for alcohol in the system through the skin. When the court orders installation of an IID, the defendant is only monitored for blood alcohol content when he or she wants to drive, when the SCRAM device is worn, the defendant is continuously monitored. DUI probation includes a zero-tolerance condition, that is, anyone on probation for a DUI cannot drive with even a small amount of alcohol in his or her system; the IID is just an extra level of enforcement. But if the court orders that the DUI probationer cannot drink at all, the court may order that the defendant wear a SCRAM.

SUPREME COURT RULES THAT DUI BLOOD TEST REQUIRES A WARRANT

On June 23, 2016, the United States Supreme Court issued a decision in the case Birchfield v. North Dakota, which will affect California’s “implied consent” DUI laws. The Court held that the Fourth Amendment to the United States Constitution permits a DUI breath test incident to an arrest without the need for a warrant but a warrantless blood test is unconstitutional. Both are considered a search governed by the Fourth Amendment but the Supreme Court found its decision on a privacy rights analysis vis-a-vis the need to obtain a BAC reading. Finding that a breath test is not a significant intrusion on one’s privacy but the piercing of skin and extraction of a part of the subject’s body is, the Supreme Court held that the extraction of blood to measure BAC is not a reasonable alternative in light of the availability of the less intrusive method.

The case was not just an academic exercise; the Supreme Court took this case in order to decide if states can make it a crime to refuse BAC chemical testing. Based on the Court’s analysis, the Supreme’s held that a motorist under arrest for DUI cannot be held criminally liable for refusing a blood test but can be held criminally liable for refusing a breath test.

Did you know that you might be refused entry to our border states if you have a DUI on your record? Many travelers are shocked to find they are denied entry into Canada or Mexico because of a DUI conviction, even if they are arriving by plane and don’t intend to drive in the country. This is especially true for travelers to Canada.

CANADA

Canada is especially tough. When a traveler from any country arrives in Canada, whether by land, sea, or air, Canada’s immigration authority will scan the traveler’s passport. In this age of electronic records, a DUI conviction, unless it is very recent or very old, will show up along with all sorts of information about the traveler. Kind of scary, isn’t it? Anyway, Canada considers a DUI a serious offense, even a misdemeanor conviction. Under that country’s immigration laws, individuals are barred from entering the country if they have a criminal history and in most cases a DUI from the United States will be one of those convictions that bars entry to the country. However, if the conviction is over ten years old, the traveler will probably be allowed to enter the country.

Last month 23-year-old Clovis, California resident, Candice Ooley, eight months pregnant and driving with a blood alcohol level four times the legal limit (0.32%), caused an accident that ended in the death of a passenger in the vehicle she hit and serious injuries to other occupants of the vehicle. Ms. Ooley, whose license to drive was already suspended due to her previous DUI arrest only six months before this fatal incident, was said to be driving at high speeds and possibly passed out while behind the wheel causing the wreck.

She has been charged with felony driving under the influence with a blood alcohol content of over .15% and vehicular manslaughter with great bodily injury. The district attorney has announced that he intends to add second-degree murder charges but Ms. Ooley’s attorney plans to defend that potential charge on the basis that Ms. Ooley never received a “Watson warning” nor had she been convicted on the previous DUI charges at the time of this incident.

For the prosecutor to prove the murder charge, he would have to establish that Ms. Ooley was aware that if she drove while under the influence of alcohol, she could cause the death of another person, yet she intentionally chose to drive under the influence anyway; the legal term for this is “implied malice.” Now, that might seem like common knowledge but common knowledge is not enough to prove implied malice.

Here’s a DUI arrest scenario I occasionally encounter in my practice: A client is arrested for driving under the influence in a private parking lot, for example, or on a street in a gated community, or even in the client’s own driveway and wants to fight the DUI arrest by arguing that the traffic stop and arrest did not occur on a public road. Many people are incorrectly informed that the driving under the influence laws require that the vehicle was being driven on a public street or highway. That misunderstanding is not without some foundation; until the early 1980’s the California Vehicle Code made it illegal to drive under the influence “upon a highway or upon other than a highway areas in which are open to the general public.” But that wording has long since been removed from the DUI statutes.

The scenario will sometimes go something like this: The police, following behind the driver, turned on their lights and sirens to initiate a stop but the driver only minutes from home, turned into her gated community with the police still following behind, or pulled into his driveway where the police then effected their detention upon the driver in his driveway. My client will want to fight the stop thinking it is unlawful to arrest a person on their private property without a warrant. While this may hold true in certain arrests, it is not the case in DUI arrests.

The problem with the argument is that the driver cannot evade arrest by simply continuing on until private property is reached. A driver “may not defeat a detention or arrest which is set in motion in a public place by fleeing to a private place.” (People v. Lloyd (1989) 216 Cal.App.3d 1425, 1430.)

It is simply a fact that many, if not most, drivers lose at their Administrative Per Se (APS) Hearing. The APS hearing is an administrative hearing and unlike criminal hearings, the driver is not afforded the same due process rights a guaranteed by the Constitution in criminal trials. The legal standards are not as strict in an administrative hearing and the DMV officer who makes the decision about the suspension of the driver’s license to drive sits as prosecutor and judge. While this doesn’t sound very “Constitutional,” the appellate courts have long held that certain Constitutional rights do not apply to administrative hearings.

But you do have the right to challenge the administrative court’s decision. The procedure by which the decision can be challenged is by petitioning a higher court for a Writ of Mandate, also called a Writ of Mandamus. This writ is a civil procedure by which you can petition a court of law to review the administrative court’s decision. If the higher court determines that the administrative decision did not proceed in accordance with the law or that the administrative decision was not supported by the evidence, the higher court can order the administrative court to rehear the matter in accordance with the higher court’s findings or even order the administrative court to reverse its decision.

When challenging a DMV APS hearing finding, the petition for Writ of Mandate is filed with the superior court. This is a civil matter, not criminal.