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.

As I explained in a previous post, alcohol is carried through the bloodstream, where it is metabolized by the liver. When the liver can’t keep up, more alcohol remains in a person’s bloodstream until the liver can do its work. (Now, admittedly, that is the simplified version but will have to suffice here.) Blood runs its course throughout the body, including the lungs. Science has come up with a way to assess the amount of alcohol in the blood (i.e., not yet metabolized by the liver) by measuring the amount of alcohol moving through the lungs, which can be detected by a person expelling breath from the lungs. However simplified this explanation, it still makes it obvious why the so-called tricks to defeat a breathalyzer will not work. The breathalyzer measures deep lung breath, not a shallow breath from the mouth. And trying to use breathing “tricks” such as trying to breathe from the mouth only will not work either because the device requires a certain quantity of breath that can only be summoned from the lungs. The cops will consider anything but a deep lung blow a refusal to take the test.

Of course, the best way to “beat” the breathalyzer test is to drive sober, but if your better judgment escaped you and you blow over the legal threshold, the breathalyzer results can sometimes be challenged. This is most often true when the breath results register very close to the legal limit. Breathalyzers are not always accurate; for example, there may be issues with the calibration of the device, the officer administering the test may not have followed protocol, or the device itself might have malfunctioned. While challenging the results of a breathalyzer test is not necessarily an easy defense, in some cases it might prove to be an effective defense.

 

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.

And yet another school bus driver in Stroudsburg Pennsylvania was arrested for DUI after scaring the children on her bus by her erratic driving.

All of these women are facing not only DUI charges but the far more serious charge of child endangerment.

These incidents also highlight the significant increase in DUI arrests of women in the past decade. The FBI data shows that DUI arrests of women have increased by over 20% nationwide in the last decade. Interestingly, DUI arrests of men have decreased by almost the same percentage. Men still account for three times as many DUI arrests, but the women are catching up.

Some of this increase may be attributable to the increased arrested for driving under the influence of prescription drugs. Other possible explanations include the increased presence of women in high stress, high earning jobs, which causes stress drinking or overuse of prescription drugs and also creates an environment where women are doing more social drinking. Since women metabolize alcohol in a way that affects their blood alcohol level quicker than men, women are more likely to be legally over the limit for driving after consuming fewer drinks than a man would.

California, like the rest of the country, has seen a significant rise in DUI arrests among women. Much of this increase is driven by arrests of young women between the ages of 21 to 30 years old. The number of women arrested in this age cohort jumped by 134 percent in the last decade. And surprisingly, the number of women over the age of 50 also saw a large increase in DUI arrests over the same period. Even in the oldest group, women over the age of 70, the number of DUI arrests in California over the last decade increased by 76 percent. While the number of women arrested for DUI in California increased, the number of men similarly arrested decreased.

There has been little attention paid to the increase in women arrested for DUI and few if any studies that provide clues to help explain this phenomenon. Women need to be aware that they can’t “drink like a man” because their bodies metabolize alcohol differently. They also need to be educated on the dangers of driving under the influence of certain prescription medications or worse, combining those medications with alcohol.

 

 

 

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.

Maybe this is a good time to revisit the more common consequences of a DUI:

1) Towing and tow yard fees,

2) Attorney fees,

3) Court and DMV fines and fees,

4) Driver license suspension,

5) Cost of public transportation until your driver license is restored,

6) Your time and money spent on mandated DUI education,

7) Installation and maintenance of an ignition interlock device (may be ordered but not in all DUIs),

…and the biggie

8) Increased insurance premiums.

The time and costs of a DUI will vary depending on a number of circumstances but it is, without a doubt, very expensive and will demand a lot of your time. Most estimates for a first-time DUI run from approximately $10,000 to $20,000 in costs. That would be one expensive Super Bowl Sunday.

While most people are aware there are financial costs associated with a DUI, few consider how a DUI will affect their lifestyle. The most immediate impact is the suspension of your driver license. What would this mean for you? Do you have a long commute to work or school? Is there convenient public transportation available to you? Do you have friends or relatives upon whom you can rely to get you to and fro….every day? Can you afford to hire a taxi or other car service?

If you are ordered to install an ignition interlock device, you will be required to pull over at driving intervals to blow into the device. You will also be required to bring your car in for periodic maintenance on the device.

The mandatory DUI classes will require a minimum of 30 hours of your time, not counting getting to and from the class.

You will be placed on informal probation, usually for three years. Violating probation may land you in jail.

These consequences are just the minimums for a conviction on a first-time DUI. If the DUI involves injury or death or it is not a first-time DUI, the consequences will be far more serious. It is always wise to simply not drink and drive, but if your wisdom escaped you and the CHP found you in its sight, wise up and immediately consult an attorney. The money you spend on an experienced DUI attorney will often save you money and time down the road.

 

 

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.

Indeed, MADD partnered with Uber to study whether ride sharing apps were correlated to a decrease in drunken driving. According to their study, among drivers under 30 years of age, drunk-driving related crashes fell 6.5 percent in California markets after the introduction of Uber. MADD is solidly behind the expansion of ride sharing apps such as Uber and Lyft and believes that as these programs become more popular, drunken driving incidents will decrease.

There is reason to agree. Ride sharing apps make it easier to find a safe ride home, especially in cities where taxis aren’t ubiquitous, which is most cities in the United States and is certainly true of Southern California cities. Ride sharing is also often cheaper than a taxi and the smart phone technology makes getting a ride one seamless action, from summoning the driver to payment. Especially for the younger crowd, which is more apt to be out partying and more comfortable with smart phone technology, ride sharing has the potential to cause a sea change on our late-night roads.

Uber and Lyft are the first successful ride sharing apps out of the starting gate but more companies are entering this breakthrough market. While there is pushback from the traditional taxi companies, just like the buggy whip makers, the taxi companies will eventually accept the new paradigm and adapt to the changes, or disappear. As the joint MADD/Uber Report suggests by its title: ” More Options. Shifting Mindsets. Driving Better Choices.”

 

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.

But what if a driver is incapable of comprehending the warning and refuses the test? In some situations, this might be a defense to the consequences of test refusal. Being incapable of comprehending the warning does not mean the driver was too drunk to understand or unable to comprehend due to a “self-induced condition.” The courts have “consistently held that a self-induced condition rendering the driver incapable of understanding and refusing to submit to a test, particularly if the condition results from alcohol consumption, does not excuse failure to take a test.” (Hughey v. Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 759.)

Still, the courts have allowed that there are times when a driver, due to no fault of his or her own, genuinely cannot comprehend the warning. For example: In the above cited case, Hughey v. Department of Motor Vehicles, the court considered whether a person may be “in a condition which rendered him incapable of refusing to take the test.” In that case, the driver was involved in an accident and then arrested for DUI. He refused to consent to a chemical test. It was later revealed that the accident caused head trauma to the arrested driver, which could have made it difficult, if not impossible, for him to have understood the admonition or the significance of his refusal to submit. In another case, Thompson v. Dept. of Motor Vehicles (1980) 107 Cal.App.3d 354, the driver could not hear the officer’s warning because radio traffic interfered with the driver’s ability to hear. The appellate court held that the driver was, therefore, incapable of comprehending the warning.

The consequence for refusal to submit to a chemical test upon a DUI arrest is being challenged in our highest court. Just last month (December 2015) The United States Supreme Court agreed to hear cases from Minnesota and North Dakota where refusing a chemical test upon an arrest for DUI is charged as a crime separate from the driving under the influence charge. The Supreme Court will consider whether this infringes upon a person’s Constitutional rights. While not entirely applicable to California law where refusal is not charged as a separate crime (the driver’s license suspension is considered an administrative sanction), the Court’s holding may nonetheless affect the administration of the implied consent law in California.

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.

Recently in the State of New York, a driver successfully challenged her arrest and charge for driving under the influence of marijuana. Not only had this driver admitted to the police that she had “smoked weed earlier,” but the officer noted her bloodshot glassy eyes, slurred speech and unsteady stance. Despite the driver’s admission, which is considered hearsay under New York law without corroboration, the court dismissed the complaint against the driver because the officer failed to corroborate her statement by stating in the arrest report that her appearance or demeanor was consistent with the use of marijuana or, as is often the case, that the officer smelled marijuana emanating from the vehicle or from the driver.

New York law does not make any statement regarding the presence of THC in the body in its DWI law; nor does California law. Similar to the laws in New York, California merely makes it illegal to drive under the influence of drugs. How that is established most often relies on the subjective evaluation of the officer and objective findings such as the smell of burnt marijuana or the presence of marijuana on the driver or in the vehicle.

The laws prohibiting marijuana use, whether recreationally or medicinally are rapidly falling away. How the states treat drivers under the influence of marijuana will certainly present challenges to law enforcement and the courts for years to come.

 

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.

Using a hypothetical example: A 180-pound man has 3 drinks over the course of a two-hour meal. Immediately after his last drink, he gets in his car and after driving for five minutes is stopped by the police. About 20 minutes after the stop, the police arrest the driver and he blows a .09% on the breathalyzer test. Yes, he is slightly over the legal limit but was he over the legal limit 20 minutes before when he was actually driving? It is quite possible that his body had not completely absorbed the alcohol at the time of the traffic stop and therefore, he was below the legal limit. In other words, his blood alcohol level was still rising at the time of the stop and by time the chemical test (breathalyzer) was performed, it had risen to .09%.

As this example suggests, it is not always easy to prove the driver’s blood alcohol content was rising but was below the legal limit at the time he or she was actually behind the wheel. Establishing this defense always requires the testimony of a DUI defense expert. These experts are scientists who will review the timeline of the stop to arrest, the forensic test results, and all relevant factors personal to the driver, such as the driver’s weight.

It is a rare occurrence that a misdemeanor DUI charge actually goes to trial, but the expert evidence will be presented to the district attorney during the pre-trial phase, which usually involves negotiating a plea bargain. Ultimately, it is impossible to prove what the driver’s blood alcohol content was at the time he or she was driving because there was no chemical test taken at precisely that point. But if the DUI defense expert’s evidence is convincing, it is often enough to persuade the district attorney to dismiss the charge or to negotiate with the defense attorney to charge the driver on a lesser charge.

For obvious reasons, the rising BAC defense is only a viable defense when the driver’s BAC is only slightly above the legal limit. It may also be effective when the driver tests just over the “aggravated DUI” limit of .15%, which carries stiffer penalties. In such a case, the rising BAC defense can result in a conviction on just a straight DUI (between .08% and .15%) and save the driver from the harsh penalties that are invoked upon conviction of an aggravated DUI.

 

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.

 

Despite California appellate cases that have held that the DMV Administrative Per Se Hearing is constitutional, there is a strong legal argument that the DMV Hearing Officer is not an impartial arbitrator as due process demands. The California Supreme Court held that “[w]hen due process requires a hearing, the adjudicator must be impartial.” (Haas v. County of San Bernardino (2001) 27 Cal.4th 1017 at 1025.)

 

The California DUI Lawyers Association’s lawsuit, which was filed in Los Angeles County Superior Court on August 1, 2014, is pending. The plaintiff does not seek money damages but rather requests an order for declaratory and injunctive relief. The lawsuit asks that the court compel the DMV to reform its Administrative Per Se system by implementing a fair and neutral decision-making procedure in its DMV administrative hearings.

It’s no secret among DUI defense attorneys that a driver rarely wins if he or she challenges a DMV Administrative Per Se license suspension. Many attorneys who are experienced with the process even consider the whole regime “rigged.” After all, when the hearing officer, who is not a lawyer or judge but rather an administrative functionary, is the one who decides on the suspension (or revocation) of the driver’s license—usually based on nothing but the police report—and at the same time is representing the DMV, the process is inherently unfair. How can the hearing officer be impartial when he or she is, in effect, advocating for the DMV? The lawsuit is scheduled to go to trial in May of 2016.

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.”

People addicted to alcohol fill our California courts in greater numbers than other drug addicts, often on DUI charges. Unfortunately, for a person addicted to alcohol, a DUI conviction usually does not stop at one and the law metes out increasingly severe punishments for the multiple DUI offender. Granted, the law also provides for rehabilitation by mandating that the offender attend DUI classes, but as we have often heard, an addict can only work on his or her recovery from addiction if he or she wants to.

One California county is has implemented a promising alternative to punishing DUI offenders. With a grant of federal and state money, the San Joaquin County’s DUI court system has a program that identifies DUI offenders who are alcohol dependent and places these offenders in the DUI Treatment Court. The DUI Treatment Court recognizes that DUIs committed by those with alcohol dependence will only be reduced if the alcohol dependence is addressed. Those sentenced to this program are called “clients” and even though they are punished under the California DUI statutes, they also receive help with their addiction.

The program is an attempt to address the underlying problems of alcohol dependence. The key to this program is that the DUI defendant client is assigned a caseworker. And the caseworker isn’t just window dressing. The court-appointed caseworker evaluates the client in an effort to identify the reasons for his or her alcohol dependence. This might include understanding the client’s history and lifestyle as well as identifying resources that will help the client recover from his or her alcohol addiction. The caseworker is there for support and finding real and meaningful ways to help the offender recover. Often clients of this program will get therapeutic and/or housing help.

The program has been in effect since 2008 and has reported a high success rate. Recently Monterey County announced a similar program under the banner of the “therapeutic collaborative court model” based on the successful Drug Court program in that county, which not only punishes but treats the drug addict. El Dorado County, as well as several other counties in California, also have similar programs underway. These programs, which are established to address the underlying reasons a defendant commits multiple DUI offenses, show a promising approach to the recognition that punishment is often not enough to stop a driver who is addicted to alcohol from driving under the influence of alcohol.