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The holidays are upon us – don’t ruin your merriment by driving under the influence. Now is the time to consider your plans. Do you have a designated driver? Is ride sharing an option? Or how about resolving not to drink more than one drink (or none is better) at that Christmas party? Drinking impairs a person’s judgment and that is often why someone gets behind the wheel when they shouldn’t. You should have a plan for your holiday celebrations that includes a strategy for getting back home without getting behind the wheel if you are going to drink.

California law enforcement typically see a 20 to 30 percent increase in DUI arrests during the holidays. One of the reasons for the increased arrests is that most law enforcement agencies across the state intensify their patrols for impaired drivers. At certain dates during the holiday period, when drinking and partying is most prevalent, law enforcement agencies initiate what is termed “maximum enforcement periods.” The other reason for the increase DUI arrests during the holiday is obvious: people are attending parties or otherwise socializing.

Getting arrested for a DUI may be the “second best” outcome next to getting home safely. Driving under the influence can have far more devastating outcomes as everyone knows. Yet, we do it anyway. We all make mistakes. If you find yourself pulled over after drinking even one drink, you risk a DUI.

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According to the National Highway Traffic Safety Administration (NHTSA) 13,384 people died in drunk driving related incidents in 2021 (the latest year for which the statistic is available).  This number, according to the NHTSA, represents one-third of all traffic-related fatalities and equates to approximately 37 individuals who die per day as a result of drunk driving.  Approximately 40 percent plus of the drunk drivers who were killed were ages 16 to 24 years old, with 21 to 24 -year-olds having the most drunk driving accidents in the United States. According to Mothers Against Drunk Driving (MADD), 1 in 4 teen vehicle accidents involve alcohol. This is not surprising since this is the age group that is most high risk and presents a disproportionate number of dangers to society.

There is a mix of news in California. Let’s start with some good news. Per the California DMV Annual Report of the California DUI Management Information System (2022) (DUI MIS Report), DUI arrest rates have decreased significantly: more than halved since 2010 from 823 per 100,000 licensed drivers in 2010 to 357 in 2020. Alcohol related vehicle fatalities have also decreased but less so. DUI-related crash fatalities represented 39.1 percent of all traffic fatalities in 2010 and 31.8 percent in 2020. Alcohol related injuries though saw a slight increase from 10.6 percent of all crash injuries in 2010 to 11.4 percent in 2020. Unfortunately, drug related vehicle fatalities have nearly quadrupled over the past 25 years.

Repeat offender convictions have decreased significantly. This is good news and suggests that treatment for those with serious alcohol addiction is becoming more effective and better utilized. California courts have recognized that repeated punishments for DUI offenders with alcohol addictions is not always a successful approach. Collaborative courts allow the repeat DUI offender, under strict individualized supervision and treatment, to avoid incarceration and other punitive measures in favor of rehabilitative treatment. Research has shown this approach to be effective and to reduce repeat offenders from re-offending after successful completion of a DUI court program.

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If you have been arrested for a DUI in California, you may be wondering if the police can search your vehicle. The answer is not always straightforward. In general, the police can only search your vehicle if they have probable cause to believe that the search will yield evidence of a crime. This means that they must have a reasonable belief that you have committed a crime, and that the evidence of that crime is in your vehicle.

Here are some examples:

Scenario One: You have been stopped for a traffic violation. The officer smells alcohol on your breath and believes you are over the per se limit of 0.08% BAC. You are placed under arrest for DUI. Can the officer then search your vehicle?

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If you are convicted on a DUI (driving under the influence of alcohol or drugs) violation in California, you will be required to attend DUI classes as part of your sentence. The court may also order additional terms of your DUI probation such as attending AA meetings or community service. Failure to abide by the terms of your probation order can result in a number of consequences.

Typically, what happens after the court orders probation on a DUI conviction is that the DUI probationer is required to report his or her progress and/or completion of probation terms. Failing to complete any of the terms of DUI probation is considered a violation of probation and can lead to additional penalties. The court may order you pay fines, complete community service, or even send you to jail for violating probation. In reality though, the court will give you a “pass” on the first and even the second violation, depending on the severity of the violation.

The DMV might not be so forgiving.

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For over four years now in California, ignition interlock installations are required after an arrest for driving under the influence of alcohol (even  for first-time offenses) if the driver wants to avoid a temporary suspension of his or her license to drive and mandatory for almost all D.U.I. convictions. The ignition interlock law has been heralded as a “win-win.” The law allows a driver to avoid a suspension of driving privileges and makes it near impossible for that driver to drive under the influence of alcohol as long as the device is installed.

But, how effective has the mandatory ignition interlock device (IID) law been in decreasing drunk drivers and more importantly, decreasing the frequency and severity of DUI-related crashes, injuries, and fatalities?

IIDs have been ordered upon the discretion of the court for many years, and in recent years, these installations have become mandatory in many states, as in California. California actually lags in this respect; by 2013, eighteen states had already made IIDs mandatory for all drunk-driving convictions. According to the CDC, IIDs reduce repeat offense driving under the influence of alcohol by 70%….while they are installed.  Data gathered from these eighteen states suggest approximately 15% fewer drunk-driving related traffic fatalities in a study published in the American Journal of Public Health. The CDC also cites more recent studies that indicate up to 26% reduction in alcohol-related fatal crashes in states requiring an IID upon conviction of driving under the influence of alcohol.

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In California, a first-time driving under the influence (DUI) is a misdemeanor offense. However, there are a few exceptions where even a first time DUI may be charged as a felony.

Under Vehicle Code section 23550.5, subdivision (b) a conviction for a first time DUI within a ten-year period can result in a felony conviction punishable by imprisonment in state prison if the defendant had been previously convicted of gross vehicular manslaughter while intoxicated (Penal Code section 191.5) or vehicular manslaughter (Penal Code section 192.5). While section 191.5 has the element of intoxication, section 192.5 does not. Furthermore, while the DUI statutes generally have a ten-year look back window in prosecuting multiple DUI offenses, section 23550.5(b) does not.

Example: In 2008, Henry, then 18 years old was racing his car in an unlawful exhibition of speed in violation of Vehicle Code section 23109. His vehicle went out of control and broadsided another vehicle killing both occupants in that vehicle. Henry was not intoxicated. He was convicted on two counts of vehicular manslaughter (Penal Code section 192.5). Twelve years later, Henry was arrested for driving under the influence pursuant to Vehicle Code section 23152, subdivisions (a) and (b). It was his first ever DUI arrest. Normally a first time DUI is a misdemeanor and very rarely, if ever, is punished by any jail time at all. But because Henry had a historical conviction of vehicular manslaughter, his DUI was charged as a felony and he faced a potential sentence of imprisonment.

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A DUI arrest may surprise the casual drinker. That happened to my client Linda. She is not a big drinker but several years ago she had two glasses of wine while out to dinner. She drank those glasses over the hour-long dinner and thought she was fine to drive. She exited the parking lot onto PCH and got stopped because she failed to use her turn signal. Linda is a small woman and those two glasses of wine put her just over the BAC limit of 0.08%. She was shocked when she got arrested for driving under the influence.

But this post is not about Linda. This post is about most of the DUI clients that come to my office: almost all suffer from alcohol abuse to some degree or another.

Perhaps that is you. And perhaps you have resolved to address your drinking with the new year … as perhaps you have done at the beginning of previous new years. The task may seem overwhelming…how to admit you may have a problem, where to start? For some people, the barrier is the belief that they must quit drinking altogether and that is not something they desire. The prevailing wisdom for many years has been that any alcohol abuse is a sign of alcoholism and the only way to conquer alcoholism is abstinence from alcohol. In recent years, that paradigm is being questioned.

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Is driving while high on marijuana as dangerous as driving under the influence of alcohol? Obviously, how much alcohol or marijuana matters. A driver who has a .19 blood alcohol content (BAC) is almost certainly going to be a more dangerous driver than someone who took two hits of marijuana.

There are far fewer studies on the effects of driving under the influence of marijuana compared to the years of research on how alcohol affects a driver. Experts who study the impacts of driving while high are still sorting it out. One thing is clear: fatal vehicular accidents involving a driver under the influence of cannabis have increased, more than doubling from 2000-2018.  In those years, fatal accidents involving a driver under the influence of marijuana went from 9% to 22%. The percentage of drunk driving fatalities during those years remained about same.

While marijuana-involved fatalities have increased, there is evidence that driving under the influence of cannabis is less deadly than driving under the influence of alcohol. Several studies have suggested that a driver who is high on marijuana is around twice as likely to be involved in a fatal accident as compared to a sober driver. That is a matter of concern. However, it is estimated that a drunk driver is almost 18 times more likely to be involved in a fatal accident!

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On New Year’s Day 2021 in Central California, a driver with twice the legal limit of 0.08% blood alcohol concentration (BAC) in his system was speeding at approximately 90 mph on a two-lane roadway. He lost control of his vehicle and crossed over the centerline causing a head-on collision with a truck traveling in the other lane. In the truck was one adult and seven children. The collision caused the truck to combust and all eight occupants in the truck died, as did the drunk driver.

This tragic incident and many that preceded it, prompted the National Highway Traffic Safety Administration (NHTSA) to recommend that all new vehicles be required to be equipped with an alcohol impairment detection system. According to the NHTSA one in three traffic fatalities involve an impaired driver. AT present, there is no standard chemical testing for cannabis impairment or a in-field method for detecting drug impairment, such devices, such as ignition interlock devices (IID),  are primarily effective for alcohol impairment. However, there is already technology that can detect whether a driver is alert by tracking the driver’s face and eyes and by lane veering. Such technology not only detects impairment but whether a driver is dozing off or otherwise to inattentive to drive safely.

The NHTSA has actually gone one step beyond recommending that vehicle manufacturers incorporate these devices and has asked that the federal government require that all new vehicles be equipped with these devices. The NHTSA is likely to see its recommendations become law.

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In 2018, 19-year-old Davion Murphy, driving through residential Lancaster, California at a speed of 88 miles per hour, with a posted speed limit was 40 mph, ran a red light colliding with another vehicle. The collision caused the death of all three occupants in the vehicle Mr. Murphy’s vehicle hit. Mr. Murphy was arrested at the scene and upon investigation, the officers found marijuana in his vehicle. Further discovery revealed that Mr. Murphy had been smoking copious amounts of marijuana prior to the collision.  Mr. Murphy was charged with three counts of second degree murder. Mr. Murphy’s case went to jury trial where he was convicted on all three counts. Mr. Murphy appealed.

The California Court of Appeals, Second District recently affirmed the conviction in a published case, People v. Murphy (2022) 80 Cal. App. 5th 713.

Mr. Murphy argued on appeal that the prosecution failed to present sufficient evidence to support the murder charges because the prosecution failed to support an element of the charge, i.e., there was insufficient evidence that he acted with implied malice. Expressed malice, an element of first degree murder, is the deliberate intent to kill someone whereas implied malice, a necessary element of second degree murder is the killing of someone without the deliberate intent but a result of an act that has a high probability it will result in the death of another, an act with “wanton disregard for human life.” The act must be deliberately committed with the knowledge that it is a danger to human life and with a conscious disregard of that danger. (This distinguishes implied malice from gross negligence. For example, sober but excessive speeding that causes the death of another.)

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