IMPAIRED DRIVING

A driver can be arrested for driving under the influence even if the driver tests under the legal threshold of 0.08% blood alcohol content (BAC) or even a 0.00% BAC.  If the arresting officer has probable causeto believe that the driver’s ability to drive is impairedby any substance— be it alcohol, legal or medically prescribed cannabis, or any prescription drug (whether legally prescribed or not)—there are grounds for the arrest . When a driver tests over the per se limit of 0.08% BAC,  probable cause is presumed, but how does the officer determine that the driver’s ability to drive was impaired  when there is no obvious  symptom or immediate chemical test to establish probable cause?

It may boil down to the subjective evaluation of the officer.  In such cases, the prosecution will have the burden to prove the probable cause. Because this is often a subjective evaluation, an experienced DUI defense attorney may be able to get the charge dismissed.

According to the European Transport Safety Council, the European Union populous consumes more alcohol than any other region of the world. It is estimated that around 25% of all traffic fatalities in the EU are alcohol related.  This is actually lower than the estimated percentage of drunk driving related fatal accidents in North America, but the statistical difference may be explained by the fact that North America sees far more people driving longer distances than in Europe where public transportation abounds, where many people don’t even have a car, and if they do, their typical driving trips are generally cover far less distance than a driving trip on this continent.

Even so, drunk driving is an issue in Europe, just as it is here. And as on this side of the pond, attitudes towards drunk driving and stricter laws and enforcement have had an effect. Road deaths attributed to drunk driving have been on the decline in Europe, but that hasn’t save the thousands of lives that are lost each year in Europe after a drunk driving collision.

The European Transport Safety Council issued a report this year titled “Progress in Reducing Drink Driving in Europe.”  (Drink driving being what we call drunk, or drunken, driving in this country.) The report is interesting for what it tells us about reducing drunk driving country by country.

The California Department of Insurance just issued an advisory in preparation for heightened DUI enforcement over the July 4th holiday period. Noting that over half of vehicle fatalities involved multiple substances, including cannabis.  The CHP reports that there has been a 28 percent increase over the decade of fatalities involving some sort of drug, including prescribed drugs.

In response to this uptrend, the Department of Insurance is sponsoring demonstrations where young drivers put on a suit that simulates being under the influence of marijuana and alcohol. The suited-up drivers then drive on a controlled course. The opportunity to suit up will also be offered to reporters, no doubt with the hope that their experience will be filmed and reported on in the local media.

The vehicles that the suited-up drivers will operate will also be equipped with GoPro cameras. The footage captured will be made available to the media.   Also on hand for the demonstrations will be law enforcement representatives to discuss the effects of drunk or drugged driving.

If you are, or were, a member of the United States military and suffering from trauma related to your service, you may be eligible for a pre-trial diversion program if you get a DUI. Penal Code section 1001.80 allows a court to suspend prosecution on misdemeanor charges if the defendant may be suffering from PTSD, or other mental health problems related to the defendant’s military service. Specifically, the trauma as delineated in the statute includes:

Sexual trauma;

Traumatic brain injury;

A couple of years ago I wrote a blog postciting studies that indicate ride sharing apps are responsible for a decrease in  drunk driving crashes for drivers under the age of 30 and another blog postabout studies that suggested ride sharing apps have had no impact on the incidence of drunk driving fatalities. Now recent studies conducted by the University of California and a national personal injury law firm show a significant decrease in DUI arrests in major California urban centers in the years since ride sharing has become a thing.

The decrease in DUI arrestsin urban areas is remarkable. San Diego has seen a 32% decrease after ride sharing, San Jose, a 28 percent decrease, Sacramento, a 26 percent decrease, and San Francisco and Los Angeles both saw a 14 percent decrease.  These decreases are not confined to California. Large cities across the county report significant decreases in DUI arrests. And party-city, Las Vegas, has seen the largest decrease in DUI arrests: down nearly 40 percent.

The study estimates that 33 percent potential drunk drivers chose ride sharing instead. Anecdotal evidence also suggests that more drivers are choosing ride share if they intend to drink. For instance, traffic enforcement units report a substantial increase in ride share drivers at DUI checkpoints.

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.

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.

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.

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.

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.