EVEN POLICE OFFICERS, DISTRICT ATTORNEYS, AND JUDGES GET ARRESTED FOR DUI

How can we explain all the people who should know better getting DUIs? Never mind the average driver, who should know better, what about the cops, the firefighters, the attorneys, even the judges who get DUIs. It happens all the time in California and in every state. In Austin Texas, the District Attorney—not a district attorney—but the District Attorney, an elected official who was the head of the District Attorney’s Office in that city of over 1 million people, was arrested for driving while intoxicated (DWI) in 2013. She was driving in a bike lane (good thing there were no bikers in the lane) for more than a mile and was also observed veering into oncoming traffic. When she was stopped by the police, they found an opened bottle of vodka on the front seat. Her BAC was 0.239! Folks, that is three times the limit and near the level that results in alcohol poisoning and loss of consciousness.

Perhaps some of these people think they are “above the law” or that they can use their influence to get out of a drunk driving arrest. But I suspect it is more likely that many of our public servants, be they police officers, firefighters, judges, district attorneys or representatives in the Legislature who have been arrested for DUI have an addiction. As with many repeat offenders who drive drunk even though they have been convicted of DUI one or more times and know the consequences will be progressively more severe, still get behind the wheel after drinking, it is the addiction that overrules common sense.

IF YOU ARE HIGH, DON’T DRIVE

Driving under the influence of marijuana is an evolving subject of concern to safety experts and law enforcement. Last week I wrote about the difficulties California and other states are having establishing at what levels marijuana use presents a driving risk and how those risks are assessed. There is yet to be a consensus. This has happened before. In the 1930’s and 40’s as automobile ownership reached the masses, there was no general agreement among the states regarding drunken driving and until the 1950’s no reliable way to measure a driver’s level of inebriation. Before the advent of the breathalyzer, whether someone was too drunk to be on the road was left to the subjective decision of law enforcement and all too often, that mean the officer would just follow the driver home to make sure he or she made it home safely.

With the legalization of marijuana, we face similar dilemmas, and just like the early days when drunken driving laws were evolving, there is yet to be a reliable method to test a driver for marijuana testing and there is no agreed-upon limit where THC levels are considered too high to drive. In the mid-twentieth century, there were honest debates about whether a moderately intoxicated driver was dangerous and most states, even up to the late 1960’s, did not prosecute a driver if his or her BAC was under 0.15%. Statistical analysis and scientific studies later established that a BAC over 0.08% makes a driver dangerous and the trend is going lower, towards a 0.05% BAC threshold.

Even though recreational use of marijuana is now legal in California, it is still unlawful to drive its influence. (Vehicle Code §23152(f).) While the “per se” law makes a driver presumptively “under the influence” of alcohol at 0.08% BAC, how does the law define a driver under the influence of marijuana? The legal standard is that the driver’s ability to drive, with the same caution of a person who is not high under the same circumstances, is appreciably affected or impaired by the influence of marijuana. But there are two problems with this standard as far as it concerns driving under the influence of marijuana:

  • The Legislature has set no legal “per se” threshold by which a driver is presumptively under the influence of marijuana to the extent that the driver’s ability to drive safely is compromised and
  • There is no reliable test that can determine how much marijuana has been consumed by a driver or even when the consumption took place.

One of the unanticipated and rarely discussed fallouts after getting a DUI is depression. Many, most often those with a first-time DUI, report signs of depression after getting the DUI, such as deep sadness followed by anger and then sadness again. They often spend a lot of time ruminating over their stupidity and feel like losers. They are ashamed to share the details of their arrest and conviction and subsequent emotions with friends and family. This is more common than you would imagine.

Unfortunately, for some— often it is those who feel they have a reputation to protect— the feelings can even turn suicidal. I will tell everyone reading this: a DUI is a pain, it costs you a lot of money, and it can seriously crimp your lifestyle for a while but it too shall pass. I will also remind you that many otherwise responsible people have a DUI on their record. Heck, even one of our former presidents (at least one, maybe more) had a DUI in the past.

The healthy way to deal with a DUI, particularly if it is your first, is to see it as an opportunity: 1) you got a free pass because your drunken driving didn’t kill anyone, 2) you got a wake-up call alerting you to the personal consequences and hopefully will carry that lesson for the rest of your life, and 3) the DUI might alert you to an alcohol problem you previously refused to admit. I don’t mean to sound judgmental, I have had many DUI clients through my door and I understand the many circumstances that ended in their DUI arrest; none of us is perfect.

Determining who is at fault in a vehicle accident knows is often hard to determine. Other than rear-end collisions or collisions involving the obvious running of a red light or stop sign, fault is often a case of blaming the other guy.

What happens if you are legally over the BAC threshold limit of 0.08 percent and you are in an accident that you contend is the other guy’s fault. Some people believe that being DUI legally puts the fault on the drunken driver, regardless of the circumstances. But, that is not necessarily true, at least in California.

Let’s take an example: You are turning left at a green light on a road with a 35-mph speed limit. You must yield to on-coming traffic since this light does not have a green left turn arrow. Seeing an on-coming car far down the road, you assess that it is safe to make your turn. But it turns out that the on-coming car is traveling at 60 mph and therefore your assessment was incorrect. The car is unable to stop in time and hits you broadside. Who is at fault?

Driving under the influence is dangerous enough; it affects a driver’s motor skills, reaction times and judgment. But how many drivers out there are under the influence of alcohol or drugs and using their cell phone while they drive? My guess is a lot. Recently an 18-year old Stockton driver who was under the influence of alcohol thought it was a clever idea to record video to Instagram while driving with two 14-year-olds in the backseat. One of those passengers was her sister. As the drunken, video-streaming teen drove down a road near Los Banos, California, her car veered and she overcorrected causing the car to overturn. Her 14-year-old sister was killed; the other passenger suffered serious injuries.

The 18-year-old should never have been drinking in the first place, much less driving with two 14-year- olds in the car. As I have discussed on previous occasions, teen brains have not matured and many teens have poor decision-making skills. That doesn’t give this driver a pass–she has been charged with vehicular manslaughter and other crimes. Worse yet, she will live with the memory of killing her little sister for the rest of her life.

But I wonder about all the adults of legal drinking age who are out on our roads driving under the influence and texting, posting to social media, or even just navigating on their cell phone. Researchers have asked: What’s more dangerous, driving with a .08% BAC or texting? One study conducted by the University of Utah found that cell-phone use resulted in greater driver impairment than driving under the influence of alcohol. Car and Driver Magazine conducted simulated driving test on driver reaction times. Their results: the texting drivers’ reaction time was as much as two times slower than the drunk drivers’ reaction time.

Now that recreational marijuana is legal in California, law enforcement agencies are racing to train officers in roadside drug recognition. Since pot became legal, the Orange County crime lab has seen a 40 percent increase in requests to process blood samples related to driving under the influence of marijuana arrests. Whether there actually is an increase in marijuana-influenced drivers or the cops have increased their suspicions since legalization, one thing is for sure: the roadside detection of driving under the influence of marijuana is much harder for the cops than figuring out if a driver is under the influence of alcohol. Hence, the rush to train more officers as drug recognition experts.

The officers, who are trained to become drug recognition experts, receive an advanced certification which allows them to testify in court as an expert. While the specific focus on driving under the influence of marijuana is prompting the rush to certify more experts, these experts are trained to recognize symptoms of not only Cannabis use, but of six other categories of drugs:

  • Central Nervous System Depressants (examples include commonly prescribed drugs such as Prozac, Zoloft, and Paxil);

 
The most recent DMV statistics available indicate that around 85% of those charged with driving under the influence end up getting convicted of that crime. The remainder are either not convicted or convicted of a reduced charge. A reduced charge conviction usually is the result of a plea bargain made with the prosecutor. A defense attorney has the best chances of negotiating a reduced charge to a DUI when one or, better yet, more than one of the following circumstances occur:

  • the evidence supporting the DUI arrest is weak,
  • it is a first-time DUI

WILL THE LEGALIZATION OF MARIJUANA INCREASE THE DANGER ON CALIFORNIA ROADS?

Here’s the headline: “Legalizing Marijuana for Recreational Use Results in Increased Crashes.” So says the Insurance Institute for Highway Safety(IIHS). Based on a recent Highway Loss Data Institute (HLDI) study that studied crash data since 2014 in the first three states to legalize marijuana, Colorado, Oregon, and Washington, as compared to data in control states without legalized recreational marijuana, Idaho, Montana, Nevada, Utah and Wyoming. According to the study, the collision claim frequencies in Colorado, Oregon, and Washington are approximately three percent higher than would be indicated if the states had not legalized the recreational use of marijuana. Three percent does not sound like a lot but is still considered significant.

Even though the study tried to account for variables such as weather, driver demographics, and so on, the astute reader might wonder how the study could account for one important variable: stoned drivers in the control states. The study could not possibly account for how many drivers in Idaho, Montana, Nevada, Utah and Wyoming were under the influence of marijuana at the time of the claim. Although the recreational use of marijuana in those states is still illegal, people in those states use marijuana, and drive under its influence.

If you are a licensed professional in California, a DUI conviction could affect your license status. In this age when law enforcement information is immediately shared electronically with the state, which in turn, alerts the state boards that license certain professions, you can be sure the board that license you will learn of your DUI conviction. Typically, the license board will receive notice from the state within 30 days of a conviction. Furthermore, most state licensing boards require current licensees to report any conviction, including DUIs within a certain period of time.

After a DUI conviction, the licensing board will conduct an inquiry and/or investigation. Licensing Boards will usually contact the licensee and ask for his or her explanation of the conviction. Depending on the nature of the conviction and the particular license, the licensing board may conduct an administrative hearing before an administrative judge. This hearing is similar to a court trial but less formal. The licensee has the right to present evidence and have an attorney present to represent him or her. Administrative hearings are serious business, the judges are often tough and the state often will paint the licensee as an alcoholic, based only on the evidence that the licensee received a DUI.

While the statutes governing California professional licenses provide that the conviction must be substantially related to the function and duty of the profession in order to sanction the licensee, the licensing boards take wide latitude in interpreting those grounds. For example, a licensing board could take the position that the profession requires good judgment and driving under the influence demonstrates a lack of judgment. Or, as is often the case, the licensing board makes the argument that the DUI conviction exhibits “unprofessional conduct.” Multiple DUIs or a DUI with aggravating circumstances can, and usually will, result in the suspension or revocation of a professional license. Certain professionals may be subject to stern sanctions after only one DUI.