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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?

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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.

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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);
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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
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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.

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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.

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We all know that driving under the influence is unwise and dangerous, with potential consequences that should convince anyone that they shouldn’t do it. Yet, close to 200,000 Californians are arrested for DUI every year. What makes a driver decide that it’s okay to get behind the wheel after drinking?

Rational Choice Theory suggests that crimes are committed when a person believes committing the crime offers more benefits with lower costs than not committing the crime. The theory does not suggest that a person draws a line through a blank sheet of paper and lists the pros and cons, but rather that people are rational enough to weigh the options, even if subconsciously. While there are many critics of this theory and it surely doesn’t apply to all crimes, in terms of the driving under the influence, there may be some truth to the theory.

Although the effects of alcohol can distort a person’s decision-making skills—and this must surely figure into some individual’s decision to drive after driving—studies and empirical evidence suggest that many individuals make a rational choice to drive after drinking based on achieving the intended outcome (arriving at a destination) between the costs and inconvenience of not driving versus the cheaper and more convenient method of driving oneself and the probability of getting arrested for driving under the influence or some other detrimental consequence.

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Is 0.05 Percent the new 0.08 Percent?

Since 2013, the National Transportation Safety Board (NTSB) has advocated that the legal blood alcohol level (BAC) limit for drivers in the United States be lowered to 0.05 percent or even lower. Citing numerous studies in other countries where the legal limit is 0.05% or less, the NTSB makes the case that even at 0.05% BAC, which for most people is the equivalent of one or two alcoholic drinks within a period of an hour or so, the risk of a driver being in a vehicle crash is at least twice as likely than for a driver with no alcohol in his or her blood. One such study noted by the NTSB is a finding that in Australia, there was an 18 percent decrease in fatal vehicle crashes when the legal BAC was lowered from 0.08 percent to 0.05 percent. Indeed, almost all countries have a BAC threshold that is less than the 0.08 percent that currently applies in all fifty US states.

But states are free to set their own BAC thresholds and the NTSB recommendations are starting to show an impact. In March of 2017, Utah became the first state to pass a law, which becomes effective in 2018, to lower the legal BAC limit to 0.05 percent. Two other state legislatures, Hawaii and Washington State, have or are considering similar legislation. The Hawaii bill was rejected but a Washington house bill to lower the BAC limit to 0.05% is currently in committee.

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Last month, a small plane made an emergency landing in Los Angeles County. It was not particularly noteworthy as fortunately no one was hurt. The pilot managed to make a hard landing in a warehouse parking lot with the only damage being to the aircraft’s wing as he clipped a stop sign on his way down. The incident’s noteworthiness is that the pilot, who was the only person on board, was arrested for being under the influence of alcohol. It’s amazing that he did such a good job of landing because he was seriously off course — he was flying from Temecula to San Diego, or so he thought.

According to news reports, the pilot was arrested for misdemeanor DUI. If that is the only charge he faces, he’ll be getting off easy. Piloting an aircraft, even a private single-engine plane, falls under federal regulations. Flying while under the influence is a violation of the Federal Regulations and under the regulations, a pilot cannot fly a plane for eight hours after consuming an alcoholic beverage. (14 CFR 91.17.) The FAA will begin license suspension proceedings against any pilot found to have been drinking within eight hours of flying and criminal prosecution under the federal code is also possible.

Moreover, California has its own law regulating drunken flying, which prohibits a person with a 0.04 percent or more BAC from operating an aircraft. (California Public Utilities Code §21407.1) As with the DUI laws, there is implied consent and a pilot’s refusal to submit to chemical testing results in an automatic one-year suspension of his or her pilot’s license and other consequences. A conviction for a first-time offense is imprisonment in county jail of not less than 30 days, with a maximum of six-months or a fine of $250 to $1,000 or both imprisonment and fines.

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DRIVING WHILE ADDICTED TO A DRUG

Did you know it is illegal to drive if you are addicted to a drug? That’s right, you could be charged under this statute even if you are not impaired by the drug you are addicted to at the time you are driving. While such an arrest, on its own, is unlikely, it is a “add-on” charge that a prosecutor can use. Vehicle Code section 23152, subdivision (c) very plainly makes it unlawful for a person to drive a vehicle if that person is “addicted to the use of any drug.”

Practically speaking, if a driver is stopped by an officer and has no visible signs of an addiction, the officer cannot know that the driver is addicted to a drug. However, let’s say a driver is stopped and arrested for driving under the influence of alcohol. During the investigation at the time of arrest or later, it is learned that the driver is also addicted to a drug, an additional vehicle code violation under section 23152, subdivision (c) may, and probably will, be added to the DUI complaint.

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