Orange County DUI Lawyer Blog

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.

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.

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.

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.

Headline: Driving Under the Influence of Drugs is Now Deadlier than Driving Under the Influence of Alcohol

You might have heard something on the news or read a news story, or perhaps you only caught the headline suggesting that drugged driving now surpasses drunken driving in fatal crashes. Well, not exactly. What these news stories are citing is an updated report from the U.S. Department of Transportation Fatality Analysis Reporting System (FARS). The FARS study surveyed data of drug and alcohol testing of drivers who died in a car crash and found that 44.6% of the drivers had drugs in their system, while only 39.1% had alcohol in their system. But the statistics are murky: not all fatally-injured drivers were tested for drugs or alcohol; 57% were tested for drugs and 70.9% were tested for alcohol. At first glance, the fact that more fatally injured drivers were tested for alcohol than for drugs and less showed positive for alcohol might seem to make an even better case for the claim that there are more fatalities due to drugged driving than drunken driving.

But that statistic doesn’t tell the whole story. FARS collect data from what the individual states report—and those reports can vary considerably. Not all states test an equal number of fatally injured drivers. For example, 2 states test 15% or fewer fatally injured drivers, while 9 states test 85% or more. The most frequently found drug in those that were tested was marijuana, being 35.6%. But as I have previously discussed, marijuana will be detected in a person’s blood long after the effects have worn off. The state data used by the NARS study does not distinguish between the active and inactive metabolites and THC levels.

ROADSIDE MOUTH SWAB DEVICE TESTS FOR SEVEN DRUGS IN A DRIVER’S SYSTEM

Police are increasingly concerned about drivers who are under the influence of drugs (DUID), especially since marijuana has been legalized in the state. California Vehicle Code section 23152(e) makes it unlawful for someone to drive under the influence of any drug and as I discussed previously, this includes prescription and even over-the-counter drugs if that drug affects a person’s ability to drive safely. But unlike driving under the influence of alcohol, there is no quantitative standard by which this influence can be measured, it is up to the subjective determination of the cop and other evidence, including observations and the results of a blood test.

While there is no current method of road side testing for drugs that measure how much of a drug is in a person’s system, a new device, with a rather ominous sounding name. the Dräger DrugTest 5000, is currently being deployed in Los Angeles and San Diego and sure to soon appear in other California cities. This device can test for the presence of seven drugs from a simple mouth swab. The device is a compact, easy to use mobile drug screening machine that allows a police officer, who upon reasonable suspicion of DUID, to request a mouth swab from the driver, which is then placed in the machine. The swab is mixed with a vial of testing solution and after about six to eight minutes it will print out a receipt that shows negative or positive results for marijuana, cocaine, opiates, methamphetamine, amphetamine, methadone and benzodiazepines. In addition to road-side use, the device is being employed at DUI checkpoints.

A BRIEF HISTORY OF DUI LAWS

A couple of generations ago, drunk driving was almost acceptable. You’ve probably heard about “one for the road” — it was a common refrain at parties and bars and the phrase was often used in songs and movies during the last century. Maybe you saw the many Mad Men episodes depicting the various characters driving while way too inebriated. That wasn’t artistic license, that happened back then – a lot. And it was not uncommon to hear the “funny” anecdotes like the one about old Uncle Joe driving home so drunk that he hit a tree. When the local sheriff arrived, they woke up Uncle Joe, who was slumped over the steering wheel snoozing, and escorted him home to sleep it off—warning him to lay off the booze as they left.

Yet, driving under the influence of alcohol has been unlawful almost since the time the first automobile hit the road. The first state to enact a law that made it illegal to drive under the influence of alcohol was New Jersey, although some claim New York had a law before New Jersey. The New Jersey law, enacted in 1906 had no specific threshold level. If the cop thought you were too drunk to be driving, you were arrested (or perhaps sent home with a warning). Other states soon followed New Jersey’s lead. I suppose since most people still got around in carriages during those day and horse and buggy driver could just as easily be arrested for drunken driving as the dapper gentleman driving a new-fangled horseless carriage.