Unless you are of a certain age, you may not know that until 1988, the drinking age in many states was 18 years old. It was not until 1988 that every state raised the drinking age to 21. The raising of the drinking age in all states to 21 came only after the federal government enacted a law that forced the states to raise the age or lose federal highway funds.

Prior to 1988, states set the legal drinking age according to state law, which resulted in a lot of under 21 drunk driving between states. For example, in the early 80’s the drinking age in New Jersey was 21 but it was 18 in New York. This not only sent youth across the state borders to purchase alcohol but resulted in dangerous roads between states travelled by college-aged partiers on the way home to their more restrictive state. Back then, the term “designated driver” did not exist and the attitude towards driving while under the influence was tolerated much more than it is today.

Multiple studies have established that raising the drinking age across the nation had a direct effect on reducing motor vehicle fatalities caused by under age 21 drinking and driving. Unfortunately, underage drinking remains a national issue and is the greatest mortality risk—primarily related to fatal motor vehicle incidents— for those under 21 years of age.

INVESTIGATION REVEALS GROSS INACCURACIES IN DUI BREATH TEST DEVICES

From the early Drunkometerprotypes to today’s purportedly sophisticated breathalyzers, the police have been administering breath tests on suspected drunk drivers for decades and millions have been arrested on the results of these devices. A recent New York Times investigationrevealed that the alcohol breath tests devices used by law enforcement across the county are often unreliable and inaccurate. The study should have sent shockwaves through police departments and courts everywhere but nary a peep was heard. Drunk driving has been so stigmatized that even valid evidence that drivers may be arrested on inaccurate breath test results is just ignored. Of course, no one wants drunk drivers on the road, but that shouldn’t come at the expense of due process.

The New York Times investigation is alarming. The investigation reveals that the various alcohol breath test devices used by law enforcement are often improperly programmed, calibrated and/or maintained. And DUI defense attorneys have argued this for years.

This must be the strangest DUI defenses I have ever heard of… but it’s true. It came to my attention when I read an article about a Boston man who was driving, seemingly drunk. The police didn’t believe him when he told them his “drunkenness” was caused by a medical condition known as “auto-brewery syndrome.” The condition is just as it sounds, his body was making alcohol. And as it turns out, this Boston man was not the first to be arrested for a DUI due to this condition. Others have made the news in the past, including a New York woman who was charged with DUI when her BAC was over four times the legal limit! Her body sure was making a lot of alcohol.

Auto-brewery syndrome is probably not the way a person would choose to get drunk. Our guts ferment fungi and bacteria as part of a normal process of digestion. During the normal digestive process, we produce very small quantities of ethanol. But the digestive process in a person with Auto-brewery syndrome becomes pathogenic and can produce high levels of ethanol. It is not caused or triggered by the consumption of alcohol; rather, it is an internal process gone awry. But it can, and usually does, cause the affected individual to have signs and symptoms of intoxication and raises the person’s blood alcohol level, sometimes to extreme levels as was the case with the New York woman.

It’s a pretty awful disease, but rare—although some research indicates it is underdiagnosed. It can occur in healthy individuals, but more often shows up in people with Crohn disease or diabetes, or in obese individuals. It not only makes the individual “drunk” but can cause many other unpleasant conditions, including vomiting, chronic fatigue, disorientation, and more.

Earlier this year, two friends, Giao Pham and Andy Lynn, were visiting San Diego from San Francisco. The two men stopped at a local San Diego bar. At the same time and in the same bar, a young San Diego woman, Alondra Marquez, was drinking with her friends. Messrs. Pham and Lynn, recognizing that they shouldn’t drink and drive, decided to take a Lyft back to their hotel. Ms. Marquez, despite her obvious inebriation, decided to drive.

In a tragic irony, Ms. Marquez, driving over 100 mph and with a blood alcohol level2 to 3 times higher than the lawful amount of 0.08%, slammed into the Lyft vehicle in which Messrs. Pham and Lynn were riding, killing Mr. Pham and severely injuring Mr. Lynn.  It was reported that Ms. Marquez’s friends tried to stop her from driving, but she insisted she was okay to drive.  The irony does not stop at the coincidence that both parties, unknown to each other, but whose fates were intertwined, were drinking at the same bar at the same time. The sadder irony is that the responsible drinker, Mr. Pham, ended up as another DUI fatality, while the irresponsible Ms. Marquez, while seriously injured, is alive.

It came out in court that Ms. Marquez, at the young age of 22, has a serious substance abuse problemthat started when she was in the eighth grade. This puts her at high risk of another DUI, but not very soon—she first has to spend time in prison.

Here’s a story that could happen to anyone who makes the decision to drive drunk:

In 2012, Ryan pleaded guilty to driving under the influence. It was his first DUI. As part of his guilty plea, he was provided with a Watsonadvisement. The Watsonadvisement was introduced in California following a 1981 case, People v. Watson, in which the California Supreme Court found that an impaired driver can be charged with second degree murderif due to their impaired driver they cause the death of another person. Even though a driver has no intention to kill someone, intentionally driving under the influence, knowingthat this act could result in the death of another is enough to find the driver guilty of second degree murder. Essentially, what must be proved is that the driver engaged in an act (driving under the influence) that the driver knew could cause the death of another. Although it is common knowledge that driving under the influence can result in such dire consequences, typically the prosecutor won’t charge second degree murder if a first-time DUI offendercauses the death of another. But if the offender has been previously convicted of a DUI and has therefore received the Watsonadvisement, the offender is now legally put on notice that impaired driving can result in the death of another person.  TheWatsonadvisement usually states something like “it is extremely dangerous to human life to drive while under the influence of alcohol and if you [the driver] continue to drive while under the influence …and as a result of your driving, someone is killed, you could be charged with murder.” That is the advisement Ryan received.

Six years later, Ryan was on a family camping trip. As they sat around the campfire, Ryan joined the others drinking beer. Having no intention of driving, Ryan ended up quite drunk. But as sometimes happens when family and too much alcohol get together, a family dispute arose. Ryan, whose judgment was clouded by his alcohol consumption and who was prone to get angry when under the influence, felt insulted by comments made by his brother-in-law and got into an argument with several family members. In a huff, he got into his truck and drove away. You know the rest of the story.

One of the potential hazards of a DUI offense is the “Habitual Traffic Offender” designation. Even one DUI combined with other violations within a 12-month period can trigger a habitual traffic offender charge. There are several DUI-related conditions that make a driver a habitual traffic offender:

  • One of the punishments for conviction on a third offense DUIwithin a ten-year period is the habitual traffic offender designation for a period of three years. (Vehicle Code 23546)
  • The same applies to fourth offense DUI (Vehicle Code §23550)

The American Automobile Association Foundation for Traffic Safety recently released the results of its annual Traffic Safety Culture Index. Among the findings is that 70 percent of the respondents believe driving under the influence of cannabis is very dangerous or extremely dangerous.  While this is a significant percentage, it is far below the 96 percent of respondents who thought driving while drowsy was very or extremely dangerous, 95.1 percent thought the same for driving under the influence of alcohol (over the legal limit), and 87.4 percent for driving under the influence of prescription drugs. A small but significant portion of the respondents – seven percent – thought it was just fine to drive under the influence of cannabis, whereas only 1.6 percent thought it was okay to drive under the influence of alcohol.

Clearly, a significant portion of the survey respondents – and all are drivers – believe that driving under the influence of marijuana is not as dangerous as many other potentially dangerous driving habits. Does this belief hold up? Study after study has concluded that driving under the influence of cannabis impairsa driver’s motor coordination, tracking, attention, concentration, the perception of time and distance, and reaction time. All can certainly affect a driver’s ability to drive safely. However, these impairments do not appear to be as pronounced as drivers who are under the influence of alcohol. But let’s be clear, just as there are varying degrees of alcohol inebriation, so too, cannabis intoxication can run the gamut from a mild high to hallucinations.

Cannabis edibles – a popular method of consuming cannabis – are often consumed in dose quantities that cause a much stronger high that other delivery methods. Furthermore, edibles are metabolized differently by the body, converting the THC to a stronger form that can cross the blood-brain barrier, causing a longer and far more intense high than one gets when smoking or “vaping” cannabis. In fact, there are many reports of a “psychedelic” experience on high dose edibles. Surely driving under the influence of edibles is unsafe.

Ketogenic (Keto) and low carbohydrate diets are among the more popular eating lifestyles these days. Someone on a strict Keto or other low carb diet metabolizes energy differently than a person who is eating a normal amount of carbs. The liver of a person on such diets breaks down fat for fuel, which creates acetone that may be released through the person’s breath. This is colloquially referred to a “being in ketosis.” The acetone can be reduced to isopropyl alcohol depending on the stage of ketosis

Anecdotal evidence (and a few scientific papers) supports a potential concern that someone on a Keto diet could cause a false positive on a breathalyzer. While the breath molecules expelled by a person in ketosis will not turn a 0.00% blood alcohol content (BAC)into a 0.08% BAC, a Keto diet may cause a breathalyzer to register over 0.08% for someone who, if not on a Keto diet, may have registered something below that. For example, someone who is in ketosis and has had a couple of drinks and might have a 0.06% true BAC, could potentially register 0.08% or more.

Law enforcement agencies use fuel cell breathalyzers, which supposedly can differentiate between ethanol molecules (those created by drinking alcohol) and other alcohol-based molecules, such as the Isopropyl molecules expelled when someone is in ketosis. However, I am unaware of any data that support this. While a blood test for BAC can establish that the driver’s BAC is under 0.08%, this can become more than an inconvenience for the driver. Beyond that, the driver who unwittingly chooses a breath test rather than a blood chemical test, may be stuck with a false positive result. A lesson here might be that if your

Two years ago I wrote about the national movementtoward lowering the per se BAC to 0.05%. Since then, Utah has become the first state to write the 0.05% per se BAC into law. There is a bill pending in the California legislature, which is currently referred to Committee (AB-1713), that would lower the legal blood alcohol content (BAC) to 0.05%. This bill is guaranteed to see pushback from various business groups, especially the restaurant and bar industry. I don’t expect the bill to become law this year but given the changing and more restrictive attitudes towards driving under the influence, it is certainly up for consideration.

Let’s consider the arguments made by those who oppose lowering the BAC to 0.05%. Do they have valid arguments?

Opponents of lowering the lawful BAC argue that lowering the legal BAC will target responsible drinkers who are not impaired and the proposed law is creeping towards a new kind of prohibition.   For example, a 110-pound woman who drank of glass of wine and 30 minutes later got behind the wheel might register a BAC of 0.05%. Until 1990, the per se BAC was 0.10%in California.  It was then lowered to the current 0.08%. Lowering it again to 0.05% may seem to some as though Carrie Nation’s ghost is whispering in lawmakers’ ears.

What is a “Per Se” DUI?

What does a DUI “per se” actually mean? “Per se” is a Latin term meaning “by and of itself.” Under California law, a blood alcohol level (BAC) of 0.08% is by and of itself considered driving under the influence. (For some drivers such as those with commerciallicenses, the per se BAC is lower under the law.) It doesn’t matter if the driver is not impaired at all (although this may be unlikely); if his or her BAC tests at 0.08% or above, that driver is – to use another Latin term–ipso facto under the influence.

California DUI law makes it unlawful to drive under the influence of any alcohol beverage (Vehicle Code section 23152(a)) AND to drive with a BAC of 0.08% (Vehicle Code section 23152(b).) Why the two distinctions? Well, under subdivision (a), a person could be arrested and charged even if his or her BAC is under 0.08% if the officer believes the driver is impaired by alcohol. Subdivision (b) is the “per se” part of the DUI law. When a person is arrested for DUI, they are almost always charged under subdivision (a) and (b). The need for a per se law is evident. Without it, drivers would be subject to the officer’s own subjective determination. The inconsistencies in arrests and convictions would pose a problem. Furthermore, having a per se law establishes a cut-off point where a driver is subject to arrest.