THE HOLIDAY SEASON SAW AN ALARMING INCREASE IN DUIs

While promising trends suggest a declining number of drivers are getting behind the wheel while under the influence, statistics from this past holiday season may be cause for concern. The holiday season of 2017 saw a substantial increase in the number of drivers arrested by the CHP for driving under the influence as compared to the 2016 season. Statewide, arrests for DUI were up almost 20% over the prior year during the Thanksgiving holiday and up 30% during the Christmas holiday. The New Year’s holiday weekend continued the trend with a 22% increase in drunk driving arrests. The uptick occurred over all areas of the state; it is not attributable to only a few locales.

What explains this? It may be a one-time spike and no trend at all. Or a reasonable assumption may be that this holiday season, CHP patrol and enforcement was increased as compared to last year. While that may make sense, it is incorrect. The 2017 holidays were a Maximum Enforcement Period as were the holidays in 2016. For many years now, the CHP has been conducting Maximum Enforcement Periods (MEP) wherein more CHP officers are deployed on the roads. MEPs are conducted during the winter holiday season and warm weather holidays such as the Fourth of July and Memorial Day. During an MEP, all available officers in the state are called to duty. Their enforcement focus is on speeding, seat belt violations and, of course, driving under the influence of alcohol or drugs.

Under California law, an alcohol beverage manufacturer is prohibited from offering premiums, gifts, or free goods in connection with the sale or distribution of alcohol. This is a long-standing public policy that prohibits manufacturers of alcoholic beverages from giving something of value to their retailers or consumers.

Beginning this year, the law has been relaxed to allow manufacturers of alcoholic beverages, including distillers and wineries to provide free ground transportation home to consumers who attend an invitation-only event relating to the promotion or sale of their product. It also permits breweries or beer manufacturers to offer free or discounted rides directly to consumers through taxi cabs, ride sharing, or other transportation services in the interests of public safety. The new law was enacted January 1, 2018 as an amendment to Business and Professions Code section 25600.

Section 25600 still prohibits alcohol beverage manufacturers from offering free gifts or premiums as a consumer protection policy, ostensibly to protect the consumer from predatory marketing. Free or low cost sober rides were, until the passage of this law, included in the prohibition.

Selective Traffic Enforcement Program (STEP) Grant DUI Saturation Patrol, now that’s a mouthful. STEP grants are awarded by the California Office of Traffic Safety (OTS) to programs across the state that serve to achieve the STEP grant goal of reducing the number of deaths and injuries on our roads and highways. The OTS campaign includes safety awareness and education, but the bulk of the grants go to police enforcement of DUI laws. That’s where the DUI Saturation Patrol comes in.

DUI Saturation Patrols operate throughout Orange County. Many of these patrols are funded by STEP grants. A DUI saturation patrol targets specific areas, at specific times, that are known to have large concentrations of drivers under the influence. The officers deployed on a saturation patrol are specially trained and specifically patrolling for drivers under the influence. Every city in Orange County and the Orange County Sheriff’s Department have saturation patrols, most funded by a STEP grant. Saturation patrols are almost exclusively deployed in the evening and night hours and increased during holidays. DUI Saturation Patrols are not the same thing as DUI checkpoints although they are often deployed in tandem and have the same goal: To reduce the number of drivers on the road who are under the influence of alcohol or drugs.

Officers on a DUI saturation patrol are specifically looking for driving behaviors that suggest the driver is under the influence. However, just because a driver’s behavior is suspicious does not mean the officer can lawfully pull a driver over. The driver must be violating a traffic code; speeding, unsafe lane changes, or driving without the required lights (even one burned out tail light can be a violation), and failure to properly use blinkers are obvious candidates. But officers can also cite a driver for lane straddling, tailgating, or driving at a slow speed and other “catch-all” type violations. If the initial stop was not based on a reasonable suspicion that the driver was violating the law, the stop may be challenged by a motion to suppress on the grounds that the stop was unlawful.

DUI with Injury Plea Vacated After Court Finds Violation of Victim’s Rights

When a driver, who is under the influence of drugs or alcohol, causes injury to another person, the driver will almost always be charged with violation of Vehicle Code section 23153, also known as DUI with injury. This violation can be charged against the driver even if his or her BAC is under the 0.08% per se threshold if the responding officer believes that the driver was impaired by any alcohol consumption.

Not only must the driver be driving under the influence, but the driver must have been driving in a negligent manner or violated a law during the course of the charged conduct. This could be an allegation, for example, that the driver was violating the speed limit (violating a traffic law) or say, even looking in the mirror to put on lipstick while driving (negligent driving).

Yesterday morning at around 6:30 a.m., three people inside the bedroom of their Pasadena home—probably still sleeping although news reports don’t tell us—suddenly found their bedroom decorated with a pickup truck. Fortunately, none of the residents was seriously injured but the structural damage to the home rendered the house being designated by authorities as uninhabitable.

The driver of the pickup was not injured but he was arrested for driving under the influence. Now either he fell asleep at the wheel or he was so drunk or affected by drugs that he didn’t even realize he was veering straight into a house. The driver was arrested and incarcerated with a $15,000 bail imposed. Police have not yet released information regarding what substance, whether alcohol or drugs, he was under the influence of.

The driver will likely be charged with not only driving under the influence but also because he caused an accident, an additional jail sentence and/or sentence enhancement. Even though the injuries were minor, he can be charged with a sentence enhancement for DUI causing injury. If the prosecutor determines that the injuries were serious enough to warrant it, he could even be charged with a felony DUI, which if convicted, could land the driver in state prison.

LIES, DAMNED LIES, AND STATISTICS

In 1989, declaring that drivers under the influence present a danger on the roads and in an effort to deter and punish driving under the influence, the California Legislature passed a bill that ordered the California DMV to establish and maintain data on driving under the influence violations. The purpose of this bill was to provide an evaluation tool for the legislature in the development of future regulation of driving under the influence. The bill became law under Section 1821 of the Vehicle Code. The information the DMV is required to provide under this law is left to the DMV but the statute makes suggestions. This report is supposed to be submitted annually by the DMV to the legislature and it must include a ranking of the efficacy of punishments for DUI and alternative intervention programs.

The latest Section 1821 report submitted by the DMV is dated January 2015 and covers statistics only through 2012. In compliance with the statute, the 2015 Annual Report of the California DUI Management Information System, as it is titled, includes statistics for DUI recidivism rates for first, second, and third DUI offenders with an analysis of the effectiveness of referrals to DUI programs.

There is no question that a lot of people are killed by drunk drivers. If we took all drunk drivers off the road, there would be around 1,000 people who wouldn’t have died last year alone on California roads according to National Highway Traffic Safety Administration (NHTSA) statistics. While California has some of the nation’s toughest drunk driving laws (although certainly not the toughest), this hasn’t stopped drunk drivers. In fact, according to the NHTSA, 30% of the people who die in traffic fatalities in this state are caused by drunk driving. That statistic has not been fairly consistent over the past decade. This rate as measured across the states runs from a whopping 42% in Wisconsin to a low of 19% in Utah.

Mothers Against Drunk Driving (MADD) would like to see California’s DUI laws toughened up. Other than the recent ignition interlocking devise legislation, California’s DUI laws have not significantly changed since the reform of DUI laws in the 1980’s and 90’s. Our next-door neighbor, Arizona, has the toughest DUI laws in the nation. Yet, according to NHTSA data, Arizona’s fatality rate in alcohol-impaired-driving crashes is slightly more (at 31%) than the California rate of 30% and that has not changed over the last decade. South Dakota, which has the most lenient drunk driving laws in the nation, comes in a bit higher at 33%, but that is significantly lower than states such as Connecticut (39%), Texas (38%), and Alaska (36%), which have DUI laws that are even more strict than California’s.

This suggests that tougher laws and increased penalties may not be the answer. We all want to see the number of people killed by drunk drivers decrease but the solutions aren’t necessarily as simple as tougher laws. I would bet that even if the BAC threshold is lowered to 0.05% and significant mandatory jail time is enacted for even a first-time DUI, we won’t see a large decrease in drunk driving and the tragedies it causes. Consider that even cops, judges, and prosecutors drive drunk. If anyone should understand the legal consequences, they should be at the top of the list.

Last year saw a new law passed that will require most DUI offenders to install an ignition interlock (IID) device on their vehicle, even first-time DUI offenders. The law is scheduled to go into effect in 2019 and it is anticipated that it will decrease the number of drunk drivers on the road. The authors of the new law claim that the current IID pilot program in four California counties prevented over one million drinking and driving incidents in California from 2010-2015. The DMV found that IIDs are far more effective in preventing repeat DUIs than license suspension.

While the law was enacted because it anticipates a decrease of drunk drivers on the road, the new law may make the life of the DUI offender easier in one respect: It will dispense with the mandatory license suspension for DUI offenders.

Under current law, even the first-time DUI offender, in almost all cases, will end up with their license suspended by the DMV. While the driver may be eligible for a restricted license, allowing them limited driving, after serving a period of license suspension, a DUI certainly puts constraints on the offender’s mobility, especially in car-dependent Southern California.

The primary roadside tool used by law enforcement officers in the enforcement of DUI laws is the Preliminary Breath Test (PBT) or Preliminary Alcohol Screening (PAS) breathalyzer device. These small devices can be easily held in one hand. The officer instructs the driver blow into a mouthpiece on the device. This testis conducted twice enabling the officer to confirm a consistent result. Remember, in California, a driver does not have to submit to a roadside breathalyzer test unless he or she has been arrested. And even after an arrest, the driver still is not required to submit to the roadside test but may request a blood test or a breath test on the more accurate breath testing machine located in all law enforcement stations. The breath test machines at police stations are larger devices and produce more accurate results than the roadside devices. Despite some of the stories you may have heard, it is virtually impossible to fool the roadside breathalyzer or the breath testing machine at the police station.

All blood alcohol content breath testing machines use either fuel cell or infrared cell technology. The cell sensors on the machines oxidize the alcohol in the breath sample, which produces an electrical current that the breathalyzer is able to measure and translate into the percentage of alcohol in the persons system. Unless you are a chemist, this all sounds rather confusing but it may be enough to say that the alcohol in a person’s blood vaporizes and passes through the lungs. I discussed this process in an earlier post. These organic compounds passing through the lungs are measurable as wavelengths of alcohol.

Breathalyzers can produce inaccurate results. This may occur when the machine itself is not properly calibrated or defective. False-positive results may also appear on the machine due to the presence of alcoholic compounds in a person’s system that show up as ethyl alcohol molecules—the molecules that the breathalyzer detects—when, in fact, the alcohol molecules detected are part of the wider spectrum of methyl alcohol. Ethyl alcohol, the compound that is found in alcoholic drinks is only one molecule in a broader array of alcoholic compounds. For example, a person who suffers from certain medical conditions or who is taking a prescription medication may test positive on an alcohol detection breath test even though he or she has not been drinking. However, there are newer devices being put into operation that are able to distinguish between these various methyl alcohol compounds.

When a drunk driver kills someone, he or she is usually charged under the vehicular manslaughter laws. But under certain circumstances, the driver can be charged with 2nd degree murder. Known as a “Watson Murder” charge, this crime gets its name from a California Supreme Court case, People v. Watson (1981) 30 Cal. 3d 290. In that case, the Supreme Court held that a driver who causes the death of another while driving under the influence, knowingly and intentionally doing so with conscious disregard for the natural consequence that the conduct could cause the death of another person, acted with implied malice. Without getting too technical here, that means the driver knew that his or her conduct risked the possibility of causing the death of another person. The element of implied malice distinguishes the criminal act from vehicular manslaughter. A Watson second-degree murder charge does not require the actual intent to kill someone.

Historically, California prosecutors only charged a Watson murder if the driver already had at least one DUI. That is because when a person is convicted of a DUI, they are required to acknowledge a “Watson” admonishment. This admonishment advises the defendant of the potential fatal consequences of driving under the influence and warns the defendant if he or she kills a person while driving under the influence, the prosecutor may charge the driver with 2nd degree murder. Furthermore, when a person is convicted of DUI, they must attend DUI classes, which also warn of these dangers. The Watson admonishment and the DUI education provides the prosecutor with evidence that the driver charged with a Watson murder acted with implied malice as the driver knew his or her act could result in the death of another but chose to drive under the influence anyway, i.e., the driver acted with implied malice.

While it is still more common to see a Watson murder charge filed against a driver who has at least one prior DUI, the past few years have seen more California prosecutors willing to charge a Watson murder even though the driver had no prior DUI. A Watson murder charge does not require a prior DUI, it only requires that the prosecution prove you had the necessary mental state. This is easier for the prosecution to prove when you have already received a Watson admonishment but in particularly egregious cases, the prosecution will argue that the facts are enough to establish implied malice.