Orange County DUI Lawyer Blog

It’s 2019 and we are on the heels of the next decade in this young millennium, a decade that promises to bring technological changes worthy of a sci-fi novel. This will likely be the decade that sees a spectacular rise in artificial intelligence, including self-driving vehicles and law enforcement that takes the film “Minority Report” out of the realm of fiction (except for the precogs). The act of drunken driving and its consequences will never be the same.

While California’s recently enacted Ignition Interlock Device (IID) lawwill require most drivers arrested for DUI to install this device, which will not allow the driver to start the vehicle if alcohol is detected, we may soon see similar alcohol detection devices installed in vehicles as a matter of course.  The “Driver Alcohol Detection System for Safety” (DADSS) research program is developing technology that will be installed in every new car sold. This technology is passive. That is, it will not require the driver to do anything (unlike the IID, which requires a driver to breathe into a device). The DADSS system will prevent a driver from driving the vehicle if the driver’s BAC is over 0.08% (or if in Utah, over 0.05%). The DADSS is a nationwide program funded by the government and the private sector, including the automotive industry.

How will the DADSS system work? Currently two technologies are being explored: a breath-based system and a touch system.

A Southern California man has posted one of the most poignant yet distressing social media feeds I have seen. In a Facebook picture, Zach Kincaid is standing over a coffin, his young child looking on. Inside the coffin is his 29-year-old wife, her unborn child in her arms. In another photo, Mr. Kincaid is holding his dead unborn daughter, who was only a month away from her anticipated birth date.

On September 9 Mr. Kincaid was speaking with his wife on her cell phone speaker as she was driving on Warren Road in Riverside County when he heard her scream, then he heard a collision. A drunk driver, pro boxing champion, Marcos Forestal-Coutin, was allegedly driving under the influence of alcohol as his speeding car veered into the wrong lane, hitting Mr. Kincaid’s wife’s vehicle head on.  In what must be one of the most egregiously arrogant statements, Forestal-Coutin claimed Mrs. Kincaid’s vehicle “appeared” in front of him and then went on to complain about the damage done to his vehicle. Forestal even livestreamed a video of the crash scene.

The social media photos are very disturbing and hopefully will impress the many thousands who have seen them. Drunken driving can kill, and these photos make that lasting impression. There is really no excuse to drive drunk. Unfortunately, a brain affected by alcohol makes poor decisions.

CAN THE DMV SUSPEND YOUR DRIVER’S LICENSE IF YOU ARE CONVICTED OF BOATING UNDER THE INFLUENCE?

The DMV wields a substantial amount of power over our driving privileges. When a person is arrested for driving under the influence, his or her license to drive is immediately suspended (with a 30-day grace period until the suspension takes place) unless the driver can successfully challenge the DUI arrest in an administrative per se (APS) hearing. As I have discussed on this website, the APS hearing is a completely separatefrom the criminal matter and, in virtually all DUI cases, the suspension of the arrested driver’s license to drive takes place before the DUI is adjudicated by the criminal court.

Although APS proceedings seem to fly in the face in the face of due process since the driver has not even been convicted yet of the alleged DUI, the appellate courts have consistently held that the administrative suspension is constitutional.

IMPAIRED DRIVING

A driver can be arrested for driving under the influence even if the driver tests under the legal threshold of 0.08% blood alcohol content (BAC) or even a 0.00% BAC.  If the arresting officer has probable causeto believe that the driver’s ability to drive is impairedby any substance— be it alcohol, legal or medically prescribed cannabis, or any prescription drug (whether legally prescribed or not)—there are grounds for the arrest . When a driver tests over the per se limit of 0.08% BAC,  probable cause is presumed, but how does the officer determine that the driver’s ability to drive was impaired  when there is no obvious  symptom or immediate chemical test to establish probable cause?

It may boil down to the subjective evaluation of the officer.  In such cases, the prosecution will have the burden to prove the probable cause. Because this is often a subjective evaluation, an experienced DUI defense attorney may be able to get the charge dismissed.

If you are, or were, a member of the United States military and suffering from trauma related to your service, you may be eligible for a pre-trial diversion program if you get a DUI. Penal Code section 1001.80 allows a court to suspend prosecution on misdemeanor charges if the defendant may be suffering from PTSD, or other mental health problems related to the defendant’s military service. Specifically, the trauma as delineated in the statute includes:

Sexual trauma;

Traumatic brain injury;

A couple of years ago I wrote a blog postciting studies that indicate ride sharing apps are responsible for a decrease in  drunk driving crashes for drivers under the age of 30 and another blog postabout studies that suggested ride sharing apps have had no impact on the incidence of drunk driving fatalities. Now recent studies conducted by the University of California and a national personal injury law firm show a significant decrease in DUI arrests in major California urban centers in the years since ride sharing has become a thing.

The decrease in DUI arrestsin urban areas is remarkable. San Diego has seen a 32% decrease after ride sharing, San Jose, a 28 percent decrease, Sacramento, a 26 percent decrease, and San Francisco and Los Angeles both saw a 14 percent decrease.  These decreases are not confined to California. Large cities across the county report significant decreases in DUI arrests. And party-city, Las Vegas, has seen the largest decrease in DUI arrests: down nearly 40 percent.

The study estimates that 33 percent potential drunk drivers chose ride sharing instead. Anecdotal evidence also suggests that more drivers are choosing ride share if they intend to drink. For instance, traffic enforcement units report a substantial increase in ride share drivers at DUI checkpoints.

Even one DUI has the potential to affect a parent’s right to custody of their child. Whether in Family Law Code child custody adjudications or Welfare and Institutions Code dependency hearings, a DUI can affect how the court will decide on a child custody matter. This is especially true if the child was in the car with the parentwhen he or she was arrested for DUI or if the DUI was aggravated by circumstances such as an accident, a hit-and-run,injuries, or other DUI sentencing enhancements.

In a child custody battle between parents, a DUI can be used by one parent against the other to convince the court that the parent is a risk to the child. If the parent has more than one DUI, this may be especially convincing evidence and the more recent the DUI or DUIs, the more detrimental to the child it might be in the eyes of the court. The decision of the court in any child custody case is what is in the best interests of the child or children. The judges have great latitude in making this decision.

Will a parent lose custody over one DUI? Probably not, but the apportionment of physical custody time to a parent with a DUI might be impacted. Will multiple DUIs or aggravated DUIs cause a parent to lose custody? Almost certainly if the DUI was committed with the child in the car and likely if the parent has multiple DUIs.