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You get pulled over and the cop asks you: “Have you been drinking?” If you have been drinking, what should you say? Whether true or not, it is often reported that most people will answer, yes, but only one or two drinks. Well, the officer isn’t going to think, “okay, that’s not so much, I’ll let it pass.” That answer is going to be used by the officer to establish the officer’s suspicion that you are driving under the influence. From that point forward, the officer will probably ask you to exit the vehicle and submit to a Field Sobriety Test (FST). The officer’s goal is to establish probable cause to arrest you for driving under the influence.

It’s a bad idea to admit to any consumption of alcohol to the officer’s question, but you shouldn’t lie – that could get you in more hot water later on. What you should do is tell the officer that you respectfully decline to answer the question. Now, you may think this will cause the officer to suspect that you have indeed been drinking. And that may be true. But it is your legal right to decline to answer the question, as it is also your legal right to decline the FSTs, as you should—FSTs, including roadside breathalyzer tests, are voluntary. The officer’s questions and any FST are designed to establish probable cause to arrest you for driving under the influence.

If you don’t answer the officer’s questions or submit to FSTs, you can still be arrested for driving under the influence if the officer believes you are under the influence, but there will be less evidence supporting the arrest. It is important to know that once you are arrested, you cannot refuse a chemical test (blood or breath) without facing serious penalties. But depending on the result of that test, the prior observations of the officer may mean the difference between a DUI conviction and a dismissal of the charge or a conviction on a lesser charge.

In California most simple DUIs without aggravating circumstances are charged as misdemeanors. For certain professions, even one misdemeanor DUI can threaten a person’s employment.  A DUI conviction can result in the loss of a job or suspension of a professional license.

The most obvious risk of job loss following a DUI conviction is for those whose job requires driving, such as a delivery truck driver, a bus driver, or a ride-share driver (to name just a few). Some of these jobs require a commercial license. For these employees, a DUI conviction will almost certainly result in the loss or suspension of their employment (unless the employer can offer alternative work that does not require driving). Why? California law requires a minimum one-year suspension of a commercial license—even if the convicted driver was not driving a commercial vehicle at the time of the DUI arrest. It is important to note that the suspension of a commercial license is a consequence of a conviction, not the arrest.  If you drive a commercial vehicle for a living, it is of utmost importance to contact an experienced DUI defense attorney as soon as possible after an arrest on any DUI charge as you face not only the DUI penalties but the real possibility that you will lose your job. A skilled Orange County DUI defense attorney may be able to get the DUI charge dismissed or negotiate a plea bargain to a lesser charge, most commonly a “dry reckless”, that will not result in the suspension of your commercial license.

For others who drive for a living but do not need a commercial license to do so—couriers, taxi drivers and similar jobs— a DUI conviction may, and likely will, result in job loss. Under California law, taxi, limo, and ride-share companies are prohibited from hiring a driver who has had a DUI within seven years. That is any DUI… no requirement that the driver was on the clock at the time or had passengers for hire in the vehicle at the time of arrest. It is important to know that if the driver is carrying passengers, the legal blood alcohol content threshold for a DUI is 0.04%.  Any driver who works as a driver for hire must be immediately let go, under the law, once he or she is convicted of DUI.  Just like those who drive commercial vehicles for a living, these drivers face not only the normal DUI penalties, but the loss of their livelihood, making it imperative that the individual contact an experienced DUI defense attorney as soon after the arrest as possible.

            The world has certainly changed since COVID-19 introduced itself to humankind. Almost every aspect of our lives has been affected. In the realm of criminal proceedings, a lot has changed and that includes the DUI landscape.

  • Courts are closed to the public. Hearings that must be conducted pursuant to statute, are being held via video conferencing. Individuals charged with DUI may be arraigned via a video appearance. Those who have already been arraigned and have a hearing scheduled may continue their hearing to a later date or appear via video. DUI plea agreements and trials have been suspended for now, absent good cause to proceed.
  • There appears to be a halt in DUI checkpoints. For example, a review of the Orange County DUI checkpoints on the Orange County Sheriff Department’s news archive reveals that the last checkpoint conducted by that agency was February 21, 2020. There are reports, although not confirmed, that Los Angeles County has halted all DUI checkpoints. A look at the Riverside County Sheriff’s Department shows that the last checkpoint was conducted on March 13, 2020. This is to be expected. With bars and restaurants closed, there is less reason to conduct sobriety checkpoints.

Every parent’s nightmare is that their child will die before them. The tragedy is compounded when a child is killed by a drunk driver. But what if you are that DUI driver and you cause the death of your own child. Just this week, a Los Angeles mother was driving under the influence with her two infant twins and a toddler in her car when she caused an accident. One of the infants died and the other two suffered injuries. The mother came out with minor injuries. This driver was driving at a high rate of speed and crossed over into oncoming traffic. She was probably heavily under the influence, although her impairment levels have not been made public yet.  She faces manslaughter charges, possibly a second-degree murder charge.

Parents driving under the influence and causing their own child’s death is rare. But a quick search of the news archives reveals many instances where this has happened.  For example, just this month a Maryland woman was convicted of manslaughter after six passengers in her vehicle were killed due to her drunk driving.  Five of those killed were children, and two of the children were her own. She was sentenced to 20 years in prison.

The potentially tragic consequences of driving drunk are compounded when children are involved. In California, the vehicle and penal codes provide additional punishment for driving under the influence with a child in the vehicle. Anyone who is arrested for driving under the influence with a child 14 years of age or younger can also be charged with a DUI sentencing enhancement (Vehicle Code section 23572). Or the driver can be charged with child endangerment (Penal Code section 273(a)) if the child is under the age of eighteen. It is up to the prosecutor to determine the charge. A driver charged under both code sections can only be convicted of one but can also be charged with the underlying DUI charge and neither of these charges will stand if the driver is not convicted of the underlying DUI.

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)