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.

You know all about drinking responsibly, soon we will be hearing about serving responsibly. Perhaps you recall the tragic incident in San Diego two years ago when a drunken U.S. Marine driving his vehicle on the wrong side of the rode hit a car head on in which two UCSD medical students were traveling, killing both young women. Three other medical students in the car were injured. That accident prompted the victim’s classmates to lobby for legislation that would make it mandatory for alcohol servers to receive training about the effects of alcohol and how to serve responsibly.

A bill that passed in the California Assembly mandating alcohol responsibility training for bartenders was recently signed into law by Governor Brown. The new law, known as the Responsible Beverage Service (RBS) Training Program Act of 2017, requires the development of a statewide training program that will be administered by designated providers and will be mandatory education for any persons who will be serving alcohol. Alcohol servers will be required to complete this training in order to receive a required “Alcohol Server Certification.” The law requires that these programs be in operation on or before January 1, 2020. By July 1, 2021, all establishments that employ alcohol servers must require their servers to be certified.

The law broadly defines the parameters of the education but leaves it to the Department of Alcoholic Beverage Control to develop the curriculum. The training must include information on the laws and regulations related to alcoholic beverage control and information on how alcohol affects the body. The training can be done in person or online. Presumably, it will include testing to make sure the student understands the information before the certificate is awarded. The certificate will be good for three years. Anyone who serves alcohol but fails to have or maintain a valid certificate will be subject to disciplinary action; however, the violation is not grounds for any criminal action.

The use of roadside sobriety tests (Field Sobriety Tests or FSTs) for the detection of marijuana influence in drivers is not supported by current research and studies. The Massachusetts Supreme Court recognized this in a recent decision concerning an officer’s testimony on an alleged marijuana-influenced driver’s FST performance. The court held that FSTs have limited value in determining whether a driver is under the influence of marijuana. Following this decision, while an officer in Massachusetts may testify as to his or her observations of a driver’s performance on FSTs, the officer cannot testify as to his or her opinion that the driver’s performance on the FSTs indicated impairment due to marijuana intoxication. The court’s decision was limited to officers who are not qualified as experts leaving the holding somewhat vague as to the testimony of an officer trained as a drug recognition expert (DRE). Like California, Massachusetts legalized recreational use of marijuana last year but driving under the influence of marijuana remains illegal.

The decision is particularly interesting in its review of the numerous studies on the efficacy of FSTs as a tool to detect marijuana impairment. Acknowledging the disparate conclusions among studies regarding marijuana’s effect on driver performance, the court observed that a significant number of the studies have reached the conclusion that marijuana consumption can impair a driver’s performance. However, the court’s review of studies that seek to determine whether a driver’s performance on FSTs is a reliable indicator of marijuana impairment yielded mixed results and different studies have produced contradicting results. As the court noted, studies suggest that the typical FSTs are inadequate indicators of marijuana impairment.

While there is no scientific agreement of the efficacy of FSTs to detect marijuana impairment, the court noted that an officer’s observations still have value when considered with other evidence. However, the court found that FSTs—as far as driving under the influence of marijuana is concerned—currently have no scientific foundation and should therefore not be treated as scientific evidence that a driver was under the influence of marijuana.

A couple of weeks ago, a complaint was filed in the United States District Court (for the Northern District of Georgia) alleging that the three complainants were subject to a violation of their Fourth Amendment rights when they were arrested and held in jail cells for hours all because a police officer trained as a Drug Recognition Expert (DRE) believed they were driving under the influence of marijuana. None of the three ended up testing positive for marijuana. Not only were the complainants’ liberties infringed but as the complaint noted, all three now have a record of arrest, which will stay with them for life and which they will now have to explain to potential employers, landlords, schools and others.

The complaint alleges these abuses by the same officer, but the violations alleged against the officer have certainly occurred in other jurisdictions, including California. I discussed the role of DREs and the increasing use of these so-called experts in recognizing drivers who are under the influence of drugs in a previous post. In California, as in Georgia, DREs go through many hours of training and employ multi-step protocol in determining whether a driver is under the influence of drugs. But as the federal complaint alleges, the DRE protocol has not been rigorously and independently validated.

The DRE protocol is not fool-proof and much of the expert’s determination is subjective. For example, do those watery eyes and balance issues indicate the driver is high on pot or are they just symptoms of the driver’s allergies? In fact, the protocol itself requires the DRE to form an opinion. Based on the DREs opinion, a driver can be subjected to arrest, detention and chemical testing. Sounds sort of reasonable; how else can the police get drugged drivers off the road if there is no reliable chemical roadside test?