Articles Posted in DUI Priors

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.

24/7 SOBRIETY PROGRAMS FOR REPEAT DUI OFFENDERS

What if every person who was a repeat drunk driver was prohibited from drinking alcohol at all—day or night, seven days a week—as part of their sentence. It may sound far-fetched but that is exactly what the state of South Dakota has done since it started a pilot program in 2005 and later expanded to the apply in the entire state.

The program in South Dakota, known as the 24/7 Sobriety Program, is enforced on repeat DUI offenders and those first-time offenders who test with a BAC of .17% or higher. Most offenders are allowed to remain in the community and to drive as long as they totally abstain from alcohol during the period of their sentence. The program requires the offender to , submit to a test for alcohol in their system (through a variety of methods) twice daily, at 12-hour intervals. If the offender fails to submit to the testing at the designated time or if the test shows any alcohol in the person’s system, it will result in his or her immediate incarceration or electronic ankle bracelet confinement. Essentially, this imposes a no-alcohol consumption restriction on the program participant.

In what must be a record—I have certainly never seen this in my almost 25-year career defending DUIs—an Orange County man was recently arrested for DUI, his ninth in six years! Several news outlets even reported that it was actually his tenth DUI arrest in six years. This driver is (or was) a successful businessman with a company that employs over 50 people and at one time, he was paying a driver $50,000 a year to drive him around.

On January 29, after crashing his vehicle into an electrical box in Placentia, police responded and found the driver to be under the influence. Not only was he driving under the influence but he was driving on a suspended license (for prior DUIs) and he was also cited for not having an ignition interlock device on his vehicle. (I am not sure why an IID would be ordered if his license was suspended but perhaps the court had ordered the IID when, and if, his license was reinstated.)

The driver clearly has an addiction problem. Despite being sentenced to prison for his seventh DUI in 2014, he received an eighth DUI in 2015 and was sentenced to prison again. He entered rehab and agreed to take Vivitrol, a drug that is used to help with drug and alcohol dependencies. He was under Post-Release Community Supervision, when this recent DUI occurred. Post-Release Community Supervision is a type of probation supervision that is offered to non-violent offenders, mostly to relieve the California prison overcrowding.

REPEAT DUI OFFENDERS AND THE GENE CONNECTION

Most people learn the lesson the first time: After one DUI conviction, they cease drinking and driving. As I have discussed on this blog, a DUI not only results in a suspension of your driving privileges, criminal probation, mandatory DUI classes, and costs you a bunch of money, but it also can jeopardize your job and even make you unqualified for certain volunteer positions. So why would anyone drive drunk again after getting a DUI? Well, according the National Highway Traffic Safety Administration, approximately 33 percent of all DUI convictions are for repeat offenses. In California, that means any DUI conviction after the first in a ten year period. We might make the reasonable assumption that a portion of this 33 percent—probably a good portion— are people who are addicted to alcohol (or drugs as the case may be). Repeat DUI offenses are, in my experience, the telltale sign of an addiction.

Continuing with my theme on my criminal website blog, maybe these repeat DUI offenders struggle not only with the psychological addiction but actually are in a battle with their own genetic makeup. The “alcoholism gene” is a controversial subject and no one such gene or genetic profile has yet to be identified. However, research clearly points to a genetic component in alcoholism. Just as we are born with a certain color eyes or skin because it is part of our genetic structure, so too, we are born with certain personality traits. As research has recently shown, personality traits are identifiable on a person’s genome and certain personality genomes overlap with mental illnesses. Thus, a person who has a gene variation that predicted a neurotic personality, which is one of the five well-established personality traits (there are five: extraversion, neuroticism, agreeableness, openness to experience and conscientiousness), shared the gene variation that predicted clinical depression and generalized anxiety disorder.

Last month 23-year-old Clovis, California resident, Candice Ooley, eight months pregnant and driving with a blood alcohol level four times the legal limit (0.32%), caused an accident that ended in the death of a passenger in the vehicle she hit and serious injuries to other occupants of the vehicle. Ms. Ooley, whose license to drive was already suspended due to her previous DUI arrest only six months before this fatal incident, was said to be driving at high speeds and possibly passed out while behind the wheel causing the wreck.

She has been charged with felony driving under the influence with a blood alcohol content of over .15% and vehicular manslaughter with great bodily injury. The district attorney has announced that he intends to add second-degree murder charges but Ms. Ooley’s attorney plans to defend that potential charge on the basis that Ms. Ooley never received a “Watson warning” nor had she been convicted on the previous DUI charges at the time of this incident.

For the prosecutor to prove the murder charge, he would have to establish that Ms. Ooley was aware that if she drove while under the influence of alcohol, she could cause the death of another person, yet she intentionally chose to drive under the influence anyway; the legal term for this is “implied malice.” Now, that might seem like common knowledge but common knowledge is not enough to prove implied malice.

A BETTER WAY TO TREAT DUIs

You have probably heard that the so-called “War on Drugs” has been lost. Increasingly law enforcement and the courts are recognizing that punishment does not resolve the offender’s drug addictions. New sentencing schemes are being developed that focus less on punishing the chronic drug offender than addressing the underlying cause of his or her arrest, i.e., drug addiction.

Although many people don’t put alcohol in the same category as drugs because alcohol is legal, it is actually one of the most potent drugs available. Some individuals are addicted to alcohol and it is a drug addiction even though we call it “alcoholism.”

Could A New Law In Colorado Make 3rd DUI’s In California A Felony?

There is a proposed new law being considered in Colorado, which would make a third DUI a felony. Representatives of Weld County are reintroducing a bill that would make a third offense for driving under the influence a felony. If this law passes, and the results prove to be beneficial to the public in reducing DUI’s, it could have an impact on other states, including California. The proposed law would allow prosecutors to seek class 4 felony charges for people charged with their third DUI within seven years or their fourth during any time period. If passed, the bill would also lengthen the time period convicted drunk drivers are required to have interlock devices installed in their vehicles. Rather than one year, it may be as many as five years.

It appears that Colorado is cracking down in a serious way on people who drive while intoxicated. California, Orange county specifically, is extremely strict when it comes to DUI and thus, may be watching Colorado carefully to see how this all plays out. Orange County is continually trying to come up with new ways to seek out and crack down on individuals who drive under the influence of alcohol or drugs.

DUI’S WITH PRIORS

If you have been arrested for driving under the influence in Orange County California, hiring an experienced DUI Defense Lawyer should be your first step toward getting the DUI arrest behind you. Although a conviction for first time DUI will result in penalties and fines, having an aggressive Orange County DUI defense attorney can help to mitigate the severity of the consequences.

It is true that a first-time DUI can cause extreme stress in someone’s life but, being arrested and charged with a second, third or fourth DUI is very serious and can have long lasting, and devastating effects on a person’s life for years to come. At the very least, consulting with an attorney who has experience in dealing with prior offense DUI’s, will give you an idea of what you may be facing and, whether or not the District Attorney has a slam-dunk case against you.

Typically, if you are arrested for driving under the influence or driving while intoxicated, you will be charged with a misdemeanor. However, there are situations that can and will result in a felony DUI. Here are some examples of felony DUI’s:

  1. Fourth or More DUI

A fourth, or more, arrest for DUI, within a ten-year period, will automatically be filed as a felony. A felony is obviously more serious in terms of the consequences but it also has a more serious long-term effect on a person’s life. A conviction for a 4th DUI typically requires jail time. However, depending upon the individual’s circumstances, alternative sentencing may be an option. For someone who has a family and a job, and who may be the sole support of their family, an aggressive DUI defense lawyer is absolutely crucial. Getting creative with the sentencing that will both satisfy the Court and help the individual keep their job, should be the goal of the attorney.

Do prior convictions for DUIs in other states qualify as priors in California?

The answer is yes, but, according to California law, it must be a “qualifying offense”, meaning that the prior must have the same elements as a conviction for DUI in California. What this means is that in order to be convicted for DUI in California, the prosecution must prove two basic elements: 1) That you drove, and 2) That you drove with a blood alcohol level of .08 or higher. Other states have similar or the same elements. So, if you have had a DUI in another state, where the elements are different, it would not qualify as a “qualifying conviction” and therefore, could not be considered a prior for purposes of an enhanced sentence in California.

In a recent case entitled People v. Self, the trial court allowed a prior Arizona conviction for DUI to enhance his conviction in California. Self appealed the conviction on the grounds that Arizona’s DUI elements are different. Arizona law states that you are in violation by “the slightest impairment from drugs or alcohol.” California law states that you are dui if your blood alcohol is .08 or higher. Clearly the elements are different.