Articles Posted in DUI

Its springtime and Daylight Saving Time is back on the clocks — time to take the bikes out of the garage and head down to the beach. One of the joys of living in California is cruising on the many bike paths, stopping along the way for a beer or two. Be careful! You can get arrested for riding a bike under the influence.

Under California Vehicle Code section 21200.5, it is illegal to ride a bike on a public road, path, or sidewalk while under the influence of alcohol or drugs. Although the statute does not specify a threshold blood alcohol level, the level applied to motorist (0.8% BAC) is the presumed threshold level for biking as well since the vehicle code provides that cyclists are subject to the same responsibilities as are drivers. (It is possible, however, to be considered under the influence at less than .08% BAC.)

When an officer stops a cyclist suspecting that the cyclist is under the influence, the officer will usually ask the cyclist to perform a field sobriety test (just like the tests used when a driver is suspected of being under the influence.) You should know that the law does not require you to submit to a field sobriety test when you are stopped on your bicycle or driving your car. In DUI cases, even without the field sobriety test, if the officer has reasonable suspicion that you are under the influence, he or she will arrest you and conduct a chemical test, to which the law provides the driver must submit. However, section 21200.5 does not require the police officer to conduct any chemical tests for drugs or alcohol. Curiously enough, section 21200.5 does permit the person arrested for cycling under the influence to request a chemical test, which must then be performed if requested. Since an officer can arrest the cyclist simply on probable cause to believe the cyclist is under the influence, this provision in the statute provides the cyclist with an immediate defense (presuming he or she is not under the influence).

Let’s say you have a party and one of your guests becomes obviously intoxicated. Your intoxicated guest then leaves the party and on his drive home causes an accident where another person is injured. Are you responsible? Is a bar responsible if one of its patrons gets drunk, drives away and causes a serious accident?

There are laws in many states that attach civil liability to a business establishment that sells alcohol when one of its patrons causes injury after drinking alcohol sold by the establishment. Similarly, many states provide that a social host can be held liable for the injuries caused by his or her drunken guests. In some states the law even provides for harsh criminal penalties. Surprisingly, California’s laws are not that severe when it comes to civil or criminal liability for the serving of alcohol to a guest or patron.

Unlike many states, in California a business establishment cannot be held civilly liable under California’s liability law, which does not hold business establishments to the strict liability standard (Civil Code §1714). Similarly, a social host also cannot be held civilly liable. However, there are a few notable exceptions.

Your parents or grandparents might remember the days when a drunk driver was given a warning and then escorted home by the police and told to sleep it off. Maybe you watched Mad Men and wondered if drunk driving was just a way of life back in the 60s. Until late in that decade, drunk driving laws relied on the officer’s subjective evaluations, rather than on the chemical tests that are now mandated by the law, to determine whether someone was driving under the influence of alcohol. Thus, it was not unusual, especially outside of large urban areas, for the police to find “old Jimmy” weaving his truck on his way home again and either drive him home or give him a slow-moving escort.   At worst, most drunk drivers could expect fines and a lecture by a judge. Back then, there was no driving license suspension or mandatory drunk driving courses.

While chemical tests were available, California law did not mandate that a driver submit to a chemical test. It was not until the late 60s that the legislature enacted what is called the “implied consent” law. Implied consent laws were based on the premise that a driver using the roads in California impliedly consents to a blood alcohol test if he or she is legally arrested for suspicion of drunk driving. Even with the enactment of the implied consent law, the penalties for drunken driving were nowhere near as severe as they are today.

Another influence on the California DUI laws was the increasing involvement of the federal government on the state’s drunk driving policies. In 1967, the federal government issued new standards, which for the first time included drunk driving standards. These standards required the states to develop drunk driving laws to achieve a reduction in traffic accidents caused by drunken driving. Back then, and until 1990, the threshold for drunk driving was .10% blood alcohol content. The federal government enforced theses standards by withholding federal highway funds to any state that did not comply with the new standards.

Super Bowl Sunday is right around the corner. Time for gathering around the big screen with chips and beer, lots of beer. And time for the CHP to be out in full force.

The Super Bowl Sunday roads are notoriously plagued with drivers impaired by alcohol. In fact, the Auto Club of Southern California looked at five years (2009-2013) of California road accident data and found a 77 percent increase in alcohol-related death and injuries on the Super Bowl Sunday roads. It is wise to be cautious on the roads on Super Bowl Sunday and a no-brainer to refrain from getting behind the wheel if you have been drinking.

Most people are not so unfortunate as to end up in an alcohol-related accident on Super Bowl Sunday but for those who are, the results can be tragic. That is reason enough to never drink and drive—if you are under the influence of alcohol (or drugs) and cause an accident, you will face severe consequences. And if you kill or severely injure someone, you will have to live with that for the rest of your life.

The trend is clear: States are legalizing the recreational or medical use of marijuana. In fact, twenty-three states plus the District of Columbia have legalized the use of marijuana in some form. Yet most state laws have not established clear methods or guidelines to assist law enforcement when they suspect a driver is under the influence of marijuana. It is easy enough for law enforcement to run chemical test for drivers suspected of driving under the influence of alcohol, but what chemical test can the officer employ if he or she suspects the driver is high on pot. Beyond that, is there even a legal amount of THC (the principal active component of marijuana) that the state allows while driving? Measuring driving impairment due to the influence of marijuana is not quite as easy to determine as alcohol impairment. Unlike alcohol, THC is not easily measured in the field and to complicate things, it can remain in the body long after its effects have worn off.

Methods for detecting and arresting someone for driving under the influence of marijuana are not only technically problematic but implicate individual due process rights. There are presently only two reliable methods for testing whether someone has recently used marijuana: blood and urine testing. The presence of THC in urine is not a reliable indicator of driving impairment since THC can remain in the urine long after its effects have worn off. A blood test can detect elevated concentrations of THC that may be consistent with recent use; however, such tests are a reliable indicator of recent use only within the first hour or so of that use. When a law enforcement officer suspects someone is driving under the influence of marijuana, they cannot perform a blood test on the spot; rather, they must transport the driver to a location where a tech can draw blood. By time this is accomplished, it isd quite likely that the THC levels in the blood have decreased considerably.

Currently several states have laws that prohibit a driver from having any detectable amounts of THC in their system; this is problematic and is certainly begging to be challenged in the upper courts as the mere presence of THC does not indicate impairment. Two states (Washington and Montana) have established a per se limit of THC that may be in a drivers system with levels above that limit, without any other indication that the driver is impaired, as grounds for an arrest for driving under the influence. Again, a court challenge may soon be waiting in the wings.