Articles Posted in DUI

Following up on my two previous posts that discussed chemical testing for driving under the influence of marijuana and marijuana per se laws, I think it would be interesting to the reader if I delved a bit more deeply into these topics. Driving under the influence of marijuana is sure to be a hot topic for the next few years as the legalization of recreational marijuana appears to be a trend.

I mentioned in my previous posts that unlike blood alcohol testing, testing for marijuana in a person’s system is much more problematic, at least as far as testing to determine if a driver was under the influence of the drug.

Urine testing will be positive for marijuana for 1 to 7 or more days after a person’s last use of the drug. A person can and likely will test positive for marijuana in a urine test even if he or she had not used the drug for days. Therefore, urine testing is unreliable proof that a person was driving under the influence. Besides that, while urine test can detect marijuana use, it does not detect THC, which is the psychoactive component in marijuana. There is no way to know by a urine test how much THC is in their system.

Driving under the influence of marijuana (DUIM) is certain to become the new watchword on California highways. Medical marijuana has been a presence in California for many years and the use of recreational marijuana may become legal if California voters approve a proposed November 2016 ballot initiative. But at present, California law has no “per se” law governing the act of driving under the influence of marijuana as it does for driving under the influence of alcohol.

As everyone knows, having a blood alcohol level over .08% while driving in California creates the legal presumption of driving under the influence. Whether you think you are affected by the alcohol in your system or not, if you have a .08% blood alcohol content, you are driving under the influence under the law, no “ifs, ands, or buts.” That is the “per se” law. However, if the cops suspect you are driving under the influence of marijuana, there is no per se law in California. In other words, in order to be convicted of driving under the influence of marijuana, the prosecution must prove you could not safely drive due to marijuana intoxication by the circumstantial evidence. That may soon change.

The move is on to enact a per se law in California that would make any driver who tests positive for a certain amount of THC presumptively driving unlawfully under the influence. Currently only Colorado and Washington State—two states that have legalized the recreational use of marijuana— have per se DUIM laws. In both states, a driver who tests with more than 5 nonograms of THC per millimeter of blood is presumed to be DUIM. As I discussed in a previous post, testing for THC is burdened by a lack of reliable and accurate testing methods. However, scientists are working hard to develop methods to test for THC levels that officers can use in the field.

The Marijuana Laws Are A-Changin’

Back in 1964 when Bob Dylan sang “The Times They Are A-Changin’,” marijuana was called the “killer weed” and even simple possession was a felony in California carrying a sentence of one to ten years. Now over 60 years later, the citizens of California will decide whether to legalize the recreational use of marijuana. The wheels of change grind slowly.

California was the first state to enact laws allowing the regulated sale, cultivation, and use of medical marijuana. Since then, other states have pushed forward and made the recreational use of marijuana legal. Recreational use is now legal in Oregon, Washington, Colorado, and Alaska, as well as the District of Columbia. California has its own ballot initiative, which will be before the voters in the 2016 elections. If the initiative passes, the recreational use of marijuana will become legal.

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.