Articles Posted in Uncategorized

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Run a search of the Orange County Register articles this summer on DUIs and you will learn that a woman suspected of DUI drove her car into Newport Bay, you will read about DUI crashes, some involving injury, and you will also read about DUI drivers who caused the death of innocent people.

A Santa Ana driver suspected of DUI ran a red light, hit another vehicle, and then fled the scene. The driver of the other vehicle died. The Santa Ana driver was arrested shortly after fleeing the scene.

A bicyclist was fatally struck by a DUI driver in Huntington Beach.

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It’s been a while since I have written about the use of drug recognition experts. Drug recognitions experts or DREs are law enforcement officers who are specially trained and certified to recognize symptoms of drug intoxication in drivers. When a driver is stopped and there is suspicion that the driver is under the influence of drugs, a DRE will be called to assess whether the driver is exhibiting symptoms of being under the influence of drugs.

Many critics of the use of DREs centers around the fact that DRE tests and observations may be subjective and risk false positives. Unlike driving under the influence of alcohol roadside tests, there are no roadside tests for driving under the influence of drugs. If the officer and DRE suspect a person is driving under the influence of drugs, the driver will be arrested and subjected to all that entails and an invasive blood draw.

Imagine that you are driving and experience some disorientation, but you don’t understand you are having a medical event. Your driving may be erratic prompting an officer to pull you over. Once the officer contacts you, she notices that you seem confused and your words are slurred.  She doesn’t smell alcohol on your breath or the burnt smell of cannabis in your car. She asks you to blow into a breathalyzer and that test does not detect the presence of alcohol. So, she calls in a DRE. The DRE performs the DRE 12-step psychophysical tests and notices that you can’t keep your balance, your eyes seem vacant, and your behavior is “off.”   You are arrested for driving under the influence of drugs. You are taken to the police station, booked, and a blood draw is performed. Awaiting the results of the blood draw, you are placed in a jail cell. The only problem is: You were having a stroke!

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California has some of the toughest gun ownership laws in the country. All felony convictions and many misdemeanor convictions can result in restrictions on firearm ownership. Orange County DUI attorney William Weinberg understands that for many of his clients, their Second Amendment right is very important to them and he takes this into consideration when defending these clients.

Most DUIs will not result in a restriction on the defendant’s gun rights; however, many DUI convictions will. All felony DUI convictions will trigger a mandatory restriction on the right to own or bear a firearm. Anyone convicted of felony DUI faces a lifetime ban on owning, possessing, or buying a firearm in California. In addition, any firearms the felon possesses must be relinquished. A DUI can become a felony under many circumstances. Examples include a DUI that causes injury or death, a fourth DUI, or having a prior felony DUI on your record. In addition, some offenses related to a DUI, such as evading the police during a DUI stop or child endangerment (child under the age of 14 while driving under the influence) can be charged as felonies and if convicted on the felony charge will result in a ban against the ownership or possession of any firearm.

Orange County DUI defense attorney can help those convicted on a DUI felony restore their Constitutional 2nd Amendment right. The best defense strategy is to avoid the felony in the first place by arguing for a reduction of the felony charge to a misdemeanor. This is often an available strategy on “wobbler” charges (charges that can be charged as a felony or a misdemeanor) and is accomplished during plea bargaining. Sometimes though, the charge is serious enough and/or the evidence does not convince the prosecutor to go along with the reduction. But there is still a way although not immediately available.

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Alcohol addiction afflicts many individuals and no doubt, is one of the main factors in many DUIs. But what about marijuana? Is marijuana also addictive? Now that recreational marijuana is legal in California, will we start seeing an increasing number of multiple driving under the influence of marijuana offenders and an increasing number of crashes caused by marijuana-influenced drivers?

According to the National Institute on Drug Abuse (NIH), a person with “marijuana use disorder” uses marijuana frequently and often experiences withdrawal symptoms if he or she stops using the drug. This disorder, according to NIH, afflicts approximately 30 percent of those who are marijuana users. Some individuals with Marijuana Use Disorder cannot stop using the drug; these individuals become addicted to marijuana. The NIH reports that approximately 9 percent of marijuana users will become addicted. In 2015, approximately 40 million people in the United States have marijuana use disorder. Extrapolating from that number, there are approximately 432,000 individuals addicted to marijuana in California. (This is a rough estimate.) Of course, this number pales in comparison to the estimates of the number of alcoholics in California— approximately 5 million—but now that the use of recreational marijuana is legal, it is reasonable to suspect that more Californians will find themselves addicted to the drug?

We have no doubt that alcohol impairs a person’s ability to drive safely, but there are conflicting studies regarding the effects of marijuana use on driving ability.  However, the potency of marijuana has been steadily strengthening over the years, foreboding the possibility of not only more addicts but increasingly dangerous effects on the ability of a high driver to drive safely.

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When parents send their kids off to college one of their biggest concerns is drunk driving. We worry that even though little Johnny or Suzie never got into trouble in high school, they might find the new-found freedom and new friends too much to resist. It is no secret that drinking is a big problem on college campuses. But what about drunk driving?

One thing we can be sure of is that this generation is more aware of the dangers and consequences of driving while intoxicated than previous generations were. But that doesn’t always stop the teenaged brain, especially one that is influenced by alcohol or other drugs, from making poor decisions. Hopefully, their decisions will not be as stupid as the Texas A & M freshman who recently ran smack into a cop car while driving under the influence of alcohol. But wait, it gets better. Why did she hit the cop car? Well, she was busy taking a nude snapchat photograph of herself driving to send to her boyfriend. Yes, college students don’t always use the best judgment.

Approximately 6.1% of the DUI arrests are arrests of those between the ages of 18 and 20 according to the latest DMV Annual Report. (Under the “zero tolerance” laws, a person under the age of 21 will be arrested for any amount of alcohol in their system.) The good news is that the rate of arrests for DUI for this age group has been steadily declining. The bad news is that this age group represents only about 2.5% of California’s population so the arrests in this age group are disproportionate to their representation in total state population.

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The “future” of self-driving cars is here. In Pittsburg, Uber is currently testing their fleet of self-driving cars. Pittsburg Uber customers can now order a self-driving car although during this test period, there is a safety driver at the wheel. Experts predict that self-driving cars will become a common sight on the road by 2020. Sometime in the very near future (say before 2025), self-driving cars will be available for purchase by the public. I don’t mean the type of semi-self-driving car Tesla has already introduced; I am talking about cars without a steering wheels or foot pedals!

While self-driving cars will supposedly be accident-free, I imagine that will be a long way down the road as we will probably have human-driven cars sharing the road for some time to come. I don’t envisage circumstances where we will suddenly have accident-free roads just because some cars are self-driving. Traffic cops will probably have jobs for at least another generation.

Now as an attorney who defends drivers arrested for driving under the influence, my first thought is how this will play out with the DUI laws. Imagine this scenario: Joe Partyboy takes his self-driving car out for a night on the town. Even though he is not driving it, he does have some control over the car because, after all, he has to tell it where to go. He orders his car take him to a number of bars and by time he is ready to go home, he is very drunk. He stumbles into his self-driving car and manages to input “go home” on the car’s navigation controls. On the way home, another car, the old-fashioned kind, hits Joe’s driverless car. He stumbles out of the car just about the time a police cruiser pulls up. Can Joe be arrested for DUI?

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DUI STATISTICS

Since 1989, the California DMV is legislatively mandated to produce an annual report that analyzes data regarding driving under the influence of alcohol and/or drugs. The most recent report, the 2015 Annual Report of the California DUI Management Information System, analyzes data from 2003 to 2013. This report gives us an objective look at DUI realities in the state.

We can start with the rate of DUI arrests over the ten year span. From 2003 through 2013, the rate of DUI arrests per 100,000 licensed drivers has been fairly consistent at a little under 1%, with a noticeable bump in 2008 and a significant decline in 2012-2013.

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(This post applies only to persons over the age of 21 or who are not on probation for a previous DUI.)

What should you do if you are stopped while driving a vehicle and the cop suspects you are driving under the influence of alcohol? The laws that govern a DUI stop provide you with less rights than you would have during an ordinary police contact. The premise underlying this diminished due process on a DUI stop is that driving on California roadways is a privilege, not a right, and therefore you are not afforded all the protections provided in the Constitution. But you still have certain rights when you are stopped on suspicion of DUI.

When you are pulled over for suspected driving under the influence, you are considered detained and you are not free to go. Even though the officer has not yet read you your “Miranda rights,” which is not required until you are arrested, your right to remain silent is triggered at the time of the detention. You must provide the officer with your driver license (and car registration) but beyond that you do not have to answer the officer’s questions. As with any police detention or arrest, your best approach is to be politely cooperative and provide your identification, but to let the officer know that you wish to remain silent.

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Many people don’t know that a DUI conviction may have other consequences beyond the driver’s license suspension, probation, and mandatory DUI classes. In California, there is a huge body of administrative law, much of it quasi-criminal. The immediate administrative per se suspension of a DUI arrestee’s driver license is an example of an administrative law. Although the courts have ruled that most administrative laws that sanction an individual are constitutional, many, if not most, of the quasi-criminal administrative laws do not afford the individual the same due process protections that the United States and California Constitutions guarantee in a criminal prosecution.

Many who are arrested for DUI in California will only experience the administrative consequences of a per se suspension of his or her driver’s license and DMV sanctions. However, what many don’t understand is that a DUI goes on the person’s criminal record and that can trigger other administrative sanctions in California.

For example, a person convicted of a DUI—even a first-time DUI—and who works as a child caregiver, or even just volunteers in an after-school program, will very likely hear from their employer that the State of California will no longer allow him or her on the premises. In other words, a childcare employee could find themselves barred from their place of employment simply because he or she was arrested and convicted of a first-time DUI.

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HOW LIKELY IS IT THAT I WILL GO TO JAIL IF I AM ARRESTED FOR DUI?

Even a first-time DUI carries a potential sentence in California of up to six months in county jail but such a sentence is rarely, if ever, handed down. A driver who is arrested for a first-time DUI may end up in the “drunk tank” after booking but that is usually the only time he or she will spend behind bars for the offense.   Most often, a driver convicted on a first-time DUI (within a ten year period) will be sentenced to a period of probation and ordered to attend DUI classes. Some counties in California will also sentence a first-time DUI offender to complete community service. But a jail sentence? In 99.9% of the cases, the offender will not receive a jail sentence.

However, spending time between three walls and the fourth wall of bars becomes increasingly likely with subsequent DUI convictions (if the convictions occurred within a ten-year period of time). In fact, a third DUI carries mandatory minimum jail time of 120 days although some counties will allow the offender to serve the sentence under a work-release program or house arrest, or sometimes even by serving the sentence by “volunteering” in a community service program.

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