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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.

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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.

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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.

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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.

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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?

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I recently wrote about individuals who work in criminal justice—and who should know better—getting DUIs. Today I read a tragic news story today about an off-duty Los Angeles police officer causing a crash that killed three people; the officer is suspected of driving drunk.

The crash happened in Riverside around 10 p.m. this past Tuesday, September 27. The off-duty officer, Edgar Verduzco, a Santa Ana resident, was speeding down the carpool lane when he rear-ended the victim’s Nissan. The Nissan burst into flames causing the death of a couple and their teen-aged son, who were trapped in their car.

The officer was booked on suspicion of felony DUI and vehicular manslaughter. LAPD is investigating, while Officer Verduzco is being held in the Los Angeles Men’s Central Jail on $100,000 bail. His only injury is a broken nose.

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DUIs are unfortunately routine in the Orange County courts. Usually the offender is punished with license suspension and probation and required to attend DUI education classes. But DUIs are often a symptom of a deeper problem. Two alternative courts in Orange County attempt to address the root causes of DUIs.

VETERAN’S COURT

Military veterans face difficulties that most of us do not. Not many of us see our buddies get killed or face the harrowing situations many soldiers experience in the combat arena.  As a consequence, many veterans who have participated in wars abroad come home suffering from post-traumatic stress disorder (PTSD), traumatic injuries including brain injury (TBI), and/or difficulties coping. It is estimated that between 10 to 20 percent of all veterans suffer from PTSD, which can be added to the many veterans who have been physically injured and disabled. Often these war experience or the injuries suffered cause the veteran to become depressed. Whether as a way of coping with physical or psychological trauma, a significant number of affected veterans turn to alcohol or drugs or become addicted to medications prescribed for pain.

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EVEN POLICE OFFICERS, DISTRICT ATTORNEYS, AND JUDGES GET ARRESTED FOR DUI

How can we explain all the people who should know better getting DUIs? Never mind the average driver, who should know better, what about the cops, the firefighters, the attorneys, even the judges who get DUIs. It happens all the time in California and in every state. In Austin Texas, the District Attorney—not a district attorney—but the District Attorney, an elected official who was the head of the District Attorney’s Office in that city of over 1 million people, was arrested for driving while intoxicated (DWI) in 2013. She was driving in a bike lane (good thing there were no bikers in the lane) for more than a mile and was also observed veering into oncoming traffic. When she was stopped by the police, they found an opened bottle of vodka on the front seat. Her BAC was 0.239! Folks, that is three times the limit and near the level that results in alcohol poisoning and loss of consciousness.

Perhaps some of these people think they are “above the law” or that they can use their influence to get out of a drunk driving arrest. But I suspect it is more likely that many of our public servants, be they police officers, firefighters, judges, district attorneys or representatives in the Legislature who have been arrested for DUI have an addiction. As with many repeat offenders who drive drunk even though they have been convicted of DUI one or more times and know the consequences will be progressively more severe, still get behind the wheel after drinking, it is the addiction that overrules common sense.

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IF YOU ARE HIGH, DON’T DRIVE

Driving under the influence of marijuana is an evolving subject of concern to safety experts and law enforcement. Last week I wrote about the difficulties California and other states are having establishing at what levels marijuana use presents a driving risk and how those risks are assessed. There is yet to be a consensus. This has happened before. In the 1930’s and 40’s as automobile ownership reached the masses, there was no general agreement among the states regarding drunken driving and until the 1950’s no reliable way to measure a driver’s level of inebriation. Before the advent of the breathalyzer, whether someone was too drunk to be on the road was left to the subjective decision of law enforcement and all too often, that mean the officer would just follow the driver home to make sure he or she made it home safely.

With the legalization of marijuana, we face similar dilemmas, and just like the early days when drunken driving laws were evolving, there is yet to be a reliable method to test a driver for marijuana testing and there is no agreed-upon limit where THC levels are considered too high to drive. In the mid-twentieth century, there were honest debates about whether a moderately intoxicated driver was dangerous and most states, even up to the late 1960’s, did not prosecute a driver if his or her BAC was under 0.15%. Statistical analysis and scientific studies later established that a BAC over 0.08% makes a driver dangerous and the trend is going lower, towards a 0.05% BAC threshold.

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Even though recreational use of marijuana is now legal in California, it is still unlawful to drive its influence. (Vehicle Code §23152(f).) While the “per se” law makes a driver presumptively “under the influence” of alcohol at 0.08% BAC, how does the law define a driver under the influence of marijuana? The legal standard is that the driver’s ability to drive, with the same caution of a person who is not high under the same circumstances, is appreciably affected or impaired by the influence of marijuana. But there are two problems with this standard as far as it concerns driving under the influence of marijuana:

  • The Legislature has set no legal “per se” threshold by which a driver is presumptively under the influence of marijuana to the extent that the driver’s ability to drive safely is compromised and
  • There is no reliable test that can determine how much marijuana has been consumed by a driver or even when the consumption took place.
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