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DRIVING WHILE ADDICTED TO A DRUG

Did you know it is illegal to drive if you are addicted to a drug? That’s right, you could be charged under this statute even if you are not impaired by the drug you are addicted to at the time you are driving. While such an arrest, on its own, is unlikely, it is a “add-on” charge that a prosecutor can use. Vehicle Code section 23152, subdivision (c) very plainly makes it unlawful for a person to drive a vehicle if that person is “addicted to the use of any drug.”

Practically speaking, if a driver is stopped by an officer and has no visible signs of an addiction, the officer cannot know that the driver is addicted to a drug. However, let’s say a driver is stopped and arrested for driving under the influence of alcohol. During the investigation at the time of arrest or later, it is learned that the driver is also addicted to a drug, an additional vehicle code violation under section 23152, subdivision (c) may, and probably will, be added to the DUI complaint.

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WHAT SHOULD YOU DO IF YOU ARE PULLED OVER AFTER DRINKING

After an enjoyable dinner party where several bottles of wine were opened—feeling full in body and mind, but not particularly feeling effects of that wine, or so you think—you hop into your car and head home. A couple of blocks from home, you see one of Orange County’s finest flashing emergency lights behind you. The scream of the siren follows shortly thereafter. Your mind races. Did I drink too much? Why am I being pulled over? Am I going to get a DUI?

The outcome may depend on your response and even if you are arrested, the way you handle yourself during the vehicle stop is crucial. The first thing you must do is safely pull over using the appropriate turn indicator as you pull over. Don’t think that because you are only blocks from home, you can pull into your driveway and be legally “safe.” It is a common misconception that the police cannot arrest you without a warrant on private property.

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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.

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Headline: Driving Under the Influence of Drugs is Now Deadlier than Driving Under the Influence of Alcohol

You might have heard something on the news or read a news story, or perhaps you only caught the headline suggesting that drugged driving now surpasses drunken driving in fatal crashes. Well, not exactly. What these news stories are citing is an updated report from the U.S. Department of Transportation Fatality Analysis Reporting System (FARS). The FARS study surveyed data of drug and alcohol testing of drivers who died in a car crash and found that 44.6% of the drivers had drugs in their system, while only 39.1% had alcohol in their system. But the statistics are murky: not all fatally-injured drivers were tested for drugs or alcohol; 57% were tested for drugs and 70.9% were tested for alcohol. At first glance, the fact that more fatally injured drivers were tested for alcohol than for drugs and less showed positive for alcohol might seem to make an even better case for the claim that there are more fatalities due to drugged driving than drunken driving.

But that statistic doesn’t tell the whole story. FARS collect data from what the individual states report—and those reports can vary considerably. Not all states test an equal number of fatally injured drivers. For example, 2 states test 15% or fewer fatally injured drivers, while 9 states test 85% or more. The most frequently found drug in those that were tested was marijuana, being 35.6%. But as I have previously discussed, marijuana will be detected in a person’s blood long after the effects have worn off. The state data used by the NARS study does not distinguish between the active and inactive metabolites and THC levels.

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ROADSIDE MOUTH SWAB DEVICE TESTS FOR SEVEN DRUGS IN A DRIVER’S SYSTEM

Police are increasingly concerned about drivers who are under the influence of drugs (DUID), especially since marijuana has been legalized in the state. California Vehicle Code section 23152(e) makes it unlawful for someone to drive under the influence of any drug and as I discussed previously, this includes prescription and even over-the-counter drugs if that drug affects a person’s ability to drive safely. But unlike driving under the influence of alcohol, there is no quantitative standard by which this influence can be measured, it is up to the subjective determination of the cop and other evidence, including observations and the results of a blood test.

While there is no current method of road side testing for drugs that measure how much of a drug is in a person’s system, a new device, with a rather ominous sounding name. the Dräger DrugTest 5000, is currently being deployed in Los Angeles and San Diego and sure to soon appear in other California cities. This device can test for the presence of seven drugs from a simple mouth swab. The device is a compact, easy to use mobile drug screening machine that allows a police officer, who upon reasonable suspicion of DUID, to request a mouth swab from the driver, which is then placed in the machine. The swab is mixed with a vial of testing solution and after about six to eight minutes it will print out a receipt that shows negative or positive results for marijuana, cocaine, opiates, methamphetamine, amphetamine, methadone and benzodiazepines. In addition to road-side use, the device is being employed at DUI checkpoints.

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A BRIEF HISTORY OF DUI LAWS

A couple of generations ago, drunk driving was almost acceptable. You’ve probably heard about “one for the road” — it was a common refrain at parties and bars and the phrase was often used in songs and movies during the last century. Maybe you saw the many Mad Men episodes depicting the various characters driving while way too inebriated. That wasn’t artistic license, that happened back then – a lot. And it was not uncommon to hear the “funny” anecdotes like the one about old Uncle Joe driving home so drunk that he hit a tree. When the local sheriff arrived, they woke up Uncle Joe, who was slumped over the steering wheel snoozing, and escorted him home to sleep it off—warning him to lay off the booze as they left.

Yet, driving under the influence of alcohol has been unlawful almost since the time the first automobile hit the road. The first state to enact a law that made it illegal to drive under the influence of alcohol was New Jersey, although some claim New York had a law before New Jersey. The New Jersey law, enacted in 1906 had no specific threshold level. If the cop thought you were too drunk to be driving, you were arrested (or perhaps sent home with a warning). Other states soon followed New Jersey’s lead. I suppose since most people still got around in carriages during those day and horse and buggy driver could just as easily be arrested for drunken driving as the dapper gentleman driving a new-fangled horseless carriage.

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DUI LAWS ARE STRICT FOR THOSE HOLDING A COMMERCIAL DRIVER’S LICENSE

A big rig carrying a load of steel beams and a crane flipped over on the 101 near San Rafael this past week. The accident, which blocked three of the four lanes, happened at 8 a.m. during the height of rush hour on a Monday morning. Yes, big rigs flip over, our freeways get blocked, sometimes even during rush hour. But there was something striking about this accident: the driver of the big rig had a blood alcohol level at five times the legal limit for commercial drivers. At 8:00 in the morning! Now, that is frightening. Miraculously, no one was seriously injured or killed. The driver was booked on felony DUI charges and. If convicted, he will probably be searching for a new line of work once he serves his sentence.

Although we normally think of the DUI blood alcohol content (BAC) threshold as .08%, for commercial-licensed drivers the limit is lower. Anyone who holds a commercial driver’s license is considered DUI if his or her BAC is .04% or higher. If a driver with a commercial license is convicted of driving with a BAC of over .04%– even if the driver wasn’t driving a commercial vehicle at the time of the DUI arrest—his or her commercial driver’s license will be suspended for at least one year (three years if driving a vehicle carrying hazardous materials). This is a straight suspension on the commercial license, no exceptions. If it is the commercial-licensed drivers second DUI for driving at .04% BAC or above, the law requires that the commercial driver’s license be revoked for life. These laws apply to a commercial driver who is driving under the influence of drugs also.

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DUI CHARGES CAN BE FILED UP TO ONE YEAR AFTER A DUI ARREST              

When a person is arrested for suspected misdemeanor DUI, he or she is typically booked at the police station, issued a citation to appear in court, and released once someone comes to pick them up. The citation to appear in court concerns the criminal charges, not the DMV administrative sanctions. The citation advises the arrestee of the court location and date in which he or she is to appear. If the arrestee does not appear on that date, a bench warrant for his or her arrest will probably be issued. The bench warrant is usually recalled once the person does appear in court.

But what if the person appears in court on the date and time stated on the citation and the clerk informs him or her that the case is not on the court’s calendar. It happens. Unfortunately, that doesn’t mean that the arrestee somehow lucked out and the criminal charges disappeared. Rather, what it probably means is that prosecutor just hasn’t gotten around to filing the charges.

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HOW ACCURATE ARE FIELD SOBRIETY TESTS?

One of the first things an officer will ask a driver to do when he or she suspects the driver is under the influence is to perform field sobriety tests or FSTs for short. In California, drivers are not required to submit to these tests but the officer is not required to inform the driver that the tests are not required. Consequently, most drivers will submit to the tests, either thinking they must or because they are afraid to say no, or because they believe they can pass the FSTs and be on their merry way (that’s a false assumption). FSTs are almost designed to be failed—even many entirely sober people will “fail” the tests—and the only real purpose of FSTs is to give the officer a reason to arrest the driver and to provide the prosecution with evidence.

But how accurate are FSTs anyway? The Standardized Field Sobriety Test, which is endorsed by the National Highway Traffic and Safety Administration (NHTSA), and used in California, consists of three separate tests: The Horizontal Gaze Nystagmus (HGN), the Walk and Turn (WAT). and the One-Leg Stand (OLS). The HGN measures eye movements in which the officer is looking for three indicators that suggest alcohol impairment. The WAT is the one most people associate with roadside drunk driving tests: the driver is asked to walk heel-to-toe in a straight line and to return in the same manner. The OLS requires the driver to stand with one foot approximately six inches off the ground and to count to 30. Any swaying, loss of balance, or inability to stay on one foot for 30 seconds may indicate alcohol impairment. According to the NHTSA, these three tests accurately detect alcohol impairment in 91% of all cases. According to the NHTSA, non-standard FSTs are unreliable.

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A TOSTITOS BREATHALYZER?

In strange DUI news, Tostitos, yeah, the corn chips, is marketing a limited-edition “Party Safe” version of its Tostitos chip bag that …. get this: serves as a breathalyzer. Well, not really a breathalyzer but the bag contains a sensor that will detect alcohol on a person’s breath. If the sensor detects alcohol on the person’s breath, the bag’s logo design that includes a green circle will turn the circle red with a warning message “Don’t Drink and Drive.” An Uber code, which can be tapped by a smartphone to send out a driver to the location (using near-filed communication technology) will also appear on the bag. And in order to entice the drinker to call Uber instead of driving, the Uber code includes a discounted Uber ride. Gimmicky, you bet. But Tostitos (and Uber) may be on to something.

While this particular technology is rudimentary and doesn’t actually measure the blood alcohol content, as a breathalyzer does, it does detect whether there is alcohol on a person’s breath. You might surmise that the person already knows if he or she has been drinking, but this serves as a not-so-subtle reminder that maybe they shouldn’t be driving. The Tostitos bag was produced in limited quantities specifically for the Super Bowl but might this be a harbinger of things to come?

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