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In what must be a record—I have certainly never seen this in my almost 25-year career defending DUIs—an Orange County man was recently arrested for DUI, his ninth in six years! Several news outlets even reported that it was actually his tenth DUI arrest in six years. This driver is (or was) a successful businessman with a company that employs over 50 people and at one time, he was paying a driver $50,000 a year to drive him around.

On January 29, after crashing his vehicle into an electrical box in Placentia, police responded and found the driver to be under the influence. Not only was he driving under the influence but he was driving on a suspended license (for prior DUIs) and he was also cited for not having an ignition interlock device on his vehicle. (I am not sure why an IID would be ordered if his license was suspended but perhaps the court had ordered the IID when, and if, his license was reinstated.)

The driver clearly has an addiction problem. Despite being sentenced to prison for his seventh DUI in 2014, he received an eighth DUI in 2015 and was sentenced to prison again. He entered rehab and agreed to take Vivitrol, a drug that is used to help with drug and alcohol dependencies. He was under Post-Release Community Supervision, when this recent DUI occurred. Post-Release Community Supervision is a type of probation supervision that is offered to non-violent offenders, mostly to relieve the California prison overcrowding.

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WEARABLE BLOOD ALCOHOL MONITORS

You’ve seen the ankle bracelets that some people are ordered by the court to wear to monitor their whereabouts while under house arrest. And you are probably aware of the Ignition Interlock Devices (IID) that are being ordered in many counties in California after conviction on a DUI. Here’s a new one that will probably become a new tool in the state’s ever sophisticated ways to regulate drunk driving: Wearable Blood Alcohol Monitors.

Several wearable blood alcohol monitors have been developed and will soon be available to law enforcement and the public. One of these devices—a type of skin patch— has been developed by UC San Diego engineers. It is described as a “temporary tattoo” that sticks to the skin and electrochemically detects alcohol levels through the wearer’s sweat. Maybe they decided to describe it as a “tattoo” rather than a skin patch to make it sound more appealing. In order to read the results, a small electronic circuit board is connected to the tattoo by a magnet and the results are communicated via Bluetooth.

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ALCOHOL EDUCATION PROGRAMS AFTER CONVICTION FOR DUI

When a person is convicted of DUI in California, or even if he or she is not but the DMV admin per se hearing officers finds that the driver was driving under the influence, the offender will be required to attend an alcohol education program. This requirement is written into the statute and there is usually no way out if the driver want to get his or her driver’s license back. There are varying levels of DUI education programs depending on the driver’s BAC and whether it is a first or subsequent DUI offense.  The programs are offered by private entities that are licensed by the state. The offender must pay for this education and the price tag can be hefty.

The least onerous of the alcohol education programs are those required when a person is convicted of a “wet reckless.” A wet reckless is basically a plea to something less than a straight-out DUI and is usually available to those defendants whose DUI case is weak, for example, a border-line BAC. Persons convicted of a wet reckless need only complete 12 hours of lectures, which is the educational component of the first-time DUI offenders program.

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ASLEEP AT THE WHEEL

Have you ever heard this one: A guy in Any City California drank too much and decided to sleep it off in his car. He was snoozing in the driver’s seat with the keys in the ignition but the car was not running. Police spotted him, tapped on his window and woke him. Upon investigation, they arrested him for drunk driving because he tested above the legal blood alcohol threshold.

This is a common “urban legend” …well sort of. In fact, in California a person is not driving under the influence if the person is not driving. Makes sense. Under California case law, the word “drive” as it applies to the DUI laws means that a person by his or her own conscious efforts causes the vehicle to move. However, if there were any witnesses that reported the sleeping driver drove to his resting spot or if there is other evidence that the driver had been driving, even though he is not driving now, he can still be arrested.

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NO, A CALIFORNIA MAN DID NOT GET ARRESTED DRIVING UNDER THE INFLUENCE OF CAFFEINE

Maybe you read the many news stories recently about the Solano County man who was stopped and arrested for DUI when an officer observed him driving erratically, so erratically that it was reported he almost caused several accidents. He field tested a 0.00% blood alcohol level but he was still arrested and taken in for a blood test because the officer suspected he was under the influence of a substance other than alcohol. The blood test came back positive…. for caffeine, nothing else, and boy did the media run with it. This story got so much traction it was even reported by CNN and other big-time news outlets.

What many of the news stories neglected to report is that the police believe he was under the influence of a substance that did not show up on the toxicology tests. The Solano County District Attorney even made it clear that he was not arrested for the caffeine in his system. But that didn’t stop the media from reporting the sensationalist headline: “CALIFORNIA MAN ARRESTED, CHARGED WITH DRIVING UNDE THE INFLUENCE OF CAFFEINE,” neglecting to mention (or leaving it as an afterthought at the bottom of the article) that the district attorney said it was not the caffeine that prompted the DUI charge. You can almost bet that this will become an urban myth with people swearing that you can be arrested for driving under the influence of caffeine.

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A DUI WILL PROHIBIT YOU FROM VOLUNTEERING WITH CHILDREN

For five years Kayla volunteered with a local after-school reading program helping disadvantaged children improve their reading skills. Because the volunteer position was working with children, Kayla had to get the state-required clearance, which consisted of a fingerprint criminal background check, known as a “live scan.”

After Kayla got a DUI, the volunteer program was informed that Kayla’s clearance was revoked and that effective immediately, she could no longer volunteer with the program. Kayla was surprised to say the least. What does a first-time DUI have to do with helping under-privileged children learn to read? In order to continue as a volunteer, Kayla would have to apply for a criminal record exemption. Kayla was humiliated; she felt like she had just been accused of being a child molester.

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REPEAT DUI OFFENDERS AND THE GENE CONNECTION

Most people learn the lesson the first time: After one DUI conviction, they cease drinking and driving. As I have discussed on this blog, a DUI not only results in a suspension of your driving privileges, criminal probation, mandatory DUI classes, and costs you a bunch of money, but it also can jeopardize your job and even make you unqualified for certain volunteer positions. So why would anyone drive drunk again after getting a DUI? Well, according the National Highway Traffic Safety Administration, approximately 33 percent of all DUI convictions are for repeat offenses. In California, that means any DUI conviction after the first in a ten year period. We might make the reasonable assumption that a portion of this 33 percent—probably a good portion— are people who are addicted to alcohol (or drugs as the case may be). Repeat DUI offenses are, in my experience, the telltale sign of an addiction.

Continuing with my theme on my criminal website blog, maybe these repeat DUI offenders struggle not only with the psychological addiction but actually are in a battle with their own genetic makeup. The “alcoholism gene” is a controversial subject and no one such gene or genetic profile has yet to be identified. However, research clearly points to a genetic component in alcoholism. Just as we are born with a certain color eyes or skin because it is part of our genetic structure, so too, we are born with certain personality traits. As research has recently shown, personality traits are identifiable on a person’s genome and certain personality genomes overlap with mental illnesses. Thus, a person who has a gene variation that predicted a neurotic personality, which is one of the five well-established personality traits (there are five: extraversion, neuroticism, agreeableness, openness to experience and conscientiousness), shared the gene variation that predicted clinical depression and generalized anxiety disorder.

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THERE’S A KILLER ON THE ROAD

Here’s an unfortunate statistic you don’t want to brag about: California has the top four of the top ten U.S. metropolitan areas with the highest DUI fatality rate per capita. Those areas: #1 San Bernardino, #2 Riverside, #3 Fresno, and #4 Sacramento have the highest rate of DUI fatalities in the entire country. San Bernardino’s rate is six times higher than the national rate! It’s neighbor, Riverside, has a rate that is three times higher.

The Department of Transportation estimates that approximately one-third of all traffic fatalities involve a drunk driver and that approximately 30% of all drivers in California who died in a car crash were over the legal limit of .08%. The overwhelming number of these fatalities were individuals between the ages of 21 to 34.

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IMMIGRATION CONSEQUENCES OF A DUI

Soon-to-be president Trump has stated that he intends to enforce deportation of certain immigrants. Might a DUI threaten the immigration status or residency of an immigrant in this country? The answer is yes. Under current law, even a person residing in this country legally but who is not a citizen can be deported for certain DUI offenses. That these laws will be more vigorously enforced than they are now is likely. While the laws governing immigration are very complicated, a DUI can affect a person’s immigration status in the U.S.

The key term the courts use to determine whether an offense such as a DUI is a deportable offense is whether it is a “crime of moral turpitude.” Among the categories of deportable offenses are these so-called crimes of moral turpitude. This is a catch-all phrase, which is not defined by statute but rather left to the courts to interpret. The courts have found that multiple DUIs, a DUI on a suspended license, a driving under the influence of drugs, a DUI with a child in the car and a DUI on top of another charge are all crimes of moral turpitude. While courts have held that a simple first-time DUI is not a crime of moral turpitude, a DUI conviction that includes an aggravating factor such the ones described above is and the driver can face deportation or revocation of his or her visa. The conviction may also prevent an immigrant from obtaining or renewing a visa or green card and can result in the denial of an application for United States citizenship.

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DOES THE PASSAGE OF PROP 64 MEAN MORE HIGH DRIVERS ON THE ROAD?

Now that Prop 64 has passed, will we see more drivers under the influence on California roads? Maybe. But as I discussed in previous posts, unlike alcohol, there is no definitive way to test for the immediate presence of THC (the chemical in marijuana and marijuana derivatives that makes a person “high”) in a person’s system. Furthermore, while the DUI laws make it illegal to drive under the influence of marijuana, whether a driver is under the influence is a subjective assessment made by the detaining officer and unless the car is reeking of pot, the evidence may be difficult to prove in court. While science and the legislature are working on better testing and specific statutory limits, the state is currently in the predicament where recreational use of marijuana is legal, much like alcohol use, but the laws controlling driving under the influence of marijuana are ambiguous.

The critics of Prop 64 pointed out that the proposition does not include a DUI standard for marijuana. Colorado has, for example, included in their statute a driving under the influence of marijuana threshold of 5 nanograms of THC. Still, as I previously discussed, scientists have not come up with a device as accurate as a roadside breathalyzer and that is problematic. Colorado may lead the way though as the police there are now testing five types of oral fluid testers that allow the police to check a driver’s saliva for THC at the time of the traffic stop. And even though there is no threshold standard for marijuana in a driver’s system (similar to the .08% BAC in the DUI laws) at the present time, that does not mean the Legislature cannot enact a law with such a standard—and they most certainly will.

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