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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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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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With the popularity of ride-sharing apps that make it convenient and inexpensive to “hail” a ride in most urban areas, common sense would say that the incidence of DUI arrests and drunken driving accidents would decrease accordingly. After all, one of the best uses of these apps is to have a designated driver on-call. And, indeed, as I discussed in an earlier post on this blog, there are studies that preliminarily confirm that ride sharing apps have decreased the incidence of drunken driving and all the dangers associated with it, in particular the incidence of traffic fatalities caused by drunken drivers.

But a recent study found that the ride sharing apps have not had much of an impact at all on traffic fatalities, including those caused by drunken drivers. In a recent study released by the American Journal of Epidemiology, researchers from the University of Southern California and the Oxford University collected data for 100 different metro areas between 2005 (pre-ride sharing) and 2014. Controlling for a variety of factors that could affect the study, the researchers found that ride-sharing had no statistically significant impact on the number of drunk-driving fatalities. Several factors may explain these results. In particular, ride sharing vehicles represent a tiny percentage of the vehicles on the road. Additionally, the judgment of a driver who has had too much to drink may affect the driver’s ability to understand that he or she should let someone else do the driving.

While this study got quite a bit of press, it seems to be the only one so far that has found no impact—at least as far as drunk driving fatalities—since the advent of ride-sharing. Then again, it seems to be the only well-designed study so far on this question.

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You would expect that the Glendale mother who recently ran over her 7 year old while she was driving under the influence would be charged not only with DUI but child endangerment. But you don’t necessarily have to injure your child to get slapped with child endangerment charges if you are driving drunk.

In the case of the Glendale mother, she ran over her child’s leg as she left a parking stall at a grocery store with her son clinging to the passenger side door. Fortunately, the child did not suffer significant injuries but his mother was booked for felony DUI and child endangerment. This mom is probably going to prison and she will certainly lose custody of her children, perhaps permanently.

DUIs may be charged as a felony whenever there is bodily injury to another person caused by a vehicle being driven by someone under the influence (Vehicle Code §25153). A person convicted of felony DUI with injury can be sentenced to up to four years in prison.

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NEW LAW WILL REQUIRE IGNITION INTERLOCKING DEVICES FOR MOST DUI OFFENSES

A new law, scheduled to go into effect across the state on January 1, 2019, will put ignition interlock devices (IID) in almost every vehicle driven by someone who was convicted of drunk driving. IIDs are akin to a breathalyzer installed in a vehicle. The devices include a small camera that shows who is blowing into it and have other mechanisms that prevent the driver from any attempts to defeat the device. They are, in fact, pretty much fool-proof.

The new law is, in one way, less restrictive because it will give first time DUI offenders, who caused no injuries by his or her drunken driving, an option of installing an IID for six months with full driving privileges. As the law stands now, a first time (non-injury) DUI offender can only drive on a restricted license usually for a period 4 to 6 months. With the new law, if a person declines the IID, he or she will be subject to a one-year restricted license. .A restricted license allows the driver to only drive to and from work or school and to DUI-ordered treatment programs.

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The National Highway Traffic Safety Administration (NHTSA) studies the effectiveness of DUI counter measures and publishes reports on the findings. You may be surprised to learn that one of the most effective deterrents to driving under the influence is DUI checkpoints. You probably know what a checkpoint is; most likely, you have probably also driven through one.

In what is described as high-quality studies, the NHTSA reports that publicized checkpoints reduce alcohol-related fatalities, injuries, and property damage crashes each by about 20%. You might think that the police want to keep the locations of their DUI checkpoints a secret in order to snag unsuspecting drivers but that is not correct. According to the NHTSA, the purpose of the checkpoints is not to increase arrests but to deter drunken driving by increasing the perceived risk of getting arrested for DUI. To that end, the effectiveness of checkpoints depends on well-publicized and highly visible checkpoints conducted on a regular basis.

In one particularly compelling study, a year-long program of weekly checkpoints in two West Virginia counties resulted in a 70% fewer drivers with BACs over the drunken driving threshold in those counties as compared to West Virginia counties that did not operate the weekly checkpoints.

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DUI OFFENDERS OFTEN HAVE AN ADDICTION

After 20 years of defending DUI cases I am convinced that many of the individuals who have been arrested for driving under the influence of alcohol or drugs — and especially those who have been arrested for DUI more than once — have an addiction and are in need of treatment. Statistics indicate that on average, the person who is arrested for DUI drove drunk 80 times before his or her first arrest. While it is true that some drivers are just unlucky find and themselves arrested for drunk driving after say a family gathering or other occasion where the driver uncharacteristically had a little too much to drink, most drivers who end up on the other side of my desk have a drinking or drug problem.

I don’t write this to judge or accuse; my goal here is to help. The courts and the DMV almost always order DUI classes and perhaps attendance at AA meetings but I have seen all too many multiple DUI offenders walk into my office. Clearly, the DUI classes and AA meetings don’t always work.

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CALIFORNIA NOT THE STRICTEST STATE ON DRIVERS UNDER THE INFLUENCE

WalletHub recently tallied up the states from the strictest to the most lenient on DUIs. You may be surprised to learn that according to WalletHub’s methodology, California was among the most lenient on DUIs. WalletHub identified 15 key metrics and assigned weighted points to each metric. The key metrics included minimum jail time for 1st and 2nd offenses, the point at which a DUI becomes an automatic felony, minimum fines, automatic license suspension duration, average insurance rate increase after a DUI, and other factors. California ranked among the more lenient states, coming in #34 out of 50 overall.

So where did California rank high? Well, as you might guess given that we have among the most expensive auto insurance rates in the nation, the only metric where California ranked #1 was the average insurance rate increase after a DUI. Indeed, the Auto Club of Southern California reports that a DUI will run a 1st time offender an average of $10,000 more in insurance costs over the ten year look-back period. Let’s just say that Uber or Lyft—even many rides over—will be cheaper than one DUI.

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