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It’s summer travel season and maybe you are planning a trip to another country. Don’t let your R&R be ruined by a driving under the influence arrest. You may not be aware of this but most countries have harsher DUI laws than those in the United States. Now, how strictly those laws are enforced may be another matter but here’s the low down:

In Canada, the BAC threshold runs from 0.05% to 0.08% depending on the province. Same in Mexico, where the BAC limit is determined by state and can run between 0.04% and 0.08%, but the national limit is 0.08% for those states that do not impose their own law.

Going to Europe? You might want to lay off the alcohol altogether if you are driving. In Scandinavia, for example, you can be arrested for a DUI with just a 0.02% BAC (Norway and Sweden). Denmark is slightly more lenient with a 0.05% BAC threshold. Elsewhere in Europe, the BAC reading at which you can be arrested for drunken driving is generally 0.05% although many European countries have a lower threshold if you are involved in an accident. For example, in Germany you can be arrested for drunken driving if you are involved in an accident (regardless of fault) with a BAC of 0.03%. Only Malta and the U.K. have a 0.08% BAC threshold; the rest of the countries run between 0.00% and 0.05%. (Yes, 0.00%: in the former Eastern bloc countries of Hungary, The Czech Republic, Slovakia and Croatia you can be arrested for drunken driving with any amount of alcohol in your system.)

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CONTINUOUS MONITORING OF ALCOHOL LEVELS—THE SCRAM DEVICE

Most people in California are aware that there is a device that may be ordered installed in person’s vehicle upon conviction of driving under the influence of alcohol. This device, called an Ignition Interlock device or IID is a mechanism that prevents a person from starting a vehicle without first blowing into the device, which registers any alcohol in the person’s system. If any alcohol is registered, the vehicle will not start. Some counties in California require that this device be installed— even for first time DUIs— but in most California counties, ordering the installation of a IID is left to judgment of the court.

Most people in California are not aware, however, of another alcohol monitoring device that may be ordered by the court in DUI cases. This device, called a Secure Continuous Remote Alcohol Monitor or SCRAM device is an ankle bracket that continuously monitors for alcohol in the system through the skin. When the court orders installation of an IID, the defendant is only monitored for blood alcohol content when he or she wants to drive, when the SCRAM device is worn, the defendant is continuously monitored. DUI probation includes a zero-tolerance condition, that is, anyone on probation for a DUI cannot drive with even a small amount of alcohol in his or her system; the IID is just an extra level of enforcement. But if the court orders that the DUI probationer cannot drink at all, the court may order that the defendant wear a SCRAM.

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SUPREME COURT RULES THAT DUI BLOOD TEST REQUIRES A WARRANT

On June 23, 2016, the United States Supreme Court issued a decision in the case Birchfield v. North Dakota, which will affect California’s “implied consent” DUI laws. The Court held that the Fourth Amendment to the United States Constitution permits a DUI breath test incident to an arrest without the need for a warrant but a warrantless blood test is unconstitutional. Both are considered a search governed by the Fourth Amendment but the Supreme Court found its decision on a privacy rights analysis vis-a-vis the need to obtain a BAC reading. Finding that a breath test is not a significant intrusion on one’s privacy but the piercing of skin and extraction of a part of the subject’s body is, the Supreme Court held that the extraction of blood to measure BAC is not a reasonable alternative in light of the availability of the less intrusive method.

The case was not just an academic exercise; the Supreme Court took this case in order to decide if states can make it a crime to refuse BAC chemical testing. Based on the Court’s analysis, the Supreme’s held that a motorist under arrest for DUI cannot be held criminally liable for refusing a blood test but can be held criminally liable for refusing a breath test.

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Last month 23-year-old Clovis, California resident, Candice Ooley, eight months pregnant and driving with a blood alcohol level four times the legal limit (0.32%), caused an accident that ended in the death of a passenger in the vehicle she hit and serious injuries to other occupants of the vehicle. Ms. Ooley, whose license to drive was already suspended due to her previous DUI arrest only six months before this fatal incident, was said to be driving at high speeds and possibly passed out while behind the wheel causing the wreck.

She has been charged with felony driving under the influence with a blood alcohol content of over .15% and vehicular manslaughter with great bodily injury. The district attorney has announced that he intends to add second-degree murder charges but Ms. Ooley’s attorney plans to defend that potential charge on the basis that Ms. Ooley never received a “Watson warning” nor had she been convicted on the previous DUI charges at the time of this incident.

For the prosecutor to prove the murder charge, he would have to establish that Ms. Ooley was aware that if she drove while under the influence of alcohol, she could cause the death of another person, yet she intentionally chose to drive under the influence anyway; the legal term for this is “implied malice.” Now, that might seem like common knowledge but common knowledge is not enough to prove implied malice.

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Here’s a DUI arrest scenario I occasionally encounter in my practice: A client is arrested for driving under the influence in a private parking lot, for example, or on a street in a gated community, or even in the client’s own driveway and wants to fight the DUI arrest by arguing that the traffic stop and arrest did not occur on a public road. Many people are incorrectly informed that the driving under the influence laws require that the vehicle was being driven on a public street or highway. That misunderstanding is not without some foundation; until the early 1980’s the California Vehicle Code made it illegal to drive under the influence “upon a highway or upon other than a highway areas in which are open to the general public.” But that wording has long since been removed from the DUI statutes.

The scenario will sometimes go something like this: The police, following behind the driver, turned on their lights and sirens to initiate a stop but the driver only minutes from home, turned into her gated community with the police still following behind, or pulled into his driveway where the police then effected their detention upon the driver in his driveway. My client will want to fight the stop thinking it is unlawful to arrest a person on their private property without a warrant. While this may hold true in certain arrests, it is not the case in DUI arrests.

The problem with the argument is that the driver cannot evade arrest by simply continuing on until private property is reached. A driver “may not defeat a detention or arrest which is set in motion in a public place by fleeing to a private place.” (People v. Lloyd (1989) 216 Cal.App.3d 1425, 1430.)

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It is simply a fact that many, if not most, drivers lose at their Administrative Per Se (APS) Hearing. The APS hearing is an administrative hearing and unlike criminal hearings, the driver is not afforded the same due process rights a guaranteed by the Constitution in criminal trials. The legal standards are not as strict in an administrative hearing and the DMV officer who makes the decision about the suspension of the driver’s license to drive sits as prosecutor and judge. While this doesn’t sound very “Constitutional,” the appellate courts have long held that certain Constitutional rights do not apply to administrative hearings.

But you do have the right to challenge the administrative court’s decision. The procedure by which the decision can be challenged is by petitioning a higher court for a Writ of Mandate, also called a Writ of Mandamus. This writ is a civil procedure by which you can petition a court of law to review the administrative court’s decision. If the higher court determines that the administrative decision did not proceed in accordance with the law or that the administrative decision was not supported by the evidence, the higher court can order the administrative court to rehear the matter in accordance with the higher court’s findings or even order the administrative court to reverse its decision.

When challenging a DMV APS hearing finding, the petition for Writ of Mandate is filed with the superior court. This is a civil matter, not criminal.

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HOW ALCOHOL AND OTHER DRUGS AFFECT YOUR BRAIN

Everyone knows that when a person is under the influence of certain drugs, their driving may become impaired, but not everyone knows why.

Let’s start with the most common drug: alcohol. Alcohol is a depressant. Depressants cause the central nervous system to slow down, usually by enhancing a neurotransmitter called gamma-Aminobutyric acid (GABA). GABA reduces a person’s nerve cell excitability (the process that transmits information in our brains). Without GABA, we’d be a “bundle of nerves.”

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THE DUI CRIMINAL COURT PROCESS

So you were arrested for DUI. You’ve already requested (or decided not to request) an Administrative Per Se Hearing with the DMV, what comes next? Separate and apart from the DMV hearing, you will be required to appear before a judge in criminal court for an arraignment. This is the first step in the criminal proceedings. Arraignments can often be confusing and it is therefore advisable that you hire an attorney to represent you prior to the arraignment. (If you cannot afford an attorney, a public defender will step into to represent you but often the first time the public defender even sees your criminal file is right before you appear in front of the judge for your arraignment.)

At the arraignment, the judge and prosecutor will throw around a lot of legal terminology that may be unfamiliar to you but what you need to know is that the purpose of the arraignment is for the judge to inform you of the charges against you and for you to plead guilty, not guilty, or no contest. Usually at the arraignment the prosecutor will offer a “plea bargain” wherein you agree to plead guilty in return for a particular sentence. You can accept the offer and plead guilty at the time of the arraignment. If that is what you choose to do, the criminal part of your DUI case will essentially be over. The judge will sentence you and you will only need to complete paperwork at the clerk’s desk and serve your sentence.

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In my previous post I discussed the DUI arrest process and the fact that when you are arrested for DUI, your license to drive will be immediately suspended by the DMV and you are issued a temporary 30-day license to drive. One of the reasons you receive the temporary license is because you have the right to challenge the DMV suspension of your license at what is called an Administrative Per Se Hearing (APS Hearing).

Even before you worry about the criminal charges, you need to address the DMV suspension of your license because you have only ten days in which you can request an APS hearing before the DMV. The APS hearing is completely separate from the criminal case. Yes, you must defend your DUI on two fronts: the administrative per se sanctions and the criminal charges; they are completely separate from one another. Since the time to request the APS hearing is so short, that should be your first order of business.

You are not required to request or appear for the APS hearing and many of those arrested for DUI do not. If there is no viable defense—that is, the vehicle stop and arrest was lawful and you tested well over .08% BAC—you may chose or your attorney may advise you to forego the APS hearing. If you do not request an APS hearing, your license will be automatically suspended for a period of time that is dependent on the circumstances of your particular DUI (i.e. 1st, 2nd, 3rd or greater DUI, whether you were on probation, and so on). You will also be required by the DMV to attend DUI classes and face other DMV sanctions.

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