On New Year’s Day 2021 in Central California, a driver with twice the legal limit of 0.08% blood alcohol concentration (BAC) in his system was speeding at approximately 90 mph on a two-lane roadway. He lost control of his vehicle and crossed over the centerline causing a head-on collision with a truck traveling in the other lane. In the truck was one adult and seven children. The collision caused the truck to combust and all eight occupants in the truck died, as did the drunk driver.

This tragic incident and many that preceded it, prompted the National Highway Traffic Safety Administration (NHTSA) to recommend that all new vehicles be required to be equipped with an alcohol impairment detection system. According to the NHTSA one in three traffic fatalities involve an impaired driver. AT present, there is no standard chemical testing for cannabis impairment or a in-field method for detecting drug impairment, such devices, such as ignition interlock devices (IID),  are primarily effective for alcohol impairment. However, there is already technology that can detect whether a driver is alert by tracking the driver’s face and eyes and by lane veering. Such technology not only detects impairment but whether a driver is dozing off or otherwise to inattentive to drive safely.

The NHTSA has actually gone one step beyond recommending that vehicle manufacturers incorporate these devices and has asked that the federal government require that all new vehicles be equipped with these devices. The NHTSA is likely to see its recommendations become law.

In 2018, 19-year-old Davion Murphy, driving through residential Lancaster, California at a speed of 88 miles per hour, with a posted speed limit was 40 mph, ran a red light colliding with another vehicle. The collision caused the death of all three occupants in the vehicle Mr. Murphy’s vehicle hit. Mr. Murphy was arrested at the scene and upon investigation, the officers found marijuana in his vehicle. Further discovery revealed that Mr. Murphy had been smoking copious amounts of marijuana prior to the collision.  Mr. Murphy was charged with three counts of second degree murder. Mr. Murphy’s case went to jury trial where he was convicted on all three counts. Mr. Murphy appealed.

The California Court of Appeals, Second District recently affirmed the conviction in a published case, People v. Murphy (2022) 80 Cal. App. 5th 713.

Mr. Murphy argued on appeal that the prosecution failed to present sufficient evidence to support the murder charges because the prosecution failed to support an element of the charge, i.e., there was insufficient evidence that he acted with implied malice. Expressed malice, an element of first degree murder, is the deliberate intent to kill someone whereas implied malice, a necessary element of second degree murder is the killing of someone without the deliberate intent but a result of an act that has a high probability it will result in the death of another, an act with “wanton disregard for human life.” The act must be deliberately committed with the knowledge that it is a danger to human life and with a conscious disregard of that danger. (This distinguishes implied malice from gross negligence. For example, sober but excessive speeding that causes the death of another.)

Run a search of the Orange County Register articles this summer on DUIs and you will learn that a woman suspected of DUI drove her car into Newport Bay, you will read about DUI crashes, some involving injury, and you will also read about DUI drivers who caused the death of innocent people.

A Santa Ana driver suspected of DUI ran a red light, hit another vehicle, and then fled the scene. The driver of the other vehicle died. The Santa Ana driver was arrested shortly after fleeing the scene.

A bicyclist was fatally struck by a DUI driver in Huntington Beach.

The news of the DUI arrest of Paul Pelosi, Nancy Pelosi’s husband, has been splashed all over the news this week. Mr. Pelosi was arrested for driving under the influence of alcohol after his Porsche was hit by another vehicle. Fortunately, the collision was minor, and no one was hurt

This incident serves as a warning to those who think they are fine to drive after a few drinks. Maybe such a driver can drive within the lines and within the speed limit. Maybe that slightly inebriated driver stops at all the stop signs and red lights and remembers to turn on the headlights. Maybe that driver does everything right. But then an unplanned event happens. Most often, it is exactly what happened to Mr. Pelosi: another driver causes an accident. Or it may be that an animal, say a deer, runs in front of the driver’s vehicle causing the driver to swerve or otherwise causing an incident that catches the attention of law enforcement. Maybe a pedestrian or bicyclist crosses the street too close to the driver’s on-coming vehicle causing an incident. You get the picture. Any number of unforeseen events, events that were not a direct result of the driver’s conduct, can trigger an encounter with law enforcement, which can trigger a DUI.

Under due process laws, an officer must have reasonable suspicion to initiate a traffic stop. In other words, the officer must witness the driver violating a traffic law – it could be as simple as a broken taillight – but in most cases, an officer cannot stop vehicles without reason. (An exception is a sobriety checkpoint.)  If the officer can articulate a reasonable suspicion for the stop, if the officer reasonably suspects the driver to be under the influence, he or she will initiate a DUI investigation.  The officer must be able to articulate what caused the belief that the driver was under the influence. That could be slurred speech, the smell of alcohol or marijuana, blood shot eyes and so on.  The bar gets a bit higher if the officer determines that the driver should be arrested for DUI.  That is, the officer must have probable cause to arrest the driver for DUI. This requires specific facts for the arrest. This may be the same observations that triggered the investigation,  but is often poor performance on FSTs (which I have discussed elsewhere, the informed driver should always decline).

Mr. Tev, while intoxicated, was driving his vehicle on the wrong side of the road at a high rate of speed. He crashed head-on into a car traveling on the road, killing the driver of that vehicle. Mr. Tev was charged with second-degree murder among other offenses. Mr. Tev had no intention to kill another person when he drove his car, so why was he charged with murder and not just vehicular manslaughter?

The offense of vehicular manslaughter (Penal Code section 192(c)) generally requires some kind of negligence or causing the death of another by driving and committing a misdemeanor or infraction. Examples of this could include texting while driving and hitting a pedestrian that dies of the injuries (negligence) or speeding and causing an accident that results in death (committing a misdemeanor). There is a separate offense if the driver is under the influence: Gross Vehicular Manslaughter While Intoxicated (Penal Code section 191.5). Under this offense, if a driver is intoxicated and is driving in a grossly negligent way that results in another person’s death. Gross negligence could be committing an act that is a misdemeanor or infraction (for example, speeding) or a lawful act that could cause the death of another (for example, going the speed limit but under dangerous road conditions is a lawful act but could pose a heightened danger).

Manslaughter under Penal Code sections 192(c) and 191.5 does not include the element of “malice.” And here is where Mr. Tev’s second-degree murder charge comes in. The theory upon which he was prosecuted was that there was evidence that Mr. Tev, who was driving with a blood alcohol content (BAC) of more than twice the legal limit, was subjectively aware that his driving under the influence was dangerous. Under this theory, Mr. Tev “deliberately acted with conscious disregard for human life” and therefore acted with “implied malice.” (CALCRIM NO.520.)

On again, off again. There has been much confusion surrounding diversion for misdemeanor DUIs. You may have read my earlier post where I discussed the differing opinions in the county superior courts. If not, a brief recap is as follows:

On January 1, 2021, a new law took effect which allows superior court judges to order diversion for most misdemeanors instead of a conviction. (Penal Code section 1001.95.)  If the defendant successfully fulfills the diversion order, the misdemeanor charge is dismissed forever more. As the law Is written there is a handful of misdemeanor offenses that are not eligible for diversion. Driving under the influence is listed among the exceptions.

However, there was a law already on the books, Vehicle Code section 23640, that stated a DUI charge cannot be suspended or stayed by the superior court in order to allow the defendant to participate in a rehabilitation program, nor can the court dismiss the charge upon the offender’s successful completion of such a program. This appeared to be a conflict with the new misdemeanor diversion law, at least for those charged with DUI.

For foreign nationals living or visiting the United States on a temporary basis, a DUI arrest has consequences that may affect the individual’s right to enter the U.S. in the future.  A non-immigrant visa holder faces the same legal consequences that citizen or permanent resident faces after DUI arrest, but with a big twist: Whether on a tourist (visitor) visa, student (study) visas, or employment visa, a DUI arrest may result in the automatic revocation of the visa.  The DUI arrest of an individual on a nonimmigrant visa, if not successfully challenged, can also result in difficulties on application to enter the U.S. in the future. It could even result in a denial of future entry into the U.S.

The United States government does not look kindly on temporary visitors and residents driving under the influence (that might be an understatement).  Under the United States Department of State policy, a nonimmigrant’s visa may be automatically revoked upon an arrest for DUI; not a conviction, just an arrest! (Although a conviction will also result in automatic revocation of the visa,) The policy allows the non-immigrant visa holder to remain in the United States for the duration of the visa, but once the individual leaves the United States, the visa is revoked and cannot be renewed. Should the individual desire to return to the U.S., an entirely new visa application process is required and due to the DUI arrest (or conviction) the individual will be required to undergo evaluation by a panel physician designated by the consular office for the presence of a “mental disorder;” here, that disorder would be alcohol dependence or abuse. This requirement applies if there has been one single arrest for D.U.I. with three calendar years or a DUI conviction at any time in the visa applicant’s history.

What does this mean for an individual in California (or anywhere in the U.S.) on a nonimmigrant visa who is arrested for DUI? First and foremost, it means that individual must contact a DUI defense attorney immediately. Since many visas are of short duration, there is a particular urgency to address the DUI arrest. The nonimmigrant has due process rights as long as he or she is in the U.S. Once outside the U.S., due process rights no longer operate.

Driving on a residential road, Ms. Binkowski approached a stop sign. She stopped, but her front tires were slightly over the limit line. A patrol officer observed this violation of Vehicle Code section 22450, which requires a driver approaching a stop sign to stop at the limit line. (Bet many of you didn’t even know that.) Ms. Binkowski was not making what’s colloquially called a “California stop” (a rolling stop), she stopped all right, but just barely over the limit line. The patrol officer conducted a traffic stop on Ms. Binkowski for the traffic violation she didn’t even realize she committed. Upon contact with Ms. Binkowski, the officer noticed signs that she might be under the influence of alcohol. Long story short: Ms. Binkowski was arrested for DUI pursuant to this stop.

Now this is a true story and one that ended up before the California Appeals Court. (People v. Binkowski (2007) 157 Cal.App.4th Supp. 1.)  Ms. Binkowski challenged the stop on a motion to suppress the evidence (Penal Code section 1538.5) arguing that the traffic stop violated her Fourth Amendment protection against unreasonable search and seizure. She argued that to pull her over for stopping just slightly beyond the limit line was unreasonable. The appellate court disagreed. As the court concluded, the intent of the statute is clear: It requires a driver to stop at or before the limit line, a precisely defined position.

While motions to suppress may be a tool to challenge a DUI arrest, Ms. Binkowski’s argument failed because the officer clearly observed her violating a precisely defined statute. However, the Binkowski case illustrates the limits of a motion to suppress.

It’s been a while since I have written about the use of drug recognition experts. Drug recognitions experts or DREs are law enforcement officers who are specially trained and certified to recognize symptoms of drug intoxication in drivers. When a driver is stopped and there is suspicion that the driver is under the influence of drugs, a DRE will be called to assess whether the driver is exhibiting symptoms of being under the influence of drugs.

Many critics of the use of DREs centers around the fact that DRE tests and observations may be subjective and risk false positives. Unlike driving under the influence of alcohol roadside tests, there are no roadside tests for driving under the influence of drugs. If the officer and DRE suspect a person is driving under the influence of drugs, the driver will be arrested and subjected to all that entails and an invasive blood draw.

Imagine that you are driving and experience some disorientation, but you don’t understand you are having a medical event. Your driving may be erratic prompting an officer to pull you over. Once the officer contacts you, she notices that you seem confused and your words are slurred.  She doesn’t smell alcohol on your breath or the burnt smell of cannabis in your car. She asks you to blow into a breathalyzer and that test does not detect the presence of alcohol. So, she calls in a DRE. The DRE performs the DRE 12-step psychophysical tests and notices that you can’t keep your balance, your eyes seem vacant, and your behavior is “off.”   You are arrested for driving under the influence of drugs. You are taken to the police station, booked, and a blood draw is performed. Awaiting the results of the blood draw, you are placed in a jail cell. The only problem is: You were having a stroke!

Several years ago when self-driving cars were still in the experimentation phase, I wrote a blog speculating on the effect self-driving cars may have on DUI laws. Now that self-driving cars are becoming more commonplace, especially in Southern California, we are about to find out.

I have an acquaintance who claims he catches up on his sleep during his commute from Orange County to Santa Monica every morning while his car drives him to work. The latest iteration of his self-driving Tesla is pretty good at driving; it will even parallel park itself. But drinking and leaving the driving to your designated driver, i.e., your car, won’t get you off the hook if you happen to get stopped on the road. These cars require a conscious human presence as a “just in case” back-up and blaming your DUI accident on your car or ignoring the DUI laws because your car is driving just won’t fly (and neither do the cars, so far).

Recently, a local Southern California woman learned this the hard way. She had too much to drink and instructed her Tesla to take her home. While the car was driving on autopilot, she passed out. As the car was transitioning from the Ventura Freeway to the I5, the car hit a wall. The car kept driving, so apparently the impact with the wall was minor. But, shortly thereafter, a CHP officer pulled in front of the Tesla and the car stopped. When contacted by the officer, the woman was still asleep in the driver’s seat. The officer woke her and administered a DUI test. She was arrested for suspected DUI.