Orange County DUI Lawyer Blog

Ketogenic (Keto) and low carbohydrate diets are among the more popular eating lifestyles these days. Someone on a strict Keto or other low carb diet metabolizes energy differently than a person who is eating a normal amount of carbs. The liver of a person on such diets breaks down fat for fuel, which creates acetone that may be released through the person’s breath. This is colloquially referred to a “being in ketosis.” The acetone can be reduced to isopropyl alcohol depending on the stage of ketosis

Anecdotal evidence (and a few scientific papers) supports a potential concern that someone on a Keto diet could cause a false positive on a breathalyzer. While the breath molecules expelled by a person in ketosis will not turn a 0.00% blood alcohol content (BAC)into a 0.08% BAC, a Keto diet may cause a breathalyzer to register over 0.08% for someone who, if not on a Keto diet, may have registered something below that. For example, someone who is in ketosis and has had a couple of drinks and might have a 0.06% true BAC, could potentially register 0.08% or more.

Law enforcement agencies use fuel cell breathalyzers, which supposedly can differentiate between ethanol molecules (those created by drinking alcohol) and other alcohol-based molecules, such as the Isopropyl molecules expelled when someone is in ketosis. However, I am unaware of any data that support this. While a blood test for BAC can establish that the driver’s BAC is under 0.08%, this can become more than an inconvenience for the driver. Beyond that, the driver who unwittingly chooses a breath test rather than a blood chemical test, may be stuck with a false positive result. A lesson here might be that if your

Two years ago I wrote about the national movementtoward lowering the per se BAC to 0.05%. Since then, Utah has become the first state to write the 0.05% per se BAC into law. There is a bill pending in the California legislature, which is currently referred to Committee (AB-1713), that would lower the legal blood alcohol content (BAC) to 0.05%. This bill is guaranteed to see pushback from various business groups, especially the restaurant and bar industry. I don’t expect the bill to become law this year but given the changing and more restrictive attitudes towards driving under the influence, it is certainly up for consideration.

Let’s consider the arguments made by those who oppose lowering the BAC to 0.05%. Do they have valid arguments?

Opponents of lowering the lawful BAC argue that lowering the legal BAC will target responsible drinkers who are not impaired and the proposed law is creeping towards a new kind of prohibition.   For example, a 110-pound woman who drank of glass of wine and 30 minutes later got behind the wheel might register a BAC of 0.05%. Until 1990, the per se BAC was 0.10%in California.  It was then lowered to the current 0.08%. Lowering it again to 0.05% may seem to some as though Carrie Nation’s ghost is whispering in lawmakers’ ears.

I’m sure you’ve seen the billboards: “Report Drunk Drivers. Call 9-1-1.” The CHP and other agencies even have tips for spotting and reporting a drunk driver. So, let’s say you see a car weaving somewhat on the road and you suspect a drunk driver. You call 9-1-1 and report the driver, your location, and the license plate number of the weaving vehicle. What happens next?

Generally, the local law enforcement agency with jurisdiction over the location will respond.  Perhaps they will observe the vehicle and determine that the driver is violating a traffic law (such as Vehicle Code section 21658, lane change violation) and effect a legal traffic stop. If the detaining officers end up finding probable causeto believe the driver is under the influence of alcohol or drugs, a legal arrest will be made.

But what if the officers locate the vehicle but it is not moving? Say the driver is parked with the engine off. Can the officers still confront the driver and potentially arrest him or her if there is reason to believe the driver is under the influence? After all, the driver is not driving, and the DUI law prohibits drivingunder the influence. Over 25 years ago, in the seminal case, Mercer v. Department of Motor Vehicles, the California Supreme Court held that “driving” under the DUI law requires evidence of observed volitional movement of the vehicle.

There is nothing new about the above headline, but the truth is, many of us don’t take it seriously enough. Before we even head out to that restaurant or bar or party, we should have a reliable and responsible designated driver assigned to get us home safely. That means the designated driver should be the one who drives everyone in our group to the event and someone who everyone trusts will remain sober—that includes no drugs. Too often, a plan is not made ahead and the person who seems the soberest will get the job of driving. This may boost the ego of the “designated driver” who thinks they can better hold their alcohol than the rest or limit their consumption, but it takes very little alcohol to affect a person’s drivingand put them at risk for a DUI. The best designated driver is the one who has not been drinking any alcoholic beverages.

Realistically, there is not always someone in the group who volunteers to be the designated driver. In that case, other plans should be put into place before heading out for the event.  For example, everyone could agree to meet a one person’s house and pitch in for a ride share or taxi to the event and back. Of course, there would also need to be a prior agreement that the group can sleep at the meeting house.  In cities that allow overnight parking, money could be saved by driving to the event but taking a rideshare or taxi back and picking up the car the next morning.

Another option may be to find someone who is willing to pick the group up when called. Maybe a parent or spouse would be willing to fill this role. But plan ahead! Make sure that person is aware that you will call for a ride; don’t expect to make a drunk 1 a.m. call asking for a pick-up.

It’s 2019 and we are on the heels of the next decade in this young millennium, a decade that promises to bring technological changes worthy of a sci-fi novel. This will likely be the decade that sees a spectacular rise in artificial intelligence, including self-driving vehicles and law enforcement that takes the film “Minority Report” out of the realm of fiction (except for the precogs). The act of drunken driving and its consequences will never be the same.

While California’s recently enacted Ignition Interlock Device (IID) lawwill require most drivers arrested for DUI to install this device, which will not allow the driver to start the vehicle if alcohol is detected, we may soon see similar alcohol detection devices installed in vehicles as a matter of course.  The “Driver Alcohol Detection System for Safety” (DADSS) research program is developing technology that will be installed in every new car sold. This technology is passive. That is, it will not require the driver to do anything (unlike the IID, which requires a driver to breathe into a device). The DADSS system will prevent a driver from driving the vehicle if the driver’s BAC is over 0.08% (or if in Utah, over 0.05%). The DADSS is a nationwide program funded by the government and the private sector, including the automotive industry.

How will the DADSS system work? Currently two technologies are being explored: a breath-based system and a touch system.

A Southern California man has posted one of the most poignant yet distressing social media feeds I have seen. In a Facebook picture, Zach Kincaid is standing over a coffin, his young child looking on. Inside the coffin is his 29-year-old wife, her unborn child in her arms. In another photo, Mr. Kincaid is holding his dead unborn daughter, who was only a month away from her anticipated birth date.

On September 9 Mr. Kincaid was speaking with his wife on her cell phone speaker as she was driving on Warren Road in Riverside County when he heard her scream, then he heard a collision. A drunk driver, pro boxing champion, Marcos Forestal-Coutin, was allegedly driving under the influence of alcohol as his speeding car veered into the wrong lane, hitting Mr. Kincaid’s wife’s vehicle head on.  In what must be one of the most egregiously arrogant statements, Forestal-Coutin claimed Mrs. Kincaid’s vehicle “appeared” in front of him and then went on to complain about the damage done to his vehicle. Forestal even livestreamed a video of the crash scene.

The social media photos are very disturbing and hopefully will impress the many thousands who have seen them. Drunken driving can kill, and these photos make that lasting impression. There is really no excuse to drive drunk. Unfortunately, a brain affected by alcohol makes poor decisions.

CAN THE DMV SUSPEND YOUR DRIVER’S LICENSE IF YOU ARE CONVICTED OF BOATING UNDER THE INFLUENCE?

The DMV wields a substantial amount of power over our driving privileges. When a person is arrested for driving under the influence, his or her license to drive is immediately suspended (with a 30-day grace period until the suspension takes place) unless the driver can successfully challenge the DUI arrest in an administrative per se (APS) hearing. As I have discussed on this website, the APS hearing is a completely separatefrom the criminal matter and, in virtually all DUI cases, the suspension of the arrested driver’s license to drive takes place before the DUI is adjudicated by the criminal court.

Although APS proceedings seem to fly in the face in the face of due process since the driver has not even been convicted yet of the alleged DUI, the appellate courts have consistently held that the administrative suspension is constitutional.

IMPAIRED DRIVING

A driver can be arrested for driving under the influence even if the driver tests under the legal threshold of 0.08% blood alcohol content (BAC) or even a 0.00% BAC.  If the arresting officer has probable causeto believe that the driver’s ability to drive is impairedby any substance— be it alcohol, legal or medically prescribed cannabis, or any prescription drug (whether legally prescribed or not)—there are grounds for the arrest . When a driver tests over the per se limit of 0.08% BAC,  probable cause is presumed, but how does the officer determine that the driver’s ability to drive was impaired  when there is no obvious  symptom or immediate chemical test to establish probable cause?

It may boil down to the subjective evaluation of the officer.  In such cases, the prosecution will have the burden to prove the probable cause. Because this is often a subjective evaluation, an experienced DUI defense attorney may be able to get the charge dismissed.