Assemblyman John J. Benoit (R-Bermuda Dunes) recently introduced a bill, which is likely to become law, that beefs up California DUI laws in a number of areas:
Almost without exception, DUI laws nationwide only move in one direction: toward harsher penalties. And California—as we have seen in this, and previous, blogs—is no exception. As laws get harsher and more complicated, two things happen: the potential consequences of a DUI arrest become more devastating and, consequently, the need to find an experienced DUI attorney becomes more dire.
Here’s yet another recent bill that creates harsher penalties for DUI convictions in California:
In late February, assemblyman Mike Feuer introduced a bill that requires an ignition interlock device (IDD) to be installed on any vehicle that is owned or operated by a person convicted of DUI. Mothers Against Drunk Driving (MADD) and the California Highway Patrol are the sponsors of the bill.
Currently, IDDs are a common penalty for those with prior DUI convictions. This bill would require all offenders to pay for the installation, rental fees and maintenance of these devices, which can amount to a costly monthly expense.
If you are under 21 and get a DUI in California, the consequences can be at times worse than an adult in the same situation.
If a person under 21 has a breath alcohol content over 0.01, a no tolerance policy in California kicks in, and the young person can be charged with a DUI. If that person has a BAC over 0.05 and under 0.08, he or she can also be charged under California Vehicle Code section 23140, which requires a ONE YEAR suspension of their California driver's license. One can get a limited license only after showing hardship, such as needing to support a family, having an ill family member, and there is no alternative transportation available. Suffice to say, getting such a license is rare.
In addition, a person under 21 must take the Preliminary Alcohol Screening test, while an adult driver can refuse such a test.
A young driver under 21, facing such obstacles, is wise to seek the advise of a California DUI lawyer as soon as possible to try and reduce the consequences of these laws.
The general belief is that the DMV process is a waste of time, and that no one can win their administrative hearing and get their license back. Sometimes that's true. If you lose your hearing, you can appeal the decision. In California, there are two ways to appeal.
The first way to appeal is to appeal directly for an administrative review of the decision of the hearing officer. The office that reviews the decision is the DMV itself in Sacramento, California, with a nonlawyer DMV employee. The request for a review must be made within 15 days of the decsion, and be accompanied by a fee of $125. The chances of success? Slim.
The second way to appeal is to file a Writ of Mandate in your local county Superior Court. The Attorney General's office represents the DMV, and a judge reviews the Writ. Your chances of success are much better, and if you can show a likelihood of success on the merits, and that you are not a danger to the community, you may get your license suspension stayed.
Perhaps this seems like a hassle to the first time DUI offender. But it may not be. And for those who are facing more serious suspensions, it is necessary.
In California, there are certain situations where ignition interlock devices are necessary in order for you to drive your vehicle after being arrested for a DUI. An ignition interlock device is a machine that prevents your vehicle from starting if alcohol is detected through a breath test.
If you are convicted of a DUI, the Court may order an ignition interlock device as a condition of probation. This could be from six months to three years. The Court will ususally impose a requirement of an ignition interlock device in a second or subsequent DUI. Also, if you are driving a vehicle while your license is suspended for a prior DUI, an ignition interlock device is mandatory. If you are convicted of a first DUI, the Court will usually not impose an ignition interlock device requirement unless there is a high blood alcohol content test result, or some other considerations the Court feels warrant such a requirement.
Sometimes, a person may choose to have an ignition interlock device on a voluntary basis to offset a one, two or three year license revocation. There may be other reasons to agree to an ignition interlock device, such as a condition of release from jail pending a DUI trial, for example.
A good DUI attorney in California will have this option available in his arsenal of weapons to protect you after an arrest for a DUI. It sounds corny, but the ignition interlock device could be your friend, not just an inconvenience.
On Tuesday, March 11th, the city of La Mesa, California, held a ceremony honoring its Mothers Against Drunk Driving DUI Officer of the Year.
This otherwise unremarkable event became a bit of a spectacle—with flavors of both irony and hypocrisy—not because of the officer being honored, but because of the person giving the honor: La Mesa mayor Art Madrid.
On February 20th, less than a month before the ceremony (and on a Wednesday for crying out loud), Mayor Madrid was discovered by police lying flat on the sidewalk—intoxicated to the extreme—several feet from his idling SUV. It is not clear that he had been driving, however, since a city employee was also found, in a similar state of impairment, sitting in the driver’s side of the car. (It is not known what these two were doing prior to being found by police, but it would appear that they were enjoying themselves.)
Despite the obvious fact that someone was clearly guilty of DUI—and that both were drunk in public (an understatement, to be sure)—the police promptly drove them home, without so much as breathalyzer test or citation.
It’s difficult to make sense of cases such as these, when police officers and public officials are the lucky recipients of blatant favoritism. And this happens surprisingly often: simply perform an internet search for DUI news, and you’ll see what I mean.
Our common sense (and, possibly, our knowledge of Constitutional law) tells us that laws that are selectively enforced are inherently unfair.
I hope that things change. I hope that DUI I laws and DUI law enforcement will become more fair—rather than more politicized, more hysterical, and more inequitable.
Maybe then it won’t be as essential to people to fight, tooth and nail, for the rights that they are guaranteed.
But until then, it is essential. It is essential for you to educate yourself about the law and your rights. And it is essential, above all, that you find an experienced DUI attorney who will go to bat for you.
Judges, politicians and police officers might not need to, but—until things change—you do.
You don't have to drink alcohol to be charged with a DUI in California. Any drug, legally prescribed or over the counter, as wel as illegal, can impair one's driving abilities. The difference with a driving under the influence of drugs is how to prove it in court.
The easiest evidence a district attorney has is a blood test. Lacking that, the state is forced to show a person is under the influence by looking at the person's driving, Erratic driving patterns. Tell tale signs of being under the influence of a drug. Field Sobriety tests.
A typical police officer will not be able to testify as to whether a driver is under the influence. Typically an officer with training will be called in. These officers are called Drug Recognition Evaluators, and must follow specific procedures to evaluate the driver.
In California, you will need a qualified defense attorney to make sure procedures were followed, and be prepared to question the final results of the officer.
Vermont may soon be the first state to lower it’s drunk driving blood alcohol level below .08%, which is currently the legal threshold in every state.
If Representative Bill Lippert, Chairmen of the House Judiciary Committee in Vermont, gets his way, the new limit would drop to .05%.
The motivation behind Rep. Lipper’s proposal is to “send a very serious message that impaired driving is not tolerated on Vermont roads.”
If the proposal becomes law, Vermont would be in a category by itself within the United States. However, Vermont would have plenty of international company.
The illegal limit is .05% in Australia, Austria, Belgium, Bulgaria, Croatia, Denmark, Finland, France, Germany, Greece, Israel, Italy, the Netherlands, Portugal, South Africa, Spain and Turkey. Some countries have even lower limits: .03% in Poland and .02% in Norway, Russia and Sweden.
For an interesting contrast, consider that, in some U.S. States, the zero tolerance limit is as high as .02%. This means that minors can legally operate a vehicle with a BAC lower than .02% in these states.
So, what would this mean for Vermont drivers? Essentially, it would mean that drivers would no longer be safe in telling a police officer that they had “one or two drinks.” Most DUI lawyers encourage drivers to say this, if true, because one or two drinks will not yield a BAC over the legal limit.
With a legal threshold of .05%, anything more than one drink could possibly result in a DUI (depending on the usual factors: gender, weight, amount of time between drinks).
The legal limit has been lowered several times in the last few decades—from .15% to .10% to .08%. And there’s nothing to prevent it from being lowered further.
If Rep. Bill Lippert’s idea is enacted into law, Vermont may well be the harbinger of a new nationwide drunk driving limit.
In California, an effective DUI defense requires a skilled DUI attorney. But a client has an ability to help his counsel out. After you have been arrested, booked, and hopefully released, write down everything that happened as soon as possible. While it is fresh in your mind, facts, seemingly trivial, can be immensely helpful to your DUI defense attorney.
I recently had a client come in to discuss his new DUI. He wrote down everything he could remember, and brought it to me. The details were helpful to evaluate the police officer's actions and statements, how the FSTs were conducted, the surrounding environs of the arrest area, and the client's statements that were made.
So, if you are faced with a DUI, remember to write down all that you can remember, while you still remember it. It'll be valuable down the road.
California may soon become yet another State that requires ignition interlock devices for all drunk driving offenders.
An Ignition interlock device (IDD) is a machine that can be installed in your car, which will prevent your car from starting unless you pass the machine’s built-in breathalyzer test.
In most States, IDDs are reserved for repeat offenders, or for those whose blood alcohol level was substantially higher than the legal limit.
The California state assembly is currently considering a bill that would make these devices mandatory for all DUI convictions.
Lawmakers who support the bill argue that IDDs are the most effective way to prevent convicted drunk drivers from continuing to break the law, and that the bill would save a great deal of money and great many lives.
Assemblyman Todd Spitzer provided this forceful, albeit somewhat frightening analogy: "We have the ability to put a police officer in the front seat of every single car in California.”
Opponents of the bill, chief among with is the American Beverage Institute, argue that the bill is unfair, mandating the same punishment for offenses of different severity.
"You wouldn't punish someone driving five miles over the speed limit the same way would someone driving 25 miles over the speed limit and that's what we think this bill does," said Sarah Longwell from the American Beverage Institute.
There are currently four other States that require ignition interlock devices for all drunk driving offenders: Arizona, New Mexico, Illinois, Louisiana.
The old cliche is that a blood test is more accurate than a breath test. Not so fast. The blood sample that is taken by the police officer can be compromised. Blood samples can foment, clot, and grow bacteria, among other things. The result is an alcohol level much higher than the true alcohol content level.
Another problem is the testing itself. When a blood sample is taken, a white powder is placed in the base of a testtube. This powder prevents coagulantion and preserves the specimen. The accuracy and reliability of the powder is critical to determining the validity of the test result.
The attorney should always order a sample of the blood for independent testing to have a forensics laboratory determine if any of the above problems occurred with the blood sample, the blood testing, or even if the blood sample is the client's!
Local police in Wasau, Wisconsin may have gotten a bit carried away.
But in their defense, it’s no fun to be played for a fool, especially by a bunch of teenagers.
When police received a call complaining of cars blocking the road, a few offers were dispatched to the scene. What they found when they got there was unmistakable, or so they thought. A car lined street, loud music, a house full of high school students drinking from red cups, loud music, drinking games, a keg—who wouldn’t jump to the conclusion that the house was full of drunk minors?
Much to their surprise, the police found that the keg was full, not of beer, but of root beer—1919 Classic American Draft Root Beer, to be precise.
It’s hard to blame the police officers for feeling like they had been set up. Clearly, the party was a prank, and they were the intended victims.
But the way they proceeded to handle the situation suggested an inability to take a joke.
The poor sports lined up some 90 teenagers and breathalyzed every single one.
Their rational seems to have been that, if they could find at least one partygoer who was drunk—and it seems likely that at least one would have brought some liquor to the otherwise sober party—then they would save face. That or they were simply pissed off and wanted to arrest someone.
The result: teenagers 1, police 0.
To their supreme disappointment, no doubt, the cops kept coming up with 0.00%.
Teenagers, in general, are not the most organized creatures on the planet. So who was the mastermind behind the root beer kegger?
His name is Dustin Zebro, an eighteen-year-old student at the local high school. He got the idea for the party after a few of his friends were suspended from sports when the school found pictures of them drinking from red cups.
His point? Don’t judge a beverage by its container.
In California, Proposition 36 allows a defendant to obtain treatment for drug addiction in certain drug related offenses. However, the courts have determined that Proposition 36 does not apply to those charged with DUI. This is true even if the underlying intoxicant in the DUI charge is drugs.
Does this make sense? The purpose of Proposition 36 is to not assist people with addictions, but also reduce the court caseloads in California. However, California courts have held that the purpose of the DUI laws is to impose criminal consequences for driving a motor vehicle while impaired.
Thus, in California, the only "treatment" one gets after a DUI is the alcohol offender program. Hardly the kind of treatment that some people may need. And with no "reward" or incentive, such as dismissal of the DUI charge, to encourage successful completion and long lasting results.
It would lessen binge drinking, because it would allow parents to teach their young adult children moderation.
At 18, you can go to war and die for your country (not to mention pay taxes, do business, get married and bear arms), but society doesn’t trust you to make mature decisions regarding alcohol.
Seven states—taking another look at these and other familiar arguments— are currently considering legislation that would lower the drinking age in various ways.
Politicians in Minnesota, Vermont, South Dakota, and Missouri are considering bills and initiatives that would reduce the drinking age across the board, whereas those Kentucky, Wisconsin and South Carolina are contemplating lowering it only for members of the military.
The various proposals differ in their details. A ballot initiative in Missouri, for example, would allow those between 18 and 21 to drink in bars and restaurants, but not buy alcohol at a liquor store.
If these states move forward with lowering the drinking age, they stand to lose up to ten percent of their federal funding for roads. In 1984, Congress passed the Uniform Drinking Age Act, which set the drinking age at 21 and threatened to take away federal funding if states did not comply. The original purpose of the bill was to reduce the number of alcohol related car accidents (DUI, DWI, etc) involving young people.
Groups like Mother’s Against Drunk Driving (MADD) continue to support the current drinking age of 21, citing research that shows a substantially reduced number of alcohol related traffic deaths among those between 16 and 20, following the passage of the federal Act.
Some resent the Act, feeling that it is a unreasonable intrusion into a decision that each state should make according to it’s own values, rather than under threat from the federal government.
A California Senate committee is considering a new bill which would lower the intoxication BAC for an ignition interlock device. Presently, the BAC level of 0.20 and higher is the threshhold for installation of the device. The California Senate committee is considering lowering the threshhold to 0.16. And depending on the particular circumstances of the DUI, the device would be required for one to three years.
As if the California DUI laws aren't strict enough, this proposal would serve only to increase the costs to the individual DUI defendant, costs which are already astronomical.
An issue that comes up in California DUI cases is whether a person was "driving" under the influence. One can be arrested for DUI even if the car is off, and no one saw the car moving. How? That the car was moving is one issue. Another issue is "control" of the vehicle. If you have the keys to the vehicle, you are in control of the vehicle. Even if you are sleeping in the car.
It's not a sure fire conviction, but it raises issues that require a good DUI attorney to combat. Don't assume you are safe if the car is off, and you're not driving it on the road.
You've been stopped by law enforcement. You're asked to exit your vehicle. Then, the field sobriety tests begin. You're going to fail these tests because the officer is the judge of success.
What exactly are these tests, and what do they purport to show? One test is the Walk and Turn Test. During this test, the officer asks you to take nine heel-to-toe steps, stop, turn, and take nine more heel-to-toe steps. While performing the test, the office looks to see if you can folow instructions, maintain balance, and stay on a designated line.
Another test is the "One Leg Stand test. During this test, you will be asked to stand with your heels together, and your arms at your side. The officer will then ask you to raise one leg six inches off of the ground and count out loud until told to stop. The office looks to see if you lose balance, sway, or put your foot down.
A third test is the Nystagmus Test. During this test, which is also called the horiontal or vertical gaze test, the officer will hold an object, like a pencil, about 12 to 15 inches from your face. The officer will then move the object from side to side while watching your eyes. The officer is looking to see if your eyes involuntarily jerk or tremble.
Sounds easy? Even if you swear you did the tests correctly, and passed them, the officer will disagree. It will take a good DUI lawyer to sort through the tests, the officer's procedures, and the results, in order to dispute the officer's final grade on your tests.
If you have a California driver's license, and get a DUI in California, your license will be suspended by the Department of Motor Vehicles. What if you get a DUI outside of California? Then, the Interstate Driver's License Compact applies.
The IDLC is an agreement between 45 states to communicate about driving-related crimes, including DUI convictions. The states agree to notify each other of a DUI conviction. Some states take action on your license only after being notified of a DUI court conviction. Some states will only take action if the burden of obtaining a criminal conviction in the other state is equal to that of the home state. Some states may add penalities and other states may impose lesser penalities.
If you receive a DUI in Georgia, Massachusetts, Michigan, Tennessee, or Wisconsin, no report will be forwarded, as those states are not part of the Compact.
It takes a good DUI defense attorney to advise you about the consequences of a DUI outside of California.
In California, as in every state, there are actually two separate drunk driving offenses. The first simply makes it illegal to drive “under the influence.” The second specifically makes it illegal to drive with a blood alcohol level above the legal limit of 0.08%.
Here’s the text of the California Vehicle Code, which lays out these two separate offenses.
Section 23152. (a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.
What’s more, if you’re arrested for DUI, you’ll most likely be charged with both crimes.
You’re probably thinking to yourself, “Hold on. I thought driving with 0.08% BAC was driving under the influence. Why am I being charged for the same thing twice?”
If you’re confused, you’re not alone. In fact, a client of mine who was recently arrested for DUI in San Francisco asked me this very question. I represent people from around the Bay area—San Francisco, Daly City, Oakland, San Jose—and this is just one of those confusing aspects of DUI law that I try to help all of my clients understand.
So, what is difference between the two offenses?
Well, for simplicity’s sake, think about it this way: The second offenses—the so-called “per se” offense—is based on blood alcohol (BAC). The first offense, on the other hand, is based on impairment: the degree to which alcohol has diminished your coordination and cognition, that is, your ability to drive safely. Field sobriety tests, for example, are meant to be test of impairment.
One could argue that there should be two different laws because BAC and impairment are two different things. Two people with the same blood alcohol content may not be impaired to the same degree. We all know that some people’s tolerance to alcohol is far greater than other’s.
Here’s where, I’m sorry to say, things get even more confusing.
Even though BAC and impairment are, in principle, two different things that require two different kinds of proof, the results of a chemical test at the police station are potentially enough to convict you of both crimes. Even though the first offense is based on impairment, the state doesn’t need any evidence of actual impairment—such as slurred speech, the results of a field sobriety test, etc.—to convict you of driving “under the influence.”
However, the good news is that, if you’re convicted of both offenses, you will still only be sentenced for one.
For an extended discussion of the two drunk driving offenses in every state, read the article “Why You’re Being Charged With Two Offenses.”
You're driving down the road, you get lost, and then you get stopped. Not by a local police officer or California Highway patrol. Instead, it's a federal law enforcement official. You have entered federal land. What's the difference between a California DUI and a federal DUI?
The answer is, not much. If you are stopped in land controlled by the National Park Service, you can be charged with a DUI if you are under the influence of alcohol or drugs which render you incapable of safe operation, or have an alcohol content of 0.10 (or less if state law is more restrictive). It is a Class B Misdemeanor and is punishable by six months in jail, fines up to $5,000, and probation up to five years.
On any other federal owned land, the laws of the individual state apply, and one is subject to state and federal punishment.
If you are stopped on federal land, you need to consult with a DUI attorney familiar with the federal laws and procedures to help you through the process.