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 From an emotional standpoint, a case where someone is accused driving under the influence and killing another person is one of the toughest.  With the victim, you usually have someone who did not deserve to die.  They are often young, in the prime of their lives.  They are usually also close to the driver.  The victim is often a spouse, girlfriend, boyfriend, or sibling of the accused.  Unfortunately, that person is not available to express forgiveness to the driver.
 
As for the driver, you often have a person who has never been in trouble in his life.  He may be college educated, have a great job, and a loving family.  But for this horrible incident he would have continued to be an upstanding citizen.
 
Recently, a San Jose woman pled guilty to gross vehicular manslaughter after hitting and killing a 79 year old grandmother.  She is waiting to be sentenced by a Santa Clara County judge.  Her maximum possible sentence is 12 years in the state prison.  In fact, the judge is precluded from granting this woman probation unless he finds “unusual circumstances” where the interests of justice require it.  According to statements, the family of the victim has forgiven the defendant, and believes that the victim would forgive her as well.  Unfortunately, California DUI sentencing law provides somewhat less opportunity for the Court to forgive her. 

As a former prosecutor, I can tell you that, regardless of the outcome, nobody wins in these cases.  Regardless of what side you are on there is nothing but tragedy in these cases.  An innocent victim loses her life, and a contrite survivor is cast into the hell of the California prison system.  

Blog Category:
11/17/2008
Vaughan de Kirby
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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:

  • Under existing law, if an intoxicated driver causes great bodily injury to a victim, the driver can receive a maximum of 6 years in state prison. However, if an intoxicated driver causes a fatality, the maximum sentence is, strangely, only 4 years. The new bill would make the make the maximum sentence 6 years for both offenses.
  • The bill also makes repeat DUI offenders ineligible for probation (meaning that a second DUI would automatically result in a prison sentence). It also adds 3 years in prison to the sentence for a subsequent conviction.
  • Currently, if a person were convicted of BUI (boating under the influence), prior DUI convictions would result in harsher penalties. The converse, however, is not true: prior BUI convictions do not result in a harsher sentence for a DUI.  The bill would change this, allowing prosecutors to enhance DUI charges if the defendant has prior BUI convictions. The bill also increases the statute of limitation on prior BUIs from 7 to 10 years, which is the current statue of limitation for DUIs.
  • According to present DUI law in California, a person arrested for DUI can choose between taking a urine, blood or breath test at the police station. However, the urine test cannot adequately determine the amount of drugs in a person’s system. The bill would remove the urine test as an option in an effort to facilitate the prosecution of drugged drivers. 

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. 



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11/17/2008
Vaughan de Kirby
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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.



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11/17/2008
Anders Johnson
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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.



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11/17/2008
Anders Johnson
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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.



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11/17/2008
Anders Johnson
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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.



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11/17/2008
Vaughan de Kirby
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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. 



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11/17/2008
Anders Johnson
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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. 



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11/17/2008
Vaughan de Kirby
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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.



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11/17/2008
Anders Johnson
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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.



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11/17/2008
Vaughan de Kirby
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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. 



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11/17/2008
Anders Johnson
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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! 



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11/17/2008
Vaughan de Kirby
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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.  

Point made.



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11/17/2008
Anders Johnson
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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.



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11/17/2008
Vaughan de Kirby
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In Sacramento California, a seemingly routine DUI stop ended fatally.

The California police officer approached the car and gave the driver several commands, which the driver ignored. The police officer then reached inside the suspect’s car in an attempt to gain control of both the driver and the vehicle. The suspect began struggling, and attempted to drive away. The officer, whose arm was still inside the vehicle, fearing that the car’s movement put his life at risk, drew his gun and fired several shots at the driver. The suspect’s car continued moving and came to a stop after striking four other vehicles, and injuring one of the cars’ occupants. The suspect was pronounced dead at a local hospital soon after the incident.

The feeling we are left with after hearing this story is that was unnecessary—that it could have, and should have, been prevented.

We can’t help but wonder, was it partly the fault of the arresting officer? It’s impossible to judge.

Certainly, the driver could have saved his own life by cooperating with the officer, as one should always do. But being pulled over is always a stressful experience, and if one fears the consequences of a conviction, the result may be a “fight or flight” response that is against one's better judgment, especially if one's judgment is already impaired.

If you have ever wondered what to do if you get pulled over—what your rights are, what you should say to the officer—read the article “What To Do If You’re Pulled Over And Arrested For DUI.”



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11/17/2008
Vaughan de Kirby
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Have you ever been out at the bar, drank a little too much to drive home safely, but didn’t want to call a cab because that would mean leaving your car there overnight?

If you live in one of the major cities in California—Los Angeles, San Diego, the San Francisco Bay area (soon: San Jose and Orange County)—there’s now a way for you to safely drive home in your own car, drunk, and without any risk of getting a DUI

This innovative service is called SRS: Safe Ride Solutions. The way it works is simple: once you become a member, you can call their number at anytime of day, any day of the week, and an off-duty or retired police officer shows up and drives you home in your own car.  

SRS drivers can also pick you up at your house and drive you around in your own car for an entire evening.

According to their website, “Safe Ride Solutions is a collaborative DUI prevention program developed by police officers, professional athletes, and business professionals to address the real world problem of DUI.”

And here’s what they have to say about their drivers. They are:

—Hand picked, customer service oriented, off duty law enforcement professionals with at  least 3 years experience who work in the city.
—Professional drivers with advance driving skills.
—CPR and first aid certified.
—Experienced in dealing with emergency situations.
—Extremely knowledgeable of the city and are able to provide members with recommendations of safe and reputable establishments.
—Knowledgeable of dangerous areas in their cities and can make appropriate recommendations on what to avoid.
—Experienced and patient in dealing with people under the influence of alcohol.
—Legally bound to a confidentiality agreement to ensure members’ privacy.

Sound good?

In fact, California DUI attorneys—including those in San Francisco—are recommending that their clients who have recently been charged with drunk driving sign up for the service because it could help their defense.

For more information about this innovative new way to cut down on DUIs in California, see the SRS website: http://www.saferidesolutions.net/

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11/17/2008
Vaughan de Kirby
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It would be a mistake to dismiss the story of Shannon Wilcutt's DUI ordeal as simply an extreme, bizzare case—one that in now way relates to larger issues in DUI law and DUI law enforcement.

To find out what happened, read the eye-opening article “It took less than one drink to get Shannon Wilcutt busted for DUI.”

The truth is that Ms. Wilcutt’s story illustrates certain important truths about how DUI law enforcement works—or, quite often, doesn’t work.

For one, her story demonstrates that the idea that we are “innocent until proven guilty” doesn’t really apply to DUI. It is often up to us to prove ourselves innocent. 

It illustrates the highly subjective nature of the police report, in which an officer may write whatever is necessary to ensure a conviction.   

It illustrates the overly-harsh punishments that are leveled against those who are convicted of drunk driving.

And, as crazy as it sounds, her story exemplifies a common occurrence: a person who is still charged with DUI, even after blood or breath tests fail to provide any evidence of intoxication!



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11/17/2008
Vaughan de Kirby
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In September 2006, California became the fourth state to restrict cell phone use while driving.  

The new law, which goes into effect July 1, 2008, bans hand-held cell phone use while driving. Drivers may still use a cell phone, as long as it’s with a hands-free device or head-set.

A first offense will result in a $20 fine, and every offense thereafter will carry a $50 fine.

This law is presumably in response to recent research and statistics about the danger of cell phone use in the car.

But does the law make sense in light of what research has actually shown?

Not in the slightest. Research has demonstrated that cell phone use—regardless of whether it’s with a headset—impairs one’s driving ability to the same degree as driving with a BAC slightly above the legal limit. It may even be more dangerous.

A drunk driver might face jail time, steep fines, a revoked license, alcohol counseling, a mandatory and expensive ignition interlock device, probation and a criminal record that could last a lifetime.

In California, drivers who talk on their cell phones—which studies show is no less dangerous than drunk drive—face…

a $20 fine.

Just goes to show that public policy isn’t always based on the relevant science. So often, the relative harshness of laws is based on what pushes people’s moral outrage buttons.

And at the moment, at least, drunk drivers are viewed with far more scorn than chatting drivers.

For more information, read the article “Drunk Driving Versus Cell Phones.”



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11/17/2008
Vaughan de Kirby
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As I mentioned in a previous blog (Mandatory Ignition Interlock Devices in California?), the California State Assembly is currently considing a bill (AB 2784) that would require ignition interlock devices for all DUI convictions.

For those who have never heard of this technology, Ignition Interlock devices (IDDs) are machines that can be installed in a car, which will prevent the car from starting unless the driver passes the machines’ built-in breathalyzer test. IDDs are typically reserved for repeat offenders in California. If the bill passes, California would join the four other states that currently make these devices mandatory for every conviction. There are also twelve other states that are considering similar bills during this legislative term.

A news conference was recently held in which California Highway Patrol Commissioner Joe Farrow and MADD National CEO Chuck Hurley endorsed the bill, alongside Assembly member Mike Feuer, the bill’s sponsor.

Supporters of the bill argue that IDDs are a highly effective means of preventing drunk driving, citing the prevalence of repeat offenses.

On April 9th, the Assembly Public Safety Committee approved the bill with a vote of 6 to 1. Next week, it will go before the Assembly Appropriations Committee.

For more information on ignition interlock devices, see the following Frequently Asked Questions:

What is an ignition interlock device?
Will I be required to install an ignition interlock device?
How much does an ignition interlock device cost?
Can I fool an ignition interlcok device?



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11/17/2008
Vaughan de Kirby
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We’ve all heard the arguments for lowering the drinking age:

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.





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11/17/2008
Anders Johnson
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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.



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11/17/2008
Anders Johnson
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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.



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11/17/2008
Anders Johnson
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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.



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11/17/2008
Anders Johnson
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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.



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11/17/2008
Vaughan de Kirby
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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.”  



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11/17/2008
Anders Johnson
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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.



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