JohnsonLawFirmDUIBreathTest


11/20/2015 12:01 PM
Cop Too Drunk to Receive MADD Award

And in today’s "Who will guard the guardians?" department, this recent news article from USA Today…..


Florida Cop Turns Up Drunk to Collect Mothers Against Drunk Driving Award

Tampa, FL.  A Florida police officer who was due to be honored at a Mothers Against Drunk Driving conference turned up drunk to collect his award, according to local media.

So wasted, according to an internal affairs investigation, that he was found wandering in a hotel hallway stripped to his underwear. He also was described as "staggeringly drunk" by a witness at the Friday night banquet where he was set to receive the MADD accolade.

Records obtained by two Tampa TV stations show that Michael Szeliga, a deputy from neighboring Pinellas County, packed a bottle of Jameson Irish whiskey in his patrol car before driving across the state to the Hyatt Regency Pier 66 Hotel in Fort Lauderdale with two other deputies.

They were there in July for two days of training to combat drunken driving. Szeliga was also supposed to receive a MADD decoration for making more than 100 DUI arrests…


Or would that be in the "Physician heal thyself" department?
 

Share


11/20/2015 12:01 PM
Should You Take a Breath or a Blood Test?

One of the biggest areas of confusion when it comes to a California DUI is the chemical test. More specifically, one of the most asked questions regarding the chemical test is whether a person should submit to a breath or a blood test.

Before I get into whether a breath test or a blood test is better, let me start off by saying that, yes, California law requires that someone who has been arrested for a California DUI submit to a chemical test. Any test requested by an officer prior to arrest, including field sobriety tests and a pre-arrest breathalyzer (called a “PAS” test), is optional. And I would never suggest submitting to them. Why give the officers any more reason to arrest you when you don’t have to?

Once a person is lawfully arrested for a California DUI, however, they must submit to a chemical test under California’s “Implied Consent” law which can either be a breath or a blood test.

Ok, so now on to the question of whether a person should submit to a breath test or a blood test after they’ve been lawfully arrested. Unfortunately, like many questions dealing with the law, the answer is: it depends.

The blood test is far more accurate than the breath test and much less likely than a breathalyzer to produce a false reading. Also, when law enforcement draws blood from a DUI suspect, they are required by law to preserve a sample of the blood for the defense. This means that the defense attorney can request that a portion of the blood be sent to an independent analyst for re-testing. This is called a “blood split” and is used to contradict the results of the state blood test results or possibly to show contamination of the blood sample.

If a person knows that they are under the legal limit and a blood test is likely to show that they are under the legal limit, a blood test might be the better option because it is more accurate. On the other hand, for the same reason, the blood test may not be the best option for someone who will likely test over the legal limit.

The breath test is far less reliable than the blood test and can be inaccurate for a number of reasons. Without addressing all of the problems with breathalyzers here, I’ll just point you to Lawrence Taylor’s post:

https://www.duiblog.com/2014/09/09/are-breathalyzers-accurate/

In fact, it is not uncommon for a breathalyzer to provide a false positive result for someone who is actually under the legal limit.

While the general accuracy of breathalyzers cannot be legally challenged as a whole, a skilled California DUI defense attorney can challenge the reliability of the particular breathalyzer that was used in a DUI arrest.

If a person knows that they are likely to be above a 0.08 percent blood alcohol content, the breathalyzer is likely the better option because it is easier to refute the results.

So to answer the question of whether a breath or a blood test is the better chemical test, it really does depend. It depends on whether the person believes they are actually over or under the legal limit. If you believe that you are under the legal limit, the blood test is the better option because the accuracy of the blood test will show that you are, in fact, under the legal limit. On the other hand, if you believe that you are over the legal limit, the breath test is the better option because it is easier to refute the results.

 

Share


11/20/2015 12:01 PM
Should California Lower the Drinking Age?

The California Secretary of State’s Office has paved the way for California voters to lower the drinking age from 21-years-old to 18-years-old.

Supporters of the lower drinking age have been given measure approval to begin collecting petition signatures. If supporters are able to collect 365,880 valid signatures by April 26 of next year, expect to see the "Minimum Drinking Age Initiative Statute" on the November, 2016 ballot.

Prior to 1984, states differed on the legal drinking age. That, however, changed with the passing of the National Minimum Drinking Age Act of 1984. While states we not legally mandated to make their legal drinking age 21 under the Act, states that did not risked forgoing federal highway funds. Consequently all states were prompted to raise their drinking age to 21 if it was not already there.

Although opponents have yet to make any comments regarding the new measure, I can’t see their silence lasting very long.

Mothers Against Drunk Driving (MADD) has long advocated for maintaining the current legal drinking age of 21. In their argument they cite a National Highway Traffic Safety Administration estimate from 2008 that the current minimum drinking age of 21 decreased the number of fatal traffic accidents for 18 to 20-year-olds by 13% and saved approximately 27,052 lives from 1975 to 2008.

Proponents of lowering the drinking age, however, have argued in the past that, since 1982 (two years prior to the Uniform Drinking Age Act), a decrease in drunk driving fatalities occurred across all age groups. Thus, the decrease in drunk driving fatalities cannot reliably be credited to states raising the legal drinking age to 21.

The measure’s proponent, Terrance Lynn, stated on his website, “This [measure] is about equal right. 18 year olds have nearly every burden and privilege of adults…except the right to drink alcohol. This is a misguided aberration from 1984 that should be corrected.”

According to an estimate by Legislative Analyst and Director of finance on the fiscal impact of the measure on state a local government, California could lose approximately $200 million in federal highway funding. It also stated, however, state and local tax revenues could increase by several million dollars annually.

Share


11/20/2015 12:01 PM
Can You Arrest Someone for DUI?

Have you ever seen someone driving under the influence and wished you could arrest him or her for drunk driving?  I mean, only cops can arrest a drunk driver, right?

Not necessarily.

A Tennessee court of appeals has recently upheld the DUI conviction of a man arrested by a police officer outside of his jurisdiction — on the grounds that the cop was acting as a private citizen.


Tennessee Court Highlights Ability of Private Citizen to Conduct Traffic Stops

To keep a convicted drunk driver from going free, the Tennessee Court of Criminal Appeals on Friday decided to emphasize the private citizen’s right to pull over other motorists, even for minor traffic infractions. 

"As a private citizen, Officer Croce was authorized to stop and arrest defendant for these traffic violations." Judge Timothy L. Easter wrote for the unanimous panel. "Officer Croce’s subjective belief that he was acting as a police officer in Sevierville rather than as a private citizen is immaterial."…


Was the court just stretching it to uphold the conviction?  Or can anyone now arrest anyone else for DUI in Tennessee…or in your state?  And would the police book a person arrested for DUI by a private citizen?  Would the prosecutor file charges?  Would a jury convict?  

Would this appellate court have upheld the conviction if the arresting person had been a private citizen rather than an out-of-his-jurisdiction cop?


(Thanks to Joe)
  

Share


11/20/2015 12:01 PM
Are “Anti-DUI” Campaigns Really Preventing Drunk Driving?

From guest blogger Matt Hartmann:


In many California counties, law enforcement agencies are rolling out “Anti-DUI,” campaigns funded by state grants. One of these grants, according to the recent newspaper article, “Vacaville Police Will Lead DUI Campaign,” amounts to $220,000, giving law enforcement agencies the increased funds to rev-up DUI patrolling and increase checkpoints. According to the Vacaville Police Department, these campaigns will primarily roll-out around holidays, like Halloween, New Year’s Eve and Cinco de Mayo.

Attempting to prevent DUIs, these “campaigns,” underhandedly reward officers for arresting drivers with DUI charges. By enacting programs that encourage officers to arrest more people, agencies reinforce the idea that more arrests lead to safer roads, which often proves untrue.

Rewarding officers for arrests, these county agencies are encouraging aggressive policing against drivers that often doesn’t result in convictions. Through doing so, officer’s actions are more likely to go against your legal rights, including stopping without probable cause, not following guidelines for checkpoints, and/ or improperly administering breath tests.

In a press statement released by Vacaville Lt. Mark Donaldson, he claims, “If you don’t drink or use drugs, you will avoid getting arrested by any of the 10 participating law enforcement agencies in this county.”

In reality, we know this statement doesn’t usually hold true. Many DUI arrests never result in convictions, as previously discussed on this blog.

If the aim really is to make roads safer, doesn’t it make sense to invest that money in increased education and prevention campaigns, rather than in unnecessarily aggressive policing?  Instead of aiming to prevent driving under the influence before it happens, these policies only serve to punish those already intoxicated, and they will likely result in numerous unsubstantiated arrests that wind up costing drivers.

Another recent newspaper article entitled “DWI Arrests are through the roof, but road aren’t getting much safer” showed that an increase in arrests often doesn’t result in increased road safety. Even with arrests doubling, rates of crashes involving drivers under the influence remained stable. In turn, since the launch of the Ad Council’s “Friends Don’t Let Friends Drive Drunk” campaign, 68% of Americans reported trying to prevent someone from driving drunk – actions that actually increase safety.

With the statistics showing that educational campaigns do more to prevent DUI/DWI than aggressive policing, why do states continue to fund the latter and not the former?

These campaigns serve as a warning to be even more cautious around upcoming holidays than normal.

 

Share


11/20/2015 12:01 PM
Increased Penalties for a High BAC

When it comes to a California DUI, sentence there is a difference between driving drunk and driving really drunk.

It is not uncommon for a person to be caught driving drunk with a blood alcohol content of more than 0.15 percent. Unfortunately, it is also not uncommon for a person to be caught driving drunk with a blood alcohol content of more than 0.20 percent.

When this happens, in addition to being charged with the normal California DUI charges under California Vehicle Code section 23152 (a) and 23152(b), the prosecutor will also include what is known as a “special allegation” in the complaint. As a result of the “special allegation,” the person arrested for a California DUI is now actually facing increased penalties.

California Vehicle Code section 23578 sets forth the special allegation when a person’s blood alcohol content is 0.15 to 0.19 percent.

“In addition to any other provision of this code, if a person is convicted of a violation of Section 23152 or 23153, the court shall consider a concentration of alcohol in the person’s blood of 0.15 percent or more, by weight, or the refusal of the person to take a chemical test, as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation.”

In my experience, there are a number of common enhanced penalties that a prosecutor seeks when there is a special allegation that a person’s BAC was 0.15 or more. Those enhancements include, but are not limited to, a longer DUI program, AA meetings as a condition of probation, AA meetings as a condition of being released on their own recognizance pending the outcome of their case, MADD’s Victim Impact Panel, and/or a Hospital and Morgue Program.

When a person’s blood alcohol content is 0.20 percent or more, California Vehicle Code section 23538(b)(2) provides:

“The court shall refer a first offender whose blood-alcohol concentration was 0.20 percent (.20%) or more, by weight, or who refused to take a chemical test, to participate for at least nine (9) months or longer, as ordered by the court, in a licensed program that consists of at least 60 hours of program activities, including those education, group counseling, and individual interview sessions described in Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code.”

Although section 23538(b)(2) specifically mentions a 9-month DUI program (called AB1353), there’s a good chance that the prosecutor will be pushing for an 18-month program (called SB38). The longer DUI program would be in addition to any of the other increased penalties I mentioned above.

When a California DUI case includes special allegations such as these, it is important and especially advantageous to the DUI-arrestee that an experienced California DUI attorney not only fight the underlying DUI charges, but the special allegations as well.  

 

 

Share


11/20/2015 12:01 PM
Athletes and DUI: Guilty Until Proven Innocent

From guest blogger Matt Hartman:
 

In a news article entitled "Virginia Tech’s Newsome Charged with DUI, Suspended from Play", the Roanoke Times reported yesterday that police arrested Virginia Tech wide receiver Deon Newsome for DUI and public intoxication charges.

If Newsome is convicted, Virginia law classifies a DUI charge, while under 21, as a criminal offense, resulting in a year-long driver’s license suspension, a minimum fine of $500 or 50 hours of community service, and up to 12 months in jail. On top of this, public intoxication charges also carry a mandatory minimum fine of $500 or 50 hours of community service.

In addition to legal consequences, Newsome is facing heavy scrutiny and consequences with his team. For public figures, especially athletes, DUI charges can be particularly troublesome. The team released a statement that Newsome is currently suspended indefinitely, but allowed to continue attending practice. According to the Daily Press, after being questioned on Monday, Virginia Tech’s coach stated, “That’s all we’re going to say about that.”

Newsome’s suspension is somewhat troubling, although not uncommon in college sports. Teams often suspend players before they’re found guilty, likely due to the negative press. The actions, however, reflect larger societal standards of often forgetting that people are innocent until proven guilty.

After receiving a DUI convictions, suspensions, and even terminations, are even less uncommon. Most players sign a sobriety provision with their contract. The NFL, for example, suspends players for two games after a first-time DUI violation, after upping the consequences in 2014.

While Newsome currently only faces suspension, he might face heavier consequences if convicted, including termination from the team. Newsome, who already didn’t play much this season, faces a possible early-end to his football career, if convicted. If on a scholarship, the consequences might be even more severe, forcing him to lose the scholarship.

Newsome’s case shows just how severe DUI charges can be to a public figure’s career, even if not convicted of the charges.
 

Share


11/20/2015 12:01 PM
DUI in a Wheelchair?

I’ve posted in recent years on the continual over-reaching of law enforcement in trying to chalk up more DUI arrests.  One simple way is to simply stretch the definition of what a "vehicle" is.  See, for example, Drunk Driving…on a Horse, DUI…in a Lounge Chair, Drunk Driving on a Lawn Mower, DUI on a Scooter and DUI – While Walking a Bicycle.  

Not to be outdone, law enforcement (and the courts) in Palm Bay, Florida, have pushed the envelope….


Man in Electric Wheelchair Arrested for DUI

Palm Bay, FL.  Oct. 13 – In his arrest report, police say Ronny Hicks appeared highly intoxicated, because his speech was slurred speech and he was acting confused. Since he was also operating a motorized wheelchair, the 54-year-old man was arrested for driving under the influence.

Police say Hicks, from Palm Bay, was allegedly blocking the path on a pedestrian bridge inside a park near Margaret and Helen streets in Palm Bay. Police were called because of complaints.

During his first appearance before a judge, the judge approved the maximum $5000 bond, because it was allegedly Hicks’ third DUI in ten years…. 


This is getting ridiculous…..
 

Share


11/20/2015 12:01 PM
When Does a DUI Become a Felony in California ?

Typically a DUI in California is a misdemeanor which means, by definition, that it is punishable by no more than a year in jail. So when can a California DUI become a felony?

The first way that a DUI can become a felony is when the defendant has suffered three prior DUI convictions within the past ten years. Priorable DUI charges include driving under the influence (California Vehicle Code section 23152), driving under the influence with injury (California Vehicle Code section 23153), wet-reckless (California Vehicle Code section 23103.5), and out-of-state convictions that qualify as a priorable conviction.

To prove priorable convictions the prosecutor may use court records from the prior cases as well as Department of Motor Vehicle records. The prosecutor may also use “expunged” (California Penal Code section 1203.4 dismissal) priors in enhancing a DUI charge if the conviction occurred within the 10-year period.

The second way that a DUI can become a felony is when the drunk driving causes an injury or death. California Vehicle Code section 23153 makes it unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, or with a blood alcohol content of 0.08 percent or higher to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.

Unlike a fourth or more DUI, a DUI causing injury or death may be charged as either a felony or a misdemeanor. Whether a prosecutor charges a violation of California Vehicle Code section 23153 as a misdemeanor or a felony depends on several considerations such as the level of intoxication, the seriousness of the injury, the defendant’s prior criminal history, and any other aggravating factors.

It should be noted that if a DUI results in a death and the defendant has not suffered any prior DUI offenses, the defendant will more likely be charged with vehicular manslaughter while intoxicated or gross vehicular manslaughter while intoxicated under the California Penal Code.

If a DUI results in a death and the defendant has suffered a prior DUI conviction within ten years, they can and most likely will be charged with second degree murder. This is known as the “Watson Murder Rule.”

The last way that a DUI can become a felony is when the defendant suffered from a prior felony DUI conviction within ten years. The priorable felony offense can be a conviction of California Vehicle Code section 23152 (fourth or more DUI), California Vehicle Code section 23153 (DUI causing death or injury), California Penal Code section 192 (vehicular manslaughter), or California Penal Code section 191.5 (vehicular manslaughter while intoxicated or gross vehicular manslaughter while intoxicated).

Even if the facts surrounding the current DUI charge are negligible and would otherwise warrant a misdemeanor DUI charge, if one of the aforementioned felony DUI-related convictions are present, the current DUI will still be a felony.

 

Share


11/20/2015 12:01 PM
Is It Possible to Prove “Driving Under the Influence of Drugs”?

In dealing with a case of driving under the influence of alcohol, the primary evidence is the driver’s blood-alcohol level, determined by blood or breath testing.  If it is .08% or higher, the driver is presumed to be under the influence to the degree that he cannot safely operate a motor vehicle.  With the passage of so-called "per se" laws in all states, a second crime can also be charged — the crime of simply having a blood-alcohol level of 08% or higher.

Although the breath and blood analysis procedures may be unreliable and inaccurate, the scientific principles underlying them have been shown.  Blood-alcohol concentrations can be measured, if not always accurately,and the majority of people will be "under the influence" with .08% or higher of alcohol in their blood.  This, of course, varies greatly with individual metabolism, tolerance, etc.

But what about driving under the influence of drugs or marijuana?  How do you measure the amounts in the blood?  At what levels is a driver "under the influence"?

Answer:  No one knows.

The following are excerpts from a news release issued one week ago by the Governors Highway Safety Association.  Entitled "Drug Impaired Driving: A Guide for What States Can Do", the press release presents scientific conclusions from a study authored by Dr. Jim Hedlund, formerly a senior official with the National Highway Traffic Safety Administration.
 

New Report Urges National, State Action on Drugged Driving

Washington, DC.  Sept. 30 – This report summarizes the current state of knowledge on drug impaired driving, including what little is known about the costs
and effectiveness of these actions, and identifies actions states can take to reduce drug-impaired driving…

The relations between a drug’s presence in the body, its concentration, measured in blood, breath, saliva or urine, and its
impairing effects are complex and not understood well.  A drug may be present at low levels without any impairing effects. Some
drugs or metabolites may remain in the body for days or weeks, long after any impairment has disappeared (Berning et al., 2015;
GAO, 2015).

In particular, marijuana metabolites can be detected in the body for weeks after use (Berning and Smither, 2014).
On the other hand, concentrations in the body of some drugs decrease rapidly while impairing effects persist. For marijuana,
THC concentrations fall to about 60% of their peak within 15 minutes after the end of smoking and to about 20% of their peak
30 minutes after the end of smoking while impairment lasts for 2 to 4 hours (Kelly-Baker, 2014; Logan, 2014).

In addition, individuals differ in how their bodies absorb and metabolize a drug. In experimental settings, wide ranges of drug
concentrations produce similar levels of impairment in different individuals (Berning et al., 2015). NHTSA’s observation is generally
accepted: “At the current time, specific drug concentration levels cannot be reliably equated with a specific degree of driver
impairment” (Berning et al., 2015). GAO (2015) agrees: “identifying a link between impairment and drug concentrations in the body,
similar to the 0.08 BAC threshold established for alcohol, is complex and, according to officials from the Society of Forensic
Toxicologists, possibly infeasible.”

Alcohol is far simpler because it is quickly absorbed into the body and impairment is directly related to BAC.
The only generally accepted conclusion regarding drug levels and impairment is that impairment usually increases as a drug’s
concentration increases…


In other words, law enforcement has no accurate way to prove that a suspect is impaired by drugs or marijuana.  The only "evidence" of driving under the influence of drugs: the police officer’s subjective and less-than-expert opinion.

 
(Thanks to DUI defense attorney George Bianchi of Seattle, Washington.) 
 

Share