DUI BLOG

Former New England Patriot and Los Angeles Raider star, Brian Holloway, is suing a Florida bar after Holloway’s son was killed in a DUI related collision after leaving the bar.

Max Holloway, son of Brian Holloway, frequented Panini’s Bar and Grill in Lutz, Florida. On October 26, 2016, Max Holloway, was at Panini’s drinking until 2:30 in the morning at which time he left in his vehicle.

Not far from his condo, Max lost control of his vehicle and crashed into a nearby home. He was killed in the collision.

Under Florida law, a person or a business can be held liable for injuries or damages caused by a habitual alcohol drinker whom was served by that person or business.

Laws like Florida’s are called “dram shop laws.”

Not to say that the bar was right to continue to serve Max Holloway, but to hold them liable for the decision he made to drive while under the influence seems to be rather unfair.

Fortunately, California sees it the same.

While other states such as Florida may hold a bar liable for injuries caused by a drunk driving customer, in California it is the customer’s willful decision to drink and then drive which is the cause of any subsequent DUI collision. Thus, in California, bars and restaurants are shielded from liability when a customer over drinks, drives away, and causes injury or damage.

California’s “Dram Shop Laws” (California Civil Code section 1714) read as follows:

(b) It is the intent of the Legislature to . . . reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.

(c) Except as provided in subdivision (d), no social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.

(d) Nothing in subdivision (c) shall preclude a claim against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person under 21 years of age, in which case, notwithstanding subdivision (b), the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.

As you can see, the laws are different if the customer is under the age of 21. It is the responsibility of bar to ensure that their customers are of legal drinking age before serving them alcohol. People under the age of 21 are legally deemed incapable of making good decisions regarding alcohol use…like the decision not to drive after drinking at a bar.

While California’s law differ from other states with respect to civil liability, like Florida, a bar may be held criminally liable if they serve alcohol to an “obviously intoxicated person.”

According to California Business and Professions Code section 25602(a), “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.”

We pride ourselves in this country on our Constitution and the protections it gives us from the abuses of Big Government.  Perhaps most prominent of these rights is the "presumption of innocence", and the associated right not to have our freedoms or property taken without due process of law.

Except in drunk driving cases…

As I’ve written ad nauseum in the past, there is clearly a DUI Exception to the Constitution in our criminal justice system — and has been for many years.  See, for example, The Disappearing Right to Jury Trials…in DUI Cases, Another DUI Exception to the Constitution and The DUI Exception Continues. 

If you need any examples of this, just consider the following news article published online this morning….

Federal Appeals Court Upholds Ferrari Confiscation

Suffolk County, NY.  Jan. 13 – The Second Circuit US Court of Appeals upheld the government’s confiscation of James B. Ferrari’s Ferrari in a ruling last week. Officials in Suffolk County, New York had grabbed the 2003 Ferrari Modena coupe, valued at $95,000, after Ferrari was stopped and accused of driving under the influence of alcohol (DUI) on May 26, 2009.

A police officer saw the Ferrari allegedly reaching speeds over 100 MPH on South Country Road in Bellport. Ferrari was arrested and his Ferrari confiscated under the state’s drunk driving statute. Ferrari’s attorney argued the Due Process clause of the Constitution required the exotic automobile be returned after his client posted a bond — at least while the charges were being litigated in court. At that point, Ferrari had not be found guilty of any crime.  Ferrari’s attorney insisted that it was the county’s burden to prove the seizure was the only possible remedy to the situation, and a judge and jury both agreed. They ordered the county to pay $95,000 to Ferrari to compensate for the loss of his automobile.

A three-judge appellate panel overturned that judgment in last week’s decision, pointing to Ferrari’s long and sordid history of serious driving offenses, including past DUIs…

"Indeed, if the ultimate forfeiture of a car may validly serve the purpose of preventing this forfeited item of property from being further used as an instrumentality of crime, it is not evident why retention pendente lite [i.e. while litigation is pending] cannot serve, in at least some circumstances, a similar purpose," Judge Debra Ann Livingston wrote for the Second Circuit…

So before the defendant was ever convicted of any crime, his car (not incidentally worth a lot of money to local government authorities) was confiscated by the government.  Maybe I’m missing something, but isn’t there a presumption of guilt being applied here?  And isn’t the appellate judge basically saying, "Yes, you are presumed not to have been driving drunk — and we’re going to confiscate your car so that you don’t do it again"?

(Thanks to Joe.)

A recent decision by the Arizona Court of Appeals held that medical marijuana patients who have been arrested for driving under the influence of marijuana can fight the charges by arguing that they were not stoned enough to drive.

In 2013 Nadir Ishak was stopped by Mesa police when they saw his vehicle drift into another lane. The officer who arrested Ishak testified that Ishak admitted to using marijuana that morning and that his eyes were bloodshot and watery.

It was later determined that Ishak had a concentration of 26.9 nanograms of tetrahydrocannabinol (THC) per milliliter of blood.

Ishak was charged with driving while impaired and driving with marijuana in his system. During trial, Ishak wanted to inform the jury that he possessed a state-issued medical marijuana card at the time of his arrest. The trial judge, however, denied his request. The trial judge also determined that Ishak bore the burden of proving that he was not under the influence. Ishak was subsequently convicted and sentenced to 90 days in jail.

Ishak appealed arguing that the denial prevented him from having a fair trial.

The Arizona Court of Appeals, in a 2-1 decision, agreed with Ishak and concluded that the jury should have been made aware that Ishak was medical marijuana user. Additionally, the court also concluded that prosecutors, not defendants, must prove that a medical marijuana license-carrying driver was actually under the influence of the marijuana, not merely driving with the drug in their system.

In 2010, Arizona voters approved the Arizona Medical Marijuana Act which does not absolve stoned drivers from being charged for driving under the influence of marijuana. However, the Act also said that a medical marijuana user cannot automatically considered under the influence of the drug “solely because the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.”

What’s more, the Arizona Supreme Court in 2015 held that medical marijuana users charged with a DUI can argue “that the concentration of marijuana or its impairing metabolite in [his or her body] was insufficient to cause impairment.”

The prosecutor in Ishak’s case argued that the Arizona Medical Marijuana Act requires medical marijuana users who are arrested on suspicion of driving under the influence prove through expert testimony that the THC in their system was insufficient to cause impairment. He also argued that it is irrelevant whether Ishak was actually impaired.

What ever happened to the fundamental canon of American criminal jurisprudence, “innocent until proven guilty?” Although I can’t say that it surprises me that a DUI prosecutor would actually argue “guilty until proven innocent.”

Fortunately, however, Arizona Appellate Judge Diane Johnson, who wrote for the majority, disagreed with the prosecutor.

"Nothing in the statute … requires a cardholder to present expert testimony (or precludes a cardholder from offering non-expert testimony) on the question of whether the cardholder was impaired due to THC,'’ wrote Johnson. "And, according to evidence here, there is no scientific consensus about the concentration of THC that generally is sufficient to impair a human being.”

I’m happy to say Judge Johnson got it right.

As many of you now know, California passed proposition 64 this past November making recreational marijuana use and possession legal. According to Senator Jerry Hill, D-San Mateo, and Assemblyman Evan Low, D-Campbell, proposition 64 contains a loophole that they intend to close.

Last week, the legislators introduced Senate Bill 65 which will criminalize smoking marijuana while driving. Although Proposition 64 legalized the recreational use and possession of marijuana, it still made it illegal to have an open container of marijuana in a vehicle. Proposition 64 did not, however, address the use of marijuana while driving according to Hill and Low.

If you recall from previous posts, Hill has been known to introduce legislation aimed at preventing drunk driving. Last year he passed a law requiring ignition interlock devices for convicted drunk drivers who wished to reinstate their licenses.

“I have a real passion for solving our impaired driving in California from substance abuse,” Hill said. “I don’t want to go in a positive direction on one end and open up the door for deaths on the other end.”

One complaint that opponents have to Senate Bill 65 is that it also bans consumption of cannabidiol, the component of marijuana which is often used by those suffering from chronic pain or to alleviate the symptoms associated with cancer. Cannabidiol does not contain THC (tetrahydrocannabinol), which is the chemical in marijuana that causes impairment.

As I see it, another problem with Senate Bill 65, if passed, is that if a person is arrested for driving while smoking marijuana, they will also inevitably be arrested on suspicion of driving under the influence of marijuana. While a person may have been caught smoking while driving, it doesn’t necessarily mean that they are “under the influence” of marijuana.

To be under the influence of marijuana, the person’s use of marijuana caused their mental or physical abilities to become impaired such that they can no longer drive a vehicle with the same caution of a sober person, using ordinary care, under similar circumstances.

While police can utilize field sobriety tests, if the person agrees, to assess whether motor skills are impaired, there is no way to determine how “high” a person is after smoking marijuana. As I’ve said in many previous posts, this is different from alcohol where these is a correlation between a person’s blood alcohol content and impairment. No such correlation exists with marijuana.

Therefore, if Senate Bill 65 is passed, a person arrested for smoking while driving not only faces misdemeanor charges under that law, but they can also inevitably expect DUI of marijuana charges as well.

You can be sure I’ll be keeping my eyes on the progress of this one.

The surreal "War on Drunk Driving" never ceases to amaze….

In their frantic desire to win votes, satisfy MADD, meet arrest quotas and make money, politicians, cops, prosecutors and judges fall over themselves trying to look tough on DUI.  One ridiculous example of this is expanding the entire concept of "driving a motor vehicle under the influence" to include operating anything that moves on a street, sidewalk or parking lot.  A few of my past posts reflect this:  DUI on a Scooter, DUI in a Wheelchair?,  Drunk Driving on a Lawn Mower, DUI – While Walking a Bike, DUI…in a Lounge Chair and Drunk Driving…on a Horse.

Every once in a while, however, some court comes along and courageously announces that "The emperor has no clothes"….

Drunken Driver of a Wheelchair Was a Pedestrian, Appellate Court Rules

Lincoln County, OR.  Dec. 30, 2016 – A man convicted of drunkenly driving his motorized wheelchair should be considered a pedestrian rather than a driver, the Oregon Court of Appeals ruled Thursday, reversing and acquitting him.

James Richard Greene was charged with DUI in Lincoln County, for a 2012 incident in which he hit the side of a moving truck while he crossed the street in a crosswalk…

At his two-day jury trial, Greene’s attorney moved for acquittal, calling Greene a pedestrian and not a driver.  Judge Paulette Sanders denied the motion. Greene appealed and on Thursday the three-judge panel reversed, concluding that “the trial court erred in denying defendant’s motion for a judgment of acquittal.”

“We are persuaded that the dichotomy that pervades the vehicle code between pedestrians and operators of vehicles decisively evinces a legislative intention not to subject people in motorized wheelchairs to the DUII statutes when they are traveling as pedestrians in crosswalks,” Presiding Judge Rex Armstrong wrote for the unanimous panel…

Nonetheless, the appeals court found the state’s interpretation of the DUI statute “plausible,” because of the broad way “vehicle” can be interpreted. But it concluded that the Legislature did not intend to treat a person as both a pedestrian and a driver, and Greene was not subject to the vehicle code.  

One wonders if sanity will prevail…or if the prosecutor will appeal this ruling — and win before the Oregon Supreme Court based on "the broad way ‘vehicle’ can be interpreted" to include wheelchairs.  Really?!