DUI BLOG

When people think of a DUI stop, two things immediately come to mind; the field sobriety tests and the breathalyzer. I can tell you without going into much detail here that field sobriety tests are designed for failure. If you would like more details, see many of the previous articles I’ve written on the fallacies of field sobriety tests.

But what about the breathalyzer? Are they inaccurate as well and can the results of a breathalyzer be challenged?

A number of studies have shown that breathalyzers are often inaccurate. That too is a discussion for a different time. But the more important question, since breathalyzers are generally inaccurate, is whether a breathalyzer result can be challenged in court.

Unfortunately, the California Supreme Court in 2013 ruled that, although breathalyzers are generally inaccurate, scientific evidence challenging the accuracy of breathalyzers in California is not admissible as evidence in DUI trials.

The ruling stems from the 2007 DUI stop of Terry Vangelder. Vangelder was stopped for speeding in San Diego. Although having admitted to consuming some alcohol, Vangelder passed field sobriety tests. Vangelder then agreed to a preliminary screening alcohol test (an optional roadside breathalyzer) which indicated that Vangelder’s blood alcohol content was 0.086 percent. Based on that, Vangelder was arrested and transported to the police station where he submitted to a chemical breath test (a required post-arrest breathalyzer). This breath test showed a blood alcohol content of 0.08 percent. Vangelder then submitted to a blood test which indicated that his blood alcohol content of 0.087 percent.

At trial, Vangelder called Dr. Michael Hlastala, a leading authority on the inaccuracies of breathalyzers.

"They are (inaccurate)," Dr. Hlastala testified before the trial judge. "And primarily because the basic assumption that all of the manufacturers have used is that the breath that [is] measured is directly related to water in the lungs, which is directly related to what’s in the blood. And in recent years, we’ve learned that, in fact, that’s not the case."

The judge however, did not allow the testimony and Vangelder was found guilty. Vangelder appealed and the appellate court reversed the decision in 2011. San Diego City Attorney, Jan Goldsmith, then appealed the appellate court decision arguing that such testimony would undermine California’s a per se law making it illegal to drive 0.08 percent blood alcohol content or higher.

Unfortunately, the California Supreme Court sided with Goldsmith.

“[T]he 1990 amendment of the per se offense was specifically designed to obviate the need for conversion of breath results into blood results — and it rendered irrelevant and inadmissible defense expert testimony regarding partition ratio variability among different individuals or at different times for the same individual," Chief Justice Tani Gorre Cantil-Sakauye wrote for the court. "Whether or not that part of expired breath accurately reflects the alcohol that is present only in the alveolar region of the lungs, the statutorily proscribed amount of alcohol in expired breath corresponds to the statutorily proscribed amount of alcohol in blood, as established by the per se statute."

The Court went on to say that, “Although Dr. Hlastala may hold scientifically based reservations concerning these legislative conclusions, we must defer to and honor the legislature’s reasonable determinations made in the course of its efforts to protect the safety and welfare of the public."

Sounds to me like the Supreme Court is willfully ignoring science simply because the legislature was well intentioned. Sounds like flawed logic.

While people can no longer challenge the accuracy of breathalyzers in general, people who are suspected of DUI in California can still challenge the accuracy of the particular breathalyzer used in their case.

The Orange County Sheriff’s Department found an intoxicated man asleep inside of his parked vehicle which was located in the middle of Aliso Niguel High School.

According to the Lt. Dan Dwyer of the Orange County Sheriff’s Department, Alexander Nixon, 23, of Las Vegas was arrested last week on suspicion of driving under the influence of alcohol when he was found asleep in his 2014 Dodge sedan which was parked inside of Aliso Niguel High School in Orange County.

Upon waking Nixon, officers suspected that he was under the influence. Nixon then told officers that he had been drinking before attempting to drive home. Nixon also told officers that he thought that he was in a parking lot in Santa Ana.

Nixon field sobriety tests and was subsequently arrested on suspicion of a California DUI.

Although law enforcement said that the car was located in a back lot of the school, media photographs of the scene showed the car inside of an enclosed walkway leading to an outside seating area.

Had Nixon not confessed to driving, his situation raises an interesting question: Can prosecutors prove that a person drove (which is required for a California DUI) if the person was not seen driving, but their vehicle could have only reached its location through driving?

To be arrested, charged, and convicted of a California DUI, the prosecutor needs to prove that the defendant actually drove the vehicle. And California Courts have held that even slight movement will suffice to meet this requirement.

Movement of the vehicle can be proven through circumstantial evidence, meaning evidence that creates an inference of vehicle movement.

Such was the case in People v. Wilson (1985) 176 Cal.App.3d Supp. 1. The defendant in that case was found asleep in his car which was blocking the 60 freeway in Los Angeles.

The court concluded that “there was ample evidence from which the jury could have inferred that the defendant had been driving his vehicle on the public highway at a time when he was intoxication. From the combination of circumstances – defendant’s sitting in a vehicle in the center of the street–behind the wheel–engine running–lights on, it can be inferred that defendant must have placed himself in such position, and that he accomplished this by driving the car to the place at which he was found.”

The defendant in Wilson argued that it was possible that a friend drove him to the location and placed him in the driver’s seat. He also argued it was possible that the car was already in that position, he intended to drive it, but fell asleep before he could do so.

The Court rejected the defendant’s arguments stating, “It seems unlikely that in either situation the car would have been left parked in the middle of the street, straddling the traffic lanes and facing generally at right angles to the street. Suffice it to say that the jury apparently discarded these possibilities as being unreasonable and adopted the more likely deduction that defendant had driven himself to the area and was then unable to continue."

With that in mind, it seems unlikely prosecutors would even need Nixon’s confession that he drove to convict him of a California DUI. How else would his car have ended up in the middle of a high school?

Most people know that in California, a person cannot drive with a blood alcohol content of 0.08 percent or more. Some know that, additionally, a person can be charged separately with “driving under the influence” if the officer observed facts that would lead a prosecutor to believe that the person couldn’t drive like a sober person regardless of their blood alcohol content. But few people, however, are aware of California’s least known DUI law.

It is actually illegal in California to drive a vehicle while addicted to a drug.

Under California Vehicle Code section 23152(c), “[i]t is unlawful for any person who is addicted to the use of any drug to drive a vehicle.”

When I first learned that this law existed, I asked myself the same questions that you’re probably asking yourself right now: If an addict is not under the influence at the time of driving, how can still be prosecuted for a DUI? Shouldn’t the law only punish those who actually pose a risk to the roads because of current intoxication?

In 1965, the California Supreme Court justified the law in the case of People v. O’Neil.

In looking at the legislative intent in drafting the law, the court concluded, “when an individual has reached the point that his body reacts physically to the termination of drug administration, he has become ‘addicted’ within the meaning and purpose of [23152(c)]. Although physical dependency or the abstinence syndrome is but one of the characteristics of addiction, it is of crucial import in light of the purpose of [23152(c)] since it renders the individual a potential danger on the highway.”

Although it’s a stretch, the court concluded that a person who is an addict and going through withdrawals can be a danger to the roads. So if that’s the case, can a person who is an addict, but not going through withdrawals, still be arrested, charged, and convicted? According to the California Supreme Court, yes.

“The prosecution need not prove that the individual was actually in a state of withdrawal while driving the vehicle. The prosecution’s burden is to show (1) that the defendant has become ‘emotionally dependent’ on the drug in the sense that he experiences a compulsive need to continue its use, (2) that he has developed a ‘tolerance’ to its effects and hence requires larger and more potent doses, and (3) that he has become ‘physically dependent’ so as to suffer withdrawal symptoms if he is deprived of his dosage.”

Although this section of the vehicle code is rarely enforced, California technically can continue to punish drivers who are addicted to a drug even though they may not be, at the time of driving, under the influence of a drug.

Apparently some parts of the California Vehicle Code like this section doesn’t exist to protect the public from unsafe drivers, but rather punish people with arbitrary labels who can and do drive safe.

Utah could soon have the lowest blood alcohol content limit in the country after the state’s lawmakers voted to lower the threshold for driving to 0.05 percent.

Currently in California, as well as the rest of the country, the legal blood alcohol limit that a person can have in their system is less than 0.08 percent.

In 2013, the National Transportation Safety Board (NTSB) voted to recommend that states lower their blood alcohol limits to 0.05 percent and cited studies that have shown that impairment can occur with a blood alcohol content of 0.05 percent. And now it seems as though Utah has taken up their recommendation.

The new law, which was sponsored by Rep. Norm Thurston, was advanced on the proposition that a lower blood alcohol content could lower incidences of drunk driving.

“The .08 sends a false message … it’s kind of a game — how much can I drink and still stay under the .08?" said Rep. Kelly Miles. “So this will benefit those because now the message is, ‘I shouldn’t drink anything and drive.’ This will send a message to the nation, but I think the message is ‘you are welcome to come here to Utah, you are welcome to drink, but then please make arrangements for a ride.”

Not all of Utah’s lawmakers were on board.

“I don’t think there’s enough data out there that would suggest that lowering the limit would reduce alcohol-related traffic fatalities,” said Rep. Gage Froerer, noting that texting while driving and distracted driving resulted in more deaths than drunk driving. “No one can dispute the validity of not drinking and driving — that’s a given. But the question comes down to personal freedoms, rights and enforcement. Our efforts are better spent on education and informing the public.”

The change in law begs the question, “How many drinks does it take to get to a blood alcohol content of 0.05 percent?”

The California DMV provides very general chart of for guidance on how many drinks it takes to get to certain blood alcohol contents. I emphasize that the chart is only for guidance. A number of factors will affect how many drinks will get a person to 0.8 and 0.05.

A 160-pound male who has two drinks in an hour will have a blood alcohol content around 0.07 to 0.08 percent. One drink will put the same 160-pound male between 0.04 and 0.05 percent.

A 140-pound female who has two drinks in an hour will have a blood alcohol content around 0.09 percent. One drink will put the same 140-pound female around 0.05 percent.

Across the chart, the difference between getting a DUI in Utah, if the law is passed, and the rest of the country including California is about one drink in an hour. And no, it does not matter what type of drink it is. 1.5 ounces of 80 proof liquor, 12 ounces of 5% beer, and 5 ounces of 12% wine all have about the same amount of alcohol and all count as one drink. 

If Utah’s governor, Gary Herbert, signs the bill, the new law would take effect on December 20, 2018. Just in time for the New Year’s celebrations.

With the legalization of recreational marijuana in California, lawmakers are pushing efforts to pass new legislation regarding marijuana, particularly when it comes driving after marijuana use. Tom Lackey (R-Palmdale), who is no stranger to introducing anti-DUI laws in California, has introduced a bill that would create a drugged driving taskforce under the supervision of the Commissioner of the California Highway Patrol.

“The bill, AB-6, is a reasonable approach forward to address our fight against drugged driving,” Lackey told the Los Angeles Times. “The urgency of this should be very clear to all of us.”

The bill, which was proposed by the California Police Chiefs Association and introduced by Lackey, if approved, would add a completely new section to the current California Vehicle Code.

The Legislative Counsel’s Digest for the bill says the following:

“This bill would require the commissioner to appoint, and serve as the chair of, a drugged driving task force, with specified membership, to develop recommendations for best practices, protocols, proposed legislation, and other policies that will address the issue of driving under the influence of drugs, including prescription drugs. The bill would also require the task force to examine the use of technology, including field testing technologies, to identify drivers under the influence of drugs, and would authorize the task force to conduct pilot programs using those technologies. The bill would require the task force to report to the Legislature its policy recommendations and the steps that state agencies are taking regarding drugged driving.”

The task force would include representatives from local law enforcement, prosecutors, various representatives from the marijuana industry, representatives from the pharmaceutical industry, representatives from the Office of Traffic Safety, representatives from the National Highway Traffic Safety Association, and licensed physicians.

The Assembly Public Safety Committee unanimously recommended the bill after a hearing in which Karen Smith, a teacher from Antelope Valley, provided emotional testimony about how her husband had been killed a driver who was under the influence of marijuana.

“He was just 56 years old. We had been married for 34 years,” said Smith. “It was all wiped out in just one second by a person who chose to drive under the influence of THC.”

There’s no question that marijuana affects driving ability. Exactly how and to what degree, is up for debate. What is certain however, is that there is a very important difference between being under the influence of marijuana and having THC in your system, and the task force, if AB-6 passes, had better understand the difference.

It is well known that the "per se" limit for how much alcohol can be in a person’s system is 0.08 percent blood alcohol content. With alcohol, there is a fairly strong correlation between blood alcohol content and intoxication. In other words, there is a high probability that a person with a 0.08 blood alcohol content is feeling the effects of alcohol intoxication such that they cannot operate a vehicle as a reasonable and sober person would.

The same cannot be said about the intoxicating effects of marijuana use and the amount of THC in a person’s blood. Unlike alcohol, THC is fat soluble which means that it leaves the body at a much slower rate. In fact, chronic users of marijuana can have THC in their blood weeks after use. Therefore, someone who has smoked marijuana three weeks ago can still be arrested in states with a "per se" THC limit even though they are no longer under the influence of marijuana and perfectly sober.