DUI BLOG

“This accident was so violent, that even though it was a rear end accident, it injured everyone in the vehicle and also killed a one-year-old,” John Tyler of the California Highway Patrol said.

Tyler was referring to a collision that occurred this past weekend in Lemoore, California where 50-year-old Rodney Klamerus crashed into the back of a family’s Nissan. Three adults were in the Nissan along with one-year-old Liliana Valencia who was in her car seat.

All three adult passengers in the Nissan and Klamerus were transported to nearby hospitals. Valencia was transported to a hospital, but was later pronounced dead.

“We’re not sure exactly why, possibly due to his impairment, but he failed to slow down as this vehicle was ahead of him. And this vehicle turned northbound onto [Highway] 41, established itself in the lane, and was rear-ended shortly thereafter,” Tyler told KFSN.

Although investigators were unable to speak with Klamerus due to the severity of his injuries, he is facing several felony DUI charges which will likely include DUI-related homicide charges.

Homicide merely refers to the killing of another human being and encompasses murder charges, voluntary manslaughter charges, and involuntary manslaughter charges. It is still unclear exactly what homicide charge Klamerus faces.

Prior to 1981, a person who killed someone while driving under the influence could not be charged and convicted of murder. However, the landmark case of People v. Watson changed that.

California Penal Code section 187(a) provides that “Murder is the unlawful killing of a human being…with malice aforethought.” “Malice” refers to the deliberate intention to unlawfully kill someone else. However, malice can be also be “implied” and implied malice exists when a person knowingly engages in an act that is dangerous to human life and they engage the act with a conscious disregard for human life. It is almost as if the court is saying that the drunk driver might as well have intended to kill someone because they knew it was dangerous to drive drunk, yet they did it anyways.

The court in Watson found that if the facts surrounding the DUI support a finding of “implied malice,” second degree murder can be charged when the DUI led to the death of someone else. In other words, if a person engages in driving under the influence when they know that it is dangerous to human life to do so, and they kill someone, they can be charged with murder.  

Now the question becomes, “Did the person know it was dangerous to human life to drive drunk?”

While we all know that it’s dangerous to drive drunk, since Watson, courts started expressly advising people who have been convicted of DUI, on the record, that it is, in fact, dangerous to drive drunk. This was not because the court actually thought that the defendant didn’t know it, but rather to ensure that the prosecutor could charge murder instead of manslaughter upon a subsequent DUI causing the death of someone.

Whether Klamerus will be charged with murder or some lesser homicide charge will depend on whether prosecutors can prove that he expressly knew that, by driving drunk, he could kill someone, but decided to drive drunk anyways.

It’s been a debate for some time now. Should the legal limit for how much alcohol someone can have in their system while driving be lowered from 0.08 percent to 0.05 percent?  

The National Academies of Sciences, Engineering, and Medicine believes so. But before we get into what their newly released report says, let’s put the numbers into context.

According to the National Highway Traffic Safety Administration, a male weighing 140 pounds would be at, or close to, a 0.08 percent blood alcohol content having had three drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.08 percent blood alcohol content having had just two drinks within an hour. Regardless of gender, your blood alcohol content will not be as high if you weigh more. Conversely, your blood alcohol content will be higher if you weigh less.

On the other hand, male weighing 140 pounds would be at, or close to, 0.05 percent blood alcohol content having had two drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.04 percent blood alcohol content having had just one drink within an hour.

Of course, these figures are approximate and depend on several factors which include, but are not limited to, whether the person ate, what they ate, what they drank, and how fast they drank it. But based on these approximate numbers, we can see that for both males and females, the difference between a 0.08 and a 0.05 percent blood alcohol content is about one less drink in an hour.

Should the legal limit be lowered to 0.05 percent, that means for some, only one drink or less and they would be breaking the law if they get behind a vehicle. According to the U.S. government-commissioned panel of the National Academies of Sciences, Engineering, and Medicine, that’ll prevent DUI-related collisions and fatalities.

“The plateauing fatality rates indicate that what has been done to decrease deaths from alcohol-impaired driving has been working but is no longer sufficient to reverse this growing public health problem,” said report committee chair Steven Teutsch in a news release from the National Academies. “Our report offers a comprehensive blueprint to reinvigorate commitment and calls for systematic implementation of policies, programs, and system changes to renew progress and save lives.”

Teutsch is an adjunct professor at the University of California, Los Angeles School of Public Health.

The 489-page report also recommends that states significantly increase alcohol taxes, stricter regulation on alcohol advertising, broadening ignition interlock device laws, and stricter laws to prevent the sale of alcohol to people under the age of 21, amongst other things.

Not everyone is on board with the panel’s suggestions.

“[We], along with other organizations focused on traffic safety such as MADD, strongly supports the strict enforcement of the 0.08 BAC level,” said the Distilled Spirits Council in a statement. “Reducing the BAC limit to 0.05 will do nothing to deter the behavior of repeat high BAC drivers who represent the vast majority of drunk driving fatalities on the nation’s roads.”

Just as a reminder, a person can be arrested, charged, and convicted of a DUI if they are “under the influence,” regardless of what their blood alcohol content is. This means that a person can have a 0.04 percent blood alcohol content as long as they cannot drive a vehicle as a reasonable sober person would under similar circumstances.

As I’m sure you’re aware, the purpose behind DUI laws is to protect the public and drivers themselves from harm caused by an automobile driven while the driver was intoxicated. The same logic can be applied to vehicles other than automobiles, which is why people can be prosecuted for operating other vehicles while intoxicated such as a bicycle, a boat, a horse, a plane, and yes, even a Zamboni. What these “vehicles” have in common is that they are operated by a driver while the driver is in the vehicle. But should the same logic apply to vehicles where the driver isn’t actually in the vehicle like, say…a drone?

New Jersey certainly thinks so.

This week, New Jersey lawmakers approved a ban on operating drones while under the influence. The new legislation, which was approved 39-0 in the State Senate and 65-0 in the State Assembly, would punish pilots of drones who operate while under the influence with up to six months in jail and $1,000 fine.

Although the law doesn’t specify the type nor the size of drone that cannot be operated while intoxicated, it does, however, use the DUI standard for blood alcohol content of 0.08 percent as the legal limit.

According to the text of the bill, “…it is a disorderly persons offense to operate a drone: 1) knowingly or intentionally in a manner that endangers the life or property of another; 2) to take or assist in the taking of wildlife; and 3) while under the influence of intoxicating liquor, a narcotic, hallucinogenic, or habit-producing drug or with a blood alcohol concentration of 0.08% or more by weight of alcohol. Disorderly persons offenses are punishable by a term of imprisonment of up to six months, a fine of up to $1,000, or both.”

“The use of drones has increased dramatically in recent years for a variety of purposes,” State Sen. Paul Sarlo told NJ Advance Media in December of last year. “There are many benefits for commercial and recreational purposes but they can also pose threats to safety, security and privacy. The technology has outpaced regulations.”

Although drunk drone driving has yet to become the problem that vehicle DUI’s pose, with the increased availability and use of drones, state lawmakers are seeking to preemptively stamp out problems like that which occurred in 2015 to an off-duty National Geospatial-Intelligence Agency employee. After the employee had been drinking, he flew a two-foot by two-foot “quadcopter” from a friend’s apartment balcony and lost control of it over the White House.

Similar bills have been pocket-vetoed by New Jersey Governor Chris Christie, but it is unknown whether he’ll sign the current bill before his second term ends on January 16, 2018.

We’ll also have to wait to see if California follows suit. Who knows, maybe by that time, California will also outlaw drunk driving remote control cars as well.

As predicted, California passed Proposition 64, otherwise known as The Adult Use of Marijuana Act, on November 8^th 2016. This made it legal for people to possess and use marijuana recreationally in California. However, it wasn’t until January 1^st of this year that recreational marijuana could be sold to consumers.  

So what does this mean for marijuana laws in California, including marijuana DUI laws?

Well, let’s start with the laws that aren’t related to a DUI of marijuana. Adults over the age of 21 can purchase and possess up to one ounce of marijuana and can grow up to six plants per household out of public view. People under the age of 18 can only purchase marijuana if they have their medical license.

Those who are able to possess marijuana cannot consume in public, even in areas where it is legal to smoke cigarettes. Some cities plan on allowing consumptions of marijuana at designated lounges. However, until then, smoking in public places can lead to fine of $100 to $250.

Just like alcohol, drivers cannot consume marijuana while driving. And any marijuana that is being transported in a car, must be in a sealed container in the trunk.

While marijuana laws have changed in many other respects, it is still illegal to drive while under the influence of marijuana.

California Vehicle Code section 23152(e) makes it illegal to drive a vehicle while under the influence of drugs including marijuana. Unlike California’s DUI of alcohol law, there is no legal limit for marijuana, or more specifically, tetrahydrocannabinol (THC) the psychoactive component of marijuana. Therefore, a person can only be arrested and convicted of a marijuana DUI if the ingestion of marijuana impairs a person’s ability to drive a vehicle as a sober person would under similar circumstances.

To prove that a person is driving under the influence of marijuana, a prosecutor can use officer observations of driving patterns, observations during the traffic stop, performance on field sobriety tests, and the presence of THC in any blood test done.

Since “under the influence” is an extremely subjective standard, it is often very difficult to prosecute DUI of marijuana cases. This is especially true if the driver refused to perform the field sobriety tests and/or the officer did not observe driving that would be indicative of someone who is under the influence of marijuana.

Law makers could seek some sort of per se limit for how much THC can be in a person’s blood while driving. Several states have set a per se limit of five nanograms of THC per milliliter of blood. Colorado, has set a five nanogram per milliliter of blood limit to allow for the presumption that a person is “under the influence.” Unfortunately, current per se limits for THC, are an inaccurate measure of how impaired a person is.

Unlike alcohol, THC is fat soluble and remains in a user’s system long after they have ingested the marijuana, sometimes by several weeks. This creates the possibility of being arrested with five nanograms of THC in the system weeks after a person has smoked marijuana and well after the “high” is gone. Yet, because the THC is present, a person can either be arrested or, in Colorado, presumed to be under the influence.

As tech companies are scrambling to be the first to develop a device that will allow law enforcement to test “how high someone is,” Assemblyman, Tom Lackey, who is a former sergeant with the California Highway Patrol, has introduced Assembly Bill 6 which would allow tests using saliva samples taken from drivers suspected of driving under the influence. The test would let the officer know whether a driver has recently used a number of drugs including marijuana.

“The ballot initiative passed [in 2016] to legalize marijuana will result in more marijuana consumers on our state’s highways and roads,” Lackey said in a statement. “It is imperative that we invest in a broad spectrum of technologies and research to best identify marijuana-impaired drivers.”

There is an established correlation between blood alcohol content, specifically the legal limit of 0.08 percent, and alcohol impairment. Unlike alcohol, however, there is no such correlation between the presence of drugs and impairment. In other words, a person can have traces of drug in their system without being impaired by that drug.

Marijuana, for example, can stay in a person’s system for weeks following the smoking or ingesting of the marijuana and well after the person was intoxicated or stoned. The purpose of DUI laws is to prevent impaired driving, not to punish sober and unintoxicated people merely because they ingested drugs at some point in the past.

Until we can establish a correlation with drugs including marijuana like we have with alcohol, namely the correlation between quantity and impairment, we shouldn’t be using pushing for laws like this.

Assembly Bill 6 will be brought up for a vote early this year.

Since it is perfectly legal to consume marijuana and have THC in your system, it is important to protect yourself from unwarranted DUI of marijuana charges. Do not say anything to the police. The 5^th Amendment exists for a reason; use it. Politely refuse any field sobriety tests. Lastly, remember that you must submit to a chemical test after you have been arrested.

Most of us have done it at least once and most of us don’t want the responsibility of being designated driver. Unfortunately, unless someone is willing to pay for transportation, a designated driver is one of the few ways to avoid a DUI and get home safely. However, a new law could make designated drivers a thing of the pass by allowing alcohol manufacturers and sellers to provide free rides through ride-sharing apps to its customers.

Too drunk to drive? New California law could give you a free ride

December 25, 2017, The Sacramento Bee – It’s an all-too-familiar scene in Sacramento. A group of friends heads to midtown for a night of partying and drinking, but one friend has to miss out on the fun and stay sober to be the designated driver.

A new law that takes effect Jan. 1 may not only let everyone join in on the fun, but it’ll also mean more money for the bubbly.

Under Assembly Bill 711, alcohol manufacturers and licensed sellers can offer free or discounted rides to transport drinkers home safely through ride-sharing services, taxicabs or other ride providers.

Vouchers or codes can be given to alcohol sellers or directly to consumers, but cannot be offered as incentives to buy a company’s product. Current law restricts alcohol licensees from offering discounts of anything more than inconsequential value to consumers, though liquor and wine manufacturers have been temporarily allowed to pay for rides for people attending private, invitation-only events.

The measure, by Assemblyman Evan Low, D-Cupertino, would relax the rules to expand that program, allowing alcohol manufacturers to underwrite free or discounted rides in all cases.

Low noted that thousands attending the Super Bowl 50 in Santa Clara in 2016 didn’t have options to get home safely after drinking. Forty-four other states and the District of Columbia allow liquor manufacturers to pay for free or discounted rides, according to a legislative analysis of the bill.

The bill cleared the Legislature unanimously, and was supported by major beer manufacturers as well as ride-sharing company Lyft. Last year, Anheuser-Busch partnered with Lyft to offer rides home across 33 “safe ride” programs throughout the nation.

Katja Zastrow, vice president of Corporate Social Responsibility for Anheuser-Busch, said since teaming up with the ride-sharing service, the program has provided more than 64,000 rides. “Drunk driving is 100 percent preventable and offering safe rides is one way that we can have a real impact on reducing (it),” she said.

The bill was opposed by Alcohol Justice, a San Rafael-based nonprofit that lobbies against policy thought to promote the “alcohol industry’s harmful practices,” according to the group’s website.

Carson Benowitz-Fredericks, the organization’s research manager, said AB 711 could encourage people to drink more. Alcohol Justice says overconsumption of alcohol costs California $35 billion a year and causes 10,500 deaths annually.

“The idea that drunk driving is the only harm from alcohol is a real misunderstanding of alcohol harm,” Benowitz-Fredericks said.

The main concern from both Benowitz-Fredericks and the Rev. James Butler, the executive director of the California Council on Alcohol Problems, is that though the bill says the rides should be provided in order to get drinkers safely home, there is no real way to prevent consumers from using the free rides to go to another drinking spot.

“If they get free transportation, maybe instead of two beers they have six,” Butler said. “And when people overconsume alcohol, they make bad decisions.”

I’ve said it before and I’ll say it again: Anything that helps people get home safe after a night of drinking and avoid a DUI I’m in favor of, including this new law.