DUI BLOG

You heard me right. Not a breathalyzer, but a texalyzer. A new device has been developed that could help law enforcement determine whether a person was using a cell phone at the time a traffic collision occurred.

Just as a breathalyzer can help determine whether alcohol in a person’s system played a part in a traffic collision, the texalyzer can help law enforcement and prosecutors determine whether a driver’s texting possibly played a part in a traffic collision.

By connecting the phone via a cord to the device, law enforcement would be able to know what apps were open and in use with a time stamp.

Lawmakers in New York and several other cities are considering allowing law enforcement to use the device to crack down on texting while driving. It is currently illegal in California to “drive a motor vehicle while holding and operating a handheld wireless telephone.” This provision includes texting while driving.

Cellebrite is the company behind the device and has been working with Ben Lieberman of New Castle, N.Y. whose son was killed in a 2011 car crash.

The driver who collided with the car whom Lieberman’s son was a passenger originally told law enforcement that he had fall asleep behind the wheel which led his car veering into oncoming traffic.

Law enforcement could not check the driver’s phone to see if he was lying without a warrant.

"We often hear, ‘just get a warrant’ or ‘just get the phone records.’ … The implication is that the warrant is like filling out some minor form," said Leiberman. "It’s not. In New York, it involves a D.A. and a judge. Imagine getting a D.A. and a judge involved in every breathalyzer that’s administered, every sobriety test that’s administered."

Leiberman was able to eventually get the phone records through a civil lawsuit which showed that the driver had been texting before the collision.

Privacy advocate groups have concerns with the device which is still in development.

"Distracted driving is a serious concern, but this bill gives police power to take and search our phones after almost every fender-bender," says Rashida Richardson, legislative counsel for the New York Civil Liberties Union. "This is a concern because our phones have some of our most personal and private information — so we’re certain that if this law is enforced as it is proposed, it will not only violate people’s privacy rights, but also civil liberties."

The bill that Richardson is referring to is New York Senate Bill S2306 which provides for the field testing of mobile telephone and portable electronic device usage while driving after an accident or collision.

Recent studies have shown that distracted driving, like texting while driving, is just as dangerous a drunk driving.

A new study by the Cambridge Mobile Telematics, a leader in smartphone-centric telematics, is one such study.

Some of the study’s key findings included: Distracted driving occurred during 52 percent of trips that resulted in a crash; on drives that involved a crash, the average duration of distraction was 135 seconds; phone distraction lasts for two minutes or more on 20 percent of drives with distraction, and often occurs at high speeds; the worst 10 percent of distracted drivers are 2.3 times more likely to be in a crash than the average driver, and 5.8 times more likely than the best 10 percent of distracted drivers.

You can be sure we’ll be keeping our eyes and ears open for whether law enforcement usage of such a device gains any traction here in California.

I’ve been writing for some time now that roadside drug tests for suspected DUI of drugs stops are not far off. The increase in drug usage and the growing acceptance of marijuana has law enforcement agencies and law makers clamoring for a device that can quickly and accurately test whether drivers are under the influence of drugs. While current devices are not quite yet capable of telling law enforcement how intoxicated a driver might be, they can say whether a driver has drugs in their system. And San Diego became the latest city to use such devices roadside.

Last week, San Diego police began using roadside oral swabs to test drivers for the presence of marijuana, cocaine, methamphetamine, amphetamine, methadone, opiates, and benzodiazepines. The oral swabs cannot, however, test the amount of drugs in the driver’s system nor can it test for the driver’s level of intoxication.

The inability to test for quantity of drug or intoxication is legally important because, under California law, a person can only be arrested, charged, and convicted of a California DUI if they are “under the influence of a drug.” This means that a person’s physical or mental disabilities are impaired to such a degree that they no longer have the ability to drive with the caution characteristic or a sober person of ordinary prudence under the same or similar circumstances.

With the swab test only able to indicate the presence of one of the drugs listed above, a prosecutor must still prove that a person was not driving with the care of that of a sober person. This is done with officer testimony of poor driving patterns, failure of field sobriety tests, and visual symptoms of drug impairment.

Although many, including Mothers Against Drunk Driving, often forget, the mere presence of drugs in a driver’s system does not necessarily mean that they are driving under the influence. Tetrahydrocannabinol (THC), the active component in marijuana, for example, can stay in a person’s system for up to several weeks after the smoking or ingestion of marijuana. While, the THC may still be present, the person may no longer be “under the influence.”

San Diego began using the oral swab test, called Dräger 5000, after officials met with authorities in Colorado which legalized recreational marijuana in 2014.

Under San Diego protocol, law enforcement will only request the oral swab after they suspect that the driver might be under the influence of a drug. And before that, the officer must have probable cause to even stop the driver in the first place.

Like the preliminary screening alcohol test (PAS) test in DUI of alcohol cases, the oral swab test is also optional. And like the PAS test, it is never suggested that a driver voluntarily submit to the test. Never give law enforcement and prosecutors any more information than they already have.

Only after a person is arrested must they submit to a chemical test and if law enforcement suspects that a person was driving under the influence of a drug, they’ll have to take a blood test.

According to a study by the California Office of Traffic Safety, 38 percent of drivers killed in vehicle collisions during 2014 tested positive for either legal or illegal drugs. This is up six percent from 2013. While this may seem like a high number, testing positive does not necessarily mean that those drivers were actually under the influence and impaired by a drug.

Although drugged driving is and will always be a problem, we can’t continue to arrest people for driving for the mere presence of drugs in their system because presence does not mean impairment.

Many people know Nevada, particularly Las Vegas, as the obvious exception to widely accepted last call time of 2 a.m. and some know that a few states such as New York, Hawaii, and Alaska have later last calls than 2 a.m. California’s last call is 2 a.m. One senator hopes to extend the last call in certain California cities such as Los Angeles to 4 a.m.

Just to be clear before I move on, “last call” refers to the last time for which a bar or restaurant can sell alcohol to patrons.

The bill, which was introduced by Sen. Scott Wiener and entitled Let Our Communities Adjust Late Night Act, would allow municipalities to extend last call to 4 a.m. with the approval of the California Department of Alcoholic Beverage Control. The bill provides the flexibility to allow an extension of last call to certain cities or “specific areas” of a town. It also would allow an extension only on certain days of the week or only on specific holidays.

A similar bill by Sen Mark Leno was rejected in 2013 by the Senate Committee on Governmental Organization.

Not so surprisingly, Mothers Against Drunk Driving (MADD) are opposed to extending the last call time just as they were back in 2013.

"MADD supports uniform closing times for establishments that serve alcohol to avoid creating the dangerous possibility that patrons will bar-hop for that one last drink — a dangerous scenario that all too often increases the risk of drunk driving," national spokeswoman for the group, Becky Iannotta, said in an email to LA Weekly.

According to Weiner, the extra two hours would provide an enormous amount of extra revenue to the hospitality industry in California. In a statement Weiner said that the law would allow cities to “benefit economically and culturally from a strong nightlife presence.”

Amongst the supporters of the bill is the California Restaurant Association and the California Music & Culture Association.

“Nightlife is a major economic and cultural driver in California,” said the California Music & Culture Association’s co-chair, Ben Bleiman, in a statement. “This bill represents a crucial opportunity for California’s cities and towns to choose to join the ranks of those across the country and the world offering truly world-class nightlife for their residents and visitors.”

The group Taxpayers for Improving Public Safety argued in 2013, when Sen. Leno attempted to introduce his bill, that staggering the last call times in California would lessen the burden on law enforcement and public transportation because not all bargoers and drunks would be hitting the streets at the same time.

A person is arrested on suspicion of driving under the influence here in California. They are booked and released with a citation when law enforcement believes they have sobered up. The citation includes a court location and a date upon which the person must appear for their arraignment. About a month goes by and the person appears on the date indicated on the citation, but is surprised to learn that their case is not on the court’s calendar. They are given a slip proving that they appeared and told to keep their eyes open for a notification in the mail from the prosecutor’s office letting them know that charges have been filed.

After this scenario plays out, two questions arise from clients; 1.) Is this common? and 2.) How long do I have to wait?

Let’s tackle the first question.

When law enforcement gives the citation to the person who has been arrested on suspicion of driving under the influence, they don’t actually know that the case will be filed on the date indicated in the citation. Typically, the date is set at least a month, sometimes several months, in advance. This gives law enforcement and prosecutor time to do several things before the court date.

Following, the arrest the officers must prepare the police report on the DUI arrest. This includes the actual written report, the interview of witnesses, the examination of evidence, and the preparation of any video footage.

Once the law enforcement agency completes its report, their file is sent to the prosecuting agency. Here in Southern California, the prosecuting agency is usually a City Attorney or a District Attorney. The prosecuting agency then reviews the file which was given to them by the arresting law enforcement agency and determines if there is enough evidence to file charges.

Often is the case that, by the time this process is complete, the date written on the bottom of the citation has come and gone. Once the prosecutor has all of the information they need and actually make the decision to file California DUI charges, they’ll issue a notification to the person letting them know that charges have been filed and give them a new court date.

So, to answer the first question, unfortunately the answer is yes, it is common and more common than people know.

On to the second question; “How long does the prosecutor have to file the charges?” In other words, how long must a person have to anxiously wait for those charges to be filed?

California Penal Code section 802 states, “Except as provided in subdivision (b), (c), or (d), prosecution for an offense not punishable by death or imprisonment in the state prison shall be commenced within one year after commission of the offense.” Subsections (b), (c), and (d) are not applicable to DUI cases.

Therefore, the prosecutor has one year from the date of arrest to file misdemeanor DUI charges. This is what is called a “statute of limitations.”

Unfortunately, many people mistakenly believe that because the prosecutor hasn’t filed charges by the date on the citation, that the prosecutor has forgotten or that the case just simply and magically disappears. Not so. They have a year.

Additionally, people whom DUI charges have been filed against them within that year, but fail to go to court for years afterwards are also mistaken in believing that they can’t face charges because it is past the statute of limitations. As long as the charges were filed within that year, the charges remain and the person likely has a warrant out for their arrest.

At least in my experience, prosecutors very rarely “forget” to file charges. While it may be common for the date on the citation to come and go, it is not common for that year to come and go without charges being filed. It’s not a matter of if, it’s a matter of when.

Considering purchasing a personal breathalyzer? I’ve suggested it before as one of several ways to help prevent a DUI. What if knowing your blood alcohol content was a simple as slapping on a temporary tattoo? Well, researchers at the Center for Wearable Sensors at the University of California San Diego have created a removable electronic tattoo that detects the wearer’s BAC.

A team of researchers at the center were interested in a device that offered continued BAC monitoring which typical breathalyzer do not offer. The researchers also wanted to develop a BAC detector that could not be skewed by factors other than blood alcohol such as mouthwash, acid reflux, or alcohol residue in the mouth all of which affect typical breathalyzers.

The tattoo is similar to other devices sometimes mandated by the court as a condition of a California DUI sentence or a condition of being release without having to post bail pending the outcome of a California DUI case. At least in Southern California, the device is called a SCRAM device which passively tests “insensible” sweat, or trace amounts of sweat, excreted from a person’s skin. The SCRAM device is rather bulky and can be relatively expensive.

The tattoo, however, emits a drug called pilocarpine, which generates sweat. The tattoo then tests the sweat excreted from the skin as a result of administration of the pilocarpine for ethanol alcohol through sensors which are attached to the skin. However, unlike the SCRAM device, the temporary tattoo and sensors are attached to a flat, flexible circuit board that is about an inch in length. The circuit board then transmits the information to the wearer’s phone via Bluetooth.

One of the project scientists and professor of nanoengineering, Joseph Wang, has said that the tattoo device could be made even smaller than its current form with continued engineering. He added that, unlike the SCRAM device, the tattoo could cost a mere pennies to produce.

“We developed a new tattoo-based wearable alcohol sensor that enables real-time monitoring of blood alcohol level, overcoming limitations of conventional non-invasive alcohol sensors,” said Jayoung Kim, a co-author and PhD student at UCSD.

The tattoo comes at a time when law makers and law enforcement agencies are actively seeking more reliable and efficient ways to detect blood alcohol content.

Earlier this year, the National Institute on Alcohol Abuse and Alcoholism, which is part of the National Institute of Health, awarded $200,000 to San Francisco-based BACtrack for developing a bracelet-type device as the winner of its Wearable Alcohol Biosensor Challenge. BACtrack has produced a number of personal breathalyzers for consumer use.

Keith Nothacker, BACtrack’s founder and chief executive officer, said that the firm is working on bringing the winning sensor, called “Skyn,” to the consumer market for around $99 and offer a version that is integrated into a band for the Apple watch.

In a press release, Joseph Wang said that the primary purpose for developing the BAC-detecting temporary tattoo was to prevent drunk driving.

“Lots of accidents on the road are caused by drunk driving. This technology provides an accurate, convenient and quick way to monitor alcohol consumption to help prevent people from driving while intoxicated,” Wang said.

Hopefully soon the temporary tattoo will be available for consumer use. And maybe the BAC detecting tattoo will prevent, not just drunk driving, but also someone from getting so drunk that they get a real tattoo that they might regret the next morning.