DUI BLOG

A Virginia bill, if passed, would allow drunk driving on private property within that state.

The bill, introduced by Virginia Republican Senator Richard Stuart, would change Virginia’s current DUI law to decriminalize drunk driving on private property. Current Virginia law does not differentiate between private and public property when a person is driving under the influence. If passed, the legislation would include in Virginia’s DUI law the language, “This section shall not apply to any person driving or operating a motor vehicle on his own residential property or the curtilage thereof.”

The bill has already passed the State Senate by a vote of 37-3. The bill will now go to the House of Delegates for consideration.

To supporters of the bill, it’s more about being able to do what you want on your own property more than it is about being able to drive drunk.

“I really don’t think it has to do with whether or not people want to be able to drink and drive. They just don’t want to be interfered with on their private property,” said Dana Schrad with the Virginia Association of Chiefs of Polices. “From a law enforcement perspective, we’re very much concerned that we’re sending the wrong message to young people that there would be an acceptable time to drink and drive, that it’s okay, and how do you let them know that that doesn’t translate to public roadways?”

Unsurprisingly, not everyone is on board.

“Is a driver with a .14 BAC (blood alcohol content) operating a motor vehicle across Kings Dominion’s parking lot any less of a threat than if he or she were similarly doing so on a neighboring roadway?” asked Kurt Erickson, president and CEO of the nonprofit Washington Regional Alcohol Program. “Inasmuch, the bill throws Virginia down the slippery slope of bifurcating the state’s DUI laws, effectively communicating that it’s okay to drive drunk here, but not there – a dangerous precedent.”

In California, as it is with most states, drunk driving remains illegal on both private and public property.

The California Vehicle Code states that laws including a California DUI “apply to vehicles upon the highways and elsewhere throughout the State unless expressly provided otherwise.”

In 1992 Ronald Dean Arnold Malvitz was arrested for a California DUI while in a privately locked storage facility and sought to challenge California’s law arguing that it didn’t apply to him since he was on private property.

The California Court of Appeals ruled against Malvitz by looking at the legislative history of California’s DUI law.

Prior to 1982, the California Vehicle Code made it illegal to drive drunk “upon a highway or upon other than a highway areas in which are open to the general public.” However, in 1982, the legislature deleted the language referring to the locations upon which a person could be arrested and ultimately convicted of drunk driving.

The Court concluded that the “statute that prohibited driving under the influence of alcohol and/or any drug has emerged unencumbered with any language restricting its reach.”

In other words, the Court concluded that it was the intent of the legislature that, in deleting the portion of the statute which referred to location, the law which prohibits drunk driving should extend to anywhere in California where drunk drivers pose a threat included public highways as well private property.

In addition to the Malvitz ruling, California Vehicle Code section 23215 states, “[law enforcement] may, but shall not be required to, provide patrol or enforce the provisions of [California’s DUI law] for offenses which occur other than upon a highway.”

While drunk driving on private property may soon be allowed in Virginia, I don’t think California will follow suit any time soon.

A Texas man who was convicted of a fourth DUI claimed that blood alcohol content limits discriminate against alcoholics.

Ralph Alfred Friesenhahn of San Antonio was convicted of his fourth DUI in 2016 and was sentenced to four years in prison after he rolled his vehicle outside of San Antonio, Texas. A later blood test revealed that Friesenhahn’s blood alcohol content was 0.29 percent, more than three times the legal limit of 0.08 percent.

Although some states are considering lowering the legal limit to 0.05 percent, all states currently have a limit of 0.08 percent.

At trial, Friesenhahn’s attorney motioned the court to dismiss the indictment against Friesenhahn arguing that the state’s legal limit discriminated against alcoholics. Not surprisingly, the judge denied the request and Friesenhahn was convicted of felony driving while intoxicated, the Texas equivalent to California’s “driving under the influence,” and was sentenced to four years in prison due to his prior convictions.

Friesenhahn’s attorney appealed the conviction, once again arguing that the state’s blood alcohol content limit of 0.08 percent discriminated against alcoholics in violation of the right to equal protection guaranteed under the United States Constitution and Texas Constitution. Specifically, she argued that the legal limit ignored the “protected class of alcoholics,” who have a high tolerance to alcohol, to be prosecuted for DUI charges when there is no indication that the alcohol impaired their ability to safely drive a vehicle even though they might be over the legal limit.

Sammy McCrary, chief of the felony division for the Comal County District Attorney’s Office argued that it’s absurd to suggest that the law treats alcoholics differently.

“You’re not being punished for being an alcoholic. It’s the driving that’s the problem,” McCrary said. “It’s making the decision to get into a 3,000-pound vehicle … after drinking.”

The Austin-based 3^rd Court of Appeals agreed with McCrary with an opinion issued last week.

In denying that Friesenhahn and other alcoholics fall within a “protected class,” the court said that Texas law “provides two alternative definitions of intoxication. The first involves the loss of the normal use of mental or physical faculties; the second involves an alcohol concentration of at least 0.08…The alternative definitions are presented disjunctively…indicating that only one must be satisfied to establish that a person is legally intoxicated. Further, these alternative definitions apply to all persons charged with an intoxication offense…Thus, the alcohol concentration definition of intoxicated allows for a finding of intoxication based on an alcohol concentration of 0.08 or more without showing the loss of mental or physical faculties – whether the defendant is an alcoholic or not. Therefore, there is no classification in the statute that treats any persons, including [Friesenhahn’s] defined ‘class’ of alcoholics, differently than similarly situated persons: the 0.08 alcohol concentration level applies to all offenders prosecuted for DWI.”

In short, the court said that since the law treats all persons equally, there can be no violation of equal protection.

Let Friesenhahn’s case serve as a reminder that, while you may not be “impaired” when driving your vehicle, as long as you’re over the legal limit of 0.08 percent blood alcohol content, you’re putting yourself at risk of a DUI arrest, charge, and possible conviction.

In July of last year, I wrote about then 18-year-old Obdulia Sanchez, who livestreamed her own DUI-related collision which killed her 14-year-old passenger sister. At the time, Sanchez pleaded not guilty to gross vehicular manslaughter and several other felony offenses. On January 24^th, however, Sanchez withdrew her not guilty plea and entered a plea of no contest and just today was sentenced to six years and four months in prison.

In July of 2017, Sanchez, who was from Stockton, California, was livestreaming herself driving with her sister, Jacqueline and another 14-year-old in the back seats. Sanchez, who had been drinking, could be seen dancing to music with her hands off of the steering wheel moments before the fatal collision.

According to police, Sanchez veered onto the shoulder of a road and overcorrected causing her vehicle to flip several times. Sanchez’s video recorded the collision from the inside of the vehicle. When the car stopped rolling, Sanchez continued livestreaming the incident.

Neither Jacqueline nor the other passenger had been wearing seatbelts. Jacqueline was ejected from the vehicle and sustained fatal head injuries. The other passenger was also ejected and sustained severe injuries to her leg.

While standing over her sister’s body, Sanchez could be heard saying, “Hey, everybody, if I go to f***ing jail for life, you already know why. My sister is f***ing dying. Look, I f***ing love my sister to death. I don’t give a f***. Man, we about to die. This is the last thing I wanted to happen to us, but it just did. Jacqueline, please wake up.”

The livestream was recorded from Instagram and later reposted to Facebook by someone who had seen it.

Sanchez’s blood alcohol content was later determined to be 0.10 percent and she was subsequently charged with felony vehicular manslaughter with gross negligence, felony manslaughter while intoxicated, two counts of felony driving under the influence resulting in injury and two counts of felony driving with a blood alcohol content of 0.08 percent or more causing injury.

At her sentencing, Sanchez addressed the court saying that the moment she realized that her sister had died played “over and over in [her] head.”

“When I look at my mom’s face, I know she hates me,” Sanchez said. “I would hate myself too. I’m such a disappointment to my parents.”

Members of Sanchez’s family pleaded with the court to grant her probation. Sanchez’s public defender also requested probation arguing that prison time would further harm Sanchez who had a difficult childhood. Sanchez was sexually abused as an 11-year-old by a family friend. Two years later, she was abducted, sexually assaulted, and forced to use methamphetamine and alcohol which, according to her attorney, began her addiction to drugs and alcohol.

The district attorney, however, pushed for a 12-year prison sentence pointing to the “callousness” of the video following the crash.

Judge Ronald Hansen disagreed with both the district attorney and Sanchez’s attorney saying that both 12 years in prison and probation were inappropriate. In finding that Sanchez was not “callous,” but remorseful, he sentenced her to six years and four months in a California State Prison.

According to Sanchez’s attorney, with prop 57, Sanchez may get out of jail in 2020.

It’s not an unlikely scenario when a person leaves a bar too drunk to drive and they decide to sleep in their car until they sober up. Kudos to the person for having the wherewithal to avoid driving when drunk. But if a law enforcement officers happens upon the sleeping bar patron, the question becomes whether they can be arrested, charged, and convicted of a California DUI.

Some states hold that a person can be arrested, charged, and convicted of a DUI if they are in “dominion and control” of their vehicle with the ability to drive the it, even though they may not have actually driven it.

Fortunately, California is not a “dominion and control” state, meaning that prosecutors here in California must prove that the person actually drove their vehicle.

The California Supreme Court in the case of Mercer v. Department of Motor Vehicles in 1991 held that the word “drive” in California’s DUI law means that the defendant volitionally and voluntarily moved the vehicle. The court has held that even a “slight movement” is enough to meet the requirement that the defendant drove the vehicle as long as it was voluntary.

Does this mean that a person who is sleeping in a car while under the influence can completely avoid criminal charges? No.

If a person is found sleeping in their car, it is likely that any arresting officer did not see the person drive. Therefore, there may not be any direct evidence for a prosecutor to prove that a person drove. A prosecutor, however, can use circumstantial evidence to prove that the person drove to where they were found while under the influence and then fell asleep.

For example, if an intoxicated person is sleeping in their vehicle in the middle of the road or at the scene of a collision (yes, it happens more often than you would think), then the prosecutor can raise those facts to create the inference that the person had driven. In other words, the prosecutor would argue that it is reasonable to infer that the defendant drove.

On the other hand, if those facts do not exist that would create the inference that the defendant drove then the prosecutor is going to have difficult time proving that the person actually drove the vehicle while being under the influence. This scenario presents itself from time to time as well. But the person may still be charged with another crime such as drunk in public.

In the 1966 case of People v. Belanger, officers found the intoxicated defendant asleep in his vehicle which was located in a parking lot. Although the facts in that case were not enough to create the inference that the defendant had driven to the location while under the influence because he could have driven there sober, drank, and then fell asleep, the officers did arrest the defendant for drunk in public.

The Court concluded that, in order to prevent the defendant from waking up and driving drunk, they needed to arrest him on suspicion of being drunk in public.

Bottom line is that no person should be in a vehicle when they’re intoxicated whether they’ve driven it or not. A prosecutor may still be able to prove a case for driving under the influence or, in the event that they cannot create the inference that person drove, the person is still facing drunk in public charges.

The coercive effect of requiring police officers to make a minimum number of DUI arrests during a given period is obvious.  Drivers who the investigating officer does not feel there is probable cause to arrest for DUI will be arrested anyway.  Worst-case scenario:  cops will arrest drivers who they realize are not driving under the influence.  Of course, law enforcement — and local governmental agencies who pocket the extensive fines and fees — routinely deny having such policies.  And, as I’ve posted repeatedly in the past, it is a well-documented fact that drunk driving quotas are common across the country.  See, for example, “Inside Edition” Documents DUI Quotas Across U.S..   

Consider the following commentary appearing yesterday:

NHTSA Says Federal Law Requires Ticket Quotas

Jan. 30.  The Newspaper - Federal regulators are refusing to budge when it comes to requiring local police forces to use ticket quotas. The National Highway Traffic Safety Administration (NHTSA) on Thursday finalized the procedures local police departments use to receive their share of $450 million in traffic safety grants paid for by the federal tax on gasoline. In response to complaints from the National Motorists Association (NMA), the agency claimed it was powerless to change the way it allocated the funds…

“To qualify for funding, NHTSA requires an annual traffic safety plan from each state that must include statistics on seat-belt citations, impaired driving arrests, and speeding citations issued during grant-funded enforcement activities the previous year,” NMA President Gary Biller told TheNewspaper on Monday. “What outcome is expected other than the perpetuation of federally sanctioned ticket quotas?”…

“The federal statute further requires that highway safety plans be based on performance measures developed by NHTSA and GHSA,” the agency explained. “That report includes activity measures related to seat belt citations, impaired driving arrests and speeding citations… NHTSA may not waive these statutory requirements.”

So in addition to pocketing fees and fines for false DUI arrests, law enforcement has the added incentive of receiving federal funds.  But, of course, such quotas don’t exist, right? 

(Thanks to Joe.)