Articles Posted in DUI

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The DA has the right to charge a DUI where injury is claimed, with either a felony or a misdemeanor. What makes it a felony charge or a less severe misdemeanor is the extent of the injury suffered by the victim. Sometimes it’s obvious that a case is a felony. A clear example of this is a DUI driver who runs a red light and injures another driver, cutting off his leg in the collision. The law is clear that, if as a result of a DUI, there’s a collision that is the fault of the DUI driver and there is injury caused by the DUI driver then the DUI driver could e charged with a DUI With Injury (CVC 23153).

The issue of fault is really important because if, for example, a DUI driver is stopped at a stop sign and another driver rear ends him and is injured, the DUI driver can’t be charged with DUI With Injury because the fact he was DUI has nothing to do with the injury.

I recently tried a case with a DUI driver who had a .33 blood alcohol level, who rear ended another driver on the freeway. There was no doubt who was a fault. But, the driver who was hit claimed soft tissue injury. She treated at a chiropractor who she was referred to by her lawyer. The DA bought the “victim’s” story that she was injured and charged my client with a misdemeanor DUI With Injury. I wouldn’t accept the idea that she was guilty of a DUI With Injury and offered to plead her to a straight DUI. We want to trial. There was only one issue; did my client, who was obviously DUI, cause this “victim” injury?

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The media has reported a rise in the number of prescription drug DUI arrests in recent months. It is important to know that if you take a prescription drug which impairs your ability to drive you can be charged and convicted of a DUI just as much as if you were drinking and driving under the influence of alcohol. With that in mind, millions of us take a popular sleep aid, Ambien.

If you drive your vehicle after taking Ambien and the Ambien has not made it’s way out of your system, you run the risk of being charged with DUI. I recently had a client who had taken Ambien and intended to go to sleep. However, instead of going to sleep, he drove his vehicle to a nearby shopping center and got into a collision. He was arrested for DUI and put into jail. Six hours later he was released from jail while still under the influence. Unfortunately, the cab driver took him back to his car and he attempted to drive home. Of course, he didn’t make it out of the parking lot before he collided with… the cab. The same police officer who had arrested him the first time came to the scene and was surprised he was out of jail because he was still clearly impaired by the Ambien. The client was arrested again and faced not one but two DUI charges.

How to defend a charge of DUI under these circumstances? It was difficult but not impossible. A little publicized fact about Ambien is that out of the approximately 26 million prescriptions that are written every year for Ambien approximately 1% of the people who take it have an adverse reaction. Ambien can cause a person to engage in complex behaviors such as: sleep walking, sleep sex, and sleep driving. These complex activities occur when the person is not unconscious but in an altered state of consciousness. To top it off, Ambien comes with an amnesic affect. That is, the person who does these activities has no memory of it. People have had sex, walked to various locations and even sleep driven and when they woke up they had no memory of their actions.

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Automated-Cars-The-Future-is-Here.jpgNo more DUIs? No more car accidents? No more driving on a suspended license? No more rites of passage like getting your drivers license at 16? You mean the DMV doesn’t exist? Well yes, there could be lots of benefits to the concept car coming out. What concept car you ask? Multiple carmakers, including even Google which isn’t even a car manufacturer, are working on; an automated car. No driver needed.

I personally like driving my car. However the era of driving a car yourself may soon be coming to an end. The new automated car can drive itself to the market, the courthouse, grandmother’s house, just about anywhere you would ever want to go. The technology is there. How would this affect the legal profession? We have thousands of laws on the record books that control how you drive, when you drive and where you drive. All of these would really become moot with the automated car. You would program where you want to go and if there was a road closed then the car could reroute you and take you on a different road to your destination. It would be programmed to obey all rules of the road.

The crime of driving under the influence would be extinct. In fact think of the impact on limo companies? None would be needed because you just tell the car to go find a place to park while you go into the bar. On the program Sunday morning the car was parking itself in a parking spot that IT found. Criminal law will be changed forever. Driving laws will become similar to laws that are still on the books about where and how you tie your horse up when you leave it to go to the feed barn.

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Were you arrested for DUI but didn’t have a single drink all night? It’s a common misconception that if you have a blood alcohol content under 0.08 you cannot be found guilty of a DUI. This probably comes from Vehicle Code Section 23152(b) which says you can be arrested if you’re BAC is over 0.08. But lots of people are unaware that you can also be in violation of Vehicle Code Section 23152(a), which simply says you’re guilty of driving under the influence (DUI) if an officer thinks that you are unable to safely operate your vehicle because of alcohol or drugs. Not only does this mean that you can be found guilty of DUI if your BAC is below 0.08, but you can be found guilty even if you haven’t touched a drop of alcohol.

What’s worse is that violating Vehicle Code Section 23152(a) doesn’t require you to have a hard drug in your system. While having meth, cocaine, or another hard drug in your system will certainly get you in trouble, many people don’t realize that having everyday prescription drugs such as Xanax, Vicodin, or Ambien put you at just as much risk. Having a prescription doesn’t automatically put you in the clear either! If you’ve taken more than your prescribed dosage for instance, you’re going to have trouble on your hands. And even if you’re within your prescribed range, you can still be guilty of violating Vehicle Code Section 23152(a).

Before you know it your license has been suspended, you’re facing time in a county jail, and you have to pay thousands in court fees and fines — all because you took your prescription medication. If you have an experienced attorney on your side, he will be able to schedule a hearing with the DMV to attempt to save your license from suspension. He’ll be able to analyze the police reports and videos of your incident, and make sure the district attorney’s office is aware of your legal prescription for your medication. If you’ve been arrested for DUI, it’s important to have a good attorney, even if you didn’t drink!

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Just because you’re guilty of committing a crime with a mandatory jail sentence doesn’t mean you have to serve time in jail! Many crimes in California carry mandatory minimum jail sentences. Most commonly those who receive a second DUI conviction within 10 years of their first will find themselves facing time in the county jail. If it’s mandatory it must mean there’s no way to avoid it right? It must mean hiring a lawyer just isn’t worth it; after all how could they possibly help you?

Well, turns out that in California a savvy criminal defense lawyer would know that secured electronic confinement (SEC) is always an option! SEC can take many forms in California, depending on the county you live in. While many people think it literally means you can only stay in your house, that’s not true. Your lawyer can attempt to get exceptions for work, school, or other necessary tasks you must attend to on a regular basis.

So how does this process work? Let’s say the District Attorney doesn’t want to budge and will only offer a plea deal involving 60 days of jail(!). If the DA will not agree to SEC, your attorney can still ask the Judge if he would be willing to grant some or all of that time as SEC. Even if the *Judge* doesn’t agree, you can ask the jail facility you are taken to if they are willing to release you on SEC. With the jails being so overcrowded in California, these requests are often granted. The problem is, if you don’t know about it then you won’t get it! Yet another reason to make sure you have good counsel, regardless of the charges against you.

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Everyone has heard the term “hung jury”, but what exactly does it mean? In a criminal case in California, the jury verdict must be unanimous. All 12 jurors must agree that either the defendant is either guilty or not guilty. A hung jury happens when the jurors simply can’t reach a unanimous verdict. It doesn’t matter what the split is. It could be 6 jurors for guilty and 6 jurors for not guilty or 11 jurors for one side and only one lone “holdout” juror for the other. Sometimes the jury will come back in and inform the judge that they can’t reach a verdict and the judge will send them back to deliberate further and give them a suggestion as to how to break the deadlock, such as the people who are voting for not guilty argue the other side, and the jurors who want to acquit argue for guilty. In any case, once the judge determines that the jury is not ever going to reach a unanimous verdict a mistrial is declared.

According to The Encyclopedia Britannica, a mistrial is “a trial that has been terminated and declared void before the tribunal can hand down a decision or render a verdict. The termination of a trial prematurely nullifies the preceding proceedings as if they had not taken place. Therefore, should another trial on the same charges, with the same defendants, be ordered, that trial would start from the beginning, with the previous testimony or other findings not necessarily relevant in the new court proceedings.

I recently had a driving under the influence trial that resulted in a mistrial. In the end, the jury split was 10 jurors for guilty and 2 for not guilty. To show you how influential fellow jurors can be on each other, when the jury took their first vote, it was 9 jurors for NOT guilty and 3 for guilty. Clearly there were some very persuasive jurors in the room who argued their case with enough passion to change the minds of 7 jurors who initially thought the defendant was not guilty. This is what trial lawyers hope or fear depending on which side they happen to be on.

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The Fourth Amendment to the Constitution provides that we have the right to feel safe from unreasonable searches, and where a search warrant is issued, that it must be supported by probable cause and be specific. A search conducted without a warrant is presumptively unreasonable unless it meets one of a number of exceptions carved out by the Supreme Court. In 1966 the Supreme Court decided that it was acceptable for law enforcement to procure a blood sample from a suspect over his objections during a DUI investigation. A fear that the blood alcohol content of a suspect diminishes naturally spurred the Court to agree with law enforcement that there was an “exigent circumstance” supporting this very intrusive and uncomfortable search of the suspect’s body.

The Supreme Court has helped restore some strength to the Fourth Amendment of the Constitution and the protections it provides recently. Their April decision in Missouri v. McNeely strikes down the proposition that DUI investigations necessarily meet the “exigent circumstances” exception relied on in Schmerber. The accused in this case was pulled over by a Missouri State Trooper. When he refused to take a breathalyzer on the spot, he was cuffed and taken to a nearby hospital where his blood was drawn over his objections! In holding that his Fourth Amendment rights were violated the Court focuses on the lack of injuries requiring hospital care, or any other circumstances that would cause unreasonable delay in properly acquiring a warrant before drawing McNeely’s blood.

While Missouri v. McNeely doesn’t mean that warrantless blood draws are always unreasonable, it provides for a totality of the circumstances test that allows for your lawyer to aggressively ensure your rights are respected during a DUI investigation. Simply carting you off to the nearest physician and drawing blood against your will is no longer acceptable!

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It has recently been proposed that the legal blood alcohol limit in the United States for driving be lowered to a .05 from a .08. All 50 states now adhere to the .08 BA level. This would be a radical downward departure from the previous level of .08. How much of this push to lower the legal blood alcohol level is political and how much is scientific is up for debate. A .05 is essentially telling the public that you cannot drink anything at all and drive. Two drinks at dinner could put a driver over the legal limit. Are we prepared as a nation to say if you share a bottle of wine at dinner you cannot drive home? The alcohol beverage lobby is actively fighting against this proposal. MADD (Mothers Against Drunk Driving) supports all legislation that increase the penalties for DUI driving and the lowering of the limit to .05.

Experts will opine that the research in the area of alcohol intoxication while driving is what is pushing the limits lower. However, how many of these experts are truly objective? I question how many of these experts work on behalf of political groups or law enforcement agencies? The push to lower the legal limit to a .05 is not unique to the United States. In fact, many other countries have already done it.

Most European countries have very harsh penalties for driving under the influence. For example, while France is known for it’s wines and often is associated with the spirits and love of the fruit of the vine it takes a very dim view of driving over a .05 BA. Mixing spirits with driving is definitely frowned upon. France requires that every vehicle carry a breathalyzer. In order to legally drive in France a breathalyzer must be present in the vehicle. While in England recently, I purchased a small disposable breathalyzer that would satisfy this requirement in France. It was a single use vial designed to alert the driver when he was over the French legal limit of .05.

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Ambien is a commonly used sleep aid. What isn’t commonly known is that there are a significant number of reported cases of people “sleep driving” after taking Ambien. In the recent case of People v Mathson a California Court of Appeal, for the first time, has ruled on a defense of sleep driving while under the influence of Ambien.

Mr. Mathson took Ambien at bedtime and later was found guilty by a jury of driving under the influence of drugs, a violation of California Vehicle Code (CVC) Section 23152(a). On appeal, the Court noted that voluntary intoxication is not a defense to driving under the influence. However, if after voluntary ingestion of a drug such as Ambien there is an unconscious act, like sleep driving, is it a crime? The Court stated the non-controversial rule that involuntary intoxication is a defense to CVC 23152(a). The controversial part of the ruling is that the Court suggested there be a jury instruction that states: “A person is involuntarily intoxicated if he or she willingly and knowingly ingested a prescribed drug and did not know or reasonably could not have known of the drug’s intoxicating effects”.

In essence the Court ruled that if the Defendant was aware or should have been aware of the side effect of Ambien, sleep driving, then it isn’t involuntary intoxication (which is a defense). However, if he didn’t know or have reason to know that Ambien could cause sleep driving, then even though Mathson voluntarily took the drug it was involuntary intoxication which is a defense to driving under the influence. Many factual differences occur in every case and while it is now clear that sleep driving can be defended successfully every case will turn on it’s own particular facts.

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Many prosecutor’s offices, including the Orange County District Attorney’s Office, now have special Deputy District Attorneys who are designated to prosecute Driving Under the Influence of Drugs cases. The violation of California Vehicle Code Section (CVC) 23152(a) can consist of a combination of alcohol and drugs causing impairment in a driver’s ability to drive. Increasingly DUI charges are being brought against people who have not consumed any alcohol but are solely accused of driving under the influence of drugs.

At first, the image that comes to mind is that of a drug crazed driver who is under the influence of an illegal substance such as methamphetamine or heroin. However, the District Attorney’s Office is targeting not just those drivers but the driver who has taken prescription medication. A driver who takes a prescribed medication that impairs his ability to drive his vehicle safely is also subject to prosecution for DUI. A note written on a doctor’s prescription pad is not being taken as a defense by prosecutors. Even doctors themselves are being prosecuted for DUI if their blood is found to contain prescription drugs following an arrest for DUI.

Many medications commonly warn of possible driving impairment after ingestion. However, the fact that a driver has consumed the medication and it is found in the blood is not the end of a driver’s defense to a charge of DUI. The blood must be tested to determine if the level of the prescribed drug in the blood is above the therapeutic level. If it is above the therapeutic level it can lead to the conclusion that the symptoms the driver is exhibiting is the result of the medication. However, even that is not the last word in the defense of DUI drug cases. If a driver has taken the medication found in the blood for some time or suffers from a severe form of whatever the medication is prescribed for, the above therapeutic level amount may be explained as not being the cause of the symptoms the officer is seeing at the time of the arrest.

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