San Diego DUI criminal defense attorney news

DUI or drunk driving info

May 15, 2008

www.SanDiegoDrunkDrivingAttorney.net/articles

In the United States the National Highway Traffic Safety Administration (NHTSA) estimates that 17,941 people died in 2006 in "alcohol-related" collisions, representing 41 percent of total traffic deaths in the US. Over 500,000 people were injured in alcohol-related accidents in the US in 2003. NHTSA defines fatal collisions as "alcohol-related" if they believe the driver, a passenger, or a nonoccupant of the vehicle (such as a pedestrian or pedalcyclist) had a blood alcohol content (BAC) of 0.01 or greater. NHTSA defines nonfatal collisions as "alcohol-related" if the accident report indicates evidence of alcohol present. NHTSA specifically notes that "alcohol-related" does not necessarily mean a driver or nonoccupant was tested for alcohol and that the term does not indicate a collision or fatality was caused by the presence of alcohol. On average, about 60 percent of the BAC values are missing or unknown. To analyze what they believe is the complete data, statisticians simulate BAC information.

All states in the U.S. designate a "per se" blood or breath alcohol level as the threshold point for an independent criminal offense. A second criminal offense of driving "under the influence" or "while impaired" is also usually charged in most states, with a permissive presumption of guilt where the person's blood alcohol concentration (BAC) is .08 percent or greater (units of milligrams per deciliter, representing 8 g of alcohol in 100 deciliters of blood). Some states (e.g., Colorado) include a lesser charge, sometimes referred to as driving while ability impaired (this may apply to individuals with a .05 percent or above, but less than the .08 per se limit for the more serious charge.

Prior to wider emphasis on drinking and driving in the 1980s, standards of .10-.15 percent were in place. The legal limit for commercial drivers in the U.S. is set at 0.04 percent. All states also observe a much stricter standard for drivers under the age of 21, commonly of .01-.02; these are often referred to as "Zero Tolerance" laws.

Federal Air Regulation 91.17 (14 CFR 91.17) prohibits pilots from flying aircraft with an alcohol level of 0.04% or more, and/or within eight hours of consuming alcohol, and/or while under the impairing influence of any drug. The same prohibition applies to any other crew members on duty aboard the aircraft (flight attendants, etc.). Some airlines impose additional restrictions, and many pilots also impose stricter standards upon themselves. Commercial pilots found to be in violation of regulations are typically fired or resign voluntarily, and they may lose their pilot certificates and/or be subject to criminal prosecution under Federal or State laws, effectively ending their careers.

Unlike DUI, DWI, or OWUI cases that involve alcohol, there is generally no "per se" or legal limit that is employed for persons accused of driving under the influence of prescription medication or illicit drugs (although this is not the case in Ohio). Instead, the key inquiry focuses on whether the driver's faculties were impaired by the substance that was consumed. The detection and successful prosecution of drivers impaired by prescription medication or illegal drugs can therefore be difficult. Similarly, although urinalysis toxicology screens can detect the presence of such substances in the driver's bloodstream, these analyses are unable to demonstrate that the substance was actually causing impairment at the time of driving. In response to these problems, several jurisdictions are currently considering legislation that would establish "zero tolerance" laws for those drivers arrested for DUI and found to have drugs or medication in their system. Additionally, breathalyzers have been developed for the purpose of administering roadside or laboratory tests that can detect the actual level of a controlled substance in an individual's body.

Many jurisdictions require more serious penalties (such as jail time, larger fines, longer DUI program, the installation of ignition interlock devices) in cases where the driver's BAC is over 0.20, or 0.15 in some places. These additional sanctions are an attempt to deter and punish the operation of a vehicle at extremely high BAC levels and the concomitant danger posed to the safety of persons and property by heavily impaired drivers. In many cases, the reason given for these additional sanctions is because an average person would have passed out from that much alcohol. To be able to drive at that level, a person has to have consumed alcohol regularly for months in order to increase his/her alcohol tolerance and therefore is likely to have driven drunk repeatedly. However, since there is currently no standard test to measure alcohol tolerance, proponents of additional penalties for high-BAC offenders point to some studies that indicate that high-BAC offenders are more likely to be involved in a crash and more likely to recidivate. Critics of such laws point out that due to wide variations of alcohol tolerance, people with high tolerances will suffer the additional penalties, despite being less impaired than those with lower tolerances who drive with much lower BACs.

Some U.S. states also increase the penalties for drunk driving (even to the point of making it a felony) if certain other aggravating circumstances besides a high BAC are present, such as if the drunk driver caused an accident requiring the hospitalization of another person lasting greater than a specified period of time (often 72 hours), in cases where an accident resulted in property damage exceeding a certain amount (often $500), or where the driver has prior (and relatively recent) convictions for drunk driving. In addition, most states observe administrative laws that further penalize people convicted of DUI, typically enforced by the department that issues driver's licenses, usually titled Department of Motor Vehicles (DMV), or Department of Licensing. Also, in many states, persons under 21 who purchase, or even attempt or conspire to purchase, alcohol can have their driving privileges suspended (if they already are licensed drivers) or delayed (if not) even if they were not caught actually driving while intoxicated. This belief that restricting alcohol availability and increasing sentences on the basis of damage done is contrary to all the evidence available from other jurisdictions. Australia and the UK have higher alcohol consumption rates, lower ages for alcohol consumption, much lower sentencing regimes for DUI Manslaughter, and much lower incidences of DUI.

Similar laws apply to other activities involving transportation; Michigan prohibits intoxicated bicycling, horseback riding, buggy driving, use of motorized farm implements, or boating, the latter whether a pilot or passenger, with much the same threshold of intoxication.

Following are common procedures when a law enforcement officer has reason to suspect a driver is intoxicated.

There are several situations in which the officer will come into contact with a driver, some examples are:

The driver has been involved in an automobile accident; the officer has responded to the scene and is conducting an investigation.
The driver has been stopped at a sobriety checkpoint (also known as roadblocks).
The police have received a report, possibly from an anonymous citizen, that a described car has been driving erratically. The officer should verify the erratic driving before pulling the driver over. In some cases, the driver will no longer be in the vehicle.
The officer on patrol has observed erratic, suspicious driving, or a series of traffic infractions indicating the possibility that the driver may be impaired. This is by far the most common reason for stopping a suspect.
A police officer has stopped a vehicle for a lesser traffic offense, notices the signs of intoxication, and begins the DUI investigation.

The following list of DUI symptoms, from a publication issued by the National Highway Traffic Safety Administration (DOT HS-805-711),[5] is widely used in training officers to detect drunk drivers. After each symptom is a percentage figure which, according to NHTSA, indicates the statistical chances through research, that a driver is over the legal limit.

Turning with wide radius -- 65
Straddling center or lane marker -- 65
Appearing to be drunk -- 60
Almost striking object or vehicle -- 60
Weaving -- 60
Driving on other than designated roadway -- 55
Swerving -- 55
Slow speed (more than 10mph below limit) -- 50
Stopping (without cause) in traffic lane -- 50
Drifting -- 50
Following too closely -- 45
Tires on center or land marker -- 45
Braking erratically -- 45
Driving into opposing or crossing traffic -- 45
Signaling inconsistent with driving actions -- 40
Stopping inappropriately (other than in lane) -- 35
Turning abruptly or illegally -- 35
Accelerating or decelerating rapidly -- 30
Headlights off -- 30

If the officer observes enough to have a reasonable suspicion to legally justify a further detention and investigation, he will ask the driver to step out of the vehicle.

The officer will typically approach the driver's window and ask some preliminary questions. During this phase of the stop the officer will note if they detect any of the following indicators of intoxication

odor of an alcoholic beverage on the driver's breath or in the car generally
slurred speech in response to the questioning
watery, blood shot, and/or reddish eyes
flushed face
droopy eyelids
difficulty in understanding and responding intelligently to question
fumbling with his driver's license and registration
the plain-view presence of containers of alcoholic beverages in the vehicle.
admission of consumption of alcoholic beverage

If the officer observes enough to have a reasonable suspicion to legally justify a further detention and investigation, he will ask the driver to step out of the vehicle. In some states (Texas and Louisiana, for example), if the officer has reasonable suspicion or probable cause to make the stop, the driver can be ordered out of the vehicle at anytime, not just during a DUI investigation.

The officer will administer one or more field sobriety tests (FSTs). FSTs are "divided attention tests" that theoretically test the suspect's ability to perform the type of mental and physical multitasking that is required to operate an automobile. The most commonly administered FSTs include:

horizontal gaze nystagmus test, which involves following an object with the eyes (such as a pen) to determine characteristic eye movement reaction. A sober person should be able to smoothly track the the object with their eyes. In an intoxicated individual the eyes will **** as they follow the object
walk-and-turn (heel-to-toe in a straight line)
one-leg-stand
modified-position-of-attention (feet together, head back, eyes closed for thirty seconds; also known as the Romberg test)
finger-to-nose (tip head back, eyes closed, touch the tip of nose with tip of index finger)
recite all or part of the alphabet (a common myth is that the alphabet must be recited backwards, however, this is never done during an FST, as many sober people are unable to do this.)
touch each finger of hand to thumb counting with each touch (1, 2, 3, 4, 4, 3, 2, 1)
count backwards from a number such as 30 or 100
breathe into a "portable or preliminary breath tester" or PBT

Although most law enforcement agencies continue to use a variety of these FSTs, increasingly a 3-test battery of standardized field sobriety tests (SFSTs) is being adopted. These tests are recommended by the National Highway Traffic Safety Administration (NHTSA) after studies indicated other FSTs were relatively unreliable. The NHTSA-approved battery of tests consists of the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand. In some states, such as Ohio, only the standardized tests will be admitted into evidence, provided they were administered and objectively scored "in substantial compliance" with NHTSA standards (ORC 4511.19(D)(4)(b)).

FSTs are more effective at determining the level of impairment than they are at estimating the driver's blood alcohol concentration (BAC). However, studies question whether the tests increase the officer's ability to judge either. In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on the accuracy of FSTs. His staff videotaped individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects had "had too much to drink and drive". The blood-alcohol concentration of each of the 21 DUI subjects was .00, unknown to the officers. The result: the officers gave their opinion that 46% of these innocent people were too drunk to be able drive. This study showed the possible inaccuracy of FSTs. Cole and Nowaczyk, "Field Sobriety Tests: Are they Designed for Failure?", 79 Perceptual and Motor Skills Journal 99 (1994).

An increasingly used field sobriety test involves having the suspect breathe into a small, handheld breath testing device. Called variously a PAS ("preliminary alcohol screening") or PBT ("preliminary breath test"), the units are small, inexpensive versions of their larger, more sophisticated instruments at the police stations, the EBTs ("evidentiary breath test"). Whereas the EBTs usually employ infrared spectroscopy, the PAS units use a relatively simple electrochemical (fuel cell) technology. Their purpose, along with other FSTs, is to assist the officer in determining probable cause for arrest. Although because of their relative inaccuracy they were never intended to be used in court for proving actual blood-alcohol concentration, some courts have begun to admit them as evidence of BAC.

If the officer has sufficient probable cause that the suspect has been driving under the influence of alcohol, he will make the arrest, handcuff the suspect and transport him to the police station. En route, the officer may advise him of his Miranda rights and his legal implied consent obligation to submit to an evidentiary chemical test of blood, breath or possibly urine.

Laws relating to what exactly constitutes probable cause vary from state to state. In California it is a refutable presumption that a person with a BAC of .08 or higher is driving under the influence. However section 23610(a)(2) of the California Vehicle Code states that driving with a BAC between .05 and .08 "shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage."

At the police station, the arrestee will be offered a chemical test of breath, blood or, much less frequently, urine. Breath test results are usually available immediately; urine and blood samples are sent to a lab for later analysis to determine the BAC or possible presence of drugs.

If the arrestee refuses to submit to chemical testing, he will usually be booked for driving under the influence; there will be no evidence for filing the second charge of driving with .08% blood alcohol content. In some cases the arrestee may be charged with DUI even after passing a breathalyzer test if he or she refuses also to take subsequent urine or blood tests. However, the refusal will carry increased penalties on the driving under the influence charge (typically a longer license suspension and/or an increased jail sentence), and the act of refusing may be admissible in court as evidence of "consciousness of guilt". In an increasing number of jurisdictions, if the suspect refuses to take a chemical test the police in some states may restrain the individual and forcefully withdraw blood; This is particularly common in situations involving an accident with injury or death. In some jurisdictions this may require obtaining a warrant from a judge.

While chemical tests are used to determine the driver's BAC, they do not determine the driver's level of impairment. However, state laws usually provide for a rebuttable legal presumption of intoxication at blood alcohol levels of .08 or higher.

The accuracy of breath, blood and urine testing is a subject of some dispute, with various scientific studies indicating unreliable results. In any case, breath and urine tests can only estimate the BAC at the time the test is taken, which can be different than when the vehicle was actually operated. Evidence of the BAC at time of driving is often presented in the form of retrograde extrapolation, a questionable process whereby earlier blood alcohol levels are estimated by applying a formula developed in 1932 known as the Widmark factor.

If it is determined after arrest that the person's blood alcohol concentration is not at or above the legal limit of .08, they will probably be released without any charges. One may, however, still be charged with driving under the influence of alcohol on the basis of driving symptoms, observed impairment, admissions and/or performance on the field sobriety tests. And if there is suspicion of drug usage, a blood or urine test is likely, or at least the testimony of a specially-trained officer called a Drug Recognition Expert (DRE). Assuming sufficient evidence of impaired driving from drugs, the arrestee may face charges of driving under the influence of drugs or the combined influence of alcohol and drugs.

Most of the time, the driver will either be kept in a holding cell (sometimes referred to as the "drunk tank") until he is deemed sober enough to be released on bail or on his "own recognizance" ("O.R."). A date to appear in court for an arraignment will be given to him. If he cannot make bail or is not granted O.R., he will be kept in jail to wait for the arraignment on remand.

Convinced that many DWI offenders are alcohol dependent persons and that incarceration is not an effective deterrent to such individuals, Dr. Jeffrey Runge, head of the National Highway Traffic Safety Administration (NHTSA), promotes DWI courts as an alternative.

These innovative courts use substance abuse intervention with hard-core repeat offenders who plead guilty to driving while intoxicated. Those accepted into the diversionary program are required to abstain from alcohol. Some are required to wear a device that monitors and records any levels of alcohol detected in their bloodstreams.

It appears that DWI courts are effective, compared to standard punishment, in reducing DWI recidivism.

An SR-22 is an official documentation required in some states to redeem a suspended drivers license and get your car registered at the local Department of Motor Vehicles (DMV). A SR-22 Filing is a form issued by an insurance company which removes a suspension order placed by the DMV's office on your driving privilege. The filing provides a guarantee to the state that an insurance company has issued at least minimum liability coverage for the person making that filing and that the insurance company will notify the DMV should the insurance ever lapse for any reason.

SR-22 differs from the standard SR-1 form required for accidents or other traffic violations in that is it specific to a DUI violation.

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