AnatomyAnatomyof aof a

DUI InvestigationDUI Investigation

What are the range of Charges?What are the range of Charges?

VC VC § 23152(a) and (b)§ 23152(a) and (b) VC § 23153(a) and (b)VC § 23153(a) and (b) PC PC § 191.5(b)§ 191.5(b) PC § 191.5(a)PC § 191.5(a) PC § 187PC § 187

When does DUI become a felony?When does DUI become a felony?

What is the range of punishment?What is the range of punishment?

Misdemeanor vs. FelonyMisdemeanor vs. Felony EnhancementsEnhancements

Refusal VC 23577Refusal VC 23577 BAC over .15 VC 23578BAC over .15 VC 23578 Reckless Driving VC 23582Reckless Driving VC 23582 Multiple persons injuredMultiple persons injured Great bodily injuryGreat bodily injury VC 23550VC 23550 VC 23136 and VC 23140VC 23136 and VC 23140

Cal. Crim. 2110. Cal. Crim. 2110. Driving While Under the Influence Driving While Under the Influence

of Alcohol of Alcohol (V.C. § 23152(a))(V.C. § 23152(a))

1. The driver drove a vehicle; 1. The driver drove a vehicle;

ANDAND

2. When he/she drove, the driver was 2. When he/she drove, the driver was under the influence of an alcoholic under the influence of an alcoholic beverage/drug. beverage/drug.

Cal. Crim. 2111.Cal. Crim. 2111. Driving With 0.08 Percent Driving With 0.08 Percent

Blood Alcohol (V.C. § 23152(b))Blood Alcohol (V.C. § 23152(b))

1. The driver drove a vehicle;1. The driver drove a vehicle;

ANDAND

2. When he/she drove, the driver’s blood 2. When he/she drove, the driver’s blood alcohol level was 0.08 percent or more alcohol level was 0.08 percent or more by weight.by weight.

How Many Drinks How Many Drinks Does it Take to get Does it Take to get

to a .08%to a .08%

Absorption and EliminationAbsorption and Elimination

• The body absorbs alcohol at .02 per standard The body absorbs alcohol at .02 per standard drink.drink.

• The body eliminates alcohol at .015 per hour.The body eliminates alcohol at .015 per hour.

• Full absorption occurs between 30 and 90 Full absorption occurs between 30 and 90 minutes after the last drink.minutes after the last drink.

Blood Alcohol LevelBlood Alcohol Level.12

.10

• Burn off period• Not rising

What does it mean to beWhat does it mean to be

“ “under the influence?”under the influence?”

Under the Influence DefinedUnder the Influence Defined

As a result of drinking an alcoholic beverage (using As a result of drinking an alcoholic beverage (using drug) drug)

• His or her His or her mental abilitiesmental abilities OROR his or her his or her physical physical abilitiesabilities

• Are Are so impairedso impaired that he or she that he or she no longerno longer has the has the ability to ability to drive a vehicledrive a vehicle with the caution of a with the caution of a sober personsober person, , using using ordinary careordinary care, under , under similar similar circumstances.circumstances.

Mental or Physical ImpairmentMental or Physical Impairment

• Driving patternDriving pattern

• Objective symptoms of intoxicationObjective symptoms of intoxication• Bloodshot, watery eyesBloodshot, watery eyes• Odor of alcoholOdor of alcohol• Slurred speechSlurred speech

• Mental and physical impairment Mental and physical impairment

DIVIDED ATTENTIONDIVIDED ATTENTION

• FSTs are utilized to test the subject’s divided attention.

• Divided attention is the ability to multitask.

• Driving requires divided attention.

• Alcohol impairs divided attention.

DIVIDED ATTENTION & DIVIDED ATTENTION & HOW IT RELATES TO HOW IT RELATES TO

DRIVINGDRIVINGDriving is a COMPLICATED task.Have to pay attention to:

•Using headlights.•Maintaining proper lane.•Maintaining speed.•Using signals.•Watching for objects and other cars.•Sudden changes on the road

Effects of alcohol on drivingEffects of alcohol on drivingBlood Alcohol Concentration

(BAC)1 Typical Effects Predictable Effects on Driving

.02%

• Some loss of judgment • Relaxation • Slight body warmth • Altered mood

• Decline in visual functions (rapid tracking of a moving target)

• Decline in ability to perform two tasks at the same time (divided attention)

.05%

• Exaggerated behavior • May have loss of small-muscle control

(e.g., focusing your eyes) • Impaired judgment • Usually good feeling • Lowered alertness • Release of inhibition

• Reduced coordination • Reduced ability to track moving

objects • Difficulty steering • Reduced response to emergency

driving situations

.08%

• Muscle coordination becomes poor (e.g., balance, speech, vision, reaction time, and hearing)

• Harder to detect danger • Judgment, self-control, reasoning, and

memory are impaired

• Concentration • Short-term memory loss • Speed control • Reduced information processing

capability (e.g., signal detection, visual search)

• Impaired perception

Effects of alcohol on drivingEffects of alcohol on drivingBlood Alcohol Concentration

(BAC)1 Typical Effects Predictable Effects on Driving

.10%

• Clear deterioration of reaction time and control

• Slurred speech, poor coordination, and slowed thinking

• Reduced ability to maintain lane position and brake appropriately

.15%

• Far less muscle control than normal

• Vomiting may occur (unless this level is reached slowly or a person has developed a tolerance for alcohol)

• Major loss of balance

• Substantial impairment in vehicle control, attention to driving task, and in necessary visual and auditory information processing

Field Sobriety TestsField Sobriety Tests• The perfect place for the officer to describe The perfect place for the officer to describe

mental and physical impairment….(Hint?)mental and physical impairment….(Hint?)

• How was the driver acting?How was the driver acting?

• Did officer have to give instructions Did officer have to give instructions multiplemultiple times?times?

• Focus on driver’s inability to Focus on driver’s inability to multi-taskmulti-task

Two for one value of FSTsTwo for one value of FSTs

• Inability to follow instructions = mentalInability to follow instructions = mental

• Inability to gauge the passage of time = mentalInability to gauge the passage of time = mental• Inability to judge distance = mentalInability to judge distance = mental

• Note the value of the “set-up and instruction” Note the value of the “set-up and instruction” phase and the “performance phase” of the phase and the “performance phase” of the SFST’sSFST’s

What are SFSTs?What are SFSTs?

PAS and EPASPAS and EPAS• Officers two samples when to avoid any rising BAC Officers two samples when to avoid any rising BAC

defense.defense.•

Importance of Title 17 for PAS and Importance of Title 17 for PAS and EPAS MachinesEPAS Machines

• Wait Wait 15 minutes15 minutes before first PAS before first PAS• Make sure to note that the suspect not Make sure to note that the suspect not

drinking/smoking/chewing gum/throwing updrinking/smoking/chewing gum/throwing up• Wait Wait 2 minutes2 minutes between tests between tests• Make sure your machine is getting regularly Make sure your machine is getting regularly

calibrated and accuracy checked (every 10 calibrated and accuracy checked (every 10 days/150 tests)days/150 tests)

• Importance of PAS printouts Importance of PAS printouts

Implied Consent vs. TrombettaImplied Consent vs. Trombetta

• These are different tests with different These are different tests with different admonitionsadmonitions

• Law requires BOTHLaw requires BOTH

Implied Consent = VC23612Implied Consent = VC23612• This comes right after arrestThis comes right after arrest

• All L.E. knows this ruleAll L.E. knows this rule

• For DUI’s = Breath or Blood test For DUI’s = Breath or Blood test

Trombetta = VC23614Trombetta = VC23614• This comes right after the implied consent This comes right after the implied consent

test is given. test is given.

• Often gets meshed into the implied Often gets meshed into the implied consent admonition.consent admonition.

• Blood or Urine test for a retestable sample. Blood or Urine test for a retestable sample.

• Both options afforded to the defendant for Both options afforded to the defendant for a retestable sample under Trombetta. a retestable sample under Trombetta.

Drug (including Prescription Drug (including Prescription Drug/Marijuana) DUI’sDrug/Marijuana) DUI’s

• DRE/DAR DRE/DAR andand FSTs FSTs• Admissions?Admissions?• Driving patternDriving pattern• DemeanorDemeanor• Odor of Marijuana? Paraphernalia? Odor of Marijuana? Paraphernalia? • Strong documentation is necessary!Strong documentation is necessary!

Prescription Drug DUI’sPrescription Drug DUI’s

• Is driver on prescription drugs? What? How Is driver on prescription drugs? What? How much? When did he last take it? Ask whether much? When did he last take it? Ask whether he has a prescription – DA can charge DUI he has a prescription – DA can charge DUI and H&S 11550and H&S 11550

• Ask if they know if their meds come with Ask if they know if their meds come with warning labels advising against drivingwarning labels advising against driving

DefensesDefenses• No bad drivingNo bad driving• No driving at allNo driving at all• Mouth alcoholMouth alcohol• Machine doesn’t work – test done wrongMachine doesn’t work – test done wrong• FermentationFermentation• Drinking after DrivingDrinking after Driving• That’s not my bloodThat’s not my blood• Partition ratioPartition ratio• GerdGerd

DMV ProceedingsDMV Proceedings• Driver has 10 days to request a DMV hearingDriver has 10 days to request a DMV hearing• At arrest, DMV issues a 30 day temporary licenseAt arrest, DMV issues a 30 day temporary license• Request the DMV hearing to stay the expirationRequest the DMV hearing to stay the expiration

• Issues at the DMV HearingIssues at the DMV Hearing• Reasonable suspicion for traffic stopReasonable suspicion for traffic stop• Probable Cause to Arrest?Probable Cause to Arrest?• Was the BAC at .08% or greater?Was the BAC at .08% or greater?

DMV ProceedingsDMV Proceedings• First Offense:First Offense:

• license suspended, issue a 30 day temporary license suspended, issue a 30 day temporary licenselicense

• apply for restricted license after 30 days with proof apply for restricted license after 30 days with proof of enrollment in a 3-month DUI class in Californiaof enrollment in a 3-month DUI class in California

• (If BAC over .15%, 6-9 month DUI class)(If BAC over .15%, 6-9 month DUI class)

• Show proof of insurance (SR-22)Show proof of insurance (SR-22)

• Restricted license for 5 monthsRestricted license for 5 months

DMV ProceedingsDMV Proceedings• Second Offense:Second Offense:

• license suspendedlicense suspended• After 90 days, eligible for IID restricted license After 90 days, eligible for IID restricted license

(180 days for 3(180 days for 3rdrd))• If no criminal case if filed or if it is subsequently If no criminal case if filed or if it is subsequently

dismissed, driver can request a renewed DMV dismissed, driver can request a renewed DMV hearing to get license reinstated.hearing to get license reinstated.

• PC 849.5 (BAC under .08 and no criminal case filed, detention PC 849.5 (BAC under .08 and no criminal case filed, detention only = no arrest.only = no arrest.

• Dismissal v. Acquittal (Acquittal rescinds; dismissal does not)Dismissal v. Acquittal (Acquittal rescinds; dismissal does not)• What about the Helmandollar?What about the Helmandollar?

Other ConsequencesOther Consequences

• SR-22 (Insurance)SR-22 (Insurance)• Insurance may be cancelled – or rates skyrocketInsurance may be cancelled – or rates skyrocket

• Increase 20% - 50%; stays on DMV record for 7 Increase 20% - 50%; stays on DMV record for 7 yearsyears

Other ConsequencesOther Consequences• Professional licensesProfessional licenses

• B&P section 490:B&P section 490:• a licensing board may discipline a licensee who has a licensing board may discipline a licensee who has

been convicted of any crime that is “substantially been convicted of any crime that is “substantially related to the qualifications, functions, or duties of the related to the qualifications, functions, or duties of the business or profession for which the license was business or profession for which the license was issued.”issued.”

• FACTORS:FACTORS:• Level of BACLevel of BAC• Leaving the scene of the accidentLeaving the scene of the accident• DemeanorDemeanor• Denial or suspension (show evidence of rehabilitation)Denial or suspension (show evidence of rehabilitation)• Multiple Offenses?Multiple Offenses?

Other ConsequencesOther Consequences• Professional licensesProfessional licenses

• Attorneys Attorneys (no duty to report 1(no duty to report 1stst offense; offense; repeated offender?)repeated offender?)

• DoctorsDoctors (must self report within 30 days) (must self report within 30 days)

• Nurses Nurses (must self report within 30 days)(must self report within 30 days)

• Insurance Brokers Insurance Brokers (must self report within 30 (must self report within 30 days)days)

Other ConsequencesOther Consequences• Investment Brokers Investment Brokers (no requirement to self (no requirement to self

report)report)

• Real Estate Brokers Real Estate Brokers (must self report)(must self report)• CPAs CPAs (same for attorneys)(same for attorneys)

• Public School Teachers (required to obtain a “a Public School Teachers (required to obtain a “a criminal record exemption”)criminal record exemption”)

• Immigration Consequences (is it a crime of Immigration Consequences (is it a crime of moral turpitude?)moral turpitude?)

ConclusionConclusion• DUI is a matter of choiceDUI is a matter of choice

• The consequences are MASSIVEThe consequences are MASSIVE• Choose not to drink and driveChoose not to drink and drive

• Know your rightsKnow your rights

• Know whether you might be impairedKnow whether you might be impaired• BAC CalculatorBAC Calculator

• httphttp://bloodalcoholcalculator.org/#://bloodalcoholcalculator.org/#LinkURLLinkURL• Don’t drink and drive.Don’t drink and drive.

The Horowitz Law FirmThe Horowitz Law Firm

1032 Santa Barbara Street1032 Santa Barbara StreetSanta Barbara, CA 93101Santa Barbara, CA 93101

sanford@horowitzforlaw.comsanford@horowitzforlaw.com(805) 452-7214(805) 452-7214