Driving under the influence and child molestation are very different crimes, however, they share an unfortunate similarity. It is difficult to get a jury to give you a fair trial when accused of either for reasons that are both sides of the same coin. In the average drunk driving case, most jurors drink and have driven when they probably should not have. But, most jurors will think that they can do this because they are better drinkers than the accused and certainly better drivers. On the other hand, virtually all the jurors on a child molestation case have never even thought about committing such an act, cannot understand how it could happen and think that the accused must have done something very wrong to get himself into court. Why would a child ever lie?
In a DUI case, the juror assumes that the defendant is guilty, as does the juror in the molestation case. They need to be disabused of this idea, the earlier the better. A lawyer needs to know the inherent prejudice of the jury before he starts to work on a case. Simply raising a reasonable doubt isn’t quite good enough in these cases, even though that’s all that’s required for an acquittal. In a murder case the jury wants to know who was killed, how he was killed, why he was killed and every fact surrounding the death. They know they have a dead body, and there may be reasons for it which would make the defendant not guilty. They know the serious consequences and are willing to listen. In a DUI case they assume that a lot of people drink and drive and the defendant needs to show them not only is there a doubt of his guilt, but a reasonable probability of his innocence.
The Chemical Test
In California, when you are arrested for a DUI, you are required by law to submit to a test to determine the alcohol content of your blood. This is commonly referred to as the BAC (Blood Alcohol Content). Currently the level for violation stands at .08%. This doesn’t mean that .079 means that you’re not guilty of DUI, it simply means that you might not be guilty. We will discuss the two bites of the apple that the prosecution gets later in this note, but if you take one thing away from here, you must understand that refusal to submit to the evidentiary chemical test will result in suspension of your driving license even if the case is later dismissed. The most important thing you MUST do is take the test. A bad result may cause a conviction but not taking the test will cause a license suspension for at least a year AND may no help you avoid a conviction.
There are actually two tests that you will be offered. The first is the PAS test (Preliminary Alcohol Screening). The second is the test that is given at the jail or the hospital and is the evidentiary test. In some jurisdictions, the tests are given on the same machine. When PAS first came out, it was not nearly as reliable as the evidentiary test, but modern technology has caught up. Depending upon circumstances, I generally advise not submitting to a PAS test.
The PAS test is voluntary. The officer arresting you should tell you that it is a voluntary test and you have a right to refuse. This is not a choice to refuse but a right, which means if you exercise that right, in court the DA cannot comment on your refusal to take the PAS test. Why should you not take the PAS test? The PAS test is probably the best evidence the state will have against you. It gives the police a real time assessment of the state of your sobriety. The reason this is not good for most people is because it’s almost impossible to determine from one test whether your BAC is rising or falling, and the overwhelming chance is that it’s doing one or the other. For example, if you are stopped at 2:00 a.m. and take a PAS test which shows a .09 and then take the evidentiary test which shows a .07, your BAC is falling. The reason this is detrimental to your case is that since you were driving prior to 2:00 and your BAC is falling, at 2:00 your BAC was higher than .09. Conversely, if you did not take the PAS test and simply received a .07 you might even be released from jail.
Whether your BAC is rising or falling is dependent upon the time of your last drink. Under normal circumstances, the average person fully absorbs alcohol from 20 to 45 minutes, but there are extremes at both ends. What this means is that if you completed your last drink, within an hour the alcohol is absorbed into your system and you will reach your highest level. There comes a point when your body is removing the alcohol at about the same rate it’s absorbing it. This is called equilibrium. When you’re in a state of equilibrium the breath test is accurate. When you’re absorbing the alcohol the breath test reads a bit higher than the actual value. Your blood alcohol would be rising but not as fast as the breath test indicates.
Without two points of reference, it is hard to make a determination of whether the BAC is rising or falling. The PAS test allows that determination to become easier. The last thing you want to do is to make the prosecutor’s job easier.
The amazing thing about the breath test is that it doesn’t directly measure the amount of alcohol in either your breath or blood. The rudimentary way it works is that a person blows into a box smaller than a microwave oven. The alcohol in a person’s breath absorbs light at 39 microns. When a light is shone in one end of the oven and read at the other, the diminution of the light is then calculated into how much alcohol in the size of the sample. Then the machine internally multiplies the result by 2100 and spits out a result.
Why 2100? The difference in the average density of a person’s breath and blood is 2100/1. What this means is that no person is average. The machine will be off depending upon where you fit on the breath/blood ratio scale. This ratio is called the partition ration and courts have done all they could to make sure that the prosecutor’s job is easier by not allowing you to contest this fact.
Two Bites at the Apple
Prior to 1982 there was one drunk driving law: It was against the law to drive under the influence of alcohol. You were under the influence if you could not operate a motor vehicle as would a prudent person in the same or similar circumstances. Lawyers like me were winning cases when the defendants had BAC’s of substantially over .10, which was the standard in 1982. The prosecution criminalists were testifying that all people over a .10 were impaired with respect to driving a car. The funny thing is that no-one has ever done a study on what this means. We have many correlation studies that clearly indicate that people who are above a .08% are in fact impaired when compared with themselves, but not when they are compared with the average sober prudent driver, as the law requires.
What am I saying? If you remember your first driver’s test and review of the handbook, you might recall that a car going 60 mph takes 125 feet to stop. This is very easy to type and say and teach, but it’s complete hogwash. The distance to stop a car from 60 mph depends upon the car, the driver, the surface and some other less important factors. Would a 10 year old sedan with bad breaks driven by a 90 year old woman stop in 125 feet? Would a professional race car driver stop in 125 feet at the wheel of an exotic sports car? The law never bothers to define and quantify a sober prudent driver and the prosecutors all rely on experts who will tell you that everyone is under the influence at .08 and most at .05 or above. In the not too distant future, I expect the level where you can be convicted of a DUI will drop to .05.
Back to the two bites. In 1982 the legislature added 23152(b) which made it a crime to drive with a blood alcohol level of .08 or more. You didn’t have to be impaired, intoxicated or even show one sign or symptom of the use of alcohol. The courts bent over backwards to uphold this law under the policy of public safety. They continued to make the job of the prosecutor easier when they eliminated the defendant’s right to challenge the BAC breath machine based on the fact that the blood/breath ratio of the defendant may cause an erroneous reading. Although the law said that the .08% had to be of a person’s blood, it was interpreted to mean that a reading of .08% of the breath was sufficient. In the best piece of legal fiction ever, the statute says that if a person’s blood or breath shows an alcohol reading of .08% within three hours of driving, it shall be presumed that at the time of the driving the blood level was .08%. The only thing we know for sure is that three hours after a person has been driving his blood alcohol level is going to be substantially different. The courts just make it easy on the prosecutor. Prior to 1982 50,000 people were killed in America in traffic accidents. Half of those were alcohol related. The current figure is 30,000, but there is argument as to why the figures have dropped. Its it safer cars, safer roads or tougher drunk driving laws?
There are some people who live their lives at .08% or above. They are true alcoholics and as such keep alcohol in their systems at such a high level that even after 8 hours of sleep, they are above the legal limit. The 23152(b) section keeps these people off the roads. Even if they can drive, an expert will testify that they are impaired because anyone at a .08% has lost his reaction time and certain sensory perceptions. This still does not violate the law. If a person at a .08% can safely drive a car, he hasn’t driven under the influence. With the (b) section, he has violated the law, because it requires nothing more than to prove at the time of the driving the accused’s BAC was .08 or more. In addition, it can be proven if the BAC was .08 at anytime within three hours of the driving. Like shooting a fish in a barrel.
Of course, there are a variety of defenses and attacks on the machines. They must be calibrated properly and within the time frames allowed by Title 17 which is the basic rule book of alcohol testing. If someone asked you what time it was, you might look at a clock and say, “6:15". And you might be right, but in all likelihood you’d be off by a couple of minutes or at least a couple of seconds. The amount of alcohol in either your breath or your blood necessary to change the BAC result is not measured in drops but in molecules. It doesn’t take much of an error to make a big difference.
The Field Sobriety Tests
The Field Sobriety Tests (FST’s) are really parlor tricks. Any reasonable criminalist will testify that a person with a blood alcohol level of a .08% who has developed a tolerance can pass the FST’s. They will also tell you that a perfectly sober person can fail them. So, if a person who is under the influence can pass and a sober person can fail, why do we give these tests. They are useful for two things. First, it gives the officer an indication of how intoxicated a person is and secondly, and more importantly, it gives the officer something to tell a jury and convince them that his arrest was made because the person couldn’t touch his nose or walk a line. None of these tests directly correlates to a person’s ability to drive a car safely. It doesn’t matter that the National Highway Traffic Safety Board has decided that most of the tests given weren’t effective. They only recommend three, but police agencies still have people close their eyes and touch their noses.
One lawyer who advertises heavily on radio says that you don’t have to take the FST’s. This is not correct. Although no one will force you to take them and the DMV will not suspend your license if you don’t take them, at your trial the court will advise the jury under People v. Market, that they can consider your refusal to take the FST’s as consciousness of guilt. It doesn’t prove your guilty, but it lets the jury infer from your conduct that you thought you were guilty. Not a good thing to do.
If you do not take the chemical test, the court also gets a consciousness of guilt instruction, the DMV suspends your license FOR ALL PURPOSES for at least a year and your first offense alcohol school of three months is tripled to 9 months. But the courts aren’t done with you yet. If you decide not to take a chemical test and the officer wants to make a telephone call, he can get a judge to issue a search warrant which gives him the right to take your blood. Here’s the kicker. You get your blood taken, the state knows the alcohol content and the DMV still suspends your license because you refused to voluntarily give your blood.
This choice of which test to take has to be made on the first request. You are not entitled to a lawyer or call anyone for help. If you refuse to take a test, there are many downsides including jail.
Priorability
The law calls a DUI a priorable offense. What this means is that if you have a previous DUI, the next offense’s penalty will be harsher because of the prior arrest and conviction. The penalty for a first offense DUI in 2019 is a minimum fine of $390, an alcohol school of 3 months, a license suspension of 6 months and an interlock device for 5 months. There are several enhancements. First, the fine is never $390. It’s $390 plus the penalty assessments. These are taxes tacked onto the fine which make the actual fine amount over $2,000. If you are driving recklessly and exceeding the speed limit by 20 miles per hour on the street or 30 on a highway, the court adds 60 days in jail. If you have a child under 14 in the car, there are additional penalties AND you might be charged with child endangerment.
A second offense has mandatory jail provisions, an 18 month long alcohol program and a year long interlock requirement. In addition the license is suspended 2 years. After 90 days of that suspension, you may be eligible for a restricted license. The judge has the power to order that a restricted license not be permitted.
A third offense carries all the penalties of the second with the exception of a minimum jail term of 120 days. The priors have to be alleged and they must occur within 10 years of the current case.
The fourth offense becomes a felony and most jurisdictions do not grant probation and the minimum sentence of 180 days in the county jail. Most places start by considering the fact that a person who has not learned his lesson in the past three offenses isn’t going to do much better on the fourth and probation would not be an option. This means that at a minimum the sentence is 16 months in prison, as a felony, but this may be served in a county jail.
Drunk Driving with Injury
In cases where there is an accident and someone other than the driver is injured, an arrest is made for 23153 V.C. which is Drunk Driving with Injury. The arrest is always made as a felony, although in most cases the criminal filing is a misdemeanor. There are substantial consequences when there is an injury. The first is the matter of bail. Usually a first offense DUI without injury results in the person being release without bail. When an injury is involved, no matter how slight, the bail is $100,000, resulting in most people being kept in jail, unnecessarily for a couple of days.
Even a misdemeanor drunk driving with injury is serious. There is mandatory jail time, loss of license for a year, and fines among other penalties. If the injury is serious or someone is taken from the scene in an ambulance, a felony drunk driving requires formal probation. Currently probation charges about $100/month which means that the difference between being on formal probation as opposed to informal probation is an added expense of approximately $4,000. One last terrible thing to note: If a person is injured seriously, the DA will add an allegation of “great bodily harm”. This not only adds years more prison time, but also makes the offense a “strike”. This means that in the future if any felony is committed, probation is not an option and the sentence is doubled and you must serve 80% instead of 50%.
What Can A Long Beach DUI Lawyer Do?
I’ve often heard it said that since the penalties are mandatory, what can a lawyer do? You might as well go plead guilty and take what the judge gives you because you’re going to get the same thing with or without a lawyer. There is some merit to this. The draconian penalties for first offenses usually mean that the judge gives the lightest penalty with or without a lawyer. But, there are many times that a lawyer makes the difference between a conviction of the charge and a lesser offense. On a multi-offense case or when there is an injury, a lawyer can be the difference between an extended jail stay and an alternative sentence. Again, my office treats the problem and not simply the symptoms. There are numerous hoops that anyone convicted of a DUI must go through. Our office aids you in making sure you get your license restored as quickly as possible, that you go to the right school, within the right time limits and that you are able to select the best options from what might be a bad situation. Our office will not make your DUI fun, but it will make it less stressful and more manageable.
