Wednesday, October 17, 2012
Monday, October 8, 2012
Tuesday, May 29, 2012
Alameda, Los Angeles, Sacramento and Tulare Counties require the IID installation on first-time DUI (driving under the influence) offenders as part of a pilot program (study regarding DUI recidivism). However, unlike these counties, Orange County is not one of the counties mandating Ignition Interlock Devices (IID) in vehicles on a First DUI offense (California Vehicle Code sections 23152(a) & (b)).
However, in all California counties, including Orange County, the IID for 2nd and subsequent DUI convictions (only alcohol-related) shortens the driver’s license suspension period. For example, with a Second DUI conviction out of Newport Beach, previously the person would serve a minimum of one year without a driver’s license (including work). Now, the law has changed: after a minimum of 90-days, as long as other conditions are met, the person may obtain a driver’s license by installing an IID. Similarly, with a Third DUI conviction, regardless if it occurred in Huntington Beach, Fullerton, or Irvine, the person would lose their license for 18-months. Now, with installation of the IID, and other conditions are met, the driving privilege will be returned after six months.
In addition, to DUI offenses, the DMV and Courts also require installation of the IID for convictions related to driving on a suspended license (California Vehicle Code sections 14601.2, 14601.4 or 14601.5). These suspended license violations relate to a driver’s license suspension as a result of DUI offenses. For example, if one drives in Irvine when their license is suspended, because they did not pay fees, they would not be required to install the IID to clear the suspension. If, however, a person is caught driving in Laguna Beach on a suspended license, which was suspended as a result of a DUI, then the IID will be mandated.
Although the IID may be required by Courts and the DMV to obtain or retain driving privileges, private companies are the providers. (IID Certified Providers) These providers, of course, charge for the service of installation and then the required periodic calibrations. The cost of the IID depends on the number of months the IID is required.
If you have any other questions regarding the Ignition Interlock Device go to the DMV website (DMV website).
Wednesday, March 14, 2012
First, let’s look at the definition for a “drink”. If we look at the Merriam-Webster Dictionary the noun “drink”, is defined as “a liquid suitable for swallowing; alcoholic beverages; a draft or portion of liquid”. However, DUI alcohol experts who do calculations to correlate the number of “drinks” per a specific blood alcohol level define a “drink” as a twelve-ounce beer, a four-ounce glass of wine, or one-and-a-half ounces of hard spirits. Unless one is drinking beer from a can or a bottle, it is difficult to know the exact ounces of alcohol being ingested.
In addition, inconsistencies in alcohol content in these specific types of drinks are also problematic as you may have a five percent light beer while a heavier beer may have eight percent. Wines and hard liquors also vary in their alcohol content depending on the brand and type. (Alcohol Contents) All of these variables make it impracticable to rely on a specific number of drinks during a specific time period in trying to assure that one is legal to drive.
The other problem in determining if one is under a .08 (it is illegal to drive in California with a .08 percent or greater alcohol content in your blood) is the difficulty in determining what one’s blood alcohol concentration is at a specific time.
Alcohol absorption explains how alcohol travels through one’s body and over time goes from a zero blood alcohol concentration, up to the highest blood alcohol concentration and then back down to zero. Alcohol absorption may be categorized in three phases. As soon as one starts drinking, the alcohol level starts to rise. This is the ascending portion of the blood alcohol curve. During this phase the alcohol that is going into one’s body is greater than the alcohol that is being eliminated by the body through the liver. This phase goes on for as long as alcohol is ingested and for some time after the drinking stops. The amount of time that elapses between the time of the last drink and the end of the ascending portion of the curve (or the highest alcohol concentration) depends on factors such as whether or not there is food in the stomach and the pace of the drinking. For example, if there is rich food in the stomach and/or more alcohol ingested later in the evening at a faster pace than earlier, the time that the person reaches the peak alcohol level, after they stop ingesting alcohol, may take longer. However, if only a little food is in the stomach and/or the alcohol is drank at an even pace over a period of time, the peak will be reached quicker once the person stops ingesting alcohol.
The second phase of alcohol absorption is called the plateau or peak. This phase is reached some time after the person has stopped drinking and reaches their highest alcohol concentration. This is when the rate of absorption is equal to the rate of elimination. Expert opinions vary as to how long this phase lasts. Some say it ends in a matter of minutes while others say it may last for up to an hour.
The last phase of alcohol absorption is the descending or elimination phase. This is where there is very little absorption going on in the body and the body is eliminating the alcohol primarily through the liver. This phase goes on until all of the alcohol has been eliminated from the body. Most experts will say that alcohol eliminates at a rate of .015 to .02 percent per hour.
When determining if a person is below a .08 when driving there are a couple of issues that arise in a DUI case regarding the three phases of the blood alcohol curve (BAC). (Example of BAC) The most frequently used, is what is called the “rising defense”. This occurs when a person just finished drinking, and soon thereafter drives. Police stop the person, and then, some time later they are given a breath or blood test. In a case where the blood alcohol is close to the legal limit, the person at the time of driving could have been below a .08. Then, at the time tested, their blood alcohol level rises, because they were still on the ascending portion of the curve when they were driving, and the test results are at a .08 or greater. This is a “rising defense”, because the person is actually below a .08 at the time of driving, which is a defense in a DUI case (it is illegal to DRIVE with a .08 or greater - Vehicle Code), and then rises to a .08 or above, after the driving has stopped.
Another issue that arises is when someone drinks quite a lot of alcohol the night before and then gets up the next morning believing they are fine to drive. They are stopped by police, tested and are above the legal limit. Since alcohol eliminates from the body at .015 to .02 per hour, if someone goes to bed at 2:00 am and is at a .20. At 8:00 am that morning they could still be at a .11 alcohol level if they eliminate alcohol at a .015 rate per hour. In this case the person would have been a higher level at the time of the stop and then when eventually tested would have been at a lower level, because they are the elimination portion of the curve.
The science behind a DUI case is important to acknowledge and remember when deciding whether or not to drive. Unfortunately, even if tested before leaving friends or a restaurant does not solve the issue as blood alcohol levels fluctuate. Counting drinks is also imprecise, as the size and alcohol content will influence the true alcohol concentration of the person’s blood. The only real choice is not to drive, because one cannot guesstimate their blood alcohol level at a specific time and then determine that it is going down instead of up or that since they are ascending they will stay below a .08 blood alcohol concentration until they arrive at home. It is always a gamble to drink and drive, but if you are arrested on suspicion of DUI one definitely needs to seek counsel from someone who knows the science behind the law.
Friday, February 3, 2012
Although none of the Orange County police agencies have released information that they are conducting a DUI checkpoint this Sunday evening, do not be lulled into thinking the few beers with some wings during the Super Bowl will go unnoticed. Not only will all the parties end and happy and sad bar patrons leave sometime after the big game, but there will be a multitude of police vehicles out on the street looking for those who are impaired or above the legal limit.
One thing to pay attention to as you enjoy the afternoon with family and friends while watching the Giants and Patriots fight for the title, is that a DUI may be charged under two vehicle code sections. One section is Vehicle Code section 23152(a) and the other is Vehicle Code section 23152(b). The (a) section is “driving under the influence” and the measurement of that standard is completely subjective. The smell of alcohol, the steadiness, the agility, the coordination and balance will all be measured by a police officer that has never met you to know how coordinated you are on any other day, and is determining whether or not his/her observations indicate impairment. The (b) section is the one measured by the actual blood alcohol level. A .08 or more percent of alcohol in one’s blood while driving is illegal. However, a couple of things to consider are that blood alcohol levels may go up quite rapidly, the device used to measure blood alcohol concentrations have a margin of error, the level is being measured at the time of the test not at the time of driving, and does anyone really understand or know what they feel like with a .08 percent level of alcohol in their blood in order to know when not to drive.
Regardless, if you are a Brady or Manning fan, are drinking IPAs or Lights, red or white wine, margaritas or mojitos, eating wings or legs, pizza or tacos, be aware that we will truly never know our blood alcohol level when we leave the game and the first thing to go with alcohol is judgment so be safe and don’t drive.
Monday, September 26, 2011
On July 5, 2011, allegedly, Officer Manual Ramos beat a homeless man, Kelly Thomas, while Corporal Jay Cicinelli repeatedly tazed him. Mr. Thomas died five days later.
The investigation ended on September 21, 2011 with second-degree murder (potential 15 – life prison term) and involuntary murder charges being filed against Officer Ramos and involuntary murder and excessive force charges being filed against Corporal Cicinelli (potential 4 year prison term). These officers had been police officers for 10 and 12 years. (OC District Attorney Press Release)
However, what is most intriguing about this story from the perspective of past, present and future actions by police agencies and officers is the fact that technology is available to record every officer’s move, but either it is not implemented, or where available, it is not mandated.
Regarding the officers in this case, how many times in the ten and twelve years, have these officers not told the truth about their actions? How many times have they made an unlawful arrested? How many times have they lied from the witness stand in court? How many times has someone been wrongfully incarcerated? Now think about all the officers in all the agencies in Orange County, in California, in the Nation - How many times is a police officer’s “word” taken as the truth versus the “word” of an individual, because of the uniform and badge?
There are so many recording devices available to police agencies including those that record only audio, only video, and those that synchronize the video device that is usually attached to the patrol car’s rearview mirror and the audio device that is attached to their uniform. Although police agencies such as Newport Beach, Irvine and the Orange County Sheriff’s Department have these devices, other police agencies such as Huntington Beach do not. In addition, even the agencies that have these devices are not mandated to activate them when in contact with the public.
Although many police officers conduct themselves in a professional manner protecting and serving the public, it’s the percentage of officers who are harming the public either with lies or violence that calls for these recording devices to be mandated. It protects them, it protects us.
Tuesday, August 23, 2011
IS A VIOLATION OF CALIFORNIA VEHICLE CODE SECTION 14601, DRIVING WHEN DRIVER’S LICENSE IS SUSPENDED OR REVOKED JUST ANOTHER TRAFFIC TICKET?
Once the person arrives at Court for the Arraignment (10 Tips For Court) they will face various charges: some type of traffic or equipment violation in most cases (the reason the police stopped the car may be an area to explore for possible defenses) and then the specific Vehicle Code section for driving when driver’s license is suspended.
The Court will not explain the DMV consequences, which are separate from the Court ramifications. If a guilty plea is entered, an abstract will be sent to the DMV and 2 points will be added to the driving record. If other points are on the record, although they may have been able to obtain their driver’s license by simply taking care of a previous traffic ticket or paying a fee to the DMV, now, their driver’s license will be suspended, because they are considered a negligent operator (CA DMV Negligent Operator Points) and (DMV Hearings ).
One other common driving with a suspended license charge is a violation of California Vehicle Code section 14601.2, suspension as a result of a DUI. The sentencing consequences are more severe with a minimum of 10-days jail for a first offense and 30-days jail for a second offense plus $2,000 in fines. Again, the result is 2 additional points on the driver’s DMV record (with the 2 points from the DUI this may cause a longer suspension period).