Yesterday Governor Jerry Brown for the State of California signed into law ground-breaking Senate Bill SB-725.  This bill revises Penal Code Section 1001.80 to state that military veterans are eligible for pretrial military diversion when faced with misdemeanor criminal charges of VC 23152 and VC 23153 in court.  What this means is that a person who can show that he/she 1) was a member of the U.S. Military and 2) may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder (PTSD), substance abuse, or mental health problems as a result of his/her service in the military; that individual is eligible to apply for pretrial military diversion.  Although the Court still has the discretion to determine if person is suitable for this relief, if the person is granted pretrial military diversion he/she has the ability to have the misdemeanor criminal charge of DUI dismissed. The person must complete a specific type of program, not be arrested or convicted of any charge, and obey any other terms of the pretrial diversion granted by the judge in order to ultimately have the case dismissed.

A 29-year-old Veteran of the Air Force served for 4 years and 2 months where he was deployed overseas on several occasions. Upon his honorable discharge from active duty, he realized that his alcohol use began during and following his military service as a means of coping with what was later diagnosed and Post-Traumatic Stress Disorder (‘PTSD”.)

During his service with the military, he received over FIFTEEN awards, decorations, and state awards; including the Air Force Commendation Medal, Air Force Achievement Medal, Meritorious Unit Award, AF Good Conduct Medal, Global War on Terrorism Expeditionary Medal, Air and Space Campaign Medal, Nuclear Deterrence Operations Service Medal, and the California Good Conduct Medal.  Clearly, this young man devoted years of his life to serve our country and defend it against its enemies.  He excelled in this area, which resulted in him assisting in the saving of countless lives across the globe.

I filed on his behalf in court a motion for pretrial diversion under Penal Code Section 1001.80 in the hopes that the Judge would find that he was both eligible and suitable for this relief.  Unfortunately, the Court felt that the law excluded individuals charged with misdemeanor DUI cases from being granted pretrial diversion.  When I informed the Judge that Senate Bill 725 was passed by Congress and making its way to the Governor for his signature to enact it into law, she was unaware that such a Bill existed.  The prosecutor vehemently objected to my motion and indicated that no such law should pass. Although my motion was denied last month, the Judge indicated that if the Governor did sign the law, she would grant our request for this relief.

I look forward to August 22^nd when I will present her with the revisions of Penal Code Section 1001.80, which now makes misdemeanor DUI cases part of the list of eligible offenses for which Judges can grant veterans pretrial military diversion. To the prosecutor’s dismay, I have no doubt the Judge will grant our request.

Driving under the influence of drugs and alcohol is an ongoing problem that requires creative solutions. With the legalization of Marijuana for recreational use, the problem of intoxicated driving in California could be multiplied many times over. While marijuana use is legal in California, driving under its influence is not. DUI marijuana is the equivalent to driving while under the influence of alcohol, a serious crime that carries life-altering legal consequences. If you are convicted of DUI marijuana you could face the loss of your driver’s license, a heavy fine, and spending time in jail. Marijuana usage is on the rise and official fear that the rate of DUI marijuana will see a proportional increase as well.

One potential solution that has been proposed is to for the government to give away hand-held THC testing equipment so that individuals that have used marijuana can see whether or not their blood-THC level is within the legal limits. Such devices could actually be required to be installed in cars to make the driver aware that they are “too high” to drive. In California, Senate Bill 1046 requires those convicted of a DUI to install an ignition interlock to prevent them from driving while intoxicated a second time. There are several reasons that a judge could think it is appropriate to require an IID to be installed such as having a BAC in excess of .15, causing property damage or personal injury while driving under the influence, or driving while your license is suspended. The problem THC level detection presents for law enforcement officials is that there is no way to accurately measure the level of THC in the blood as there is to measure one’s blood-alcohol content.

Test Equipment for THC
The problem is that the technology that currently exists to record THC levels is unproven. There is technology that can register a yes or no answer as to THC in the system but accurately quantifying the amount of THC in the blood has eluded most tests. Currently, once police have legally pulled over an automobile they will conduct a visual examination of the suspect and the vehicle, looking for signs of marijuana use such as bloodshot eyes, narrowed eyelids, and of course the unmistakable smell of marijuana in the vehicle. If DUI marijuana is suspected, the officer can require field sobriety test and examine one’s coordination and ability to concentrate.

The State of California has laws protecting individuals that have been convicted of DUI from being fired or preventing them from getting hired for a new job. As per California Labor Code 432.7, a California employer is prohibited from asking questions about a DUI arrest if the individual was not convicted. The Fair Credit Reporting Act prohibits a company from conducting a background check on existing employees.

For new job applicants, the law does not prevent a company from investigating a job applicant, and DUI convictions can show up permanently on a background check regardless of when the offense occurred. In order to have your DUI case dismissed, you may be able to obtain a certificate of rehabilitation, and if successful you may file a motion to withdraw your plea or have the verdict set aside for employment purposes.

Losing Your Commercial Driver’s License
Because of the weight of the responsibility that professional drivers carry those operating under a Commercial Driver’s License are held to the highest standards. If you drive an ordinary passenger bus, a bus full of children, a gasoline tanker, an 80,000 lb. 18-wheeler, or any other type of bus or truck, your negligence due to driving while impaired could injure or kill hundreds of people. Your employer is well aware of the risks that operating a commercial vehicle entails and will usually have a zero tolerance policy. At the very least if you are charged or convicted you will be suspended or fired from your driving job and could find it difficult to find another. Applicants for a commercial driver’s license must disclose any DUI’s that occurred with the last ten years.

Being convicted of a DUI in California is a serious offense that carries multiple, life-altering consequences. In addition to fines, possible jail time, and driving restrictions that you will be subjected to, your employment or professional occupation is sure to suffer. Even if you are charged with impaired driving without being convicted there can be negative consequences if you are a professional driver.

Source:
http://dui.findlaw.com/dui-cases/dui-and-employment-background-checks.html

A police officer must have probable cause or a reasonable suspicion that an offense has been committed to pull over a motor vehicle, however, no such requirements pertain to California DUI checkpoints or roadblocks. DUI checkpoints are an exception to the Fourth Amendment rule and are treated as an administrative inspection much like passing through a metal detector at an airport. There must be a supervising officer present at all times to coordinate and monitor the operations and all vehicles must be treated equally when pulled over. The time and location of the checkpoint must be at a place and time when it can be reasonably expected that drunk driving is occurring such as at the end of a street lined with bars, and at around 10 pm on a Friday night. The interrogation should be kept to a minimum so as not to inconvenience the vast majority of sober drivers that are ensnared in the net. The checkpoint also must be made public as to the place and time in advance.

At a DUI checkpoint, drivers are pulled over, questioned and if suspected of DUI asked to step out of the vehicle and given a field sobriety test. You are within your rights to refuse to take these tests. When pulled over you should basically follow all of the rules that pertain to being pulled over for reasonable suspicion. The police will ask to see you driver’s license, proof of ownership, and insurance card. The officer is looking for signs of intoxication such as the smell of alcohol or marijuana on your breath or in your car, slurred speech, or bloodshot eyes. The officer is also looking for containers of alcohol, drugs and other contraband which would give him/her a valid cause to search your vehicle.

When you are pulled over at a DUI checkpoint be polite and respectful and do your best to give short, yes or no answers to his questions. It is also legal for an officer to ask you to roll your window fully down. Do not reach for your paperwork until the officer asks for it. Only then should you provide your driver’s license, registration, and insurance information. Answer all of the officer’s questions with short, polite responses.

For all of the promises ride sharing Uber offers to the public such as on-demand, anytime, anywhere ride service, none is greater than its potential to reduce the number of intoxicated drivers on the road. When battling regulators for acceptance Uber executives are quick to cite studies that the company claims prove that there the service has a positive impact on drunk driving. So great is the company’s potential to reduce DUIs that anti-drunk driving organization Mothers Against Drunk Driving (MADD) have partnered with Uber and promoted that the public take advantage of the ride service rather than drive drunk on holidays like St. Patrick’s Day, Christmas, Thanksgiving and New Year’s Eve when alcohol consumption is at a high. In some cities, the organization has even offered free designated driving services during these major holidays. There is no doubt that Uber and other ride-sharing apps offer a convenient, inexpensive and potentially life-saving alternative to getting behind the wheel of an automobile after a day or night of drinking alcohol. Uber began its ride-sharing service in San Francisco in 2010.

According to an article in the New York Times, Uber’s effectiveness in reducing drunk driving is well documented as an independent study in New York City indicated that drunk driving decreased over 25% since the advent of the service there in 2011. That percentage translates to about 40 fewer drunk driving related collisions per month. Other studies reveal that there is no correlation between the advent of the ride-sharing service and a reduced rate of drunk driving. As logical as hailing a cab and not drinking and driving may be, not all people that are heavily intoxicated make good decisions. Some people may even be tempted to drink more as they always have an Uber back up ride should they decide to drink more and not drive themselves home.

Given the mixed results of differing studies, Uber itself cited in easily provable statistics that their ridership peaks at the very times and the very days that correspond to peak alcohol consumption. The big question remains, however, is peak alcohol consumption increasing at a greater rate than Uber drivers can transport? Is Uber actually causing an increase in alcohol consumption and drunk driving? There can be no question that Uber designated driving services are in its infancy and will have a significant impact on drunk driving as the app is more and more widely used and accepted.

Source:

California has some of the strictest DUI laws in the country and if you are operating a passenger vehicle and are 21 or older, the legal limit for blood alcohol content (BAC) is .08. Younger than that, the legal limit is .01, and if a person is operating a commercial vehicle, the legal limit is .04. Given the constant occurrences of DUI, some people are questioning the .08 limit and wondering if it would be better to lower that number to .05. Would lowering the legal limit of alcohol permissible in a person’s blood result in fewer driving related accidents and fatalities? Are drivers with a BAC as low as .05 unable to safely operate a motor vehicle?

Experts question the .08 threshold and contend that a person is “good and drunk” even if their BAC is only .05. Some states such as Colorado charge people with a BAC as low as .05 with driving with ability impaired (DWAI). The National Transportation Safety Board recommends that all states lower the legal limit this lesser level. Researchers have documented that in simulated driving tests people struggle at even this lower level with reaction time, eye movement, and visual depth perception. Failing to get sufficient rest only magnifies a person’s impairment.

The CDC Weighs In On .05
There are a number of factors that affect BAC such as a person’s gender, food intake, and a physical size, however, most people with a BAC of only .05 exhibit impaired mental and motor skills to some degree. The Center for Disease Control reports that a person with .05 BAC exhibits exaggerated behavior, loss of control of small muscles, impaired judgment, reduced alertness and inhibition, and coordination. These drivers also have a reduced ability to track moving objects, difficulty in steering, and reduced emergency time. This compares to driver with a .08 BAC that exhibit all the impairments of those at .05, but additionally exhibit poor balance, hearing, muscle coordination, judgement, self-control and reasoning. Drivers with BAC .08 also exhibit slurred speech and memory loss.

NIH studies further suggest that a person can be impaired if their BAC is as low as .02 which can affect a person’s ability to focus on multiple things at one time, a basic and critical driving skill. No matter what your individual factors experts think that if a person sticks to an under one drink per hour threshold they should be safe to drive.

Sources:
http://www.scpr.org/news/2013/05/17/37304/what-s-the-difference-between-a-blood-alcohol-leve/

http://www.dmv.org/ca-california/automotive-law/dui.php

America is a “dog eat dog” society where survival of the fittest is the norm. People expect to be rewarded for their hard work and punished when the law is broken. Rarely is compassion or caring elements of our decision-making process. We are a society of laws and expect them to be obeyed or pay the consequences. There are, however, times when a little compassion might go a long way to prevent laws from being broken in the future. One of those ways is to treat DUI arrests, not only as a violation of the law but also as an opportunity to require that a person with a sickness get help. Rather than treating a DUI arrest as merely a crime, we could also recognize substance abuse as a disease. Rather than incarcerating DUI offenders, we could be requiring that they undergo meaningful mental health treatment.

DUI aside, substance abuse is a growing problem in America. Statistics show that approximately 20% of all adults in America are addicted to one dangerous substance or another. From alcohol to prescription pills, marijuana to heroin, Americans regularly abuse drugs as part of their everyday lifestyle. It is estimated that substance abuse costs our nation over $750 billion per year when measured in terms of crimes committed, reduced work productivity, and increased healthcare costs. Reducing substance abuse could have profound economic benefits to society.

Psychological dependence on drugs like pain killers, cocaine, heroine, and alcohol makes legal deterrents useless. Most substance abuse addicts would rather risk spending time in jail then doing without their evening happy hour cocktail, their prescription pain medication and sometimes both. While no one is ready to decriminalize illegal substances, maybe we can have the best of both worlds. Why not integrate substance abuse treatment with mandatory existing DUI incarceration laws? Currently, the length of one’s sentence is determined by a judge. This could be augmented on a case by case basis by a psychologist that works with the inmate to determine their degree of addiction. When a person is determined by a medical professional to have their substance addiction under control, the person can be released on probation. We would then by enforcing the law and also treating substance abuse as a sickness and exercising a little caring and compassion.

Sources:
https://www.drugabuse.gov/related-topics/trends-statistics

Because of the potential for harm that big rigs, 18-wheelers, and other large commercial vehicles pose to motorists, the penalties for Commercial Vehicle (CV) DUI are more severe and the requirements stricter than those imposed upon ordinary motorists. Obtaining a California commercial driver’s license requires a person pass a driving test of their skill and knowledge of the type of commercial vehicle they will be operating. A person operating a motor vehicle under a Commercial Vehicle License (CDL), is considered over the legal limit if their blood alcohol content exceeds .04. and CDL regulations apply no matter what type of vehicle you are driving. This compares to a legal limit of .08 for those with an ordinary California driver’s license and .01 if you are under 21 years old. If you work under a CDL you are subject to CDL DUI laws at all times, even when you are driving your personal motor vehicle.

California commercial driver’s license (CDL) requirements apply to bus and truck drivers as well. There are three classifications of a commercial vehicle based on the weight and number of passengers they carry. Class A applies to commercial vehicles with a total weight in excess of 26,000 lbs. towing more than 10,000 lbs., and Class B for CV’s over 26,000 lbs., towing less than 10,000 lbs. Class C commercial vehicles do not meet the above parameters but carry 16 or more people or carry hazardous materials.

If you are convicted of a DUI your Commercial Driver’s License will be suspended for 12 months. There is no restricted license option even for a student or working person. Repeat offenders within a 10-year period will permanently lose their CDL. In addition to a suspended license, the California DMV or court may punish a commercial DUI offender with large fines, jail time and mandatory attendance at DUI educational programs.

The financial ramifications for being convicted of a DUI under a CDL are severe. Since you will lose your CDL for one year you could lose your job and it may be difficult once the one-year license suspension is over to find a new job. Commercial trucking companies will naturally favor applicants with a clean commercial driver’s license over one with a DUI on their record. If you are an independent commercial driver your motor vehicle insurance may increase to the extent that you can no longer make a living  from driving.

If you have been arrested and charged with a Commercial Vehicle DUI, or other DUI,  call the experienced and knowledgeable DUI defense attorneys at Kovinoky Law Firm immediately. We know that DUI arrests happen at all hours of the day and night and stand ready 24/7 to help you.

Sources: http://www.dmv.org/ca-california/automotive-law/dui.php

http://www.drivinglaws.org/resources/traffic-tickets/commercial-license/california-commercial-driver

There are many ways a skilled California DUI defense attorney can argue that there was insufficient probable cause to suspect that a person was under the influence of alcohol when driving.  One of the ways is if a police officer testifies that he/she smelled alcohol on the suspect’s breath. On cross-examination, it can be stated that alcohol itself has no odor. What the officer may have smelled could have been the flavoring used in beverages including non-alcoholic beverages. Smelling “mouth alcohol” on a person’s breath does not prove that he has been drinking and it certainly does not give an officer reason to suspect that the driver has a BAC over the legal limit.

Another factor that can cause “mouth alcohol” to produce a high reading are prescriptions or over the counter medications that may contain alcohol.  Every day medications that contain the highest alcohol contents of alcohol include Vick’s Formula 44 D which contains 20% alcohol, Dristan Ultra Cold, and Cough contains 25%, and Nyquil Night Time, 25%. Taking any of these medications can cause the standard California Breathalyzer used during PAS testing to produce an inaccurate, false reading. source: http://www.sdsuduip.com/medications-containing-alcohol/

Another way for “mouth alcohol” to register a higher reading on a Breathalyzer is burping. Burping causes gas trapped in the stomach to escape into the mouth and that gas can include alcohol.  This will cause a higher than accurate Breathalyzer blood alcohol reading.

If you have an existing medical condition and are taking medications, or if you just returned from a dentist and have had certain procedures performed using alcohol-based anesthetics or dental fillings that had traces of alcohol, an inaccurate Breathalyzer BAC could result.

Mouthwash, cough drops, and other lozenges may also contain alcohol, and if used before or during driving, breath testing could cause inaccurate high BAC readings.

If you consented to take the PAS using a Breathalyzer that produced a high reading, the skilled and experienced DUI defense attorneys at our law firm will fight zealously on your behalf. California police are required to inform you that pre-arrest PAS testing is not mandatory and you have the right to refuse to take them.

The California DUI defense attorneys at The Kavinoky Law Firm have been successful in getting false and inaccurate PAS Breathalyzer tests thrown out of court. Police must follow strict procedures in the administration of PAS Breathalyzer testing and the machines themselves must be maintained in accordance with the manufacturer’s suggested recommendations. We are knowledgeable in the science behind the reasons why “mouth alcohol” can produce false, inaccurate BAC results.

In addition to large fines, driver’s license suspension, potential jail time, and a criminal conviction that can stay on one’s record for many years, being convicted of a California DUI also include other life-changing penalties. For professionals such as a medical doctor, there is the potential for the suspension or permanent loss of the professional license to practice medicine.

For medical practitioners, the Medical Board of California is the governing body that oversees medical licenses in the state of California. When convicted of a DUI, California doctors are required to immediately report the outcome of the court case to the board via an 802 Report entitled Physician Reporting – Criminal Actions, and can be located at: http://www.mbc.ca.gov/Forms/Reporting/enf-802.pdf

Section 802.1 of the California Business and Professions Code states:
(a)(1) A physician and surgeon, osteopathic physician and surgeon, and a doctor of podiatric medicine and a
physician assistant
shall report either of the following to the entity that
issued his or her license:
(A) The bringing of an indictment or information charging a felony against the licensee.
(B) The conviction of the licensee, including any verdict of guilty, or plea of guilty or no contest, of any felony or
misdemeanor.
(2) The
report required by this subdivision shall be made in writing within 30 days of the date of the bringing of the
indictment or information or of the conviction.
(b) Failure to make a report required by this section shall be a public offense punishable by a
fine not to exceed five
thousand dollars ($5,000).23

This report is matched against the report that is received by the medical board from the Justice Department. Each criminal conviction, misdemeanor, or felony is evaluated by the board on a case-by-case basis. The board will evaluate the underlying issues that led to the arrest.

A License Suspension is Not Automatic
When evaluating a case, the Division of Medical Quality of the Medical Board of California examines the criminal history of the physician and whether or not factors surrounding the DUI conviction are “substantially related to the qualifications, functions or duties of a physician”, and could compromise the physician’s ability to do his/her job. The board tries to determine if the circumstances that surround the arrest constitutes “unprofessional conduct”. If so the board may temporarily or permanently suspend the doctor from practicing medicine.

Unprofessional Conduct
As it applies to medical practitioners, unprofessional conduct is explained in the California Business and Professional Code in Section 2239 as follows:

“(a) The use or prescribing for or administering to himself or herself, of any controlled substance; or the use of any of the dangerous drugs specified in Section 4022, or of alcoholic beverages, to the extent, or in such a manner as to be dangerous or injurious to the licensee, or to any other person or to the public, or to the extent that such use impairs the ability of the licensee to practice medicine safely or more than one misdemeanor or any felony involving the use, consumption, or self-administration of any of the substances referred to in this section, or any combination thereof, constitutes unprofessional conduct. The record of the conviction is conclusive evidence of such unprofessional conduct.

(b) A plea or verdict of guilty or a conviction following a plea of nolo contendere is deemed to be a conviction within the meaning of this section. The Division of Medical Quality may order discipline of the licensee in accordance with Section 2227 or the Division of Licensing may order the denial of the license when the time for appeal has elapsed or the judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending imposition of sentence, irrespective of a subsequent order under the provisions of Section 1203.4 of the Penal Code allowing such person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, complaint, information, or indictment. ” (1)

As a physician, it is imperative that you retain the California DUI lawyers at The  Kavinoky Law Firm. We are skilled DUI defense attorneys and are knowledgeable and experienced in all facets of your DUI defense including representation before the state Medical Board. If you have been arrested and charged with DUI give us a call immediately.

Source: (1) http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=BPC&sectionNum=2239.

Other Sources Source: http://www.mbc.ca.gov/Licensees/Criminal_Conviction.aspx