Sacramento Criminal Defense Lawyer Blog

The California State Assembly's Public Safety Committee approved this week a bill that would substantially increase the penalties that judges could hand out to people convicted of multiple DUIs. Specifically, the bill, introduced by Assemblyman Jerry Hill (D-San Mateo), would make two changes to existing law:

• Current law allows for enhanced penalties when a person receives a third DUI conviction within a 10 year period or fourth conviction overall. AB 1601 would removed the 10 year limitation and give judges the discretion to impose greater penalties for any additional DUIs.
• Judges would be given the discretion to permanently revoke the driver's license of a person convicted of a fourth DUI.

The question that this bill raises is how judges will use this discretion. It's certainly possible that a judge in one case - involving, for example, a person with two DUI convictions 20 years apart - could give out a penalty vastly different than a judge handling another case that had the same set of facts.

The bill's next stop is the Assembly Appropriations Committee.

Vandalism - defined in California Penal Code Section 594 as a malicious act that damages, destroys, or defaces with graffiti any real or personal property - brings with it the possibility of serious penalties, including jail or prison time, fines, restitution, and loss of driving privileges. A wide variety of acts fall under the definition of vandalism, but some of the common examples include defacing a park bench or statue, damaging cemetery monuments, breaking windows on a home or business, or spraying paint on a freeway or building.

Vandalism can be charged as either a misdemeanor or a felony depending on the dollar amount of the damage caused and prior convictions. If the cost of the damage is less than $400, misdemeanor charges are filed. People convicted of misdemeanor vandalism face up to one year of jail time and up to $1000 in fines. If the cost of the damage is $400 or more, felony charges are filed, with the possibility of up to one year in jail or prison and up to $50,000 in fines. As mentioned above, prior vandalism convictions can change what would be misdemeanor vandalism to a felony.

If the vandalism is graffiti, the penal code allows judges to order the person who caused the damage to clean up the property and keep it free of graffiti for one year. In addition, local governments in which graffiti vandalism takes place are designated under state law as "victims," allowing them to seek restitution from taggers to fund repair and restoration of damaged property.

Finally, California Vehicle Code Section 13202.6 requires the DMV to suspend driving privileges for up to two years for conviction for any form of vandalism. If the convicted person doesn't yet have a driver's license, the court issues an order requiring that the license be delayed for up to three years after the date that the person becomes eligible to drive.

Our last post covered the various provisions of California's Business and Professions Code that govern possession and consumption of alcohol by minors. Today we look at sections of the state Vehicle Code that also relate to minors and alcohol.

Possession of Alcohol in a Vehicle

Vehicle Code Section 23224 makes it a misdemeanor for a person under 21 years of age to have any sort of alcohol in a car, except under the supervision of a parent or guardian or as part of the minor's employment. Convictions under this code come with severe penalties, including impoundment of the vehicle for 1 to 30 days, fines of up to $1000, and jail time of up to 6 months. In addition, someone convicted of violating section 23225 is also punishable under Vehicle Code Section 13202.5, described below.

Suspension of Driving Privileges

Vehicle Code Section 13202.5 requires a one year suspension of driving privileges for anyone under 21 convicted of violating Vehicle Code Section 23224 described above or any of the Business and Professions Code sections outlined in yesterday's posts. It also says that if the person convicted of these codes does not yet have a driver's license, the DMV must delay issuing a license for one year after the convicted person become eligible. And each additional violation results in an additional one-year delay in getting a license.

DUI and Minors

Of course, minors are also subject to Vehicle Code Sections 23152 (a) and (b), which make it a crime to drink and drive. Conviction of DUI comes with fines of at least $2000, jail time, and probation. See the October 2, 2010 post for detailed information on DUI penalties.

The State of California has a number of laws that pertain to under-aged drinking of alcoholic beverages. In today's post we'll outline the provisions of the Business and Professions Code that make it a crime for people under the age of 21 to purchase and consume alcohol. In our next post, we'll describe the sections of the Vehicle Code that impose driving related punishments not only for drinking and driving, but also for having alcohol in a vehicle, or for purchasing or consuming alcohol.

Possession and Purchase of Alcohol by Minors

The California Business and Professions Code lays out the penalties for the possession and purchase of alcohol by minors.

• Section 25662 makes it a misdemeanor for a person under 21 to have alcohol in a public area, except when transporting alcohol in the course of employment or under the direction of a parent or guardian.
• Section 25658 makes it a misdemeanor for a person under 21 to purchase or consume alcohol in a restaurant or bar.
• Section 25661 makes it a misdemeanor for anyone under 21 to use a fake ID in an attempt to buy alcohol.
• Penalties for a first violation of all three of these codes include a fine of up to $250 and community service of 24 to 32 hours. Penalties for subsequent violations come with a fine of up to $500 and 36 to 48 hours of community service.

In addition to knowing state laws relating to minors and alcohol, it's important to be familiar with the local laws of the city or county you live in, as well as of places you're visiting since each locality can enact ordinances related to alcohol consumption. For example, Davis has an Open Container Ordinance that bans possession or consumption of alcohol by any person in public areas - such as parks, sidewalks, and parking lots. Each violation comes with a $152 fine.

On St. Patrick's Day, Wednesday, March 17, the Sacramento Police Department DUI enforcement team will partner with the CHP and other law enforcement agencies to substantially increase patrols throughout the city. Anyone considering drinking alcohol on St. Patrick's Day should take these preventive measures:

• Pick your designated driver before you begin celebrating
• Put the local taxi company's number in your cell phone
• If you have an iPhone, load one of the many apps that will help you find a cab
• Hire a limo for the evening
• Go to a restaurant or bar within walking distance of your home
• Associate only with people who will look out for you

Do what it takes to keep yourself and others safe.

With abundant rain this winter, California's lakes, reservoirs, and rivers are quickly filling up. And as the weather gets warmer, more people will take out their boats for a relaxing day on the water. Everyone who enjoys boating, though, needs to keep in mind California's strict laws regarding boating under the influence of alcohol or drugs.

Harbors and Navigation Code 655 lays out the rules regarding operation of watercraft in the California. This law makes it:

• A crime to operate a recreational vessel with a blood alcohol content of 0.08% or higher.
• A crime to operate a commercial vessel with a blood alcohol content of 0.04% or higher.
• A crime to operate a water ski or aquaplane after ingesting any amount of alcohol or drug.
• A crime to use a water ski or aquaplane in a "reckless or negligent manner" that poses a danger to others.

Many people assume that they get a free pass from law enforcement when consuming alcohol on the local rivers because it's not illegal to have an open container on a boat. The reality is different though. BUI is considered especially dangerous because of the speeds that boats can attain, the difficulty of stopping a boat quickly, and the lack of distinct lanes of traffic compared to streets and freeways.

Penalties for BUI are severe with fines up to $1000 and jail time of up to six months. In addition, though a 2008 California Supreme Court case made it clear that the DMV is not allowed to suspend a person's automobile driver's license for conviction of a BUI, a BUI conviction can be counted as a "prior" if the person is arrested for DUI within the next 10 years.

The sheriff's department of each county is responsible for patrolling waterways in its jurisdiction. The Sacramento Sheriff's Department, for example, oversees the Sacramento River north of downtown Sacramento all the way down through the delta region at the county's southern border. The Yolo County Sheriff's Department covers the Sacramento River, Cache Canyon, Putah Creek, and other waterways within the county. The Yolo Sheriff's Department just announced, in fact, that it is using a grant from the state to purchase additional watercraft for law enforcement and rescue operations.

Our last post covered the similarities and differences between a DUI involving alcohol and a DUI involving drugs. Today's post explains the role of the Drug Recognition Expert (DRE) in DUID.

Typically, a DUID evaluation begins after a driver has been pulled over for erratic driving and the officer, after administering a breath alcohol test, determines that the driver has not ingested alcohol.

In DUID cases, law enforcement relies on two things: 1) blood or urine tests to determine if drugs are present in the person's system, and 2) observations of the person's physical condition and behavior. Because of the technical nature of this type of investigation and evidence, police and the CHP rely on Drug Recognition Experts, or DREs, officers who receive special training in recognition of the influence of drugs.

The DRE follows a 12-step protocol to assess the situation:

1. Breath alcohol test
2. Interview of the arresting officer
3. Preliminary examination and first pulse reading
4. Eye examination
5. Divided attention psychophysical tests similar to field sobriety tests
6. Vital signs and second pulse reading
7. Examination of eye pupils
8. Examination of muscle tone
9. Check for injection sites and third pulse reading
10. Subject's statements and other observations
11. Analysis and opinions of the evaluator
12. Toxicological examination from urine, blood, or saliva

If the officer making the traffic stop is trained as a DRE, he simply follows the 12-step protocol. If he isn't a DRE, he calls for one to come to the scene to conduct the investigation. The DRE's evaluation is then used by the district attorney's office in its attempt to gain a conviction.

If no DRE is available, the arresting officer takes detailed notes of what he observed. If the case goes to trial in that instance, the district attorney can have a DRE testify as an expert witness and give his or her interpretation of the arresting officer's notes. But without direct evaluation by a DRE, conviction of DUID becomes much more difficult.

All of the issues highlighted in the previous post regarding defense against DUID charges are pertinent to the DRE's evaluation. The rate at which drugs leave the system, impairment through use of medications, the role of fatigue and emotional distress, and inconsistencies in the application of the 12-step protocol by the DRE should all be evaluated by your attorney in devising a defense strategy.

The section of the California Vehicle Code that governs driving under the influence of alcohol also sets the rules for driving under the influence of drugs, or DUID. But DUID cases differ from alcohol related cases in several important respects, each of which influences the defense that can be mounted against the charges.

When someone is cited for driving under the influence of alcohol, two criminal charges are filed: 23152 (a) and 23152 (b). Section (a) declares that, "It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage or drug, to drive a vehicle." Section (b) makes it illegal to drive with a blood alcohol level of 0.08 or greater.

Driving under the influence of drugs lacks the specific measure of intoxication laid out in section (b). Therefore, conviction of DUID rests solely on law enforcement's ability to demonstrate that a person's capacity to operate a vehicle safely was impaired by the presence of drugs in his or her system. In other words, all DUID cases rely solely on section (a) and its prohibition of driving under the influence of a drug.

It is important to note that DUID can arise from impairment by both legal and illegal drugs. Use of marijuana or methamphetamines can lead to arrest for DUID, but so can use of prescription and non-prescription painkillers, anti-depressants, allergy medications, antibiotics, or any other drug. Any chemical that diminishes a person's ability to safely operate a vehicle can be used as the basis for arrest and conviction for DUID.

Continue reading "Driving Under the Influence of Drugs (DUID)" »