A new report to be published in the October issue of the American Journal of Preventive Medicine discusses how driving after binge drinking is more prevalent than previously believed.  The study obtained data from over 14,000 adults in thirteen (13) states in 2003 to determine how many people actually get behind the wheel after binge drinking, which is defined as consuming five (5) or more drinks at a given location.

The Center for Disease Control estimates that there are 1.5 billion binge drinking episodes each year in the U.S. alone.  The study also found that 11.9% of the binge drinkers drove within two hours of their binge drinking; 50% are between the ages of 25 and 44 years of age, and 54.3% were coming from bars, clubs, or restaurants, and only 23% were drinking at someone else’s home-it is unclear whether the study evaluated how many of those people were drinking at their own home?  We will just have to wait until October to obtain the Journal to find out if such a statistic was obtained.  Of the 54.3% who were coming from bars, clubs, or restaurants, the study reports that about 1-in-5 drove a vehicle afterward consuming the binge drinking episode.

According to the study author, Dr. Timothy Naimi, a physician with the alcohol team at the U.S. Centers for Disease Control and Prevention, the new research adds a timeline and other new information to what’s known about drinking and driving.  Dr. Naimi also pointed out that while laws make it illegal for bars, clubs and restaurants to sell alcohol to intoxicated people, those laws are not well-enforced.  Thus, “The key thing about this study is: it’s really illustrating the shared responsibility between individual drinkers and the places that are selling them alcohol.”  To remedy the problem, places that serve alcohol should train servers and bartenders to stop serving people who are too intoxicated and strengthening the liability of club and restaurant owners for doing so.

The article from which this blog was created was: “Driving After Binge Drinking, More Common Than Believed.”  The article was written by Kathleen Doheny and published in the HealthDay Reporter.

California’s Financial Responsibility Laws

If a person is convicted of a DUI, or suffers an administrative suspension subsequent to an Administrative Per Se Hearing before the California Department of Motor Vehicles, he/she will need to file proof of financial responsibility with the California Department of Motor Vehicles.  The proof of financial responsibility will need to remain on file with the California Department of Motor Vehicles typically for a period of three years, and a failure to do so will result in the immediate suspension of one’s driver’s license.  A suspension imposed out of the State of California for failure to maintain proof of financial responsibility can also result in a suspension of a person’s driver’s license in another state as well. 

When proof of financial responsibility is required, the person for whom it is required, must at all times carry, in the vehicle being driven, written evidence of one of the following types of financial responsibility:

• A valid liability insurance policy, for damage to someone else’s property or person (SR-22);
• A $35,000 surety bond;
• A DMV issued self-insurance certificate;
• An acknowledgement by the DMV of a $35,000 cash deposit

Said persons must show this written evidence to a peace officer upon request, and also to any other driver and/or property owner following a traffic accident.

Additionally, any person, whether subjected to the above requirements or not, must file DMV’s Traffic Accident Report Form (SR-1) within 10-days of any accident, if there is over $750.00 damage to anyone’s property, any injury, or death, regardless of whether or not you are at fault in the accident.

The SR-1 must be filed with the DMV.  An insurance agent/broker or other legal representative cannot file the report on another’s behalf.  Moreover, a traffic collision report and/or police report does not satisfy this legal requirement, but a person involved in an accident may include a copy of any such reports with the completed SR-1 filing.

A person who fails to file an SR-1 will have their driver’s license suspended until the SR-1 is filed.  The SR-1 Form is available at all DMV and California Highway Patrol (CHP) Offices throughout the State.  It is also available for download on the DMV’s website at: www.dmv.ca.gov.

An Analysis of Driving Under the Influence (DUI) Checkpoints

 

In light of the recent surge in the amount of DUI Checkpoints, and DUI Roving and DUI Saturation Patrols in Orange County and the entire State of California, an explanation of the legal requirements for a constitutionally permissible DUI Checkpoint is being posted for visitors to our informational database.

 

DUI Checkpoints began subsequent to a 1984 California Attorney General’s Opinion that set out what were intended to be strict guidelines for the legality of drunk driving roadblocks.  As a result of the Attorney General’s Opinion, many police departments and the California Highway Patrol (CHP) began using them to apprehend drunk drivers.  Roadblocks carried out pursuant to those strict guidelines have been approved by the California Supreme Court in Ingersoll v. Palmer (1987).  In this 4-3 decision the court stated, “We conclude that within certain limitations, a sobriety checkpoint may be operated in a manner consistent with the Federal and state Constitutions.” The decision stressed a theme of “balancing the need to search against the need the search entails.”

 

In 1990, the U.S. Supreme Court gave general approval to the use of roadblocks to enforce drunk driving laws in Michigan Dep’t of State Police v. Sitz (1990).  Nothing in the U.S. Supreme Court’s decision in Michigan Dep’t of State Police v. Sitz criticized the guidelines approved by the Ingersoll Court, nor did it recommend any others.

 

The Ingersoll guidelines fall under the following general headings:

 

1.     Decision Making at the Supervisory Level

2.     Limits on Discretion of Field Officers

3.     Maintenance of Safety Conditions

4.     Reasonable Location

5.     Time and Duration

6.     Indicia of Official Nature of Roadblock

7.     Length and Nature of Detention

8.     Advance Publicity

 

Subsequent to the Ingersoll decision, the Courts of Appeal came to conflicting decisions about the role of advanced publicity in constitutionally valid checkpoints.  The California Supreme Court took up the issue, though, in People v. Banks in 1993.  In Banks, the California Supreme Court held that advanced publicity is not an essential element of a constitutionally valid DUI roadblock.  The Court held that although advance publicity remains a factor to consider, the lack of advanced publicity alone will not render a roadblock unconstitutional.  Thus, the issue of whether there was adequate advanced publicity is still subject to judgment on a case-by-case basis.

 

A common challenge to DUI Checkpoints or roadblocks is the lack of uniformity in the operation of the DUI checkpoint. Regarding the issue concerning the limits on discretion by field officers the California Supreme Court in Ingersoll v. Palmer noted the following:

 

A related concern is that motorist should not be subject to the unbridled discretion of the officer in the field as to who is to be stopped. Instead, a neutral formula such as every driver or every third, fifth or tenth driver, should be employed. To permit an officer to determine to stop any particular driver or car when there is no legitimate basis for the determination would be to sanction the kind of unconstrained and standardless discretion which the United States Supreme Court sought to circumcise in its decision in Prouse, supra, [citations omitted]. In all the checkpoint programs at issue here, neutral mathematical selection criteria were used.

 

Id., at 1342 (emphasis added).

 

Every car, every third car, or every fifth car is neutral.  A change in patterns to adjust for traffic flow is also neutral, so long as there is still a neutral mathematical formula for the change.  What is prohibited is an unjustified deviation from the pattern which negates the neutral mathematical formula. If the pattern suddenly changes randomly, an inference of non-neutrality arises. 

 

Decision making at the supervisory level and limits on discretion of field officers are key points in all checkpoint-type cases.  As the California Supreme Court noted in Ingersoll: “In all checkpoint programs at issue here, neutral mathematical selection criteria were used.”

 

Regarding the citizen’s right to avoid the stop, the Ingersoll Court stated:

 

Checkpoint personnel were specifically instructed that drivers were not to be stopped merely for avoiding the checkpoint. The road sign announcing the checkpoint was placed sufficiently in advance of the checkpoint that motorists could choose to avoid the checkpoint.

 

A footnote added:

 

5.         Cars avoiding the checkpoint would be stopped, however, if in avoiding the checkpoint the driver did anything unlawful… (Emphasis added.)

 

Ingersoll, at 1336 (emphasis added).

 

Statistics for 1990 CHP roadblocks were published in 1992 in California Master Plan to Reduce Alcohol and Drug Abuse: 1992 (Sacramento, CA: Department of Alcohol and Drug Programs, Jan. 1992) p. B-88. According to this report, the CHP conducted 84 roadblocks during 1990 with only 599 arrests for drunk driving. The cost was nearly $250,000.00. That’s about 7 arrests per roadblock, at a cost of over $400.00 for each arrest, for the roadblock alone.

 

If you or anyone you know was recently stopped at a DUI Checkpoint, and was arrested and charged with driving under the influence (DUI), please contact the Law Office of Barry T. Simons by telephone at: 949-497-1729.  You may also send a confidential contact form via email to: info@simonslaw.com.  The form can be found on our website: www.duilawyerorangecounty.com.  Anyone who has been subjected to a DUI Checkpoint is encouraged to contact the Law Office of Barry T. Simons as soon as possible for a free legal consultation.  The call could make the difference between a person being convicted of a DUI or being acquitted of it.  It only takes one simple contact. 

 

For general information on California Drunk Driving Laws, California DUI Laws, and representation for driving under the influence, generally, please contact our office or our website at: www.duilawyerorangecounty.com.

 

For a copy of the NHTSA How-to-Guide on Saturation Patrols & Sobriety Checkpoints, please visit:

 

http://www.nhtsa.dot.gov/people/injury/alcohol/saturation_patrols/index.html

OCSD Press Release: Traffic Safety Checkpoint in Mission Viejo

According to an “Orange County Sheriff’s Department Press Release” dated: December 30, 2008, the Orange County Sheriff’s Department (OCSD) will be conducting a DUI/Driver’s License Checkpoint in the City of Mission Viejo on Saturday, January 3, 2009 from 7:00 p.m. until 3:00 a.m.

According to the Press Release, checkpoints are part of a grant the Orange County Sheriff’s Department received from the State of California Office of Traffic Safety, and are set up to target drivers who are driving a vehicle without a driver’s license or who are driving under the influence of drugs or alcohol.  Funding of this grant was provided by the State of California Office of Traffic Safety, through the National Highway Traffic Administration (NHTSA).

Number of Young Women Drivers Involved in DUI Traffic Collisions Doubles

According to an article published in the Orange County Register on Wednesday, December 19, 2008, with statistics being provided by the Automobile Club of Southern California, the number of young women drivers involved in driving under the influence (DUI) crashes has doubled.

According to the article, “young women are closing the gender gap in the number of injuries and deaths resulting from driving under the influence.”  The article reports that the Automobile Club of Southern California found that between 1998 and 2007, the number of women drivers aged 21-to-24 involved in alcohol-related traffic collisions soared by 116%.  For men, the number jumped 39% in the same period.

Summary of New Law Changes for 2009

Just before the New Year, the Law Office of Barry T. Simons wants to provide everyone with a few new law changes that go into effect in 2009.  Some have been addressed in previous posts, but they are now being provided in a summary fashion for quick referencing:

1.     No-Text Law—Texting While Driving (Senate Bill 65)

This new law makes it an infraction to write, send, or read text based communications on an electronic wireless communication device, including emails, while driving a motor vehicle. 

Previously this was only illegal for those under 18-years of age with the passage of the hands-free law change in July of 2008; however, it has now been extended to all drivers.

2.     DUI Probationers Zero Tolerance Law (Assembly Bill 1165)

This new law prohibits a person who has been convicted of driving under the influence and is on probation from driving a motor vehicle with a blood or breath alcohol level of 0.01% or more as measured by a preliminary alcohol screening test or other chemical test.  If the driver refuses to submit to, or fails to complete the test, or if the person is found to have been driving with a blood or breath alcohol level of 0.01% or greater, the person will be subject to a license suspension by the California Department of Motor Vehicles’ and issued a citation.  Additionally, the driver’s vehicle is subject to impound.

3.     Alcohol Related Reckless Driving (Assembly Bill 2802)

This new law requires a court to order a person convicted of an alcohol-related reckless driving, (commonly referred to as a wet reckless), to attend a drunk driving alcohol program of at least nine (9) months in length if that person has a prior driving under the influence or alcohol related reckless driving conviction within the last ten (10) years.  This law change can be found under Vehicle Code § 23103.5(f)(1) and § 23103.5(f)(2).

4.     Ignition Interlock Device (IID) (Senate Bill 1190)

This new law allows courts to give additional consideration for the installation of an ignition interlock device (IID) to those offenders who have a blood alcohol concentration of 0.15% or greater.  This new law reduces the blood alcohol level from 0.20% or greater to 0.15% or greater to trigger the requirement.

5.     Ignition Interlock Device (IID) (Senate Bill 1388)

This new law allows the California Department of Motor Vehicles to require any driver convicted of driving on a suspended license due to a prior driving under the influence (DUI) conviction to install an ignition interlock device (IID) in any vehicle the offender owns or operates.  This is an expansion on the previous law that required courts to impose this condition on those drivers convicted of driving on a suspended license due to a prior driving under the influence (DUI) conviction to install an ignition interlock device (IID) in any vehicle the offender owns or operates because now the authority rests solely with the California Department of Motor Vehicles and is required at the time the Department receives notification of the conviction.

OCSD Press Release: Traffic Safety Checkpoint in San Juan Capistrano

According to an “Orange County Sheriff’s Department Press Release” dated: December 16, 2008, the Orange County Sheriff’s Department (OCSD) will be conducting a DUI/Driver’s License Checkpoint in the City of San Juan Capistrano on Saturday, December 20, 2008 from 7:00 p.m. until 3:00 a.m.

 

The Press Release advises that, traffic volume and weather permitting, ALL vehicles may be checked and drivers who are under the influence of alcohol and/or drugs will be arrested.  The Press Release further encourages citizens to help keep the roadways safe by calling 911 if they see a suspected drunk driver.

 

According to the Press Release, checkpoints are part of a grant the Orange County Sheriff’s Department received from the State of California Office of Traffic Safety, and are set up to target drivers who are driving a vehicle without a driver’s license or who are driving under the influence of drugs or alcohol.  Funding of this grant was provided by the State of California Office of Traffic Safety, through the National Highway Traffic Administration (NHTSA).

OCSD Press Release: Traffic Safety Checkpoint in Aliso Viejo

According to an “Orange County Sheriff’s Department Press Release” dated: December 16, 2008, the Orange County Sheriff’s Department (OCSD) will be conducting a DUI Checkpoint in the City of Aliso Viejo on Friday, December 19, 2008 from 7:00 p.m. until 3:00 a.m. 

 

According to the Press Release, checkpoints are part of a grant the Orange County Sheriff’s Department received from the State of California Office of Traffic Safety, and are set up to target drivers who are driving a vehicle without a driver’s license or who are driving under the influence of drugs or alcohol.  Funding of this grant was provided by the State of California Office of Traffic Safety, through the National Highway Traffic Administration (NHTSA).