It used to be the case that nurses would not run into a problem with the California Board of Registered Nursing for a first offense DUI conviction. At most, the nurse might be asked to submit a copy of the police report and explain what he or she is doing to avoid any future problems with the law. Although this remains generally the case, formal disciplinary action may be instituted by the Attorney General where the circumstances are deemed aggravated (e.g., a high blood-alcohol level, injury accident, etc.).
The Board has jurisdiction to discipline the licensee under §2750 of the Business and Professions Code which provides for discipline of nurses under the Nursing Practices Act. B&P §490 provides that the Board may suspend or revoke a license on the grounds that the licensee has been convicted of a crime substantially related to the qualifications, functions, or duties of the profession. B&P §493 provides that the record of conviction of the crime is conclusive evidence of the conviction but the Board may inquire into all of the surrounding circumstances of the offense in order to fix the degree of discipline or, to determine if the conviction is substantially related to the qualifications of the licensee. B&P §2761 provides the Board can take action against a licensee for unprofessional conduct under (f) which includes conviction of a felony or any offense substantially related to the duties of a registered nurse.
§1444 of Title 16 of the California Code of Regulations provides that an act or conviction is substantially related if it evidences the present or potential unfitness of a registered nurse to practice safely.
In addition to the above, the Board has authority to suspend or revoke a license for unprofessional conduct under B&P §2762 which includes the use of dangerous drugs or alcohol to the extent or in a manner which is dangerous to the licensee or the public or to the extent that such use impairs the ability of the licensee to conduct himself or herself professionally with safety. Subdivision (c) provides that conviction of a criminal offense involving prescriptions, consumption or self-administration of drugs or alcohol or falsification of records is conclusive evidence of unprofessional conduct.
§1445 of Title 16 of The Code of Regulations sets forth criteria for evaluating the rehabilitation of the licensee and includes the following:
(1) Nature and severity of the acts or offenses;
(2) Total criminal record;
(3) Time that has elapsed since the commission of the offense;
(4) Whether the licensee has complied with the terms of probation;
(5) Evidence of expungement proceedings under Penal Code §1203.4 and
(6) Evidence of rehabilitation submitted by the licensee.
Traditionally, the conviction of a non aggravated 1st time DUI has not been considered to be substantially related and will not result in an accusation before the Board if the blood alcohol level is below a 0.15%.
The Board also has the power to act under B&P §§ 125.9 and 148 and issue a Citation Order, which can carry a fine up to $2,500.00 as discipline. Even though sanctions are limited to fines, the nurse has a right to an administrative hearing and should consider exercising that right in light of the fact that the citation becomes part of the nurse’s permanent record and will be disclosed to the public on request for a period of (3) years under CCR §1435.15.

When the nursing board suspects an alcohol dependency problem, they may use a DUI or other alcohol-related conviction to require the nurse to undergo a psychological evaluation, physical evaluation, random urine tests and substance abuse rehabilitation. It will also demand that they take a leave of absence from work.
Multiple offenders will be asked to participate in the Nurses Assistance Program in lieu of disciplinary proceedings. Many nurses forgo the Nurses Assistance Program because of the requirement that they take abstain from work for a substantial time and attempt to work out appropriate conditions of probation through negotiations while contesting the Accusation before the Board.
Nurses should be aware that the Board will be notified and that the Board does consider self reporting a mitigating factor.
A helpful Nursing Board publication entitled “Recommended Guidelines for Disciplinary Orders and Conditions of Probation” may be accessed at www.rn.ca.gov/pdfs/enforcement/discguide.pdf.

The California Department of Motor Vehicles recently published the results of its six year study on DUI conviction rates throughout the State of California entitled:
AN EVALUATION OF FACTORS ASSOCIATED WITH VARIATION IN DUI CONVICTION RATES AMONG CALIFORNIA COUNTIES, December 2011.

The study’s recommendations focus on ways to achieve more convictions; reduce the rate of negotiated reduction of charges; obtain faster convictions; and prosecute more prescription medication cases. The study concluded with the following recommendations:

1. Reduce the number of delays and continuances granted by the judiciary in DUI cases. This action may reduce the caseload for prosecutors and may also result in more DUI convictions due to improved witness availability and accuracy of testimony for trials. This can also increase the swiftness of adjudication and punishment for the DUI offender, and thus enhance the general deterrence of impaired driving. One avenue to achieve this is to distribute information on lag times of California courts to courts that are identified as having long lag times. (This recommendation fails to recognize that one of the frequent causes for delay comes from the prosecution when cases are not timely filed or legitimate discovery requests are not timely met.)

2. Encourage law enforcement through training and outreach efforts to use blood tests for obtaining BAC levels. Results from blood tests are more definitive and less likely to be challenged by the defense, so increased use may result in more DUI convictions. These blood tests should be obtained with the consent of the driver and in accordance with established guidelines where the blood sample is taken in a medically approved manner, after a lawful arrest, and with a reasonable belief that intoxication is present. To avoid difficulties in sustaining APS suspensions when the results for blood tests are challenged in APS hearings, the blood tests should be obtained and tested in accordance with the established guidelines and reported expeditiously to DMV. The benefit of blood testing could be included in the various training programs for law enforcement. (This recommendation ignores the legislative and judicial determinations that blood and breath are equivalent and fails to acknowledge the efficacy of roadside breath testing to determine alcohol levels near the time of driving. The recommendation also fails to recognize the existing exemptions from the requirement of blood testing for persons who are afflicted with hemophilia or a heart condition who are using an anticoagulant under the direction of a licensed physician or those who hold religious convictions that prohibit the taking of blood.)

3. Encourage the prosecution of DUI at BAC levels of 0.08% and above, and discourage reduced alcohol-reckless convictions at BAC levels near the illegal limit. This would reduce the considerable variation among counties regarding the BAC levels at which alcohol-reckless cases are being convicted, which should result in more DUI convictions. (This recommendation is counterintuitive to the research results which establish that Counties with a “No Plea Bargain” policy have not only a lower conviction rate for DUI but a much lower overall rate of placing offenders on DUI sanctions as the result of convictions and plea negotiations for reckless driving which includes alcohol education and priorability. This recommendation also fails to recognize established margins of error and legitimate defenses to DUI charges and the fact that the mean alcohol levels for cases reduced to a reckless driving throughout the state ranges between .08 and .09% which is hardly a justification for a lower conviction rate and the enormous expense of prosecution in marginal cases. If the State were to have trials on all of these marginal BAC cases it would be likely result in a lower conviction rate.)

4. Support legislation, such as the proposal developed by SHSP Challenge Area #1 (Reduce Impaired Driving Fatalities) to differentiate in the vehicle code DUI offenses involving drugs from those for alcohol. Because both alcohol and drug DUI arrests and convictions are currently charged under the same CVC sections, it is not possible to distinguish between alcohol and drug offenses, which make it difficult to determine the extent of drug-related driving, the effectiveness of drug-related countermeasures, and the impact of efforts by law enforcement and prosecution to cite and convict these offenders. Currently, only two U.S. states (Hawaii and New York) have separate statutes for alcohol DUI and drug DUI violations. This proposal has precedence in the California laws prior to 1982, when misdemeanor and felony drug DUI were charged separately from those for alcohol DUI (CVC §23105 drug misdemeanor; CVC §23106 drug felony).

DMV’s 2011 DUI-MIS report (Oulad Daoud & Tashima, 2011) shows that among California alcohol-drug fatalities, 21.4% involved drugs only and an additional 23.0% involved both drugs and alcohol, for a total of 44.4% that were drug-involved. Over the last decade in California, drug-involved fatalities increased by 146%. At the national level, the 2007 U.S. national roadside survey of drivers sponsored by NHTSA (Lacey et al., 2009) found evidence of drug use among 11.0% of daytime drivers and 14.4% of nighttime drivers. Marijuana was the most frequent individual drug found, other than alcohol. Their drug prevalence estimates do not necessarily indicate impairment at the time of driving, merely that the drugs or metabolites were present in the saliva.
Per se laws for alcohol have been readily enforced because of the development of hand-held breathalyzer devices, but there are no such devices for detecting drugs. The greater complexity of the effects of drugs and difficulty in determining impairment levels because of wide variation of effects at different doses make per se laws for drugs more difficult to establish and enforce than those for alcohol. Also, the difficulty in prosecuting drivers for drugs and driving comes from the fact that there are no scientifically-based concentration levels for the various drugs that definitively indicate impairment (Compton et al., 2009; Transport Research Centre OECD/ITF, 2010).

(This recommendation fails to recognize that the Court reporting systems [Abstracts of Judgment] require that Courts report the BAC levels of convictions.)

5. Support legislation, such as that proposed by SHSP Challenge Area #1, to establish zero tolerance for any amount of drugs in the driver’s system (for drugs listed in H&S §11550). Currently 15 states in the U.S. have zero-tolerance per se laws for drugs, and two more states make it illegal for drivers under 21 years old to have any amount of specified drugs in their systems when driving. (This recommendation would allow for DUI convictions for persons who are not impaired by drugs and would likely criminalize driving with metabolites which do not impair driving)

6. Train more law enforcement officers in the Advanced Roadside Impaired Driving Enforcement (ARIDE) program offered by CHP (16 hours of training), and in the Advanced Drug Recognition Experts training program (108 hours + plus biannual recertification). This will require continued dedicated funding from the Office of Traffic safety or other sources. (This recommendation would promote voodoo science and perpetuate the law enforcement myth that these tests are somehow scientifically valid. See, State of Maryland v. Brightful (2012) which held that DRE Protocols are not generally accepted as valid and reliable in the relative scientific community which include pharmacologists, neurologists, opthamologists, toxicologists, behavioral research psychologists, forensic specialists and medical doctors.)

7. Encourage prosecuting attorneys and law enforcement to attend training programs provided by the Traffic Safety Resource Program; the TSRP has been awarded continuing grant funds from OTS to provide mentoring and specialized training to both prosecutors and law enforcement in prosecuting DUI, evaluating vehicular felony and misdemeanor cases, and collision reconstruction. Special focus should be given to provide this training to counties with lower than average DUI conviction rates. (This study does not include an evaluation of the impact of IID legislation on the reduction of recidivism and simply continues the old paradigm of throwing more money at law enforcement.)

8. Initiate new efforts and strengthen existing ones, to change the traffic safety culture in California, especially regarding the use of alcohol/drugs and driving. Changing the public’s attitudes, beliefs, and norms about impaired driving can increase general deterrence, help shift support for additional resources and training, and increase commitment to detecting, prosecuting, and sentencing impaired drivers. (More of the same – why not promote legislation supporting passive alcohol detection in new vehicles – the technology exists which alerts drivers to excessive alcohol levels or disables vehicle.)

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.

According to news reports, Matt Keough, one of the husbands featured on ‘The Real Housewives of Orange County’ was arrested last month for allegedly driving under the influence in Orange County.  According to news reports, Mr. Keough reportedly failed to stop at a stop sign, (commonly referred to as a “California Stop”) in Coto de Caza and then refused to stop until he arrived at his home.  Mr. Keough allegedly registered a breath-alcohol contentration three times the legal limit.

The purpose of this blog entry is not to advertise the arrest of Mr. Keough for DUI, but rather to highlight the fact that because Mr. Keough was convicted of felony DUI in 2005, in which he reportedly hit and injured a pedestrian, he will automatically be charged with a felony in this matter even if this new offense was actually only a misdemeanor (Vehicle Code § 23550.5(a)(1)).  This is because any prior felony will result in any new DUI charge being filed as a felony, regardless of whether the new conduct would have only resulted in a misdemeanor filing absent the prior felony conviction.  Moreover, because Mr. Keough is still on probation for the prior felony case, he will also have a felony probation violation with which to deal.  This is made more serious in this case as Mr. Keough had a prior probation violation in January of 2008 for which he was sentenced to 180 days in jail. 

As with anyone in this type of situation, it is important to seek the assistance of an experienced DUI Attorney who knows the Orange County Court system and how to deal with felony DUI cases, particularly those that are only filed as felonies as a result of a prior felony DUI conviction.

More Women Getting Arrested for DUI

The National Highway Traffic Safety Administration (NHTSA) has just released a study which alleges that more women are being arrested for driving under the influence of alcohol (DUI).  The study, titled “Alcohol-Impaired Drivers Involved in Fatal Crashes, By Gender and State, 2007-2008)(DOT HS 811 095) points to an FBI study (Crime in the United States – 2007) which shows a nearly 29% increase in the number of women being arrested for DUI between 1998 and 2007.  There was a 7.5% drop in arrests of men for DUI over the same period.  To keep it in perspective, however, about 4 times more men than women were arrested for DUI in 2007.  The NHTSA study points out that the number of women that were arrested for DUI in 2008 versus 2007 went up or stayed the same in 15 states, compared with 13 states for the men.  The study then pronounces these changes significant in light of the 9% drop overall in DUI arrests between 2007 and 2008.  

Another way of looking at these statistics though is that in 40 states the number of women arrested for DUI either stayed the same or decreased.  In fact, although not highlighted in the text of the study, the data indicate that between 2007 and 2008, in spite of the increases in 10 states, the overall number of women arrested for DUI in the United States went down 11 percent.

While speaking at a news conference with US Transportation Secretary Ray LaHood, Mothers Against Drunk Driving (MADD) president Laura Dean-Moody was quoted by CNN as speculating on the reasons for the alleged increase.  Moody surmised that the causes of the increase might include economic pressures and television depictions of moms who stay home and drink.  In our experience, the increase might be more due to increased independence of women, who are more likely to drive themselves to events where alcohol is being served, rather than rely on men for their transportation. It is becoming more socially acceptable for women to travel alone, even at night. 

Another confounding factor is the interaction of alcohol with a woman’s unique physiology.  Studies have indicated that a woman’s alcohol metabolism may be affected by the phase of the menstrual cycle and taking oral contraceptives. Moreover, women generally have different body water content from men, which, along with weight, affects a women’s volume of distribution and can lead to higher alcohol levels.  If you are a woman facing a DUI arrest, make sure your attorney understands these special issues.

 

To read the NHTSA study, go to:

http://www.nhtsa.gov/staticfiles/DOT/NHTSA/reports/811095.pdf

To read the FBI report, see:

http://www.fbi.gov/ucr/ucr.htm

To read about DUI Issues & Women, go to:

http://www.duilawyerorangecounty.com/orange_county_dui_issue_woman.html

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).