“Driving Under the Influence of Coffee” Charges Dismissed

In my previous post Driving Under the Influence of…Caffeine?, I reported on pending criminal charges against a citizen for driving under the influence of …yes, coffee.  This was after an ABC agent (California Alcohol Beverage Control) was apparently upset when she claims to have been cut off by the "erratic" driver and she stopped and arrested him.  

Subsequent blood tests showed no alcohol or drugs of any kind in his system.  Zero.  Despite this, the Solano County D.A. filed DUI charges against the driver.  He has, of course, consistently refused to plead guilty and has demanded a jury trial.

Yesterday, after almost a year-and-a-half, the D.A. finally dismissed the DUI charges….  

DA Drops DUI Charge for Man Who Tested Positive for Caffeine

Solano County, CA.  Dec. 30 — The Solano County District Attorney’s Office decided Wednesday to drop a DUI charge against a Fairfield man who only tested positive for caffeine.

The charges were dropped more than 16 months after Joseph Schwab, 36, was pulled over on Interstate 680 near Gold Hill Road as he drove to his Fairfield home.

"After further consideration, without a confirmatory test of the specific drug in the defendant’s system that impaired his ability to drive, we do not believe we can prove the charge beyond a reasonable doubt," District Attorney Krishna Abrams said Wednesday in a news release…
 

I wonder why, after almost a year-and-a-half, the D.A. suddenly decided to dismiss the charges?  Could it possibly have been the embarrassing media attention in the last few days?
 

 

Driving Under the Influence of….Caffeine?

Just when you thought the "War on Drunk Driving" could not get any crazier…..

California Man Fights DUI Charge for Driving Under Influence of Caffeine

San Francisco, CA.  Dec. 24 – Caffeine may be the “nootropic” brain drug of choice in Silicon Valley, but an hour’s drive north in Solano County, California, the stimulant could get you charged with driving under the influence.

That is according to defense attorney Stacey Barrett, speaking on behalf of her client, Joseph Schwab.  After being pulled over on 5 August 2015, Schwab was charged by the Solano County district attorney with misdemeanor driving under the influence of a drug.

Almost 18 months later, Schwab is preparing to go to trial. The only evidence the DA has provided of his intoxication is a blood test showing the presence of caffeine.

Schwab was driving home from work when he was pulled over by an agent from the California department of alcoholic beverage control, who was driving an unmarked vehicle. The agent said Schwab had cut her off and was driving erratically.

The 36-year-old union glazier was given a breathalyzer test which showed a 0.00% blood alcohol level, his attorney said. He was booked into county jail and had his blood drawn, but the resulting toxicology report came back negative for benzodiazepines, cocaine, opiates, THC, carisoprodol (a muscle relaxant), methamphetamine/MDMA, oxycodone, and zolpidem…

“It’s really stupid,” said Jeffrey Zehnder, a forensic toxicologist who frequently testifies in court cases. Over 41 years, Zehnder said, he had never seen a prosecution for driving under the influence of caffeine…

California vehicle code defines a “drug” as any substance besides alcohol that could affect a person in a manner that would “impair, to an appreciable degree” his ability to drive normally.

Making that case with caffeine would be difficult, Zehnder said, because the prosecutor would have to show that impaired driving was specifically caused by the caffeine and not any other circumstances.

“There are no studies that demonstrate that driving is impaired by caffeine, and they don’t do the studies, because no one cares about caffeine,” he said.

So how could this case possibly have been filed by the prosecutor — not to mention arrested to begin with?  And how could it possibly be going to trial?  Does the prosecution seriously believe that coffee is intoxicating?  Is law enforcement running out of drunk drivers to arrest?  Does Solano County government really need the money from fines that badly?

Or is there a simpler explanation?  Let’s take a second look at the story…..

Schwab was driving home from work when he was pulled over by an agent from the California department of alcoholic beverage control, who was driving an unmarked vehicle. The agent said Schwab had cut her off and was driving erratically.

 
Hmmm….Maybe the arresting "alcohol beverage control" agent was simply suffering from a case of "road rage" — and abused her legal authority?  
 

“Pot Breathalyzers” on the Horizon…

 As I’ve mentioned in past posts, there are a number of problems with trying to determine whether a driver is under the influence of marijuana.  See, for example, Marijuana-Impaired Driving: A Prosecutor’s Nightmare?, New Study: Minimal Driving Impairment From Marijuana, California Proposes New Law to Allow Roadside Marijuana Tests, Is a Marijuana Breathalyzer in the Offing?    Primary among these problems are:

1.  Marijuana cannot be detected or measured on a breath machine.  It can be measured with blood tests, but there is almost always a delay — often hours — in obtaining a blood sample.  Result:  due to continuing metabolism of marijuana in the body, the level at the time of testing may be significantly higher or lower than at the time of driving

2.  Unlike alcohol which dissipates after several hours, THC (the active ingredient in marijuana) can stay in a person’s system for days or even weeks after smoking or eating.  Even though they are no longer affecting the driver, they will be still detected and reported as marijuana in the blood.

3.  There are no recognized scientific studies establishing at what level of THC in the blood a person’s driving ability is impaired.

A solution to one of these problems would be the development of a breath machine which could accurately measure marijuana on the breath — particularly if this could be done quickly at the scene of the arrest.  But no such device exists….yet:

Marijuana Breathalyzers to Test California Pot Users for Pot Use

Los Angeles, CA.  Sept. 14 – An Oakland-based company has developed a marijuana breathalyzer for distribution across police stations in the U.S. to begin a nationwide test to see if they can monitor people operating motor vehicles while under the influence of pot, and drivers in California were among the first to be tested…

The marijuana breathalyzer – which had some help in development by the University of California’s chemistry department – is able to detect THC on people’s breath after they’ve consumed edible pot products as well as alcohol.

Hound Labs plans to roll their product out nationwide upon further testing to validate the technology’s results.

Until it’s perfected, police will have to continue relying on testing saliva, urine, and blood to measure marijuana in the system, which can show the presence of drugs days after the user is actually under the influence.

Some police have already shown their support for the breathalyzer, including Lompoc Police Chief Patrick Walsh, who says he plans on issuing the device to at least six of his departments over the next six months…

Ok, so maybe they will be able to detect and even measure the amount of THC in the blood from testing the breath.  But how does this solve the problem of inactive THC still remaining in the blood from smoking days or weeks earlier?  And what good is it to know the amount of THC in the breath if there is still no scientific evidence of the amount necessary to impair driving ability?
 

Spiked Drink Land Pro Soccer Player DUI

I’m a huge fan of England’s top flight soccer league, the English Premier League. While my team is Chelsea F.C. (go Blues!), I keep up with other players and teams. And like many other die-hard fans of the English Premier League, I was surprised when one of the league’s best players was caught driving drunk. Why was I surprised that Yaya Touré, of Manchester City F.C.,  was caught driving drunk? Because he is known for refusing alcohol due to his Muslim religion.

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Touré was charged in late November for an incident in which he was pulled over by police for driving with passengers while having a blood alcohol content of twice the legal limit in England of 0.08 percent.

So if Touré doesn’t drink alcohol, how did he get caught driving under the influence? Touré believes that his drink was spike at the party that he had left.

“Over the last two weeks there has been some confusion as to why I was charged with drink driving, as it is well known that I am a Muslim and do not drink,” said Touré on his website. “I have always refused alcohol. Anyone who knows me or follows football will have seen me refuse champagne for Man of the Match performances because of my commitment to my religion.”

Although Touré did not dispute the charges and was ultimately sentenced to a license suspension and a whopping £54,000 fine, he explained to the court that he had not intentionally consumed alcohol.

According to The Telegraph who was present in court for Touré’s sentencing, Touré “told magistrates he had no idea he had been drinking, even though he conceded his Diet Coke tasted odd, and although he felt ‘tired’ he had not suspected he was tipsy.

“He told the court that he had been to a house party where he had poured himself what he thought was Diet Coke from a jug, but later discovered it was mixed with brandy.

“He had been the ‘designated driver’ on the night of the party and drove his car with passengers in it, claiming he just felt tired, despite being double the drink-drive limit.

“He told the court he thought his drink tasted different but only later found out he had been pouring himself a pre-mixed drink.”

Did Touré have to accept responsibility if he unknowingly became intoxicated and then got behind the wheel?

At least here in California, possibly not.

The California jury instruction CALCRIM 3427 states, “A person is involuntarily intoxicated if he or she unknowingly ingested some intoxicating liquor, drug, or other substance, or if his or her intoxication is caused by the force, duress, fraud, or trickery of someone else, for whatever purpose [without the fault on the part of the intoxicated person].” A person who has been involuntary intoxicated cannot be convicted of a crime according to California Penal Code section 24 which states, “All persons are capable of committing crimes except…[p]ersons who committed the act charged without being conscious thereof.”

Touré would have to prove that he became intoxicated through no fault of his own. For example, the defense is not available if he intended to drink alcohol, but someone spiked his drink with more alcohol than you knew of. This might also mean that he had no reason to believe that the drink was spiked or that he had no reason to believe he was intoxicated when he decided to drive.

Based on his statement, he didn’t intent to drink alcohol, however he may have had reason to believe his drink was spiked.

However, the California Court of Appeals in People v. Scott (1983) 146 Cal.App.3d 823, has held that the mistake of fact defense can be based on involuntary intoxication. The mistake of fact defense can be used if you act under an honest and reasonable mistake of fact and commit a crime. This does not apply if you are mistaken of the law. For example, you cannot use the defense if you mistakenly believe the law prohibited you from driving with a .10 or above instead of .08 or above BAC, and you have a .09 BAC. On the other hand, if you honestly and reasonably, but mistakenly believe that you have not ingested any intoxicating substances, you may be able to use the mistake of fact defense.

 

 

New Efforts to Push Roadside Marijuana DUI Test

In April of 2015 I wrote about Assembly Bill 1356, written by Assemblyman Tom Lackey from Palmdale, California, which would have allowed law enforcement to use a device similar to a breathalyzer that could detect the presence of marijuana and a number of other drugs in a driver’s system.

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That bill however, failed to pass the Assembly Public Safety Committee the following May because of reliability concerns.

However, with the passing of Proposition 64 which allowed the use of recreational marijuana in California, Lackey who is a former sergeant with the California Highway Patrol, has introduced a new bill similar to that of the failed AB1356.

The newly proposed Assembly Bill 6 would allow tests using saliva samples taken from drivers suspected of driving under the influence. The test would let the officer know whether a driver has recently used a number of drugs including marijuana.

“The ballot initiative passed this year to legalize marijuana will result in more marijuana consumers on our state’s highways and roads,” Lackey said in a statement. “It is imperative that we invest in a broad spectrum of technologies and research to best identify marijuana-impaired drivers.”

The measure is supported by Chief Ken Corney, president of the California Police Chiefs Assn.

“Our federal partners have demonstrated the efficacy of oral fluid testing, and we look forward to utilizing the technology at a state level,” Corney said in a statement.

While the current devices referred to by Corney tests for the presence of drugs, it does not test for drug  quantity nor impairment of the driver.

There is an established correlation between blood alcohol content, specifically the legal limit of 0.08 percent, and alcohol impairment. Unlike alcohol, however, there is no such correlation between the presence of drugs and impairment. In other words, a person can have traces of drug in their system without being impaired by that drug.

Marijuana, for example, can stay in a person’s system for weeks following the smoking or ingesting of the marijuana and well after the person was intoxicated or stoned. The purpose of DUI laws is to prevent impaired driving, not to punish sober and unintoxicated people merely because they ingested drugs at some point in the past.

It is unclear how the presence of a drug may affect the subsequent arrest or DUI case since presence doesn’t necessarily mean impairment. Until we can establish a correlation with drugs including marijuana like we have with alcohol, namely the correlation between quantity and impairment, we shouldn’t be using pushing for laws like this.

Assembly Bill 6 will be brought up for a vote early next year.

 

California DUI with Out-of-State Priors

Many people know that a California DUI is a “priorable” offense. This means that if a person is arrested and convicted of a subsequent California DUI within ten years, the penalties by operation of law increase.

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Generally, a first-time California DUI conviction carries three to five years of summary (informal) probation, up to six months in jail, between $390 and $1,000 in fines, completion of a court-approved three month DUI program, and a six-month license suspension.

A second-time California DUI conviction carries three to five years of summary probation, a minimum of 96 hours to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court-approved 18 month DUI program, and a two-year license suspension.

A third-time California DUI conviction carries three to five years of summary probation, a minimum of 120 days to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court approved 30-month DUI program, and a three-year license revocation.

With this understanding, the question arises: Can a prior out-of-state DUI conviction be used to make a current California DUI a “second offense” and allow the court to increase the penalties?

It depends on whether the facts in the prior out-of-state DUI case would have constituted a DUI in California, under California law.

For example, Florida’s DUI law reads, “A person is guilty of the offense of driving under the influence… if the person is driving or in actual physical control of a vehicle within this state and…[t]he person is under the influence of alcoholic beverages…when affected to the extent that the person’s normal faculties are impaired…”

The wording of Florida’s statute may prohibit a past Florida conviction from being used to make a California DUI a “second offense” for two reasons.

The first problem is that Florida’s statute requires that a person impaired “to the extent that the person’s normal faculties are impaired.” This standard is less strict than California. California requires that a person be impaired to an appreciable degree. Thus, a person may be deemed impaired under Florida’s standard, but not necessarily under California’s.

The second problem is that Florida’s statute also requires that someone drive or is “in actual physical control of a vehicle.” This makes Florida what is called a “dominion and control state.” A person can have dominion and control over a vehicle by simply being in the driver’s seat. California’s DUI law, on the other hand, requires that a person actually drive the vehicle. Therefore, a person can be convicted under Florida’s DUI law by sitting in the driver’s seat while intoxicated. However, someone sitting in the driver’s seat while intoxicated cannot be convicted under California’s DUI law.

Therefore, if a person was convicted five years ago in Florida for a DUI under Florida law because they were found drunk in the driver’s seat of their vehicle, but not driving, that conviction cannot be used to make a current California DUI a “second offense” to increase the penalties because California DUI law requires that the person actually drive the vehicle.

If, however, that same person was pulled over after driving and are convicted of a Florida DUI, that prior Florida DUI conviction can be used to make the current California DUI a “second” offense.