DUI Saturation Patrols in Dana Point and San Clemente June 30, 2017

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DUI Saturation Patrols in Dana Point and San Clemente June 30, 2017

DUI Saturation Patrols in Dana Point and San Clemente June 30, 2017

DUI Checkpoints Orange County

Our Orange County DUI Lawyers have been informed that deputies from the Orange County Sheriff’s Department’s DUI Enforcement Team will be deploying this weekend to stop and arrest alcohol and drug-impaired drivers in an ongoing traffic safety campaign.

DUI Saturation Patrols will deploy from 7 p.m. Friday, June 30th, to 3:00 a.m. Saturday, July 1st in areas with high frequencies of DUI collisions and/or arrests in the cities of San Clemente and Dana Point.

DUI Checkpoints in Newport Beach: In Newport Beach,  the Newport Beach Police Department will be deploying this weekend to stop and arrest alcohol- and drug-impaired drivers. Newport Beach DUI Saturation Patrols will deploy Friday through Monday (June 30 through July 3) between the hours of 6:00 p.m. and 3:00 a.m. in areas with high frequencies of DUI collisions and/or arrests. When possible, specially-trained officers will be available to evaluate those suspected of drug-impaired driving, which now accounts for a growing number of impaired driving crashes.

What is a Saturation Patrol?

A Saturation Patrol is special enforcement where trained officers, with DUI testing equipment, drive around high potential areas for DUI arrests in Orange County, looking for traffic violations that might indicate someone is drunk driving.

WHY DOES LAW ENFORCEMENT HAVE ORANGE COUNTY DUI CHECKPOINTS?

DUI Checkpoints are even admitted by law enforcement to be less effective than other means of removing drunk drivers from the road. But, even though DUI checkpoints don’t work, police state they had a deterrent effect preventing people from driving in the first place.  The truth is that funding in grants from the California Office of Traffic Safety (OTS), MADD, and the Federal Government ensure DUI checkpoints are used first before other measures.

ARE DUI CHECKPOINTS LEGAL?

The US Supreme Court, as well as the law in California, including the Ingersoll v. Rand decision, makes DUI checkpoints legal, as long as they follow certain criteria, including:

  • Decision making by supervisors: This is important to ensure that checkpoints aren’t set up in “arbitrary and capricious” locations. The court didn’t say so, but we’re guessing they wanted to avoid any accusations of racial profiling.
  • Limits on discretion of field officers: The theme of distrust of the officer continues. Strict procedures and a random selection of drivers according to a preset pattern (every third driver, for example) are suggested to avoid abuse.
  • Maintenance of safety conditions: We’re not sure how it applies to constitutionality, but the court wanted lots of bright lights and signs.
  • Reasonable location: The location should be based on relevant factors, such as areas with high incidences of DUI or DUI accidents.
  • Time and duration: There are no hard and fast rules, but the timing should be set to optimize the effectiveness of the checkpoint. In other words, put ’em up when the drunks are out.
  • Indicia of official nature of roadblock: This is more babble about bright lights and warning signs. They do mention that the lights and signage should be visible for the sake of notification to the drivers. Drivers also can’t be pulled over for avoiding the checkpoint, unless they violate a law to do so.
  • Length and nature of detention: The time of the stop should be minimized as to infringe on a person’s rights as little as possible. That means peek at the eyes, smell for booze, and look for cans. If there are no signs of intoxication, the driver should be let go. If they look or smell drunk, field sobriety tests are appropriate.
  • Advance publicity: Ingersoll was in favor of advance publicity. It referred to the deterrent effect and stated that the notice minimizes intrusiveness to a person’s rights. In 1993, the court in People v. Banks stated that publicity was not a requirement, but it certainly helps.

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Contact our firm if you have any questions about Orange County DUI Checkpoints.

Don’t delay contacting us if you were arrested for a DUI.  We can start you on a plan of action today that will help your court date later. The DMV needs action within 10 days of your arrest.  Contact us today.

Must I install a breathalyzer (IID) in my car?

Must I install a breathalyzer (IID) in my car?

Ignition Interlock Device IID

Must I install a breathalyzer (IID) in my car in my DUI case? An ignition interlock device needs to be installed in your case under California law in certain cases. Learn from our Orange County DUI Lawyers when you will need to have a breathalyzer installed in your vehicle for the DMV or for the court.

What is an ignition interlock device (IID)?

An ignition interlock device, which is sometimes called a breath alcohol ignition interlock device (IID and BAIID) is a breathalyzer for your vehicle. It requires the driver to blow into a mouthpiece on the device before starting the vehicle. With some devices, you are also periodically required to blow in the vehicle while it is in motion at certain intervals.

When do I need an IID installed?

Must I install a breathalyzer (IID) in my car as part of my DUI case? There are only two situations where the IID needs to be installed in your car:

  1. You have a first time DUI in one of the four specific “DUI Pilot Program” counties in California; or
  2. You have a multiple offense DUI (a second DUI or higher).

Ignition Interlock IID Requirements for a “DUI Pilot Program” county.

The four “DUI pilot program” counties in California are as follows:

  1. Los Angeles County;
  2. Alameda County;
  3. Sacramento County; and
  4. Tulare County.

In those four counties only, a pilot experiment is going on over a period of several years.  That experiment is to see, statistically, if installing a breathalyzer (IID) in the cars of first time offenders, ends up reducing the number of second time driving under the influence (DUI) cases and provide DMV with data that can be used to evaluate the effectiveness of an IID in reducing DUIs overall.

That IID pilot program requires all individuals convicted of a DUI in one of the four California counties above to install an IID on every vehicle they own or drive, provide DMV with a Department of Motor Vehicles Ordered Verification of Ignition Interlock (DL 924) form, pay a $45 administrative service fee (ASF), and meet all other reinstatement requirements before DMV can reinstate, reissue, or restrict their drivers license.

The DMV, not the Court, Requires the IID.

Note that this is not a court requirement, even though it is triggered on being found guilty of DUI, or entering a plea of guilty to DUI under a plea bargain in court.  The court may not mention it, as it is a DMV requirement, and after a conviction, the DMV will notify you via mail of the need to install a breathalyzer (IID) in your car.

After a court conviction, the DMV automatically mails an Order of Suspension or Revocation notice along with a DUI IID Insert or an Order of Installment of an Ignition Interlock Device when the department receives notification of a conviction for a DUI violation under California Vehicle Code (CVC) §§23152 or 23153 or Penal Code (PC) §191.5(b) which occurred in one of the pilot counties on or after July 1, 2010. Note that pleading to a wet reckless does not require you to have an IID installed in your vehicle.

How long do I have to have the IID installed for?

If you are a standard first-time DUI offender in one of the counties above, you must install the ignition interlock device for five (5) months. If, however you are convicted of Vehicle Code 23153 VC DUI causing injury, you must install the device for one year.

Once an IID is installed, do I have to do anything further?

Yes – you must arrange service with the installer for each of the vehicles with an IID at least once every 60 days. When the vehicle is serviced, the installer will recalibrate and monitors the operation of the device. Under CVC §23700, an IID installer must notify DMV if the device is removed or if there is evidence that you attempted to remove, bypass, or tamper with the device; or if you fail three or more times to comply with any requirements for the maintenance or calibration of the IID.

An IID and a Second time DUI or a Third time DUI

Must I install a breathalyzer (IID) in my car for a second time DUI?

With a second time DUI, you are not required to install an IID, but it helps you.

While the DMV APS suspension is 1 year if there is 1 prior DUI on the record within 10 years, if you submitted to a chemical test and show proof of installation of the ignition interlock device(“IID”), you can obtain a restricted license after 90 days. This restricted license allows you to drive anywhere as long as it’s in a car with an IID installed. This is required for 12 months.

Unfortunately, drivers facing a second time DUI offense in California who also refused to submit to a chemical test will face a much tougher punishment. These individuals face a two year license revocation and are not entitled to a restricted license during any part of the suspension period.

You should note that there is no way around the 12-month ignition interlock device (IID) requirement. Therefore we always recommend to our clients that you should install it immediately so that you can get the restricted license on the 91st day after your suspension initially began.

Must I install a breathalyzer (IID) in my car for a Third Time DUI?

Do I need to install a car breathalyzer (IID) in my DUI case as a third time offender? If you are convicted of a third offense DUI, you must install an IID on any car you own or operate for a four-year period. If you are convicted of your 3rd DUI in the pilot program counties of Los Angeles, Alameda, Tulare or Sacramento County, IID installation is mandatory. However, in all other counties, installation is at the judge’s discretion.

A court license suspension from a DUI is 3 years when there are already 2 prior DUI or wet reckless convictions within 10 years.

On the other hand, the DMV’s APS suspension of your license is only 1 year if there is 2 prior DUIs on the record within 10 years. However, after 180 days, if you submitted to a chemical test and show proof of installation of an ignition interlock device (“IID”), you can obtain a restricted license. This restricted license allows you to drive anywhere as long as it’s in a car with an IID installed. This is required for 24 months.

Unfortunately, drivers facing a third time DUI offense in California who also refused to submit to a chemical test will face a much tougher punishment. These individuals face a three year license revocation and are not entitled to a restricted license during any part of the suspension period.

You should note that there is no way around the 24-month IID requirement, so we always recommend to our clients that you should install it immediately so that you can get the restricted license on the 181st day after your suspension initially began.

Must I install a breathalyzer (IID) in my car?  It depends on the above factors.

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Do you have question about your specific case, or about IID requirements, for our DUI Lawyers?  Contact us today. 

 

Can you get a DUI in an electric car?

Can you get a DUI in an electric car?

Can you get a DUI in a tesla

Can you get a DUI in an electric car? As a DUI Lawyer in Orange County, which has a fair amount of Teslas,  have been asked a few times in the past whether or not you can get a DUI in a Tesla.  Presumably the same question would apply to any other type of pure electric car.

The reasoning here in the question is that, since an electric car, like a Tesla, does not have a gas motor, is it really considered a car, for legal purposes involved with a DUI?

The law does have definitions, and limits on what it applies to.  While there have been cases in other jurisdictions where someone has been arrested for all of the following:

California law does make some distinctions. For example, in one Orange County DUI case that our Orange County DUI Defense firm handled, and which we ended up winning a dismissal on DUI charges for, our client was charged with a DUI on a scooter. 

In California, the law only allows the charges for DUI to remain if the motor was above a specific horsepower.  Under California Vehicle Code VC §406(b), a scooter or bicycle must:

  • Have pedals and an electric motor that produces no more than 1,000 watts.
  • Be unable to propel itself more than 20 mph on level ground, including with assisted pedaling.

A motorized bicycle or moped classified under these requirements do not need a license plate, registration fee or insurance. They are not considered a “motorized vehicle”, and you cannot get a DUI if they meet the above requirements, or are under those requirements above. However, it’s important to note that you still must be 16 years old and wear a properly fitted bicycle helmet whenever you are riding.

For a motorized bicycle or moped to be classified as type CVC §406(b),

Can you get a DUI in an electric car?  Yes you can. In California, a DUI is defined as operating a motor vehicle on a public roadway while under the influence or while above a .08 blood alcohol level.

A car with an electric motor is still a “motorized vehicle”. As long as there was driving of any motorized vehicle, and the person driving was above a .08%, or was impaired and unable to operate that vehicle safely, a DUI can be proven.

California Vehicle code VC 415 defines what a motor vehicle is and says:

(a) A “motor vehicle” is a vehicle that is self-propelled.

However, there is an exception for the following motorized vehicles:

(b) “Motor vehicle” does not include a self-propelled wheelchair, motorized tricycle, or motorized quadricycle, if operated by a person who, by reason of physical disability, is otherwise unable to move about as a pedestrian.

Can you get a DUI in an self driving car?

Interestingly enough, the question becomes more complicated if the Tesla (or any other self driving vehicle) is doing the driving, and not the person with the driver’s license.

Unfortunately, under current California law, even if your self driving, self parking car is parking the car while you are not in the vehicle, you are still considered the person in charge (the “pilot in command”), and are still responsible for the car’s safe operation even when the car is operating out of your sight.

What that means is that if your car is driving itself and is parking while you are having a beer or other alcoholic beverage in a bar, and it gets in a collision with another vehicle, you are responsible for the safe operation and driving of that vehicle, and you could not only be held responsible for the accident, but could also be charged with driving under the influence (if you are above a .08% or are under the influence), even though you were not in the car at all. 

That law has been the subject of discussions regarding legislative change in the future, but for now, it remains the current law. So can you get a DUI in an electric car?  Under the current law, yes.

Contact us if you have questions for our Orange County DUI Lawyers regarding DUI and self driving vehicles, or electric cars, or if you need our services.

 

Buzzed Driving Is Drunk Driving – or is it?

Buzzed Driving Is Drunk Driving – or is it?

Buzzed Driving Is Drunk Driving - or is it?

There is a campaign aimed to stop buzzed driving.  But what is the definition of buzzed driving?  Is buzzed driving illegal?  Is buzzed driving the same as drunk driving or DUI?  Buzzed Driving Is Drunk Driving – or is it?

What does buzzed driving mean?

The term “buzzed” has been around the world of alcohol consumption for a very long time.  Only recently has NHTSA, through a series of advertisements new ad campaign sponsored by NHTSA (the “National Highway Transportation Safety Administration”) and the ad council (television ads and billboards), impressed upon the public the slogan “Buzzed Driving is Drunk Driving”.

NHTSA said that in their surveys, they found that young men between the ages of 18 and 34 were responsible for the vast majority of drunk-driving accidents. But when asked, these young men made a distinction between being drunk and being buzzed.

The ad council asks people to take a pledge that states:

Even just one too many drinks can impair my driving and lead to devastating consequences. It’s just not worth it. Buzzed driving is drunk driving, so I’m going to make sure I make responsible choices that don’t endanger myself and others.

I doubt anyone would have a problem with that.  But what is “one too many drinks?” That is highly variable and suggests that people know what too many is for them, and what one beyond that number is.

More importantly, the law in California, California Vehicle Code section 23152(a), has a definition for what is illegal driving under the influence:

Under that law, a prosecutor must prove the following two facts (the “elements of the crime”):

  1. that you drove a motor vehicle, and
  2. that you were under the influence of alcohol or another substance at the time you drove.

That’s it.  However, “under the influence” has another definition, as follows:

Under the Official California Jury Instructions, Criminal, specifically CALJIC 16.831 Alcohol or Drug Influenced Driving- Vehicle Code, a jury must be given the following official definition:

23152(a) “Under the Influence”-Defined. (“A person is [under the influence of an alcoholic beverage] [under the influence of a drug] [under the combined influence of an alcoholic beverage and a drug] when as a result of [drinking such alcoholic beverage] [and] [using a drug] [his] [her] physical or mental abilities are impaired to such a degree that [he] [she] no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.”)

To put it more simply, “a driver’s physical or mental abilities are impaired to such a degree that they no longer have the ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances”.

So what is the definition of Buzzed Driving?

Buzzed Driving Is Drunk Driving – or is it? The dictionary definition of buzzed driving is, “A state of pleasant intoxication, as from alcohol.”  At least one website has the definition, which is a misleading interpretation of the law, that buzzed driving “is defined as driving with a blood alcohol concentration (BAC) of .01 to .07”.

That is consistent with the the federal agency recommending recently that states lower the legal BAC for driving. NHTSA suggests lowering the BAC to .05. According to the NTSB, at .05, some drivers have problems with depth perception.

Buzzed Driving Is Drunk Driving – or is it? No. Saying “buzzed” driving is “drunk driving” is a play on semantics. Could buzzed driving be drunk driving under the legal definition? It could be only if you have enough of alcohol or another substance to impair your ability to drive safely, or are above a .08%.

The new slogan is a part of a continued effort to change and lower the public perception of what it means to be intoxicated behind the wheel.

Buzzed Driving Is Drunk Driving – or is it if jurors believe it is?However, this may be a good way for jurors to misapply the law and convict people who really haven’t done anything wrong, which is where many Orange County DUI Defense Attorneys have a problem with the statement.

 

Contact our firm if you have questions about “buzzed driving” or driving under the influence in Orange County.

 

Brea Treasurer arrested for DUI right before his election

Brea Treasurer arrested for DUI right before his election

Brea treasurer arrested for DUI

A case was filed in Orange County Superior Court in Fullerton, alleging that Brea Treasurer Rick J. Rios was driving under the influence, and committed a hit and run in Orange County.

According to one source, on Friday, October 15th, 2016, (three weeks before his election), at around 11:45 p.m., the Brea police received a call that a white SUV had collided with parked cars in a non-injury accident and then left the area.  The treasurer, Rios was arrested when he his SUV returned to the area.  Police detected signs of alcohol intoxication, gave him a field sobriety test, and arrested him for both hit-and-run and driving while intoxicated.

The complaint filed by the prosecutor in the case alleges that he was a .09% blood alcohol level, as measured by a DUI breath test.

The case is pending in the North Justice Center in Fullerton as of this writing.  One of the best DUI lawyers in Orange County, Felipe Plascencia, is representing Mr. Rios.  Mr. Rios has entered a not guilty plea at his arraignment while the case is pending and is assumed innocent until proven guilty of his DUI in Orange County, and his Hit and Run charges.

The prosecutor in the case, The District Attorney of Orange County, waited almost two months after this occurred, and one month after the election occurred, to file charges on December 7th, 2016.

A source investigating this incident found out that the two cars hit belong to the same family, a parent and son.  In DUI cases, if there is a finding of guilty, or a guilty plea, the court typically orders restitution, or holds a restitution hearing, if there was damage to any party.  In most cases, insurance pays for damages, but the restitution order allows a victim to come to court to seek damages and reimbursement if there is not insurance coverage. For this Brea Treasurer arrested for DUI right before his election, he may be eventually ordered to pay for any repairs, or any damages.

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If you have questions about a DUI case in Orange County, or a hit and run case in orange county, please contact us today. We can help you with your case and minimize the impact on you from sentencing with the priors.

Man sentenced for 9th Orange County DUI

Man Sentenced for 9th Orange County DUI

Man sentenced for his 9th Orange County DUI

A man sentenced for 9th Orange County DUI was from Placentia.  He was arrested in Placentia for Driving Under the Influence of Drugs (DUID), and had 8 priors.  His case ended last week, on June 20th, 2017, with his plea.

The 53-year-old Placentia man was sentenced to four years in state prison for his 9th DUI conviction since 2011 in Orange County.  The Orange County District Attorney had brought the charges, but the DUI defense lawyer in Orange County, Marlon Stapleton, was wise enough to bypass the DA’s offer and obtain a sentencing offer from Judge Roger Robbins, the felony judge at the North Justice Center Courthouse in Fullerton, who handled the case.

The prosecutor handling the case, Christine Simmons, objected to the sentence.

His sentence, for his most recent DUI with all of his priors, including priors for driving on a suspended license, was as follows:

  • One year in state prison under Penal Code 663 as a felony;
  • Three years in state prison, the maximum for a multiple offense DUI;
  • Credit for 283 days in jail against the prison time
  • An order to pay restitution in the amount of $15,272.54.

He also admitted three misdemeanors for driving on a suspended license and without an ignition interlock device (IID) as required.

The most recent DUI case in Placentia, his ninth DUI, involved a DUI with an accident.  It was alleged that he drove into a Southern California Edison electrical box.  He was found to be a .11% blood alcohol level, and police discovered he didn’t have an ignition interlock device in his vehicle as required.

His prior case, (his eighth), a DUI in Laguna Beach, occurred on June 7, 2015. He was lane straddling and failed to yield when police tried to pull him over, according to probation officials. He kept going for a half-mile at about 4 to 7 mph, according to a probation report, which said the vehicle “stopped for about two minutes, then began rolling again before driving onto a sidewalk and colliding with a cement light pole.”

Police found a prescription bottle containing GHB, a drug which is undetectable in blood, breath, or urine in DUI cases, in his car.  His probation officer stated, at the time, “Despite any success the offender has demonstrated under supervision, he has shown by his recent arrest that he has substituted his alcohol addiction with another substance that is not detected by standard drug screening”.

His Orange County DUI lawyer, Mr. Stapleton, had shown evidence that his client had paid someone $50,000 a year to drive him around, and was undergoing family turmoil that had triggered his addiction. The man sentenced for 9th Orange County DUI likely needs help with conquering his addiction, rather than state prison time.

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If you have questions about a DUI with a prior, please contact us today. We can help you with your case and minimize the impact on you from sentencing with the priors.

 

The best ways to test alcohol in a DUI case

The best ways to test alcohol in a DUI case

The best ways to test alcohol in a DUI case

A relatively new academic and research article discusses the best ways to test alcohol in a DUI case.The article in the Regulatory Toxicology and Pharmacology journal from less than a year ago entitled “Best practices approach to determination of blood alcohol concentration (BAC) at specific time points”, discusses this in detail from a forensic toxicologist research point of view.

The study notes that alcohol testing is the number one substance that is measured in the law – far more than other substances that are illegal to drive under, including prescription drugs involved in a DUI, illegal drugs involved in a DUI, and other DUID Drug DUI scenarios. In Orange County, DUID Drugs continues to be a growing problem, but the number of alcohol cases far outweighs those of drugs.

One of the problems in measuring alcohol concentrations in living, metabolizing drivers, is that the alcohol levels are always changing.  The blood or breath will have an absorption phase, where the blood alcohol increases, (leading to the rising blood alcohol defense in DUI cases), a peak at some point, and then a dissipation phase, where the blood alcohol levels decline, eventually to zero alcohol in the body.

All a breath or a blood test in a DUI can  offer is information regarding an individual driver’s alcohol level at a given time. In forensic cases, the alcohol concentration in the breath (BrAC) at the time of driving is sometimes used interchangeably with the BAC (blood alcohol content) in a DUI case, without consideration for alcohol changes in the body.

The Widmark formula and model is the best method for measuring multiple alcohol (drinks) ingested at various times with alcohol elimination rate adjustments based on individual body factors. However, when it comes to the science of forensic toxicology, real world case uncertainties will always exist.

The study identifies factors that can change the accuracy of measuring alcohol in a DUI case, including the following:

Factors causing error in a DUI breath or blood test:

  • Body mass index;
  • Liver health;
  • The state of nourishment;
  • Hydration levels, or how hydrated the driver was; and 
  • Testing errors.

All of those, or any one of those, can be used to show reasonable doubt with the blood test or breath test in a DUI.  Those same problems can be used to show reasonable doubt as to the DUI case.

(The article appears at Regul Toxicol Pharmacol. 2016 Jul;78:24-36. doi: 10.1016/j.yrtph.2016.03.020. Epub 2016 Apr 1).

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California DUIs and out of state alcohol classes

California DUIs and out of state alcohol classes

California DUIs and out of state alcohol classes

California DUIs and out of state alcohol classes create a special problem. If you were convicted of a DUI in California, Vehicle Code §23556 requires the court to order the completion of a California alcohol program in the driver’s county of residence or employment.

However, if you move out of state, you have a problem with both the court and the DMV. This article discusses what happens when a California resident, who holds a California driver’s license, and gets a California DUI, moves out of state before completing the required alcohol school.  It is different from the situation where someone from California gets a DUI in another state.  In short, the court will allow an alcohol school in another state, but the DMV will require a California school or alcohol program, or for you to give up your CA driver’s license.

Court DUI Sentences and DUI schools out of county or state:

With the court, the court must specifically authorize, and order as part of your case, an out of county, or out of state, alcohol school.  In general, the court will allow any program that is the equivalent of a first time offender’s program in whatever state you are in, if you have a first-time offense, and a second time offender’s alcohol program if you have a second time DUI case, and so on.  That may mean that you attend a class that is substantially cheaper and less time than California, or more expensive and a longer program than California’s.

The DMV and DUI schools out of county or state:

With the DMV, you have a more difficult problem. So long as you live in California, the California DMV will never accept completion of an alcohol class from another state. The class must be taken in California even if the court accepted an out-of-state program in satisfaction of probation.

You have two options:

  1. Remain in California and complete the alcohol classes, or
  2. Move to another state and waive your “privilege” to drive in California.

Vehicle Code §23558(c)(1) allows the court to revoke probation for failure to complete the program except for good cause. Vehicle Code §13352(a)(2) refers to this Vehicle Code §23538 program, i.e. one in the person’s county of residence or employment, and requires that it be completed before full driving privileges can be returned. Punishment statutes for other drunk driving offenses have similar provisions. Obviously, none of this is possible if the person resides in another state since there are no California licensed drinking driver programs outside the state of California.

Where you must attend DUI schools in California:

Because of that, Health & Safety Code §11837.2(a) indicates that the court may refer persons only to licensed programs. Subject to these provisions, a person is eligible to participate in the program if it is operating in any of the following:

  1. The county where the person is convicted, or
  2. The county where the person resides, or
  3. A county that has an agreement with such person’s county of residence pursuant to Section 11838, or
  4. A county to which the person may request transfer pursuant to subdivision (d).

What do you do if you have a California Driver’s License but live out of state?

The law does not require impossibilities (Civil Code §3531). If a person resides in another state if they cannot attend a licensed California drinking driver program unless they interrupt their lives and move back to California. But with California DUIs and out of state alcohol classes, that rarely happens.

If you have a California DUI and you live out of state now, you may find that your license is suspended by the California DMV and will continue to be suspended until you complete a California alcohol school.

However, that suspension of your driver’s license may prevent you from getting a new driver’s license in another state, as other states that are part of the interstate driver’s compact will obtain the records from the California DMV, and will not issue you a new license in your new state until California lifts the hold.

That creates a driver’s license “Catch-22”.  The solution is to apply to the DMV for an out of state waiver.

Applying for a CA DMV License Waiver

You must take action yourself on this.  Your California DUI attorney, unfortunately, cannot do this for you. If you move out-of-state, you can call DMV Mandatory Actions Unit in Sacramento, California, at (916) 657-6525 and ask for a “1650 waiver packet.”  They will only mail this packet to you, the licensee, at an out-of-state address (you will also have to prove you live out-of-state with a utility bill or such).  This waiver allows out-of-state licensees to obtain a license in another state, by lifting driver’s license holds, and also allows you to drive in California, but does not allow the out-of-state licensee to acquire a California license within 3 years of filing the waiver.

One can only qualify for the 1650 waiver once in a lifetime – a rule that begun in March of 2005.  The 1650 Waiver removes the California hold, assuming an SR22 is also on file with DMV. If you come back to California within 3-years and want your license back, you will have to take the applicable approved California Alcohol school program, or classes. California DUIs and out of state alcohol classes does not work for the DMV lifting the hold.

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Ketogenic Diets or Diabetes Breathalyzer False Positive

Ketogenic Diets or Diabetes Breathalyzer False Positive.

Was the breathalyzer in my DUI case operating properly?
Persons that are on ketogenic diets, or in ketosis due to high protein low carb diets can have false positives. Also, diabetics experiencing ketoacidosis may produce endogenous acetone, which may even, in turn, metabolize into ispropanol alcohol. Ketogenic Diets or Diabetes Breathalyzer False Positive is a problem.
Breath testing devices might better be characterized as relatively specific for detecting ethanol, as practically applied in breath tests of live human subjects.
Consider three types of alcohol breath instruments :

1. SEMICONDUCTOR TECHNOLOGY BREATHALYZERS

 The cheapest portable breath testers (PBTs) and some ignition interlock devices use semiconductor technology. These are likely the kind you might buy at Radio Shack as a novelty. I believe that these devices can’t quickly-enough-for-an-instant-test distinguish between ethyl (drinking) alcohol and its chemical cousins, such as isopropyl alcohol, methyl alcohol, toluene, and maybe acetone (which is a keytone). Such a PBT may indiscriminately and cumulatively measure ethyl alcohol and its cousins, if present.
 
Therefore, a cousin of ethyl alcohol could, by itself, be the source of a false positive for ethyl alcohol. Further, it could be combined with any present ethyl alcohol to result in anelevated positive.

2. FUEL CELL TECHNOLOGY IS RELATIVELY SPECIFIC

 More expensive PBTs use fuel cell technology. These are the kind that law enforcement is likely to use in the field. An example of a fuel cell PBT is the Intoxilyzer SD-5. Its operator’s manual at page 23 under “specificity,” declares: “The detector is unaffected by acetone, paint and glue fumes, foods, confectionery, methane, and practically all other non-alcoholic substances at the levels found in human breath.” (Emphasis added.)
 
Granted, this is a disclaimer by a very interested party, the manufacturer.  But note that it doesn’t claim total specificity.
 
At the very least, fuel cells are relatively specific to ethyl (drinking) alcohol. While fuel cells may react to non-ethyl alcohols, perhaps even those such as acetone found in human breath, they do so at a slower rate, according to Hansueli Ryser, executive director of Draeger Safety Diagnostics Inc., a manufacturer of breath-testing devices.
 
Perhaps that reaction is too slow (or too slight) to make any practical difference in an instantaneous reading.  Perhaps to register, the amount of the interferant cousin of ethanol must be so high that it couldn’t exist on the breath of a living, breathing human.
 
The science, and the machines, don’t know where to place sorbitol or xylitol as a sugar alcohol which can create a false positive in the spectrum of the alcohol family.

3. SPECTROSCOPIC TECHNOLOGY IS MORE SPECIFIC

 Modern evidential breath-testing machines, such as the type used in Orange County DUI breath cases, employing infrared spectroscopy with chopper wheels and/or pulsing light sources, can allow them to distinguish ethyl alcohol from potential interferants, its chemical cousins.
 
Perhaps an exception would be where the ethanol reading may be slightly elevated because of a false positive vector from isopropanol.