California DUIs and out of state alcohol classes

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Tag Archives: alcohol

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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DUI case dismissed for medical condition causing woman to be four times the legal limit

DUI case dismissed for medical condition causing woman to be four times the legal limit

A woman in New York was arrested for driving under the influence (DUI) and weaving when she was pulled over and tested and found to have a 0.33% alcohol level.  (The legal limit is at or above 0.08% in all 50 states). She had her DUI case dismissed for medical condition.

auto brewery syndrome

Our Orange County DUI Lawyers have learned that her DUI case was dismissed, however.  Her DUI lawyer, Joseph Marusak, who practices law in Buffalo, New York, did the research work and found that the blood alcohol level did not match the drinking in the case.

As reported in The ABA Journal, the client, a 35-year-old school teacher from Hamburg, was pulled over by police in October 2014 after another driver called the police to report her car was weaving.

As the Buffalo News reported, Marusak discovered a rare intestinal disorder called Auto-Brewery Syndrome in which ordinary food is converted into alcohol because of yeast in the digestive system. Marusak sent his client to Dr. Anup Kanodia, who has treated people for the disorder. The client was observed by medical personnel for a 12-hour period when she wasn’t drinking, and her blood alcohol levels ranged from .279 to .40.

Auto-brewery syndrome, also known as gut fermentation syndrome, is a rare medical condition in which intoxicating quantities of ethanol are produced through endogenous fermentation within the digestive system. One gastrointestinal organism, Saccharomyces cerevisiae, a type of yeast, has been identified as a pathogen for this condition.

yeast can cause dui

The Buffalo News spoke with Kanodia, who said some people with Auto-Brewery Syndrome can tolerate high alcohol levels because their bodies are used to them. He acknowledged, however, that it would not be safe to drive during a flare-up.

In support of their motion, the defense submitted an affidavit from Anup K. Kanodia, M.D., from Columbus, Ohio, wherein, based upon specialized medical testing, he diagnosed the defendant with having ABS.

Kanodia said he is working with five other lawyers in the United States and Canada who are citing the syndrome as a defense in DUI cases.

The defense also submitted an affidavit from a WNY Pharmacologist which forensically established that the defendant’s BAC would only have registered between .01 and .05% from the four alcoholic beverages she had consumed earlier in the day.  Under New York State Vehicle and Traffic Law, an individual whose BAC is between .01 and .05% is presumed to be sober.

The defense further provided the Court with an analysis from the Erie County Medical Center’s Forensic Toxicology Lab regarding three blood samples taken from the defendant in a twelve hour period during which two Registered Nurses and a Physician’s Assistant continuously monitored the defendant to ensure she did not consume any alcoholic beverages.  The three blood samples yielded BAC results which were double, triple and quadruple the legal limit (.08%).

DUI Defense lawyer Marusak presented the medical findings and sought a dismissal of the case. Town of Hamburg Justice Walter L. Rooth, II dismissed the charges of Driving While Intoxicated (New York State Vehicle and Traffic Law § 1192-3) and Aggravated Driving While Intoxicated (New York State Vehicle and Traffic Law § 1192-2-a).

Because this was an involuntary medical condition, as opposed to being caused by the voluntary excessive consumption of alcoholic beverages, it could not be said that she voluntarily consumed alcohol.  Auto Brewery Syndrome (ABS) is a medical condition wherein an excessive amount of yeast in an individual’s intestines ferments sugars from ingested foods and nonalcoholic beverages into alcohol.

Marusak’s client changed her diet after her diagnosis and hasn’t had another episode, it was reported by her DUI Defense Lawyer, Joseph J. Marusak, who was working Of Counsel to the law firm of Kloss, Stenger & LoTempio.

In its decision DUI case dismissed for medical condition, the Court identified the reasons for the dismissal by specifically referencing the contents of the defendant’s Motion to Dismiss papers, as well the mild symptoms of impairment allegedly observed by the arresting officer, as noted from the officer’s paperwork.

The dismissal led to stories in Vice News, and on the website Jezebel, and in People Magazine, CNN, and on NPR.

It is believed that the court’s ordering her DUI case dismissed for medical condition, based on the defendant’s medical evidence and testing, plus the evidence from the scientific community, is the first of its kind. It also underscores the importance of the gut biome and gut bacteria in affecting the entire body.

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Pilot Licenses and a DUI: What to do with the FAA and your Airman’s Certificate

Pilot Licenses and a DUI:  What to do with the FAA and your Airman’s Certificate

DUI and Pilots

Pilot Licenses and DUI. You are a pilot.  You depend on your FAA Airman’s Certificate and License, and your Medical Certification, for your career.  And you know the FAA takes DUI cases seriously. If you get a DUI as a pilot, what do you need to do?  This article discusses Pilot Licenses and a DUI:  What to do with the FAA and your Airman’s Certificate.

Pilot Licenses and a DUI – Planning Ahead

Logic tells you that the best course of action is to plan ahead.  Using taxis, ride sharing services like Uber or Lyft, or the kidness of friends, avoids you driving without any substances in your system and avoids the problem Pilot Licenses and DUI from the beginning.

After their arrest, many pilots try to explain to the FAA the circumstances around their DUI event, and mention that they did not think they drank that much or how close they got pulled over to their home, or how much they needed to drive that night as a matter of necessity.

None of that matters to the FAA.

Pilot Licenses and a DUI – if arrested

The next thing to understand is to not refuse a breathalyzer test when the officer requests you to perform one. That is a “refusal” under California law, and in legal terminology the FAA views that as equivalent to a DUI, no matter whether or not you were truly impaired or over the legal limit.  With a California Driver’s License, you can suffer a one year hard suspension of your driving privileges if you refuse, and that action alone for holders of Pilot Licenses and DUI convictions can cause the FAA can pull your certificate, or take other actions, if you refuse.

Note that you must report to the FAA DMV actions or DUI arrest on the medical certification application in section 18(v) when you are arrested, not just when you are convicted. 

Pilot Licenses and a DUI – if convicted

There are two things, as a pilot, that you also need to do when you are convicted of a DUI. Federal Aviation Regulation 61.15(e) states that when an airman is convicted of an action involving alcohol or drugs, a report must be made to the FAA Civil Aviation Security Division not later than 60 days after the motor vehicle action. Pilot Licenses and DUI are a growing problem, so there is an <http://www.faa.gov/about/office_org/headquarters_offices/ash/ash_programs/investigations/airmen_duidwi/> online form that you can download and submit to the security division: Online Airmen DUI Report.  (Under 14 CFR 61.15, all pilots must send a Notification Letter (MS Word) to the FAA Security and Investigations Division, within 60 calendar days of the effective date of an alcohol-related conviction or administrative action.)

Pilot Licenses and a DUI – if you miss the deadline

Failure to send a Notification Letter within 60 days to FAA’s Security & Investigations Division is grounds for:

  • Denial of an application for any certificate, rating, or authorization issued under this regulation for up to one year after the date of the motor vehicle action
  • Suspension or revocation of any certificate, rating, or authorization issued under this regulation

Pilot Licenses and a DUI – your medical certification

The other reporting requirement is Item 18(v) on your next FAA medical application. The application requires that the applicant must report any arrests, or convictions, or administrative actions relating to operating a motor vehicle under the influence of alcohol or drugs.

Please note that even if your DUI lawyer has the case dismissed, or the charges are reduced to anything below a DUI,  that result is still not an excuse not to report, as the arrest itself triggers mandatory reporting for Pilot Licenses and DUI! If you were pulled over, requested to perform a field sobriety test, and/or asked to perform a breathalyzer, that is reportable in the affirmative on the application, by itself.

Your FAA medical certificate is handled separately for Pilot Licenses and DUI, as alcohol abuse is treated as a potential physical or psychological issue.  The FAA medical personnel will then require your AME to obtain the arresting officer’s report, in addition to copies of the court records of your hearing.

Pilot Licenses and a DUI – high alcohol levels

If your breathalyzer results are equal to or greater than 0.15 percent, you will need to provide a substance abuse evaluation. That will require you to locate a licensed counselor in substance abuse/dependence, or a psychologist or psychiatrist who has extra training in addiction medicine, and be evaluated. Depending on the results of the evaluation, you may be required to provide even more extensive (and expensive) evaluations. If your breathalyzer is less than the 0.15 percent, then you may not need to do nothing else.

Pilot Licenses and a DUI – a personal statement

The FAA often also requests that you submit a “personal statement” surrounding the events leading up to the traffic stop and DUI arrest, including comments about your past and current alcohol/drug use. My personal advice is to be honest in the letter. Do not be confrontational, and it is in your best interests to stick to the facts, be truthful and honest, and remorseful if anything.

In all of these circumstances, the FAA medical records office maintains a record of how many DUIs you collect. Two DUI events within a three-year period will result in the requirement for an evaluation by an addiction trained psychologist or psychiatrist. Three DUIs in a lifetime is considered by the FAA to be a possible sign of alcohol dependence and will result in a denial of your medical application. In order to attempt to regain your medical certificate after that event, you will be required to obtain:

  • psychological and psychiatric evaluations by addiction trained specialists who are familiar with FAA policies;
  • a certified true copy of all the driving records in states you hold licenses in; and
  • a typed letter from yourself concerning your alcohol- or drug-use habits.

Pilot Licenses and a DUI – where to send information

The Address to Send Notification Letters to:

Federal Aviation Administration
Security and Investigations Division (AMC-700)
P.O. Box 25810
Oklahoma City, OK 73125
or
Fax to: (405) 954-4989

The FAA Form 8500-8 “Application for Airmen Medical” contains an express consent provision which authorizes the National Driver Register (NDR) to release information about your driving record to FAA. Information on the NDR record will contain pointers to states that keep a driving history on you. The FAA will obtain applicable records to determine if you have a reportable alcohol-related MVA.The National Driver’s Registration (NDR) also reveals all alcohol related arrests and convictions to the FAA via authorization from the medical application. You should expect that the FAA will be notified of your arrest within a week.

The consequences vary from being placed on probation to termination or revocation of your Pilot Licenses and DUI punishment in addition. Failing to disclose can exacerbate the problem and cause more serious and more recent disciplinary results to Pilot Licenses and DUI action against driver’s licenses.

Pilot Licenses and a DUI – International Travel

International Travel and DUI

A conviction can also cause problems entering certain countries, most notably Canada.  That country, and certain others, often deny access to visitors with DUI convictions. This would be especially difficult for commercial pilots, who are required to travel to many foreign countries as part of their employment.

Pilot Licenses and a DUI – we can help

Our office has represented many pilots in the past, and as someone that held an FAA Private Pilots License, I am especially sympathetic and helpful towards those with an Airmen’s Certificate.  Pilot Licenses and DUI take special handling. We can help you and keep you flying.

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Don’t delay contacting us.  We can start you on a plan of action today that will help your license later. Contact us today.

 

Diet soda and alcohol results in a higher blood alcohol level

When you have a jack and diet coke, you save calories, but did you know that you could end up with a higher alcohol level with diet soda and alcohol, than with non-diet versions of soda?

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It has been known since at least 2002 that alcohol levels raise higher, controlling for all other variables, when a drink contains artificial sweeteners, as compared with drinks with or without sugar.  That has been confirmed in peer reviewed studies in 2012 and 2013.

The most recent research paper on the subject tested the effect using differing doses, and to find any differences tween genders.  (Drug Alcohol Depend. 2015 Dec 1;157:197-9. doi: 10.1016/j.drugalcdep.2015.10.015. Epub 2015 Oct 23.)

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Consumption of food with alcohol before or during drinking is an important factor that will decrease peak breath alcohol concentrations (BrAC).  With the  evidence showing that mixing alcohol with diet beverages results in higher BrAC when compared with mixing the same amount of alcohol with sweetened beverages, the purpose of the more recent study was to examine the phenomenon using two different moderate alcohol doses.

The testing method was simple: Twenty study participants, 10 of which were males, and 10 females, attended five sessions where they received 1 of 5 doses (0.91 ml/kg vodka + 3.64 ml/kg of diet soda, 0.91 ml/kg vodka + 3.64 of regular soda, 1.82 ml/kg vodka + 7.28 ml/kg diet soda, 1.82 ml/kg vodka + 7.28 ml/kg regular soda, and a placebo beverage).

BrAC was recorded repeatedly up to 180 min after dose administration, and the results were that participants had significantly higher BrAC when the mixer was diet as compared to regular for both alcohol dose conditions. No gender differences were observed.

When you have a night out drinking, be aware of the fact that mixing alcohol with diet beverages can result in higher alcohol levels when compared to the same amount of alcohol administered with a similar sweetened beverage.  The study noted that most individuals were unaware of these differences, which is a risk that could put people above the legal limit without knowing it.

If you find yourself facing a DUI, then please call our firm, toll free, at (877) 942-3090, anytime.  We are here to help.