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California DMV Study – How To Obtain More DUI Conviction

Califormia DUI AttorneyThe 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 (Comptonet 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



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Barry Simons

Barry Simons

Barry is a nationally known expert in DUI Defense who has spent over 40 years fighting for drivers' rights in Southern California Courts. He is a Founding Member, Fellow and the Former Dean of the National College for DUI Defense. He is one of only 5 attorneys in the State of California to hold Board Certification in DUI Defense under standards certified by the American Bar Association.

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