January 2011 Archives

Prescription Medications and Driving = Driving Under the Influence?

pills.martini.jpgYou are legally on a prescription or even an over-the-counter medication. You are driving your vehicle. Can you be pulled over, cited, and convicted of a driving under the influence (DUI) charge?

The answer is yes, if you are in fact under the influence and driving!

Driving under the influence, Vehicle Code Section 23152, provides: "It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle."

So what constitutes a drug? According to California Vehicle Code Section 312: "The term "drug" means any substance or combination of substances, other than alcohol, which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a vehicle in the manner that an ordinarily prudent and cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions."

The fact that you are legally entitled to use the drug is not a defense to a DUI case, per California Vehicle Code Section 23630.

According to the DUI jury instructions (2110), you are under the influence "if, as a result of...taking a drug...[your] mental or physical abilities are so impaired that [you are]...no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances. The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of...a drug...However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence."

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Second Drunk Driving Conviction Lands Motley Crue Singer In Jail

After pleading guilty to his second driving under the influence (DUI) charge, Vince Neil, the singer of the rock band Motley Crue, will serve two weeks in jail plus two weeks of house arrest, according to news.yahoo.com.

Neil plead guilty to the misdeamenor DUI charge, stemming from an incident on June 27, 2010. His sentence will commence on February 15th, 2011, in Las Vegas. vince.neil.jpgNeil's first DUI conviction was In 1984, when he plead guilty to driving under the influence and manslaughter after crashing in Redondo Beach, California, killing his passenger. For that DUI, Neil served twenty days in jail and paid $2.5 million in restitution to the victims.

The defense lawyer on the case commented that Neil faced six months in jail for this second DUI in Nevada. However, if Neil picked up the second misdemeanor DUI in California and that second conviction was within ten years of a first conviction in any state, he would have been exposed to one year in the county jail (California Vehicle Code Section 23540).

Online Sources:

Motley Crue Singer Gets 2 Week Jail Sentence: news.yahoo.com

Motley Crue's Vince Neil To Serve Two-Week Jail Sentence: mtv.com

Continue reading "Second Drunk Driving Conviction Lands Motley Crue Singer In Jail" »

San Diego Driving Under The Influence Accident: Sleep Apnea Defense Rejected, Defendant Guilty

The Carmel Mountain Ranch driving under the influence (DUI) accident that resulted in the death of Marc Durham, 65, concluded with a guilty verdict for Anthony Guarino, 57, on Thursday. Guarino was convicted of gross vehicular manslaughter while intoxicated and two DUI charges, according to 10news.com.

The defense conceded the misdemeanor DUI charges in closing, as Guarino's blood alcohol content (BAC) measured .15 percent about two and a half hours after the crash. However, Guarino's defense to the gross vehicular manslaughter charge was he was unconscious at the time of the crash due to "microsleep" that was brought on by severe sleep apnea. His car drifted, he never hit the brakes, and he had no memory of the accident.

Sleep apnea is a condition that causes a person to stop breathing repeatedly during sleep. This can happen hundreds of times during the night, causing the sufferer to be exhausted for much of their waking hours. Driving is especially challenging because fatigue can lead to a "microsleep" espisode where the driver spontaneously falls asleep at the wheel.

Although this can be argued as a defense to a gross vehicular manslaughter charge, the jury in this case did not find that the defendant had a "microsleep" episode. Instead, they decided that he was driving under the influence with gross negligence, which caused the fatal accident. He faces up to 13 years in state prison when he is sentenced March 11, 2011.

Update: Guarino was sentenced to six years in prison. See posting on March 14, 2011.

Online Sources:
Driver Found Guilty In Fatal DUI Crash Case: 10news.com

Attorney: Driver's Sleep Apnea Led To Fatal RB Crash: 10news.com

"1 Dead After Driver Hits Vehicles At Stoplight: 10news.com

Sleep Apnea and Driving: sleepapnea.org

Sleep Apnea Information: sleepapnea.org

What Are Microsleeps?: sleepaccess.com

Orange County City May Put DUI Mug Shots on Facebook

Huntington Beach, California is considering posting photographs of those arrested, suspected of their second or subsequent driving under the influence charge, on their police Facebook page. Councilman Devin Dwyer believes this will shame people into compliance with the DUI laws, according to 10news.com.

Other cities tried this same approach but canned the projects after only a brief period. In Evesham Township, New Jersey, the prosecutor pulled the photographs after only four months stating that the police may not be able to release such information. The Honolulu, Hawaii Police Department ran a pilot project posting driving under the influence arrest photos on their website; however, the program was halted without a specified reason.
cop and facebook.bmp
Even though the California Constitution grants individuals the right to privacy, the California Public Records Act provides that state and local law enforcement agencies shall make public the full name and physical description of every individual arrested by the agency.

The law enforcement agency in Huntington Beach is not just allowing the public to inspect and copy the information, it wants to publish the photographs on it's own website. This creates the false impression that those suspected of driving under the influence are in fact guilty, thus jeopardizing the individual's constitutional right to a fair trial.

(Update: The Huntington Beach City Council decided against putting DUI mug shots on their police Facebook website in a 4-3 vote, according to the LA Times.)

Orange County Drunk Driver Sentenced For Killing Major League Baseball Pitcher & Two Others

An Orange County accident that resulted in the death of Los Angeles Angels of Anaheim pitcher, Nick Adenhart, and two others, has been concluded, according to cnn.com. The driver of the vehicle, Andrew Thomas Gallo, 23, was found guilty of three felony counts of murder, felony drunk driving, and two other felonies in September 2010. On December 22, 2010, Gallo was sentenced to the maximum penalty of 51 years to life in prison.

Gallo's blood alcohol content (BAC) was .19 on April 9, 2009, as he was driving 65 mph in a 35 mph zone. He drove through a red light, hitting the car containing the victims just hours after Adenhart pitched.

adenhart.jpgGallo was on probation with a suspended license for a previous DUI in San Bernadino at the time of the crash.

California Vehicle Code Section 14601.2 states: "A person shall not drive a motor vehicle at any time when that person's driving privilege is suspended or revoked for a conviction of a violation of Section 23152 or 23153 [DUI] if the person so driving has knowledge of the suspension or revocation."

According to the DMV, if a person over the age of 21 takes a chemical test and the results are .08% BAC or more, the first offense will result in a 4-month suspension. A second or subsequent offense within ten years will result in a 1-year suspension.

However, if a person over the age of 21 refuses or fails to complete a chemical test, their license will be suspended for one year. On the second offense within ten years, their license will be revoked for two years. A third or subsequent offense within ten years will result in a three year revocation.

Santee Drunk Driving Crash Kills San Diego Sheriff's Deputy, Defendant Sentenced

A San Diego resident, Jose Pedro Lopez Jasso, 23, was sentenced on January 7th, 2011, for the DUI accident that caused the death of San Diego Sheriff's Deputy Ken Collier on February 28, 2010, according to 10news.com. Lopez was seen going the wrong way on westbound Route 52 at 3:15 a.m. and Deputy Collier gave chase. The deputy drove in the auxiliary lanes to avoid oncoming traffic but hit an abutment between Santo Road and Mast Boulevard. He was ejected from the vehicle and died at the hospital.

Mr. Lopez plead guilty to gross manslaughter while intoxicated, DUI causing injury, driving with measurable blood-alcohol causing injury, manufacturing a weapon while in jail, and driving the wrong way on a divided highway in October 2010.

Santee.patch.com reported that Lopez's blood-alcohol content was measured at .11 percent and he tested positive for methamphetamine and marijuana two hours after the crash. Lopez faced eleven years and eight months, but instead was sentenced to seven years and eight months in state prison.

California Vehicle Code Section 23152(a) states that it is illegal for any person to drive a vehicle while under the influence of any alcoholic beverage or drug, or a combination of alcohol and drugs.

Online Sources:
Alleged Wrong-Way DUI Driver Pleads Guilty: 10news.com

Lopez Sentenced to Nearly Eight Years for Deputy's Death on Route 52: santee.patch.com

DUI Driver Sentenced for Crash that Killed Deputy: signonsandiego.com

San Diego & California Driving Under The Influence Arrests Decrease During 2010-11 Holiday Season

champagne.jpgThe San Diego Sheriff's Department announced the final DUI arrests and fatal accident numbers for the 2010-2011 holiday season. According to the Sheriff's press release, 14 county law enforcement agencies contributed to this year's efforts through DUI checkpoints and saturation patrols from 12:01 a.m., Friday, December 17, 2010, through midnight, Sunday, January 2, 2011.

A total of 715 people were arrested for driving under the influence (DUI) of alcohol and/or drugs. This was 91 fewer arrests than the 806 DUI arrests made in 2009/2010 during this same period. Two deaths are attributed to drunk drivers. One fatal DUI accident occurred on December 18th, in El Cajon. The second fatality occurred in La Mesa on January 1st, 2011.

Throughout California, California Highway Patrol (CHP) officers arrested 961 people for suspected drunk driving and 25 people died on roadways between 6:00 p.m. Friday, December 31st, 2010, and 11:59 p.m. Sunday, January 2nd, 2011, according to signonsandiego.com. This was down from last year's statistics in which the CHP reported 1,388 arrests and 36 deaths a year ago. (Note: Last year's reporting period was four days as compared to this year's three days.)

La Mesa DUI Crash Results in the Death of a Pedestrian

The San Diego Sheriff's Department announced a pedestrian was killed in a suspected DUI crash just after 1:00am on New Year's. This is San Diego County's second fatal DUI collision this holiday season. The first occurred on December 18th, 2010, in El Cajon.

The DUI incident happened on Murray Drive in La Mesa, according to 10news.com. The pedestrian was identified as Kelly McPherson of Mission Valley. The driver of the Ford Mustang was identified as Dana Lohner of La Mesa, a fourth grade teacher at Freese Elementary School. She was released after posting $100,000 bail and is due in court on January 10th, 2011. Pending the outcome of the La Mesa Police Department's investigation, Ms. Lohner may also be charged with vehicular manslaughter.

There are two possible vehicular manslaughter while intoxicated charges: Gross vehicular manslaughter and vehicular manslaughter. [Penal Code Section 191.5(a) and (b) respectively.]

Gross vehicular manslaughter is a felony and is punishable by imprisonment in the state prison for 4, 6, or 10 years. In addition, if the defendant has one or more prior convictions, the punishment shall be imprisonment in state prison for a term of 15 years to life.

Vehicular manslaughter is considered a "wobbler" which means it can be charged as a misdemeanor or a felony. If deemed to be a misdemeanor, the penalty is imprisonment in a county jail for not more than one year. However, if charged and convicted as a felony, the punishment is imprisonment in the state prison for 16 months or 2 or 4 years.