Drunk Driving Defendant Has A Right To Confront Analyst That Tested Blood

Alleged drunk driver, Donald Bullcoming, was involved in a vehicle accident in New Mexico in August 2005. The other party believed he observed signs that Bullcoming was intoxicated so he called the police. Bullcoming left the scene but was later apprehended by police. He failed the field sobriety tests and was subsequently arrested for driving under the influence. He refused to provide a breath sample, so a warrant was served to take a blood sample.

The blood sample was sent to the New Mexico Department of Health, Scientific Laboratory Division (SLD) to determine Bullcoming's blood alcohol concentration (BAC). A gas chromatograph machine was used to test the blood sample and the test was performed by Curtis Caylor, a SLD Forensic Analyst. He then certified the test results in a "Report of Blood Alcohol Analysis" form, which showed the result to be a .21.

At trial, the prosecutor did not call Caylor to testify. Instead the government attempted to introduce Caylor's findings as a "business record" during the testimony of Gerasimos Razatos, another SLD scientist. Razatos did not observe or review Caylor's analysis.

Defense counsel objected to the introduction of the analyst's findings without his testimony at trial, stating the introduction of the report would violate the defendant's Sixth Amendment right "to be confronted with the witnesses against him," (Confrontation Clause).

The trial court overruled the objection and admitted the report as a business record. Bullcoming was convicted and appealed. The Court of Appeals upheld the conviction stating the report was "non-testimonial and prepared routinely with guarantees of trustworthiness."

The case was taken to the US Supreme Court which ruled in Bullcoming v. New Mexico that the Confrontation Clause requires the scientist that performed the test testify at trial unless the scientist is unavailable at trial and the defendant had an opportunity to cross-examine that scientist before trial.

While this case was being appealed, the US Supreme Court ruled on this issue in Melendez-Diaz v. Massachusetts. In that case, the court admitted affidavits that reflected the results of forensic analysis that showed the material seized from the defendant was cocaine. The court found in that case that the affidavits were "testimonial, rendering the affiants 'witnesses' subject to the defendant's right of confrontation under the Sixth Amendment."

These cases are expanding the Crawford v. Washington case, where the court held, "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation."

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San Diego DUI Charges Against SD Cop Blamed For Suicide

San Diego Police Officer David Hall committed suicide on August 1st, 2011. He did not leave a note; however, the medical examiner's office released a report about their investigation into the suicide, according to msnbc.com.

Hall was arrested for an alleged drunk driving incident on February 22nd. He plead not guilty to two counts of DUI causing injury and one count of felony hit and run with an allegation that his blood alcohol content (BAC) was above .15 percent. He was facing a maximum sentence of three years and eight months in prison if convicted. The week of his suicide, he was due back in court for a pre-trial hearing.

Hall was battling an alcohol addition and was depressed. He was sober for five months after the incident, but he relapsed just before taking his life. He believed the driving under the influence charges could result in the loss of his career as a San Diego police officer. Hall was on administrative leave and was attending counseling sessions with the department's Wellness Unit. He was specifically worried about the hearing that was scheduled the week of his suicide.

Hall's wife, Michelle, believes that the DUI case played a major role in the suicide.

Psychiatrist Dr. Clark Smith commented, "More people commit suicide after a DUI arrest than any other kind of arrest including rape-murder. Often people who are very depressed drink a lot more and both factors increase suicide risk."

Although Dr. Smith's conclusion sounds very plausible, no specific studies were found that backed this conclusion. However, many news stories have reported on others who contemplated, attempted, or completed suicide after being arrested for DUI.

These stories include former republican congressman from New York, John Sweeney. He was interviewed by The Saratogian in March 2011. In that interview he recalled April 5th, 2009, when he laid in bed after his second drunk driving arrest in two years. He admitted, "I was contemplating hanging myself. I found myself in a place of despair that I couldn't get out of. I had reached an end."

Another man in Chicago, Jeffrey Weiten, committed suicide in June 2010, after he was charged with drunk driving after an accident that killed a woman, according to chicagobreakingnews.com.

The Hartford Courant reported Matthew Tuttle, a senior police commander in New Britain, Connecticut, was found dead with a self-inflicted gunshot wound hours after he was arrested on DUI charges after a car accident in May 2011.

A prosecutor in Connecticut's Middlesex Judicial District, John Cashmon, was found dead of an apparent suicide days after he was arrested for alleged drunken driving in August 2011. The New Haven Register reported that he was pulled over for driving erratically and was subsequently arrested. Cashmon was released a few hours later after posting bond and was not heard from again. He was found near a police station.

Criminal allegations, facing jail or prison time, and the possibility of losing your job can cause great stress for criminal defendants. If you have been charged with a crime and the stress has become unbearable, consider seeking help from mental health professionals.

Also, it is very beneficial to seek out legal counsel to help you through the process. If you are facing drunken driving charges, contact an exclusively DUI defense firm that can help you through the legal process by explaining legal procedure, defenses in your case, and your options.

Other Related Blog Entries:

San Diego Officer Charged With DUI Commits Suicide

San Diego Officer Charged And Plead Not Guilty To Drunk Driving

San Diego Officer Suspected Of Drunken Driving And Hit And Run

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Drunk Driving And It's Effects On A Pilot's License

pilot.jpgDriving under the influence charges can pose a threat to your livelihood. If your profession, business, or service requires you to have a state license, a criminal conviction may impact obtaining or renewing your license.

If you are a pilot, there are stringent rules and procedures that must be followed if you are arrested for DUI. A conviction or motor vehicle action (MVA) may result in sanctions against you, so you need to seek legal counsel immediately to know and understand your rights and responsibilities.

The Federal Aviation Administration is governed by the Federal Aviation Regulations (FAR) which are found under the Code of Federal Regulations (CFR). 14 CFR Section 61.15 deals with alcohol or drug offenses, not involving the use or operation of an aircraft, and the effects on a pilot's license.

The pilot has 60 days from the effective date of the administrative action, (driver license suspension, revocation, or cancellation), or conviction to report the MVA to the FAA. Notification must be done in writing and not over the phone. The FAA provides a standard "Notification Letter" on their website.

Each event, conviction, or administrative action must be reported. This means that one incident that leads to an administrative action and a conviction requires two notifications to the FAA. Even though two notification letters are sent, it will be deemed as one alcohol-related event for investigation purposes.

The reporting requirements for a MVA does not include a conviction for reckless, careless, or negligent driving, but it does include any administrative action. However, arrests, administrative actions, and convictions are reportable under the airman application for a medical certificate.

Once a MVA is reported, an investigation will be initiated. Investigators will ensure that the MVA was timely reported and that no other reportable actions were involved. If the MVA is reported after the required 60 days, but before the FAA discovers the MVA, that will be considered a mitigating factor in determining the sanction. Failure to notify the FAA within the 60 days may result in the denial of an application for any certificate, rating, or authorization issued for up to one year after the date of the MVA or a suspension or revocation of any certificate, rating, or authorization issued.

Due to a provision in the "Application for Airmen Medical" form 8500-8, the pilot gives consent for the National Driver Register, or NDR, to release the pilot's driving record to the FAA. So eventually, the FAA will find out about MVA's regardless of the pilot reporting it on their own.

If the FAA finds out about the MVA and it was not self reported, a formal investigation will be initiated. The pilot will be given a Letter of Investigation with an opportunity to respond.

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DUI Conviction: How Can It Impact Professional Licenses?

licenses.jpgIn California, many professions require a license by the State of California. When applying for or renewing a license, the applicant is usually asked if they have ever been convicted of a crime, this includes the crime of driving under the influence.

These licensing agencies are governed by the California Business and Professions Code (B&P Code). B&P Code Section 480 explains the process by which a board may deny a license to an applicant.

Under B&P Code Section 480(a)(3)(B), "The board may deny a license pursuant to this subdivision only if the crime or act is substantially related to the qualifications, functions, or duties of the business or profession for which application is made."

When filling out the forms, it is imperative that you are truthful because under B&P Code Section 480(c), "A board may deny a license regulated by this code on the ground that the applicant knowingly made a false statement of fact required to be revealed in the application for the license."

If the conviction has been expunged under California Penal Code Section 1203.4, you are not relieved from the obligation of disclosing the conviction in response to any direct questions in any questionnaire or application for licensure by any state or local agency. However, you can indicate on the form that the conviction was expunged.

If you already have a license, B&P Code Section 490 provides the criteria for license suspensions and revocations. This is basically the same as B&P Code Section 480, stating: "In addition to any other action that a board is permitted to take against a licensee, a board may suspend or revoke a license on the ground that the licensee has been convicted of a crime, if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued."

Each agency is required to have guidelines or criteria to reference when considering denying, suspending, or revoking a license. The guidelines are used to determine if the conviction is "substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued." Therefore, the guidelines of the individual agency, which issued the license or is considering your application, should be reviewed to see if a drunk driving conviction would result in the loss of your professional license or the denial or your application.

Some agencies require licensees, such as doctors and pilots, to self report. Failure to notify the licensing agency within a specified amount of time may result in denial, suspension, or revoking of your license.

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PAS Test: What Is It And Am I Required To Take It?

A PAS test is an acronym for preliminary alcohol screening test. This is a breath test that is conducted at the roadside before a person is arrested for drunk driving. The test is done on a portable breath analyzer or breathalyzer. The most common portable breathalyzer used by San Diego law enforcement today is the Alco-Sensor IV, which is manufactured by Intoximeters, Inc.PAS.jpgIn California, if a driver is stopped by law enforcement and they are suspected of being under the influence, the officer may ask the driver to take a PAS test. The PAS test is considered an investigation tool, as it is supposed to measure the blood alcohol content, or BAC, of the subject.

Under California Vehicle Code section 23612(i), the officer is required to advise you that you have the right to refuse such a test, unless you are under 21 or you are on probation for DUI.

This test can be unreliable and inaccurate. It is not recommended that you do the PAS test or any other field sobriety tests, as the officer will use these tests to bolster their argument that you are impaired for purposes of driving, giving them probable cause to arrest you for DUI.

However, If you agree to provide a breath sample using the PAS test and you blow below the legal limit of .08 BAC, you may still be arrested. The officer will often use other observations and assessments to conclude you are drunk driving.

If you are arrested for driving under the influence and you already provided a breath test using the PAS test, your obligation to submit a breath, blood, or urine test after a DUI arrest has not been completed. California Vehicle Code section 23612(a), is an implied consent law. This means if you drive a vehicle and you are lawfully arrested for driving under the influence, you are deemed to have given your consent to chemical testing. If you do not voluntarily provide a sample, you will be forced to.

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Talmadge DUI Car Wreck Leaves 4 Year Old Injured, Bail Set At $100,000

bail bond.jpgSan Diego resident, Albert Pruitt, 27, was allegedly driving under the influence when he crashed his Ford Explorer on August 27th, at 7:00 a.m., according to 10news.com. Pruitt was northbound on Aldine Drive near Monroe Avenue when he hit the curb, lost control, and rolled his vehicle.

Two children, ages 2 and 4, were in the back seat. The 2 year old was in a booster seat and was uninjured. The 4 year old was restrained by an adult seatbelt which did not hold her. She was ejected from the vehicle. Her injuries are not known.

Pruitt is being held in the San Diego Central Jail with bail set $100,000.

Under the Eighth Amendment of the United States Constitution and the California Constitution, Article I, Section 12, excessive bail shall not be required.

Bail is a sum of money that is paid to the court in exchange for the release of the accused before trial. This money is used as a guarantee that the accused will appear in court. If the defendant fails to appear, the money is forfeited and a bench warrant is usually issued for the arrest of the accused.

A bail bond is purchased from a bail bondsman. The fee of the bond is usually 10% of the bail amount. The bond document is then provided to the court in lieu of the bail money. Once the document is signed by the accused, he or she is released from jail on the promise that they will appear in court. Again, if the defendant fails to appear, the bail bond may be forfeited.

In San Diego, the courts use the San Diego Bail Schedule to determine the starting point for the bail amount that the judge will impose. The judge also will consider other factors to determine if the bail should be reduced or increased, (Penal Code section 1275). Such factors include: Good standing in the community; employment; homeownership; criminal record; seriousness of the crime; probability that defendant will show up at court hearings and trial; dangers that the accused poses to the community; and, family and friend's presence in court.

Once bail is set, a motion may be brought requesting that the judge lower the bail amount or release the defendant on his or her own recognizance, (O.R. Release). Again, the court will consider the same factors in determining to grant such a motion.

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Driving Drunk With Child In Car Leads To Reckless Endangerment Charges

child endangerment.jpgDrunk driving charges, or OWI, (operating while intoxicated), as it is called in Illinois, were filed against a 31 year old Illinois man, according to jsonline.com. He was driving 90 mph southbound
on I-94 where the speed limit is 65 mph. Once stopped, a nine month old infant was found in the car.

The preliminary alcohol screening test, PAS, result was a .24, three times the legal limit. The driver was additionally charged with recklessly endangering the safety of a minor and operating a vehicle with a prohibited alcohol content with a child under 16 years old.

In California, if a person is convicted of driving under the influence and it is proven that a minor under the age of 14 was a passenger in the car at the time of the offense, the court will impose a sentencing enhancement under California Vehicle Code section 23572.

In addition to any other punishment imposed under the underlying drunk driving offense, on a first conviction the person will receive an additional 48 continuous hours in the county jail.

On a second DUI, the punishment shall be enhanced by an imprisonment of 10 days in the county jail.

For a third DUI, the punishment shall be enhanced by an imprisonment of 30 days in the county jail.

For a fourth drunk driving conviction, the punishment shall be enhanced by an imprisonment of 90 days in the county jail.

This additional jail time is imposed whether or not probation is granted and no part of it may be stayed.

This enhancement does not apply if the person is also convicted of violating Penal Code section 273(a), child endangerment. Child endangerment is a "wobbler" which means it can be charged as either a misdemeanor or felony. In addition, this code section applies to minors under the age of 18.

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Sorrento Valley Drinking and Driving Ends With Driver Killed In Crash

sorrento valley crash.jpgSan Diego motorists called the California Highway Patrol (CHP) to report a driver on southbound Interstate 5, in the Leucadia area, throwing beer cans out the window and driving erratically around 4 p.m., according to 10news.com.

The driver then headed south on Interstate 805, through Sorrento Valley. He pulled over to urinate on the side of the road and then continued driving. CHP followed as he lost control of the vehicle and rolled over. The unidentified driver was partially ejected and was pronounced dead at the scene.

In California, it is not only illegal to drive while under the influence, it is also illegal to drink any alcoholic beverage while driving a vehicle, (see California Vehicle Code section 23220). In additional, it is unlawful for a driver to have any open bottle, can, or other receptacle, containing any alcoholic beverage in his or her possession, (see California Vehicle Code section 23223, Open Container Law).

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Tierrasanta Youth Involved in Alleged DUI Felony Case Pleads Not Guilty

San Diego resident and recent Serra High School graduate, Joseph Walsh, 18, plead not guilty to two felony drunk driving charges on August 11th, according to 10news.com.

On May 18th, Walsh was drinking beer at a friend's home when he decided to drive to get some food. Allegedly, he was driving 50 mph in a 25 mph zone when his car hit a sport utility vehicle and rolled four times. His two passengers were injured along with the driver of the SUV. He was subsequently charged with one count of DUI causing injury and one count of driving with measurable blood alcohol causing injury.

Members of the community showed up at the arraignment and wrote letters in support Walsh. He was allowed to remain free on his own recognizance and was ordered to appear at the preliminary hearing which is scheduled for August 24th.

Walsh's blood alcohol content, or BAC, was a .19. The legal limit is .08 percent for drivers over the age of 21. Since he was only 18 at the time of the incident, he could also be charged with:

1. California Vehicle Code section 23136, the Zero Tolerance Law, a civil offense that is handled through the DMV;

2. California Vehicle Code section 23140, under 21 with a BAC of .05 - .07 percent, an infraction;

3. California Vehicle Code section 23152, driving under the influence, a misdemeanor.

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San Diego Voters Opposed To Drunk Driving Checkpoints

state capital.bmp San Diego's Equality Alliance did a checkpoint study of over 6,000 voters in San Diego County from May 21st through June 15th, 2011, asking, "Do you think law enforcement should be able to set up checkpoints to question drivers without suspicion of wrongdoing." Approximately 64% oppose DUI checkpoints; while only 27% are in support. Opposition is highest among the younger population, 18-24 year olds, 69%, and African-Americans, Latinos, and low income voters, 68%.

Drunk driving checkpoints are supposed to be conducted in a manner that would deter drunk driving using the criteria set out by the California Supreme Court in Ingersoll v. Palmer. (Also see previous blog entries, California's Sobriety Checkpoint/Roadblock Criteria Part I and Part II.) However, according to the Executive Director of Equality Alliance, Andrea Guerrero, many people complain that DUI checkpoints harass, discriminate, inconvenience, and invade privacy.

10news.com reported that law enforcement agencies are currently using the checkpoints to not only deter drunk driving, but also to check on immigration and license status by targeting certain neighborhoods.

Equality Alliance is asking California lawmakers to pass legislation that would regulate DUI checkpoints for sobriety checks only. The bill comes before the Appropriations Committee, which is headed by State Senator Christine Kehoe, on August 15th.

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DUI Charges After Suspect Admits To Huffing Aerosol Cans

inhalants.jpgDrunk driving charges were brought after Christopher Jordan Johnson, 20, crashed his car into a tree in East Naples, Florida. He and his passenger, Brock Lyons, 21, admitted to huffing dust remover in aerosol cans before the crash, according to naplesnews.com. Johnson broke his right leg and hip and Lyons broke his arm and right ankle, and suffered a collapsed lung.

Painkiller DUI's have been increasing but huffing DUI's are still rare, according to an officer that was involved in the case.

In California, it is illegal to drive a vehicle while under the influence of alcohol, drugs, or the combined influence of any alcoholic beverage and a drug, (see Penal Code section 23152(a)). It does not matter if that drug is a prescription, an illegal substance, or a cleaning product that can be used as an inhalant, as long as the prosecutor can prove beyond a reasonable doubt that the driver was under the influence for purposes of driving.

San Diego prosecutors brought charges in its first huffing drunk driving case in May 2010, according to cbs8.com, stemming from an accident that occurred on December 31, 2009.

Defendant Romeo Dumlao, Jr., 34, was accused of huffing or inhaling difluoroethane vapors from a can of computer dust remover to get high, according to 10news.com. While in Point Loma, he drove his car into another car on Sports Arena Boulevard, ultimately killing 9 year old Ashley Heffington. He plead guilty to gross vehicular manslaughter while intoxicated in June 2010, and was sentenced to 16 years in prison in July 2010.

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Pacific Beach DUI Checkpoints Not Conducted On July 4th Weekend

PB.jpgPacific Beach has hosted a drunk driving checkpoint during the July 4th weekend for the past eight years. However, the San Diego Police Department decided not to have one this year. The Pacific Beach residents are outraged by this because not only is San Diego the city with the most DUI-related arrests in the country, but Pacific Beach has the majority of those arrests.

PB Planning Committee members confronted San Diego police Officer Mark McCullough about this. He claimed the chief of police requested that the checkpoints be shared by other communities, according to 10news.com.

Instead of DUI checkpoints, San Diego Police used saturation patrols to address the drunk driving issue and alcohol-related offenses in Pacific Beach and Mission Beach this year.

San Diego DUI checkpoints are funded by grants given to the police department from the California Office of Traffic Safety (OTS). Those funds are provided by the National Highway Traffic Safety Administration (NHTSA).

San Diego law enforcement must use those funds to deter drunk driving throughout the city, not just in Pacific Beach and Mission Beach. Since checkpoints are intrusive and ineffective, saturation patrols, which specifically target those who are involved in alcohol-related incidents, are a much better way to use the funds and the city's resources.

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San Diego Officer Charged With DUI Commits Suicide

Drunk driving charges were brought against San Diego Police Officer, David Hall, after he allegedly crashed his car into another on Interstate 805's onramp from Murray Ridge Road while off duty on February 22nd. A woman in that car was injured and Hall left the scene. Police officers found him at his home and field sobriety tests were conducted. His blood alcohol content (BAC) was .32, four times the legal limit of .08. (The incident was previously posted on this blog on May 3rd and April 13th, 2011.)

On May 2nd, Hall plead not guilty to two counts of DUI causing injury and one count of felony hit and run with an allegation that his BAC was above .15. He was put on paid administrative leave from the department. If convicted, Hall faced a maximum sentence of three years and eight months in prison.

A pretrial hearing was scheduled for Thursday. Apparently, the stress was too much for Hall to bear. On August 1st, he took his own life with one gunshot wound to his head. He was found by his wife in the backyard of their Clairmont Mesa home around 10 a.m., according to latimes.com.

SDPD Chief, William Lansdowne admitted the department was aware of the stress Hall was under after the drunk driving arrest, according to signonsandiego.com. He was utilizing the department's Wellness Unit; his last appointment was the day before he took his life.

Criminal allegations, facing jail or prison time, and the possibility of losing your job can cause great stress for criminal defendants. If you have been charged with a crime and the stress has become unbearable, consider seeking help from mental health professionals.

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Chula Vista Drunk Driving Accident Results In Prison Time

Chula Vista resident, Angel Rodrigo Gutierrez, 23, was sentenced July 28th, for the fatal hit and run incident that occurred on Christmas Day, killing Robin Fortson, a 54 year old homeless woman. The defendant plead guilty last month to vehicular manslaughter while intoxicated and leaving the scene of an accident. He was sentenced to six years and four months in state prison, according to 10news.com.

Gutierrez was drinking beer and celebrating Christmas when he decided to drive to get a burrito. Around 8:30 p.m., at the 1200 block of Third Avenue in Chula Vista, he struck and killed Fortson as she crossed the street. He then made a u-turn, driving by the victim, leaving the scene. His car was left in the 200 block of Moss Street and he was found around 2:40 a.m. at his home in the 300 block of Date Street.

His blood alcohol content (BAC) was measured at .29 percent, seven hours after the crash. He was subsequently arrested for drunk driving.

In California, it is illegal to operate a vehicle with a BAC of .08 percent or more under the California Vehicle Code section 23152(b). Built into that code section is a rebuttable presumption that if a chemical test was performed within three hours after driving and the result showed the person's BAC is .08 or more, the prosecution can assume that the driver's BAC was .08 or greater at the time of driving. This assumption can be challenged by the defense at trial.

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Boating Under The Influence, Can I Get Arrested For DUI?

In California, if you operate a motorized boat or any watercraft while under the influence in a lake, river, or the ocean, you can be arrested and charged with a crime.

The Harbors and Navigation Code provides the statutes for boating under the influence, or BUI. The language of the code is very close in the language in the California Vehicle Code for drunk driving, (see California Vehicle Code section 23152).
drinking and boating.bmpUnder the Harbors and Navigation Code section 655:

(b) No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.

(c) No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood.

(d) No person shall operate any vessel other than a recreational vessel if the person has an alcohol concentration of 0.04 percent or more in his or her blood.

The code does not bar the operator of the boat or the passengers from drinking or having open containers inside the vessel. However, it is illegal to operate a motorized vessel or serve as a crew member while under the influence or alcohol, a drug, or the combination of both, (see Harbors and Navigation Code section 655.4(a)).

A BUI is priorable, which means if you are charged with another DUI or BUI within ten years of the first one, you will be subject to the consequences of a second offense, which are more severe than the punishment for the first.

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