“Tom! I wanted to be the first to congratulate you on a job well done. Just got word they finally signed the contract and are ready to go. All your hard work finally paid off. You did great. Enjoy your weekend. And again, congratulations!”
Tom is about to enter his apartment when his cell phone alerts him of the voice message. He opens the door, walks in, and goes directly to his bedroom. He turns on the light and places his wallet and keys on top of his dresser. He stares out his 5th floor window and looks at the Friday evening traffic. He puts his phone to his ear and starts to listen to the message.
The short voice-mail rapidly turns Tom’s exhaustion into exhilaration. He feels his face lifting and his cheeks warming up. He smiles with his eyes as he reflects on his hard earned accomplishment. Tom is feeling good. Real good in fact. Time to celebrate!
Tom exits his bedroom and walks directly to the living room. He turns on the lights and asks Alexa to play his favorite play-list. The first song that plays is “Running Down A Dream” by Tom Petty. It’s perfect.
He walks to the kitchen and opens his fridge door. He takes out a fresh lime, rinses it, and cuts into several wedges. He places his salt shaker on the counter as he grabs and opens a brand new bottle of Cuervo tequila. There are a number of different shot glasses sitting nearby. He selects a heavy clear shot glass with a line etched along its circumference right below the rim.
Tom eagerly fills the shot glass up to the line and shakes some salt on one of the lime wedges. With a hearty smile Tom holds the tequila glass in one hand and the lime wedge in the other. He raises the shot glass and toasts himself by uttering “Cheers!” In one smooth motion Tom downs the tequila shot and then bites into the lime. He pays full attention to each flavor that’s coating his palate.
He feels the libation going down and warming his stomach. The distinct aroma of the spirit, salt, and lime delights his olfactory sense and also leaves his mouth rather cleansed.
It’ll be a few moments before he feels the effects. “One more shot? Hmmm? Yeah!” He pours, downs, and bites another wedge. He’s two shots in and before long warm and fuzzy feelings start to emanate.
He is still at the beginning of his solitary celebration when he suddenly remembers he still has some chronic left. He feels the urge to enhance his state by taking a hit. Avecii’s “Levels” just started playing.
Tom walks to his closet and takes out his stash from the zipped pocket of a large black duffle bag. He fills his glass pipe with a bit of marijuana and reaches for his lighter. He brings the pipe to his lips, covers its carb, flicks on the lighter and takes a respectable hit. He feels his chest raise and lungs expand.
Tom holds it in for a few seconds and then gently exhales a horizontal plume of smoke. As his small closet gets hazy with the sweet smelling fog he hears the lyrics “Ohhh, sometimes I get a good feeling!” and can’t help but crack a knowing smile. He then puts away his pipe, lighter, and weed.
A few minutes pass and Tom is feeling the pleasurable effects. He decides to go for a drive. He wants to just reflect and chill. He tidies up the kitchen, grabs his wallet and keys, turns off the music, and heads to the garage.
He gets to the garage, sits in his car, and ‘”Les Djinns” by Djuma Soundsystem begins to play. With seatbelt fastened Tom carefully exits his garage, takes a right, and drives toward the last moments of the beautiful Summer sunset.
Tom is enjoying his drive. He’s calm and mellow. He is permitting his mind to engage its stream of consciousness. He feels a buzz gently blanketing his senses. Then it happens. That rare feeling of extreme awareness takes over. He is alert, coordinated, and feels connected. He is in the zone.
He’s about 25 minutes into his drive and all feels right. The sun has set already and it’s dark outside. He notices some traffic up ahead. A bit odd. He sees a car making a u-turn. He drives up a bit farther and sees some signs and cones. He realizes he is about to go through a checkpoint. Tom doesn’t want to deal with the inconvenience so he tries to take a different route. Too late. He is locked in and has no choice but to approach the officers.
Tom is not nervous. He’s had two shots and one hit. He brings down his window, turns off the music, and focuses on his surroundings.
It’s Tom’s turn. A young officer approaches Tom and right away smells marijuana on Tom’s clothing. He asks if Tom has had anything to drink and Tom calmly tells him the truth. Now the officer smells both marijuana and alcohol.
This young officer decides Tom’s eyes are a bit red and glossy and decides Tom is speaking too slowly. Officer asks Tom to pull over to a designated area for further investigation. Tom gets a bit irritated but complies.
The officer asks Tom a few questions and Tom responds. He then asks Tom to look at the officer’s pen and to follow it only with his eyes. The officer says “step out of the car for me.” Tom is now getting concerned. The officer asks Tom to perform some tests and Tom does his best. The officer then asks Tom to blow in a small gadget to measure Tom’s blood alcohol level. Tom asks if he has to do it and the officer says it’s voluntary, so Tom declines. Based on what he has observed so far the officer decides to arrest Tom and requests assistance from another officer.
Tom is cuffed and taken to the station. Officer Drew Ray Elko takes over the investigation. “Full name please” asks the officer. “Thomas Hyde Cane” replied Tom. Officer Elko then asks a series of questions and starts to conduct a number of tests on Tom. He takes Tom’s pulse at three different times, measures Tom’s pupils in a dark room, checks his muscle tone and examines his forearms. He also takes Tom’s vitals. Before long Tom has his blood drawn by some technician.
They release Tom a couple of hours later. They cite him for DUI and give him a date to appear in court. They take his license and give him some paperwork. This is Tom’s first time dealing with a DUI. He has no criminal past.
Tom retrieves his car and arrives at his apartment. He’s drained. He keeps getting flashbacks of the whole incident. He can’t understand why this happened. He knows that driving after drinking and smoking is illegal, but he felt he was fine and good to drive. He didn’t do anything erratic or unsafe, but still has to deal with this mess. What was supposed to be a feel good weekend has now turned into a period of constant frustration, stress, and worry.
The next morning Tom finds a local lawyer who specializes in DUI defense and they agree to meet Monday for their initial consult.
Tom arrives at the lawyer’s office with his paperwork. He feels uneasy because he doesn’t know what is going to happen. Tom has been worried throughout the weekend and is hoping this lawyer can help him.
The lawyer greets Tom in the reception area and they walk into the large brightly lit conference room. They sit down and the lawyer asks Tom to tell him what happened. Tom explains exactly what occurred starting from the time he listened to the message to the time he got home. Tom provides every single detail.
The lawyer takes notes as he listens intently to Tom’s ordeal. Tom asks the lawyer to explain what he’s potentially facing and wants to know if there are any defenses to the DUI.
The lawyer tells Tom that he wants to see the documents Tom brought with him, but also needs to review the police report, lab results for the blood test, the complaint, and other discovery documents to better assess the case. Because these documents are not yet available, the lawyer explains some things that might occur.
“So, it looks like the young officer called for a DRE to assist in the investigation. A DRE is a ‘drug recognition evaluator’ or expert who has had training in recognizing drug use and medical issues” the lawyer said.
The lawyer explains Tom could be charged with Vehicle Code sections 23152(a) and (b). He shows Tom the text of both sections, which state:
“23152(a) It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.
23152(b) It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”
The lawyer continues explaining things to Tom.
As to the “(a)” count, a person is under the influence if they are impaired to such a degree that they are unable to drive a vehicle with the caution of a sober person using ordinary care under similar circumstances. Even if the blood results are below .08, a person can still be found guilty of this charge. “I was driving safely. How can that happen?” asked Tom.
The lawyer tells Tom that alcohol affects people differently. A person, for example, may have a blood alcohol level of .06 but given that person’s mental and physical make up and the extent to which their coordination is affected that person might not be able to drive safely. If the person is straddling lanes, weaving, crossing lines, losing their balance, slurring, fumbling, driving too slowly, unable to follow directions, hitting the curb, and generally seems out of it, that driver can be deemed to be under the influence and unfit to drive. It doesn’t take .08 and above to be convicted of this charge.
But the converse is also true, thus the “(b)” count. “I am not sure I understand. What do you mean?” asked Tom, and the lawyer continued his explanation.
As to the “(b)” count, if a person’s blood alcohol level is .08 or above, that person is considered to be under the influence of alcohol, regardless of the level of impairment. The law criminalizes driving when there is a specific minimum amount of alcohol in the driver’s system regardless of how impaired they may be.
If a person is a seasoned drinker they may be able to mask their physical impairment. They may be able to function well and drive safely even when well above .08. But their ability to pull it off is not relevant to the “(b)” count. The “(b)” count is tied to objective scientific results regardless of how steady or sober a person might be, act, or look. The “(a)” count is based on subjective perceptions of others, such as the officers, witnesses, and so on.
A person can get convicted on either or both of these charges though generally the punishment in court is the same. There is no double punishment if a driver is convicted of both counts. They are just two different ways to convict for the act of driving under the influence. So, it can be through driver’s conduct, or based on that driver’s blood alcohol level, or both.
The lawyer further explains that these two sections are limited to alcohol only. But since Tom also took a hit of pot at least two other sections may come into play. “What are those two other sections?” asks Tom.
The lawyer shows the additional two sections to Tom.
“23152(f) It is unlawful for a person who is under the influence of any drug to drive a vehicle.
23152(g) It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.”
Tom then realizes a few things. First he realizes that if he did not use marijuana, then only the “(a)” and “(b)” counts, also referred to as “Deuce,” could apply.
Then he realizes that if he had used only marijuana and had skipped the two tequila shots, then only 23152(f) would apply.
He further realizes that since he smoked and drank then he could potentially be charged with 23152(g).
Tom then asks the lawyer “I see the (b) count has the .08 or above for alcohol, but I don’t see the cut off limit for marijuana. Whys is that?” “Excellent question, Tom. I’ll tell you why.”
The lawyer explains to Tom that there are differences between alcohol and marijuana. Alcohol is water soluble and marijuana is fat soluble. The way alcohol gets absorbed and eliminated from our bodies is different from marijuana.
Due to the mental impairment that takes place when a person drinks, the law has chosen the .08 limit as its threshold. It used to be .10 and even higher before that but now it is at .08.
When a person reaches the .08 limit, in the eyes of the law, they are sufficiently impaired and considered to be under the influence and therefore no longer fit or able to drive safely. This of course assumes the testing was done properly, which would be a whole different discussion.
Certain blood alcohol levels correlate with certain levels of impairment. The law correlates .08 to being under the influence and unfit to drive. At the same time there is a presumption that a person is not under the influence if at .05 or below. So, there are somewhat clear delineations as to what is and is not too impaired for driving purposes.
With alcohol there is a predictable and somewhat consistent rate of elimination from the body. Generally speaking it’s about .02 per hour. When a person stops drinking and is at .10 at their peak it would take about 90 minutes for them to lower that rate to .07 and fall below the .08 threshold. It’ll take about five hours for the alcohol to get metabolized and eliminated from their system. As the alcohol gets metabolized and eliminated from one’s system their blood alcohol level decreases as does their mental impairment.
The lawyer further explains to Tom that there is no similar limit with marijuana, at least not yet, because the traces of marijuana found in one’s blood cannot reliably correlate with a person’s level of impairment, if any.
For example, a frequent marijuana user who has not gotten stoned for a couple of days and is not at all impaired can show traces of marijuana for days or even weeks later.
People who use medical marijuana may consume a type that gives them the relief without experiencing the full high. Though they may not be impaired traces in their blood might indicate otherwise.
An experienced smoker might have much better control over how they operate certain tasks than a brand new user who has no familiarity with how marijuana affects them. The levels of marijuana in their system may be the same but the level of impairment can be markedly different.
These are just some of the reasons why there is no specific cut off limit for marijuana as there is with alcohol’s .08.
Tom then asks about the DMV. He mentions that the officers said something about a 10 day rule and asked the lawyer to explain.
The lawyer tells Tom that he has 10 days to contact and schedule a hearing with the DMV otherwise an automatic license suspension will go into effect when his temporary license expires. But the lawyer isn’t sure how this will play out in Tom’s case. The lawyer suggests scheduling the hearing within the 10 day period to preserve the hearing rights just in case.
Tom isn’t sure what the lawyer means and asks for further clarification.
The lawyer explains that the DMV can suspend a driver’s license for various reasons. A couple of those reasons include driving with .08 or above, or refusal to take a chemical test upon arrest. In Tom’s case, if it was just the marijuana, the DMV should not take any action. But Tom also drank.
The lawyer states that based on his experience and understanding, and having conferred with many experts and having handled a large number of cases throughout his career, if Tom is correct about the two tequila shots, the chance the blood result comes back at .08 or above is very low.
The lawyer cannot rule out other reasons why the blood results might be .08 or above. Some possibilities include; no preservative in the vial, use of alcohol swab on the skin before inserting the needle, no refrigeration of the sample leading to fermentation, failure to follow proper lab protocols, blood sample belonging to someone else, and a host of other possibilities that may cause the lab report to come back with an erroneous .08 or above reading.
“Got it” Tom said. “So what else do I need to know?”
The lawyer tells Tom that someone has to appear on the date listed on the ticket to get additional information so they can better decide how to proceed. The lawyer further tells Tom that he has seen similar cases where no complaint was filed. Since this appears to be a misdemeanor the government has one year to file. If charges are eventually filed that’s when the a multitude of defenses can be utilized.
Even though there are uncertainties until additional information is obtained Tom feels much better after having consulted with the lawyer. Tom retains the lawyer to help him handle this matter.
From Cuervo and Chronic to Cops and Consult... it’s been quite a trip, Tom thinks to himself. If nothing else this episode will play a major role in Tom’s decision making the next time a similar situation arises.
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