So, why is California’s DUI problem worse than ever? Why are drivers continuing to make poor decisions with regard to drinking and driving? Perhaps it is a combination of factors. On the one hand, being under the influence likely reduces a driver’s ability to determine whether they are legally competent to get behind the wheel, especially those with chronic alcohol or substance abuse problems. On the other hand, California has some pretty lenient DUI laws and, when combined with the relatively small chance of begin pulled over, offers very little in the way of deterrence.

For instance, in a recent year approximately 1.4 million US drivers were arrested for DUI, less than 1 percent of the 159 million self-reported episodes of alcohol-impaired driving among U.S. adults each year. And take Dylan Morse, the 19-year-old drunk driver who was convicted of killing 22-year-old Alex Ruiz from Calistoga, California. Morse was driving at nearly twice the legal limit and was originally sentenced to twelve years in prison. However, a judge in Sonoma County recently reduced the sentence to three years. Morse is the son of Merced County’s DA; his passenger, who was also his best friend, currently lies in a coma as a result of the accident.

California law enforcement officials recognize that few drunk drivers ever get caught and are intensifying efforts to identify offenders by declaring 2010 to be the “Year of the DUI Checkpoint”. Yes, California is finally getting tougher on drinking and driving. The state plans to spend an additional $3 million for DUI checkpoints and the California Office of Traffic Safety (OTS) will provided funding for more than 2,500 sobriety checkpoints, up almost 50% from last year.

And that’s not all. Sacramento has acknowledged California’s anemic drinking and driving laws and plans to beef up DUI punishment in 2010; thus those convicted of driving under the influence will see some significant changes. Those convicted of a second misdemeanor DUI offense will now have to obtain a restricted driver’s license after the 90-day suspension period is over. Those convicted of a third misdemeanor DUI will now be subject to a six month driver’s license suspension. Also, after a second or third DUI conviction, an ignition interlock device (IID) will be required, which prevents a car from starting if the driver has alcohol in his breath. A fourth DUI is now considered a felony in California.

Some first time DUI offenders will no longer get a, relatively, free pass. A five year pilot program in four California counties, including Los Angeles County, will run from July 1, 2010 and will require an IID (ignition interlock device) to be installed in each motor vehicle owned by a first-time DUI offender as a condition of reissuing a restricted driver’s license, being issued a driver’s license, or having driving privileges reinstated subsequent to a DUI conviction. The device must be installed on every vehicle owned by the driver, as well as all vehicles he or she is allowed to drive. The interlock device will be required for five months unless bodily injury was involved in the incident; in that case, the device will need to be installed for a full year. Subsequent DUI’s will mean longer IID installation periods. The law also requires the IID installer to notify the DMV if the device is tampered with or bypassed after installation.

The risk of getting pulled over for DUI may also increase due to the new “Slow Down and Move Over” law which requires drivers to now change lanes or slow down if an emergency vehicle, construction vehicle, or tow truck with flashing lights is stopped on the side of the road. Failure to do so will likely result in the driver being pulled over and ticketed. The law, codified as Section 21809 of the California Vehicle Code, requires a person driving a vehicle on a freeway and approaching in a lane immediately adjacent to a stationary, authorized emergency vehicle that displays emergency lights, or a stationary tow truck that displays flashing amber warning lights, to safely make a lane change from that lane, or slow to a reasonable speed.

Finally, have you ever witnessed a fellow driver on the 405 watching TV as he drives along side you down the freeway? I have. It’s a pretty scary thing. New for 2010 is the “TV Law”, which prohibits driving a motor vehicle with a television receiver, video monitor, television or video screen, or any other similar means of visually displaying a television broadcast or video signal if the equipment is designed, operated and configured in a manner that allows the driver to view the television broadcast or video signal while operating the vehicle.

Given the prevalence of drunk driving in California, these new laws, while sorely needed, do not go far enough to help alcohol and drug abusers. California DUI law needs to mimic recent drug initiatives by identifying substance abusers and providing incentives for chronic substance abusers to seek long-term treatment. While physically preventing an intoxicated individual from driving a car may be effective in preventing injuries to passengers and fellow drivers, it provides little encouragement for permanent rehabilitation and recovery.

Millie Anne Cavanaugh, Esq. is a Los Angeles immigration lawyer and former insurance defense attorney. She is licensed to practice law in California and Massachusetts. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.

President Barack Obama, hounded by marijuana advocates during his campaign, indicated that he was opposed to the federal government raiding medical marijuana shops. At the time, Obama was quoted in Oregon’s Mail Tribune newspaper as saying “I’m not going to be using Justice Department resources to try to circumvent state laws on this issue.” In March 2009, Attorney General Eric H. Holder, Jr. seemingly indicated a shift in policy, according to a New York Times story. In essence, Holder said that the Justice Department’s enforcement policy would now be restricted to marijuana traffickers falsely masquerading as dispensaries, and “use medical marijuana laws as a shield.” Under the former Bush administration, federal agents raided marijuana distributors violating federal statutes even if they were, or appeared to be, in compliance with state laws. Specifically, Holder said that California dispensaries operating in accord with California law would not be an administration priority.

That didn’t end the raids, however.

In October 2009, the Justice Department told federal prosecutors in a three-page memo that they should not pursue medical marijuana users who comply with state laws. Despite the new policy, some medical marijuana users remain skeptical of the oversight of marijuana dispensaries due to a hodgepodge of regulations. But Bruce Mirken, of the Marijuana Policy Project in San Francisco, says “It is the biggest and most positive change in federal policy in medical marijuana in at least 30 years.”
There have also been efforts to legalize marijuana in California in 2009, with proponents of legalization saying it would benefit the state to the tune of $1.4 billion in additional revenue annually to the State Board of Equalization, and opponents decrying legalization as prone to abuse and an escalating number of younger patients. In 2007, California collected $100 million in sales tax revenue collected from hundreds of medical marijuana dispensaries. But while taxing marijuana (if the drug becomes legalized) would benefit the state, associated health care and monitoring costs in a state of some 15 million people would be very costly.

So, the state and federal laws seem to be at odds when it comes to medical marijuana use, and California, at least, entertains some initiatives toward legalization of cannabis.

Where did all this controversy begin and what’s been done to correct it?

Compassionate Use Act

Proposition 215, also known as the Compassionate Use Act of 1996 (CUA), the Medical Marijuana Initiative, was voted on by the people of the state of California and became effective in November 1996. In 2003, the state governor signed Senate Bill 420 into law, establishing the Medical Marijuana Program (MMP). The CUA is updated annually.

Prior to the CUA, it was illegal, under California law, for any individual, seriously ill or not, to cultivate or possess marijuana. CUA allows it, under certain medical conditions.

Medical Conditions Covered by CUA and MMP

Patients with the following conditions are covered by the CUA: AIDS, anorexia, arthritis, cancer, chronic pain, glaucoma, migraine and spasticity. In addition, CUA applies to “any other illness for which marijuana provides relief.” Language in the MMP clarifies the “serious medical condition” concept that qualifies persons to receive an ID card and use medical marijuana upon a physician’s recommendation. The MMP’s concept of “serious medical condition” includes: AIDS, anorexia, arthritis, cachexia (loss of weight, muscle atrophy, significant loss of appetite, fatigue, weakness), cancer, chronic pain, glaucoma, migraine, persistent muscle spasms (including those that are associated with multiple sclerosis or MS), seizures (including seizures associated with epilepsy), and severe nausea. The MMP further includes “any other chronic or persistent medical symptom that either1) substantially limits the ability of the person to conduct one or more major life activities as defined in the ADA or, 2) if not alleviated, may cause serious harm to the patient’s safety or physical or mental health.”

CA State Board of Equalization and Taxability of Medical Marijuana Transactions

California’s State Board of Equalization issued a special notice in 2007 confirming the state’s policy of taxing of medical marijuana transactions, and requiring a Seller’s Permit for businesses engaging in such transactions.

Medical Board of California

The Medical Board of California licenses, investigates and disciplines California physicians. Although California law prohibits punishing physicians for recommending marijuana to their patients for treatment of a serious medical condition, the Medical Board of California is permitted to (and does) take disciplinary action against physicians who do not comply with accepted medical standards when recommending marijuana to their patients. These standards include:

• Taking a patient history and conducting a good-faith examination of the patient
• Developing a treatment plan that includes objectives
• Providing informed consent, including discussion of any side effects
• Periodic review of the efficacy of the treatment
• Consultations, as necessary
• Maintaining proper records that support the decision to recommend use of medical marijuana

CA Attorney General Issues Specific Medical Marijuana Use Guidelines

In 2008, in an effort to minimize prosecution of individuals for cultivation and/or possession of marijuana for medical use, California Attorney General Jerry Brown issued specific guidelines. The 11-page document or directive, sought to help legitimate patients avoid arrest while also providing police and law enforcement officials the tools they needed to be able to distinguish legal medical marijuana operations from illegal ones and criminal traffickers.

The guidelines urged patients to apply for state-sanctioned medical marijuana ID cards, and advised police to recognize and accept them (once authenticated) as proof of medical need. Under the guidelines, which apply to not-for-profit collectives or cooperatives, the marijuana must be grown by the patients or caregivers, with fees limited to covering overhead and operating expenses.

A copy of the guidelines is available at http://www.safeaccessnow.org/downloads/AG_Guidelines.pdf

Further information about medical marijuana is located at the Medical Board of California Department of Consumer Affairs site.
American College of Physicians Position

A 2008 position paper from the American College of Physicians (ACP) “urges an evidence-based review of marijuana’s status as a Schedule I controlled substance to determine whether it should be reclassified to a different schedule…[and] should consider the scientific findings regarding marijuana’s safety and efficacy in some clinical conditions as well as evidence on the health risks associated with marijuana consumption, particularly in its crude smoked form” (Position 4, revised July 2008).

The ACP’s other positions:

• Support programs and funding for “rigorous” scientific evaluation of medical marijuana’s potential therapeutic benefits and publication of such findings (Position 1)
• Encourages the use of non-smoked forms of THC that have proven therapeutic value (Position 2)
• Supports the current process for obtaining federal research-grade cannabis (Position 3)
• “Strongly supports exemption from federal criminal prosecution; civil liability or professional sanctioning…for physicians who prescribe or dispense medical marijuana in accordance with state law…. ACP strongly urges protection from criminal or civil penalties for patients who use medical marijuana as permitted under state laws” (Position 5)

California – First, But Not the Last State to Allow Medical Marijuana

To-date, 13 states have enacted laws permitting medical marijuana use. Following California, Alaska, Washington and Oregon approved medical marijuana use in 1998 and Maine in 1999. Colorado, Hawaii and Nevada approved it in 2000, while Montana and Vermont gave it the nod in 2004 and Rhode Island in 2006. Michigan voters approved medical marijuana use in 2008. Laws, fees and possession limits vary.

Arizona passed a law in 1996 that allows physicians to prescribe marijuana (even though federal law prohibits it), and a 2003 Maryland law allows for medical use defense in court.

An additional 14 states have legislation or ballots pending (as of August 2009) that seeks to legalize medical marijuana use. These states are Alabama, Connecticut, Delaware, Illinois, Iowa, Massachusetts, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, and Tennessee. Petition drives are underway in Florida and South Dakota.

Is It Safe?

Clinical investigations of the therapeutic use of medical marijuana continue to find evidence that cannabis has disease-combating capabilities. Of thousands of papers published, today researchers are focusing more on the ability of cannabis to modify disease. Of interest are moderating autoimmune disorders such as MS, inflammatory bowel disease and rheumatoid arthritis, as well as treating neurological disorders such as amyotrophic lateral sclerosis (Lou Gehrig’s disease) and Alzheimer’s. Anti-cancer properties of cannabis are also getting their fair share of attention.

But that is not to say there are no concerns surrounding medical use of marijuana. A 1995 World Health Organization report said “There are no recorded cases of overdose fatalities attributed to cannabis…” Investigators in 2008 found no higher incidence rate of serious adverse events associated with medical cannabis use.

Marijuana contains more than 60 chemical compounds, known as cannabinoids. THC (delta-9 tetrahydrocannabinol), which is the main psychoactive ingredient in marijuana, can produce a variety of physiological and euphoric effects that may be, to some individuals, harmful. Cannabidiol (CBD) is the second most abundant cannabinoid, but it produces no psychoactive effects.

Pregnant or nursing mothers, adolescents, patients with a family history of mental illness, those with Hepatitis C, decreased lung function, or history of heart disease or stroke may be at greater risk of experiencing adverse effects from marijuana.
Patients in California and elsewhere should seek counsel with their physician as to whether or not medical marijuana is advised or recommended, particularly as to its safety and appropriateness for the individual.

What Happens Next?

Estimates vary on the number of medical marijuana patients in California, but it’s safe to say it exceeds 200,000 (a 2007 estimate). The number of medical marijuana dispensaries in Los Angeles alone is said to exceed 1,000 – and many of them are the target of police and DEA raids because they are for-profit organizations. It remains to be seen whether the Justice Department’s new policy will have any effect on medical marijuana dispensaries who comply with California state law, but several proponents of state reform say California should “re-codify Proposition 215 and take a stand against federal raids,” and train more law enforcement officers on the medical cannabis issue.”

Approximately 36 million people live in California. It is estimated that drug and alcohol abuse costs the citizens of California approximately $44 billion per year in loss of productivity, health care, substance abuse prevention programs, substance abuse treatment programs and criminal justice programs. The cost is split between drugs and alcohol at roughly $22 billion each. The number of yearly deaths attributed to each type of abuse is also equally divided at 3,600 each.

Although the societal cost is allocated almost equally between drug abuse and alcohol abuse, the State of California currently focuses the lion’s share of its treatment and prevention resources on drug abuse. Of the over 200,000 patients admitted to California substance abuse treatment programs that received federal or state funding, 80% of them were admitted for drug abuse. The dichotomy between drugs and alcohol is further illustrated by the way the California criminal justice system treats alcohol and drug related crime.

Drug Abuse

Prop 36 & Substance Abuse and Crime Prevention Act (SACPA)

In 2000, California voters overwhelmingly approved Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (SACPA). The purpose of SACPA was to create a diversion program that would offer defendants an opportunity to decrease jail and prison terms for drug-related crime and decease overall drug abuse by sending those criminals to drug abuse treatment instead of jail. SACPA is for adults who have been convicted, for the first or second time, of being under the influence of a controlled substance or of a nonviolent drug possession offense such as simple use, possession for personal use, or transportation for personal use.

Those convicted of possessing with intent to distribute, manufacturing, trafficking or dealing drugs do not qualify for SACPA treatment. Also, SACPA does not apply to charges stemming from cultivating marijuana for personal use, drug possession charges when in possession of a loaded handgun, using a forged prescription to obtain drugs, or driving under the influence (DUI).

A successful SACPA participant will complete a drug treatment program and have the drug charges dismissed. The program is administered in conjunction with county courts and costs California taxpayers approximately $120 million a year. On average, courts refer 30,000 drug users a year to the Prop 36 program and about one-third successfully complete it.

A SACPA referral happens after the person has been convicted of the drug related offense. Instead of serving a jail sentence, the person is placed on probation and is required to undergo drug treatment for up to one year. Throughout the course of treatment, he or she must report to a probation officer, case manager and treatment officer. The judge has the discretion to set conditions for the supervision including drug testing and enhanced treatment requirements for relapsers. Participants who commit non drug-related violations can have their probation revoked and be sent to jail. One controversial aspect of the SACPA program that has come under fire in recent years, however, is the prohibition against jailing a participant that relapses. Instead, the violator must be given multiple chances to complete the program.

The substance abuse treatment options offered under Prop 36 vary by county. Drug treatment facilities must be licensed and certified by government agencies to receive Prop 36 funds. The treatment programs can include outpatient drug treatment, halfway house drug treatment, narcotic replacement therapy (such as methadone treatment), drug education and prevention programs, detox, and limited inpatient therapy. Sadly, Prop 36 does not currently cover intensive and comprehensive inpatient drug treatment programs.

In 2008, UCLA released a report on the status of the Prop 36 Substance Abuse and Crime Prevention Act program. UCLA found that the program was plagued by problems such as inadequate funding and a high drop out rate. The study found that roughly half of the participants are in drug abuse treatment for the first time and that most participants receive outpatient care, a less expensive, but also less effective, drug treatment option. UCLA recommended that the program increase the number of narcotics abuse treatment options, offer employment assistance and increase the availability of inpatient treatment. As the number of drug offenders and drug-related arrests continues to rise in California, the demand for spots in the SACPA will also continue increase. However, given California’s budget woes, it remains unclear whether additional funds will be allocated to this drug treatment court diversion program.

California Adult Drug Court

Prior to Prop 36 and the Substance Abuse and Crime Prevention Act, county courts had already implemented their own programs designed to alleviate jail and prison crowding and reduce the prevalence of drug addiction. These largely local programs, referred to collectively as Adult Drug Courts, now augment the reach of Prop 36 and SACPA, catching those who either do not qualify for or cannot successfully complete the program. While SACPA participants are managed by parole officers and program managers, Drug Court participants are supervised by court personnel and are required to attend meetings at court. The cost of implementing the program is roughly similar to processing a someone under strictly criminal guidelines.

Participants in California drug court programs have either been charged with or convicted of drug-related felonies and misdemeanors. Drug courts generally utilize initial intensive treatment services with ongoing monitoring and continuing care for 12 months or more. There are approximately 200 drug courts in California.

Drug courts are implemented in different ways across California. Pre-plea drug courts give drug possession offenders a chance to participate in the court-supervised treatment before charges are brought. If the drug abuser successfully completes the program, the charges are dismissed and the person will not have a criminal record. Failure to complete the drug abuse treatment program leads to the filing of and adjudication of the drug charges. Post-plea drug courts allow offenders to enter treatment only after they have plead guilty to the drug charge. Treatment under a post-plea court can take up to three years. Once the program is completed, the charges will be dismissed. Failure will result in sentencing. There are also drug courts that allow offenders to enter treatment after they have been convicted but before beginning their sentence. Successful participants will have served their sentence in treatment, rather than jail.

Alcohol Abuse

Although alcohol abuse costs California, as a society, roughly the same amount of money as drug abuse, the state focuses its treatment resources on drug abusers. Further, courts are more likely to offer drug users leniency as a reward for treatment; alcoholics who appear before a judge will likely leave with a criminal record.

Admittedly, the chances of being arrested due to alcohol abuse, and thus calling attention to the abuse, are significantly lower than for drug use. While drinking alcohol, in itself, is not illegal, drug use generally is. Alcoholics will likely be arrested only for driving under the influence (DUI). Thus, alcoholics who manage to avoid getting pulled over for drinking and driving will probably never have to appear before a judge on substance related charges. Conversely, simply being in possession of drugs can lead to an arrest. Unlike Drug Court and SACPA, there is currently no mainstream diversion program for those convicted of driving under the influence (DUI) that would erase their criminal conviction. While drug addicts get a “carrot” for simply completing a treatment program, alcoholics are generally given the “stick” for being under the influence.

In California, it is a crime to operate a motor vehicle with a blood alcohol content of .08% or over. An arrest for driving under the influence results in two government proceedings: one in criminal court for the criminal charge and another by the DMV regarding the driver’s license. The DUI charge carries with it the risk of suspension or revocation of the driver’s license, court probation of 3 to 5 years, fines, jail time, and enrollment in an ignition locking device program. For multiple offenders, it is possible that they will forfeit their vehicle to the state.

California imposes enhanced penalties on drunk drivers with prior convictions, those who were speeding or driving recklessly, those who had minors in the car, those who caused an accident, injury or death, those whose blood alcohol content was .15% or higher, and those who refused testing at the time of arrest.

While all DUI convictions require the offender to attend alcohol eduction classes, including Alcoholics Anonymous, many first time DUI offenders will fall through the cracks. For many, the first DUI charge can be plead down to a “wet reckless” or driving recklessly while under the influence. Although a “wet reckless” will count as a DUI should the offender be arrested again, there is no mandatory alcohol treatment or counseling for this lesser charge.

The severity of sentences for driving under the influence vary according to blood alcohol content and number of prior offenses. However, even the most frequent offenders, those with three or more DUI convictions, are required to attend what amounts to approximately two weeks of full-time counseling or education classes (90 hours). Compared to the standard 28 day program recommended as the minimum treatment necessary for alcoholism, the chances of recovering from alcoholism through court-ordered treatment are fairly bleak.

Instead of focusing on treatment, California courts deal with alcohol-related crime by taking away he ability to repeat it, at least for a period of time. For instance, driver’s license suspension and revocation is likely to prevent at least some alcoholics from driving a car, as do stints in jail. Ignition Interlock Devices (IID) also prevent alcohol abusers from driving a car while intoxicated. If ordered by the court, the installation of an IID will prevent someone from being able to start or operate a car if over the legal limit. Unfortunately, none of these approaches address the underlying issues of alcohol abuse.

Millie Anne Cavanaugh is an attorney licensed to practice law in California & Massachusetts and is a former insurance defense lawyer. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.