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Beverage Industry News
VOLUME 99, ISSUE NUMBER 34FOUNDED IN 1934
SEXUAL HARASSMENT, EMPLOYER’S RESPONSIBILITY
In California, the laws regarding driving under the influence (DUI) are some of the strictestin the nation. DUI laws are designed to punish offenders for operating a motor vehicle whileunder the influence of alcohol, other drugs or a combination of alcohol and other drugs. Adriver who is caught with illegally high alcohol levels in their blood or breath or who refus-es to complete a chemical test are usually dealt with in two ways. Firstly, they can be prose-cuted in court for the criminal offense of DUI or refusal. The criminal penalties that may beimposed include jail and prison, fines, treatment, probation and license suspension.Secondly, the driver may be subject to licensing action by the DMV for the civil offenses of driving in excess of the fixed alcohol limit or refusing a chemical test.There are two alcohol limit laws in California, one is called the “per se” alcohol limit, theother is called the “presumptive” alcohol limit. A driver who exceeds the per se breath orblood alcohol content (BAC) limit will be prosecuted only for having an amount of alcoholin their system greater than that permitted by law. The actual level of the driver's impair-ment will not be an issue. A drivers will be guilty of a DUI simply for having violated theper se BAC limit. California's per se BAC limits vary depending on the driver's age, whetherhe or she is a commercial driver, and whether the case is adjudicated in a court (criminally)or by the DMV (civilly).Drivers who exceed the presumptive BAC limit are presumed to have been under theinfluence of alcohol when driving, that is, it is assumed their faculties for driving wereimpaired. California's presumptive BAC limit is .08%, which amounts to about four drinks inan hour for a 160-pound male. BAC levels are established from results of law enforcementofficers' chemical tests. A driver who exceeds this presumptive limit is presumed to havebeen under the influence. Still, they can attempt to prove in court that - despite having hadan incriminating BAC – that they were not physically impaired when driving. It is alsoimportant to note that a driver whose BAC does not exceed the presumptive BAC limits canstill be convicted of a DUI if other evidence shows that their abilities were impaired.It is common for a court to prosecute a person who has been arrested for a DUI for vio-lating both the per se and presumptive statutes. If there is strong evidence against the driv-er from the BAC test, it is likely that a prosecutor will try to convict on the less complex perse charge; if the evidence from the BAC test is not strong, it is more likely that a prosecutorwill still attempt to use the sobriety test evidence to prove that the driver was physicallyimpaired, and guilty of the presumptive DUI charge. A driver who is convicted of both a pre-sumptive and per se charge will only be punished for one of the two charges.If a driver refuses to take a chemical test for a DUI, they may still receive a severe pun-ishment. In California, all drivers are required to take and complete a chemical test if a lawenforcement officer requests them to do so. There are severe consequences for refusing achemical test such as harsh license sanctions or suspensions, facing the probability of a DUIconviction and a conviction for test refusal, receiving all standard DUI penalties, losing thepossibility of getting probation as a substitute for jail, and receiving a longer jail sentence.Courts can impose DUI penalties in several ways. A misdemeanor offense will be pun-ished less severely than a felony. In California, a misdemeanor DUI offense typically will notinvolve injuries, where a felony DUI offense will usually involve someone other than thedriver being injured or killed as a result of the offense. A driver who is convicted of a misde-meanor can be sentenced to jail, but not prison, and fined up to $1,000. A driver who is con-victed of a felony can be sentenced to prison and fined more than $1,000. It should also benoted that if a driver already has a DUI conviction on her record, any subsequent DUI willbe punished more severely than previous offenses.Alan Forester is an attorney, CPA and an expert witness in Alcoholic Beverage ControlLaw. For more information, please visit www.ABClawyer.com or call 800-464-1040.
Disclaimer: This article is not to be construed as legal advice. Please check with an attorney before taking action.
ALAN FORESTER, CPA, ATTORNEY