By On the occasion of our 20th anniversary
By Gustavo Arellano
By R. Scott Moxley
By Alfonso Delgado
By Courtney Hamilton
By Joel Beers
By Peter Maguire
By Charles Lam
Just before midnight on April 2, 2011, two 18-year-old boys were driving a 2001 Chevy Camaro in the fast lane of the northbound 57 freeway. The teens, who had graduated from JSerra Catholic high school in San Juan Capistrano, were heading toward Claremont McKenna College to hang out with friends.
A slow-moving car swung into the fast lane. The Camaro's driver, Logan Vescio of San Juan Capistrano, slammed on the brakes to avoid it. He lost control and hit the center divider. The air bags deployed as he steered his disabled car across the highway to the right shoulder, just south of Katella Avenue.
An alert young driver, Maryann Tran, 21, saw the accident unfold and parked her Honda Civic on the shoulder, in front of the disabled Camaro. Vescio's passenger, Cameron Cook of Ladera Ranch, got out and stood next to the vehicle while Vescio, who was bruised from the crash, slid into the passenger seat. As Tran gave the teens water and asked if they were all right, a second Honda Civic, driven by Ashley Selina Bryan, then 24, sped toward the scene. Bryan, whose blood-alcohol content (BAC) was later determined to be more than twice the legal limit, failed to avoid the disabled car.
The impact caused the parked Camaro to move, dumping Vescio out of the car and onto the highway. He was later found to have suffered a concussion, as well as cuts and bruises.
But Cook got the brunt of it. The muscle car slammed into him as he stood on the shoulder. He was thrown over the guardrail and off the highway, onto the embankment 60 feet below.
The Camaro ended up in the No. 2 lane of the 57. Vescio landed flat on his back on the busy highway.
Tran had jumped out of the way when she saw Bryan's Honda approaching. She briefly glanced down at Cook, lying on the embankment 60 feet below. Realizing there was little she could do for him, she ran onto the highway to Vescio. Somehow, the 5-foot-3 woman dragged the 6-foot-tall Vescio to safety.
Police and first responders quickly arrived at the accident site; Cook died of his injuries at a hospital several hours later.
Investigators soon determined the "accident" was actually a crime. Bryan, of the San Bernardino County city of Highland, had been drinking long before she got on the 57. Tested almost two hours after the crash, her BAC was 0.17 percent; the legal threshold of impaired driving is 0.08 percent.
Bryan was eventually charged with vehicular manslaughter while intoxicated; driving under the influence of alcohol, causing bodily injury; and driving with a blood-alcohol level of 0.08 percent or more, causing bodily injury. There was also a sentencing enhancement for multiple victims, considering both Cook's death and Vescio's injuries.
She was ultimately convicted of drunken driving and pleaded guilty to gross vehicular manslaughter. Before sentencing in May of this year, she gave a tearful apology to Cook's family. Her public defender told the court she had been attending rehab and substance-abuse programs since the crash. Her parents made statements on her behalf, indicating her remorse and her regret for "making bad decisions." The judge encouraged Bryan to continue speaking to groups about the dangers of drinking and driving, as he sentenced her to six years in state prison.
* * *
As gruesome as it was, Bryan's crime is depressingly typical of those involving most DUI fatalities. She was not an underage drinker, such as the recent high-school graduate who killed his friend on Santiago Canyon Road and was sentenced to 14 years. Her victim wasn't famous, as was Angels pitcher Nick Adenhart, who died in April 2009 when a man driving while several times above the legal BAC limit plowed into the car he was in. (As the Weekly previously reported, Adenhart's underage driver, who also died in the incident, was also driving drunk.) Nor was Bryan a law-enforcement officer, such as the former OC sheriff's deputy who showed up intoxicated to his DUI hearing or the deputy with a BAC of 0.24 who was arrested for driving on the wrong side of the road in Costa Mesa. Nor was she a multiple previous offender with six different drugs in her system, as was the man who drove onto the sidewalk and killed a woman who was walking her dog in Laguna Niguel.
Her crime only differs substantially from the "norm" because while women may be taking over the world, men still dominate DUI arrests and fatalities. In 2010, males accounted for some 77.6 percent of DUI arrests in California. But according to the California Department of Alcohol and Drug Programs (CDAP), the proportion of females among convicted DUI offenders has risen consistently every year since 1989.
More important, Bryan's crime fits a key pattern: DUI drivers who kill people are usually not tipsy, but rather very drunk.
According to National Highway Transportation and Safety Administration (NHTSA), 10,102 of the 12,012 people with a BAC of 0.01 or higher who were involved in fatal crashes—a figure that represents 84 percent of the total—had BAC levels at or above the legal limit. But drivers with a high BAC (0.15 percent or above) accounted for more than half of all alcohol-related traffic fatalities, according to both NHTSA and CDAP. The average BAC level of a convicted DUI offender, as reported by law enforcement, was 0.15 percent in 2009. And according to NHTSA, in 2009, the most frequently recorded BAC level among drunk drivers in fatal crashes was 0.17 percent, the same as Bryan's.
A scenario that haunts the imagination of millions of Southland drivers is the wrong-way freeway crash. One study reported that more than 50 percent of such crashes involve alcohol and more than 5 percent involve drugs.
The National Transportation Safety Board (NTSB), the same agency advocating for a move to a 0.05 percent BAC limit "to save lives," analyzed the data in hundreds of wrong-way crashes. The agency found that of the 1,150 wrong-way drivers involved in fatal collisions whose BAC was known, 684, or 59 percent, had BAC levels at or above 0.15 percent.
In the course of a week in June 2013, the Antelope Valley Freeway was rocked by not one, but two crashes caused by wrong-way drivers. The first, allegedly caused by a driver high on meth, injured 13 people and shut down the freeway for hours. The second took the life of a 77-year-old pastor and seriously injured two of his congregants. That wrong-way driver, who also suffered major injuries, was arrested on suspicion of DUI.
The familiar checkpoints that slow traffic to a standstill on weekends and holidays around Orange County may or may not deter people from drinking and driving. But what they typically don't accomplish is the arrest of drunken drivers. For example, on May 4 and 5 (Friday night and Saturday morning), 1,513 cars passed through a checkpoint at Newport Boulevard and Finley Avenue in Newport Beach. No DUI arrests were made, but 12 citations were issued for other violations.
Mothers Against Drunk Driving (MADD) estimates that communities that consistently use sobriety checkpoints reduce DUI incidents up to eight times as much as communities that use roving patrols alone. But others, particularly defense attorneys, deride the checkpoints as costly TSA-like "security theater," often manned by police on overtime pay, plus an army of tow trucks and their drivers.
In some cities, the stops pay for themselves, with municipalities receiving thousands of dollars in tow payments, administrative-release payments and a cut of proceeds collected by the tow company for storage. In March 2010, Baldwin Park police impounded 61 vehicles while arresting just one person for drunk driving at a checkpoint.
So will lowering the legal level of driving under the influence to 0.05 percent BAC from 0.08 percent, as the NTSB is now advocating, change any of this? And could it happen?
The second question is probably easier to answer than the first. In May, the NTSB issued the call for states to move to a 0.05 percent BAC, along with a number of other recommendations to fight drunk driving, in a 100-page report, Reaching Zero: Actions to Eliminate Alcohol-Impaired Driving.
The agency claims that at BAC levels of 0.05 percent and lower, vigilance, perception, reaction time, tracking and psychomotor skills are all impaired, while drowsiness increases. It also claims alcohol use is associated with reduced seat belt use, increasing injury severity. According to the NTSB, going from 0.08 percent to 0.05 percent in Europe cut traffic fatalities 8 percent to 12 percent.
"The NTSB concludes that BAC levels higher than 0.05 are viewed by respected traffic-safety and public-health organizations around the world as posing unacceptable risk for driving, and more than 100 countries have already established BAC limits at or below 0.05," says DUI attorney Myles L. Berman. "I don't believe the U.S. should follow other countries' laws."
As the NTSB itself admits, "lowering the BAC threshold may seem counterintuitive when the majority of alcohol-impaired drivers in fatal crashes have BAC levels well over 0.08." But the agency insists that "reducing the BAC limit could reasonably be expected to have a broad deterrent effect."
Reaching Zero is full of fun acronyms, such as the futuristic DADSS (Driver Alcohol Detection System for Safety), HVE (high-visibility enforcement, those OC traffic stops we love so well) and OUI (not the former nudie magazine, but an acronym for operating under the influence of alcohol and drugs). Then there's the Orwellian REDDI (Report Every Drunk Driver Immediately). POLD is a phrase to strike fear into every party-thrower, restaurateur or bar operator—Place of Last Drink. All such actions are justified by yet another acronym, TZD—Toward Zero Deaths.
But it would be a mistake to not take the NTSB's recommendation to lower the BAC seriously. Though the crusade has just begun, the agency has a track record of making such change happen.
In 2004, it helped to implement the re-definition of DUI, moving the threshold of legal intoxication from 0.1 percent to 0.08 percent BAC. Although it's up to each state to make its own law on the subject, all 50 eventually went along, motivated by the agency's system of rewards (special-program funds and incentive grants) and punishment (such as the threat of withholding highway money, which drove the states to a drinking age of 21). And supporting the proposed 0.05 percent BAC limit as part of a renewed "war on drunk driving" seems a no-brainer for any ambitious politician.
Certainly, drunk drivers are not a very popular constituency. But the proposed new BAC level will criminalize much more behavior and many more people. For example, say you're a 100-pound woman; according to the charts, at 0.05 percent BAC, you'd be legally drunk after consuming exactly one drink. Sip a glass of wine at a baby shower, then go to jail.
Have you priced a DUI lately? It's not exactly an aspirational purchase, such as a pair of Louboutins or a Viking stove, but it's just as hefty. According to the Automobile Club of Southern California (a.k.a. the local AAA), a first-offense misdemeanor DUI conviction can cost up to $15,649. Do your DUI before the age of 21, and it can set you back $22,492. The AAA figures are based on state and local fines, penalties, legal fees, court fees and increased insurance costs. The flip answer is that this kind of money would buy a lot of taxi rides.
But the problem with the suburban sprawl of Orange County is there's limited public transportation, cabs aren't cheap, and the vast majority of bars and restaurants have tempting parking lots. If you do get a cab, you'll have to find a way to retrieve your car before dawn the next day, or it could be towed.
As one would expect, many more people are driving impaired than are lining the walls of the OC jail. While about 13,000 people from Orange County are convicted of DUI each year, the statistics show that drivers may drive under the influence 80 times before they're caught. According to AAA, 10 percent of motorists admitted driving when they thought their BAC was above the legal limit in the past year.
Despite a very active law-enforcement presence and consistent prosecution by the district attorney's office, Orange County has one of the worst drunk-driving problems in California. According to the California Office of Traffic Safety, 10 Orange County cities rank among the worst in the state for rates of injuries and fatalities caused by DUI. Of all California cities with a population between 100,000 and 250,000, Orange ranks No. 1 for drunken driving fatalities and collisions. Santa Ana and Anaheim rank No. 3 and No. 10, respectively, among cities with more than 250,000 people.
Newport Beach is No. 1 for cities with populations between 50,000 and 100,000. Yet it's not for lack of enforcement; Newport Beach police arrested more than 650 people for suspected DUI in 2011.
CHP statistics from 2010 show that Orange County ranked second only to Los Angeles County in the state for DUI deaths and injury collisions. During that year, there were more than 1,000 DUI-related injury collisions in Orange County, more than in either San Diego or San Bernardino counties. The arrest rate is quickly growing among young people in college towns. Fullerton, for example, went from fifth in DUI arrests of drivers younger than 21 in 2009 to first in 2010.
Although the number of deaths from DUI has dropped in Orange County and elsewhere in recent years, the problem of the manslaughter and mayhem caused by highly intoxicated drivers such as Bryan is clear. What's not clear is whether moving to a 0.05 percent BAC is the solution.
* * *
If you listen to commercial radio in Southern California, it's almost inevitable you will hear Berman, 58, an aggressive advertiser who calls himself the Southland's "Top Gun DUI Defense Attorney." His slogan, "Friends don't let friends plead guilty," is almost equally familiar. He and his affiliated attorneys practice in Orange and LA counties, as well as surrounding areas. They concentrate on DUI defense, but, as Berman notes, "Often with DUI, there is another criminal case for hit and run, possession, etc."
"Law enforcement in Orange County is very active in combating intoxicated drivers," Berman acknowledges. "The police are very aggressive in Orange County, trying to keep the streets safe as they see it. . . . And they do arrest a lot of people, around holiday times especially."
Berman concedes that this vigilance can have a positive effect. "When there is a large presence of law enforcement on the streets and freeways," he says, "people are more apt to drive safer."
But if the legislature approved a move to 0.05 percent BAC, Berman says, "Obviously, more people would be arrested for DUI. There would be more cases in the system; more innocent people would be convicted. Breath testing is not an accurate way to measure a person's alcohol in their blood or whether they are intoxicated.
"The prohibitionists are trying to get to zero tolerance as long as I've been practicing in California," Berman continues. With a move to 0.05 percent BAC, revenues for the multibillion-dollar DUI "industry" would grow. "It definitely will create more work for the people, the courts, the prosecutors, more business for the alcohol programs, the interlock companies, and increase revenues to the county and state. It will have a substantial impact on many industries, like hospitality, restaurants, bars, alcohol distillers, bottlers, plastic companies, paper goods—you name it."
The impact of a lower BAC on the restaurant industry, which employs 1.4 million Californians, might be particularly heavy. The OC Restaurant Association, for example, coordinates events such as Wine Week and Beer Week in the fall. Pam Waitt, president of the OC Restaurant Association, says if the NTSB-recommended limit is adopted, "it's going to hurt a lot of restaurants. The average person can handle a glass of wine with dinner. The general consensus is that they're attacking the social drinker, not the person who is creating this problem."
Angie Pappas of the California Restaurant Association agrees. "Only a very small sliver of DUI arrests occur between 0.05 and 0.08," she says. "It's overwhelming to think that someone who isn't impaired now would be considered impaired." To help address the DUI issue, the association offers ServeSafe Certification, beverage-service training for restaurants. It teaches how much one can legally drink based on weight and sex and how the body processes alcohol. The program also looks at what Pappas calls "the pours; a lot of cocktails are more than one drink." People skills, such as how to cut off customers, and strategies to serve them food or water are also included.
She is also enthusiastic about new services for customers such as UBER, a car-service app on your Android or iPhone that will summon a pickup.
Pappas says organizers of festivals and such alcohol-based dining events as Wine Week try to build in awareness of responsible consumption. "These events will not go away," she says. "The appetite is there, people are more interested than ever in craft beers and artisan cocktails. People will exercise more caution and have a plan in place."
But even today, "blowing" less than 0.08 on a breath analyzer won't necessarily protect you from a DUI. Although "cops in OC are usually pretty good about following the law," Berman says, "they can still arrest someone at 0.06 or 0.07 BAC [if they feel he or she is intoxicated]. Only at less than 0.05 are you presumably not under the influence of alcohol."
Persons arrested for possible DUI can be charged under the 21352 A or B statute. Mary Beth Griffin, affiliate executive director of MADD OC, explains that the first of the two statutes refers to impairment in general, while the second refers to the familiar 0.08 or higher. But even if you're below that number, as Berman indicates, you can still be charged for driving while intoxicated. Someone high on prescription or illegal drugs could be charged under the A statute, even without any alcohol in his or her body.
Berman's website notes that in some years, more than 90 percent of Orange County DUI arrests result in conviction. Susan Kang Schroeder of the OC DA's office credits "good police officers, good investigations, young deputies from good law schools, and a great crime lab in analyzing the evidence. We got a grant to train officers how to testify and investigate on DUI."
Perhaps not surprisingly, most people facing DUI charges—as well as thousands of dollars in costs—plead guilty. "Unless there's something exotic about it, people tend to get the same thing: $390 in fines, probation for three years, and 90 days' restriction except for alcohol class and work," Schroeder says.
Just as his motto suggests, Berman believes anyone who is arrested for DUI should fight the charges. "The consequences are so severe—[people] could lose their jobs, including people who have to drive for a living," he says. "So many people are convicted because they go ahead and plead guilty. We win most of the cases we take to trial. The jurors in OC are very fair, not rubber stamps for the prosecution."
Berman claims that most people falsely believe breath analyzers are always accurate and that police reports are often unfairly biased against suspected drunk drivers. "Often, the evidence at trial is totally different from what police put in their reports," he says. "People often do a lot better on the field sobriety test than the police indicate on their report. They don't put in all the positive and unimpaired facts that occur. On the walk-the-line test, the officer might write that a person stepped off the line a couple of times. But that means 16 out of 18 steps, they did not step off the line."
So if the police are vigilant, and 92 percent of those arrested for DUI in OC are convicted, why are there still so many gruesome accidents and deaths such as that of Cameron Cook's? As Shakespeare put it in Julius Caesar, "The fault lies not in the stars, but in ourselves."
A substantial percentage of the drivers under the influence who create fatal accidents have already been convicted of DUI, but stubbornly insist on continuing to drive drunk. And depressingly, the suggested "designated driver" is often not sober. A new study in the Journal of Studies On Alcohol and Drugs found that 40 percent of designated drivers consumed alcohol before driving, with 18 percent of them having a 0.05 BAC or higher.
In Orange County, one problem keeping offenders off the road is there is no requirement for first-time DUI offenders to get an interlock device. A "pilot project" in LA and three other California counties requires first offenders to get such a device installed on cars they have access to. It's up to the legislature to make interlock devices mandatory, so with the pilot project not concluding until next year, the requirement may not make it to Orange County until at least 2015. Unfortunately, even this is no panacea; only about 24 percent of those mandated to have interlock devices actually get them, as offenders often say they've quit driving or don't have access to a car.
Yet groups such as MADD believe interlock devices are a key part of the solution. Griffin says the focus of MADD's advocacy is on the implementation of what the group calls the Campaign to Eliminate Drunk Driving, the three legs of which are HVE, interlock for all convicted drivers with a BAC of 0.08 percent, and research toward the development of high-tech Driver Alcohol Detection Devices for Safety.
Automotive manufacturers are working on such devices. They will "unobtrusively" test you through your breath and/or a touch sensor in the steering wheel to see if your BAC is below 0.08 percent, and then decide whether it will allow your car to start. Perhaps leery of being dismissed as an agent of the nanny state, MADD does not support the NTSB's call to lower the BAC level as an organization; however, leaders of chapters such as MADD Canada have long-supported the move to 0.05. As Griffin puts it, "MADD strongly recommends that the safest course of action is to not drink and drive."
Even MADD founder Candace Lightner, whose daughter was killed by a drunken driver in 1980, has referred to MADD in the past as "neo-prohibitionist" and thinks that going to 0.05 percent BAC would be a waste of time. She told U.S. News, "You could go to 0.0, and that would save lives. You could go to a 40 mph speed limit, and that would save lives, but you have to look at what's realistic."
Ultimately, a 0.05 percent BAC wouldn't be enforced, she believes. More important, it would distract enforcement and resources from what she sees as much more significant issues—high-BAC drunk driving and drugged driving.
Schroeder did not want to address the "hypothetical" impact of lowering the BAC limit. "We'll enforce the laws that are passed," she says. "We're getting better and better at preventing deaths. We've got special advocates like MADD. There's better education. Everyone knows it's dangerous. We're getting better."
Indeed, deaths from impaired-driver-related crashes dropped nationally from 21,113 in 1982 to 9,878 in 2011. Yet, as Lightner notes, extremely drunk driving remains as seemingly intractable a problem as alcoholism itself. Griffin points to New Mexico, where fatalities fell 46 percent after the state mandated interlock devices for all DUI convictions.
"There's no one answer," concludes Schroeder. "Longer jail sentences, put them in lockdown rehab. It's a constant battle."