9874 Program Sobriety Copy

(a) The DUI program shall require a program participant to maintain program sobriety. As used in this chapter, “program sobriety” means that participants shall not attend program services or activities or be on the DUI program premises while under the influence of any amount of alcohol or drugs as defined in this regulation, or be convicted of a subsequent DUI offense while enrolled in a DUI program.

(b) If a participant is sleeping, disruptive, belligerent, or otherwise appears unable to pay attention and participate in program services or activities, or a participant smells of alcohol or any alcoholic beverage, the DUI program shall determine whether the participant is under the influence of alcohol or drugs as specified in (c) and (d) of this regulation.

(c) The DUI program shall determine whether the participant is under the influence of alcohol either by (1) or (2) below:

(1) The DUI program may require the participant to submit to testing with a breathalyzer or other similar chemical screening device designed to measure alcohol on the breath.

(A) The DUI program shall only use an alcohol screening device if the packaging for the screening device indicates approval for such use by the U.S. Department of Transportation. If the screening device indicates an alcohol level higher than .01 percent, the participant shall be determined to be under the influence of alcohol.

(2) Two or more staff members may document in writing in the participant’s program record that the participant is sleeping, disruptive, belligerent, or otherwise appears unable to pay attention and participate in program services or activities, or the participant smells of alcohol or any alcoholic beverage.

(d) The DUI program shall determine that the participant is under the influence of drugs either by one (1) or (2) below:

(1) The DUI program may require the participant to submit to testing with a chemical device designed to determine if an individual is under the influence of drugs. The DUI program shall only use a chemical drug screening device if the packaging indicates that the device has been approved for such use by the National Institute of Drug Abuse. If the chemical drug screening device indicates a positive for use of drugs, the participant shall be determined to be under the influence of drugs.

(2) Two or more DUI program staff document in writing in the participant’s program record that the participant exhibits a combination of appearance, behavior, and speech indicating that the participant is under the influence of drugs. Such symptoms may include the following, as listed in the most current version of Chapter 3 of the Driving under the Influence Enforcement Manual developed by the California Highway Patrol: constricted or dilated pupils; slurred or rapid speech; impaired coordination; body tremors; green coating on the tongue; paranoid hallucinations; muscle rigidity; confused, disordered, or dizzy appearance; agitated behavior; or lethargy, stupor, or blank stare. The Driving under the Influence Enforcement Manual is available from the Publications Unit of the California Highway Patrol.

(e) If the DUI program determines that the participant is under the influence of drugs, as specified in (d) of this regulation, the DUI program shall:

(1) Advise the participant that he/she may obtain a drug test at his/her own expense in order to refute the determination of illicit drug use. The DUI program shall accept the test results provided:

(A) The drug screening test was conducted by a clinical laboratory licensed by the Department of Health Services pursuant to Section 1265 of the Business and Professions Code; and

(B) The drug screening test was conducted within 24 hours of the time that the DUI program or his/her staff determined that the participant was under the influence of drugs.

(2) Ask the participant to leave the DUI program premises.

(A) The DUI program shall advise the participant not to drive him/herself home.

(B) The DUI program shall offer to call a friend or relative of the participant or a taxi cab (at the participant’s expense) to drive the participant home.

(f) The DUI program shall document in the participant’s record how the DUI program determined that the participant was under the influence of alcohol or drugs, including staff observations of the indicators listed in (c)(2) and (d)(2) of this regulation.

(g) Except as specified in (h) of this regulation, the DUI program shall dismiss the participant pursuant to Section 9886 if the DUI program determines that the participant has used alcohol or illicit drugs based on the criteria contained in (c) and (d) of this regulation.

(h) The DUI program shall not dismiss a participant from the program for using medication prescribed by a licensed physician and used in accordance with the prescription unless the participant is unable to participate in program services due to the effects of the medication (e.g. falling asleep, unable to pay attention, etc.).

(i) The DUI program shall not conduct testing on a random basis.

Excerpt from CADTP Best Practices regarding participants who receive a new DUI while attending a DUI program:

Upon report of a new DUI arrest (not conviction) by an active DUI program client and in consideration of the seriousness of the client’s continuing to drive under the influence, the program shall strongly encourage the client to remain in the DUI program until the client is convicted on the new DUI charge. The program should document their notification to the client that they are required to continue to attend their DUI program, but the services provided will not count towards the new conviction DUI program.

It’s important to continue to provide services rather than dismiss the client who is continuing to drive under the influence while in a State licensed DUI Program. Dismissing the client sends the wrong message and does not provide support for change and is not a public service.  Instead, the provider should use this information to help the client explore the behaviors which led to the subsequent arrest, and promote change; continuing to provide services until the program receives the official court documentation, which shows the new conviction and docket number, generally with a referral for a new DUI program.

If the client chooses to stop attending they will be dismissed for failure to attend.   It may be several months before their case is adjudicated and there is a chance that they will not be convicted (based on the DMV MIS Report).

Upon receipt of the new court referral papers, documenting the new conviction, the provider shall dismiss the client, referencing the new DUI conviction specifically in the dismissal and ensuring the new court case number and conviction information is included in the dismissal paperwork.

At the court and DMV’s discretion, the offender may be required to complete their first program, attend two programs concurrently, or have the first program court requirement deleted. DMV will require proof of completion of a program with enrollment subsequent to the latest conviction.

Best Practices

At the time of dismissal, it is recommended that the program schedule a new enrollment appointment, and document that the client understands that they will not receive any credit for any services received on the former DUI conviction towards the new conviction, and that they are responsible for paying for all services received.

This practice is in compliance with Senate Bill 1177, effective 1/1/98, which states in part,

“…anyone convicted of a second or subsequent DUI, alcohol-related reckless driving, or DUI with bodily injury violation, is ordered to enroll in, participate, and complete a DUI treatment program, subject to the latest violation, as a condition of probation.  The person is not to be given credit for any treatment program activities prior to the date of the current violation.”

Scheduling the client for a timely return continues the treatment episode, realizing relapse is part of the continuum.