Tuesday, December 27, 2011

Dealing With An Unfavorable DMV Decision

The decision after a DMV hearing following a DUI arrest can be either a set aside or an uphold of the suspension.  When the decision is unfavorable to the driver the next step can be either to appeal the finding or move on.  For first offenders who took a test the suspension period of four months typically does not justify a decision to appeal the hearing officer's decision.  The driver can usually get a restricted license after waiting 30 days.  Foe second offenders an appeal may be more tenable given the one year
 re-issue date.  In either event the decision must be one that takes into account the costs and benefits of the entire situation.  The alternative to a full scale appeal can be something called a Departmental Review, more information about this approach will be discussed in a future post.

How a Person's Core Body Temperature Can Skew Breath Test Results

Breath testing in DUI cases relies on the presumption that every subject has a "normal" body temperature.  But what if a subject has a fever? One study (Fox & Hayward, 1989) did reveal problems with DUI breath tests for those with higher than normal body temperature levels.  For example, when the core temp was elevated one degree Celsius, the corresponding breath test for alcohol increased by nearly 9 percent. This means that if a person had an elevated body temp and was stopped for drunk driving, his breath test would falsely inflate his true blood alcohol level by almost 10%.  For a .10 level, this would drop him to a .09 and if he blew a .08, his true BAC would actually be .07.

 For more information on this issue, contact DUI Attorney Matthew Ruff who practices in the state of California.

Thursday, December 22, 2011

A Bakersfield Speeding Ticket Attorney Explains Trials by Written Declaration

In California, as in many states, a defendant may elect to have a trial by written declaration on any Vehicle Code infraction or speeding ticket. If the clerk  receives from the defendant a written request for a trial by written declaration on or before the appearance date indicated on the notice to appear, the clerk must, within 15 calendar days of receiving the request,extend the appearance date 25 calendar days, and must give or mail the defendant notice of the extended due date on a Request for Trial by Written Declaration with a copy of the Instructions to Defendant and any other required forms. The defendant must file the Request for Trial by Written Declaration with the clerk on or before the appearance date indicated on the notice to appear (or any extended appearance date). This form must be filed in addition to the defendant’s written request for a trial by written declaration, unless that request was made on this form. A defendant who makes this election must submit bail in the amount established in the Uniform Traffic Bail and Penalty Schedule under Veh C§40310 at the time of submitting the declaration.  If the defendant is found not guilty or the charges are otherwise dismissed, the amount of the bail mustbe promptly refunded to the defendant.

On receiving the defendant’s Request for Trial by Written Declaration and bail by the due date, the clerk must deliver or mail to the arresting officer’s agency a Notice and Instructions to Arresting Officer and Officer’s Declaration, with a copy of the notice to appear and a specified return date for receiving the officer’s declaration. On receipt of the officer’s declaration or the close of the return date, the clerk must submit the case file to the court for decision with all declarations and other evidence received.  According to one Bakersfield Speeding Ticket Attorney, testimony and other relevant evidence may be introduced in the form of the notice to appear, a business record or receipt, and the sworn declarations of the arresting officer and of the defendant. After the court decides the case and returns the file and decision, the clerk must immediately mail the Decision and Notice of Decision to the defendant and arresting agency. The defendant may request a trial de novo by filing a Request for New Trial Form within 20 calendar days after the date on which the decision was mailed. The Court clerk must set a trial date within 45 calendar days of receipt of the defendant’s request and deliver or mail to the defendant and to the arresting officer’s agency the Order and Notice to the violator.

The case is closed if the defendant fails to make a timely request for a trial de novo. Although the rules state that a new trial must be set within 45 days of the receipt of the request, the remedy for failure to set within 45 days is not automatic dismissal. For example in one case, a trial was set 57 days after receipt of notice. The court may deny a trial by written declaration to a defendant who does not file a Request for Trial by Written Declaration or deposit bail with the clerk within the specified time limits.  The Judge is not limited to imposing a monetary penalty in the amount of the bail the defendant has deposited with the clerk, unless this amount is the maximum and the only lawful penalty. A person who fails to appear as provided by law may be deemed to have elected to have a trial by written declaration on any alleged Vehicle Code infraction. Relevant evidence may be introduced in the form of a notice to appear, a business record or receipt, a sworn declaration of the arresting officer, or a written statement or letter signed by the defendant. 

Bruce Blythe is a Bakersfield Speeding Ticket Lawyer who practices throughout Kern County and beyond for all criminal, DUI and traffic cases.

Hematocrit Defense in DUI Cases

 Hematocrit represents the fraction of whole blood composed of red blood cells and is correlated with the aqueous content of the blood.  The higher the hematocrit, the lower the concentration of water in the blood and vice versa, according to California DUI Attorney Matthew Ruff.  How does this issue play into a DUI case you may ask?  Put simply, the higher a hematocrit level, the higher a person's blood alcohol concentration.  With breath tests, the normal variation in the hematocrits of test subjects "can produce errors in ...results in the 10-14% range", according to some scientific studies.  When facing a DUI charge, it may be useful to have a test done to determine if this may be an issue. The hematocrit issue can vary the amount of alcohol present in the blood and not all humans are the same.  The breath machines do not factor in this variability.

What is the penalty for a refusal in California?

There are a number of penalties or consequences for DUI charges in California.  Perhaps the most severe of all penalties is that for a refusal to take a chemical test, breath or blood.  In addition to the Court consequences, the DMV will impose harsh sanctions if the driver is found to have refused a breath or blood test after having been arrested for drunk driving

The following are the administrative penalties for a DUI refusal
  1. A First refusal within 10 years carries a one year drivers license suspension
  2. A second refusal after a DUI conviction, wet reckless or admin per se suspension within 10 years is a 2 year license revocation.
  3. A third refusal within 10 years is a 3 year revocation of your driving privilege.
In light of the very severe refusal penalties in California, it is advisable to seek legal representation for any refusal case.

Thursday, December 1, 2011

Another Good Reason Not to Take a PAS Test

We know that California law allows motorists over 21 and not on probation to refuse a roadside breath test known as a PAS.  The test however is usually a bad idea inasmuch as it provides additional evidence of intoxication relating to DUI that can be used against you in Court.  A recent case reiterates another good reason to refuse taking the test.

Defendant Thomas was stopped for traffic violations. His eyes were bloodshot and watery. Defendant performed sobriety tests and consented to a PAS breath test that required him to place his mouth over the plastic tip of the PAS device and blow into it. Defendant was let go after passing all tests, but instead of discarding the mouthpiece of the PAS device, the police preserved it for DNA testing. The DNA profile derived from the mouthpiece linked defendant to two burglaries. A DNA sample obtained after defendant’s arrest matched genetic material recovered from five of the burglaries. Additional evidence implicating defendant in the burglaries was found when police searched his home pursuant to a warrant after his arrest.

Defendant appealed his convictions of the crimes arguing that testing the mouthpiece of the PAS device for DNA was a search that could not be conducted without a warrant under the Fourth Amendment to the United States Constitution. The appellate court however disagreed holding that the DNA test was not a search because defendant abandoned any privacy right he had in the saliva he deposited on the police device.  The Court ruled that the Fourth Amendment protects against unreasonable governmental searches and seizures. A search occurs only when a government activity intrudes on an individual’s reasonable expectation of privacy, measured by the individual’s subjective expectation of privacy in the item searched and society’s objective recognition of the reasonableness of the individual’s subjective expectation of privacy.  People of California vs. Thomas.