Saturday, December 21, 2013

California Court Rules Taking DNA From Arrestee Is Legal

For quite some time now, California has allowed the collection of  a DNA sample from someone convicted of a felony.  In this case, the Courts go further and permit a police officer to collect a swab of a person's DNA in instances of an arrest only.  The Judges opined:

The defendant was arrested for a felony, after his arrest, at the time of booking Lowe's arrest , police took a buccal swab DNA sample from inside his cheek without a warrant. . The DNA sample connected Lowe to a number of unsolved offenses and a jury convicted him of multiple burglaries, sex crimes and robberies. He was sentenced to 107 years to life. On appeal he challenged the trial court's denial of his motion to suppress the DNA evidence obtained from him, which he argued was taken in violation of the Fourth Amendment. In an unpublished opinion, the Court of Appeal upheld the denial of the defendant's suppression motion. The California Supreme Court granted review and transferred the case back to the Court of Appeal to reconsider its decision in light ofMaryland v. King (2013) 133 S.Ct. 1958 (concluding that collecting and analyzing DNA samples from persons arrested and charged with serious offenses is reasonable). Concluding its prior decision was correct, the Court of Appeal found the 2004 amendment to section 296 does not violate the Fourth Amendment. While nonconsensual extractions of biological samples deserve Fourth Amendment protection, felony arrestees have a diminished expectation of privacy. A mouth swab, such as the one performed on defendant, is minimally intrusive. The DNA profile developed from the fluid is used solely for identification purposes, which is useful to identify arrestees, solve past crimes, create a deterrent to commission of future crimes, and exonerate the innocent. Further, the profile is developed only from persons arrested for a felony based on probable cause. 

Wednesday, December 18, 2013

Ignition Interlocks Are Here To Stay

California saw its first real year having ignition interlocks as a requirement in some of its biggest counties.  Nationwide ignition interlocks have been the hottest issue in traffic safety legislation this year. Fourteen pieces of ignition interlock legislation have been passed and signed into law by Governors in twelve states. Seven more bills are still alive and any of these could move all the way and become part of that state’s statutes. The biggest of these fourteen are new laws in Colorado, Missouri, Tennessee and New York.
Colorado reduced its ignition interlock required high Blood Alcohol Content (BAC) standard from 0.17 to 0.15, which does not sound like much but 0.16 and 0.17 are the two most common BAC levels at the time of arrest. This will effect a large number of offenders, especially when you consider that Colorado already has huge numbers in their ignition interlock program.
Missouri and Tennessee amended their DUI laws relation to IID by changing their ignition interlock programs to a true “all offender” status. All BAC’s and all numbers of offenses in those states now require the installation of an ignition interlock to regain driving privileges. New York’s law makers did three things: It tightened up loopholes on the ignition interlock requirement, it extended the minimum term for these same offenders from six months to twelve, and increased the penalty of driving a vehicle (without an ignition interlock) from a traffic infraction to a felony.

Saturday, December 14, 2013

High Court Limits Testimony About Breath Tests In California

In this case the accused was arrested and charged with DUI and driving with a .08 or more.  At trial he hired one of the top breath testing experts in the country to testify about the unreliability of breath tests, the Judge would not allow it.  He was convicted and appealed.  The Supreme Court found no error with the trial court ruling as to the exclusion of testimony. Section 23152, subdivision (b) prohibits driving with either the specified blood-alcohol level or the specified breath-alcohol level. The statute defines the .08 percent breath-alcohol offense in light of the standard partition ratio, which the Legislature adopted based on studies correlating breath samples to the concentration of alcohol in the blood. The expert's testimony challenging the reliability of breath-testing machines generally because they fail to measure the alcohol content of the air from the alveolar region of the lungs was fundamentally at odds with the statutory per se offense. The statute and California Code of Regulations, title 17, section 1219.3 simply require a breath specimen consisting of the last portion of expired breath that is captured by an approved breath-testing machine that is properly calibrated and employed. A defense expert may not invite a jury to nullify the Legislature's determination about the fundamental reliability of approved breath-testing models. Other proposed defense expert testimony about physiological factors that may affect the results of breath-testing machines generally essentially constituted partition ratio variability evidence, which is barred in per se DUI prosecution

Sunday, December 1, 2013

Buzzed Driving Campaign Kicks Off In California

Over this holiday season the media has been running the "drunk driving is buzzed driving" commercials with the hopes of getting the message out to young folks that driving after any drinking is unwise.  Who can argue with the message.  As a DUI Attorney who has handled as many as 3000 DUI cases over the last 20 years, I can tell you that if you drink anything, you should not drive, it is a precept I follow religiously.  Understand however, that I do not think that people who consume small amounts of alcohol and drive are necessarily legally DUI, but why take a chance.....

Federal Government to Require Breathalyzers In All Cars?

This week the Los Angeles Times reported that the National Highway Traffic Safety Board is considering requiring the installation of alcohol breathalyzers in all new cars as a way to eliminate or reduce the deaths caused every year by drunk drivers.  The report has raised many questions about the efficacy and costs of such a requirement.

Apparently, the devices would be hard installed in all new cars, as part of the electronic control system.  The hardware would prevent a car from being started or conceivably disable the vehicles engine in the event the driver is determined to be above the legal limit of alcohol, currently .08 in most states.   But questions and concerns have been raised about the reliability of such equipment.  How reliable are they?  Can they be disabled or bypassed in order to allow a drunk driver to start the car?

Personally, I have doubts about the accuracy of the machines as intended.  Most breathalyzer testing machines are designed to capture a sample of the suspect's breath by having the subject blow directly into the instrument.  The device then extrapolates the percentage of alcohol molecules in the captured sample and estimates a blood alcohol level.  If the conceived devices that are being suggested only capture a sample of the air inside the cabin of the vehicle how is that to be linked to the driver?  What if a passenger is drunk?  How will the machine tell is my question.  I guess we will have to wait and see how the devices will be built and operate in a "real world" environment.

Sunday, November 24, 2013

DUI Attorney Matthew Ruff Offers Free Representation For Veterans

Coming back from the war has been hard for our brothers and sisters.  The government sent innocent humans into crazy places in the middle east, Iraq, Afghanistan, other places far far away that none of us can understand why we were there and who we were there to fight.  The people in the middle were our soldiers that undertook the mission and came back scarred and forever emotionally damaged.  They came back with demons in their soul that were acquired in the battlefield that was not like anything they were trained for.  Many were forever scarred by the things they saw and heard.  They came back looking for ways to numb themselves from the pain they endured and that has carried over to their everyday lives.  Drinking too much and using drugs in order to get through the day became the norm.  As a result, they may have been arrested for DUI, for public intoxication or any other manner of crimes that stem from a person trying to escape the demons in their lives.

For those soldiers that have been injected into the criminal justice system and face a case in the Courts Attorney Matthew Ruff is offering help.  He is accepting cases that veterans have picked up and do not know what to do.  In one recent case he defended a veteran that was charged with his third DUI and was looking at mandatory jail.  Matthew worked out a no jail disposition that allowed the client to get help and treatment. 

Call Matthew Ruff at 310-527-4100 if you or someone you know that served time in the armed forces and now needs help in a criminal case in California.

Attorney Matthew Ruff Wins A DMV Set Aside In Under 21 DUI Case

Earlier this month Matthew Ruff obtained a set aside on an under age 21 DUI out of Kern County.  The attorney established that although the officer swore under oath that the accused was driving under the influence and had a .09%BAC, well above the zero tolerance standard allowed for under 21 drivers, he got the DMV to dismiss and set aside the action on evidentiary issues related to the case.  For those that have never seen what a "set aside" letter looks like, we have attached the actual order.  The driver gets her license back with no scar on her record.

These types of wins are difficult to obtain in zero tolerance cases where the DMV deems any level of alcohol to be sufficient to suspend a licnse.  In this particular case, Matthew was able to establish that although the client did have a .09 in her blood at the time of arrest, that was not her blood alcohol level at the time she may have been driving her car.  The hearing Judge took testimony from the arresting officer and in rebuttal the attorney called two witnesses that were present in the car with the respondent at the time she was contacted by the police.

Saturday, November 23, 2013

Short Primer On Pitchess Motions

The defendant in a criminal case may obtain information regarding citizen complaints of specific assaultive behavior, prejudice or other misconduct on a particular officer's part, and the reports of internal police investigations of those complaints.   The Defense may also obtain discovery about any discipline imposed as a result of the internal police investigations.  Information subject to disclosure is not limited to cases involving altercations between officers and arrestees, but may include other evidence of misconduct that is material to the subject matter in the pending litigation.  The standard governing the discovery of personnel records is not whether the information discovered is ultimately admissible at trial, but whether the records are material to  the subject matter in the pending criminal case. 

According to Bakersfield DUI Attorney Bruce Blythe , the standard for a trial court to grant a Pitchess motion is a "relatively relaxed standard."   The defendant must file a motion supported by affidavits showing "good cause for the discovery," first by demonstrating the materiality of the information to the pending litigation, and second by "stating upon reasonable belief" that the police agency has the records or information at issue. These requirements are set forth in the Penal Code. This two-part showing of good cause is a "relatively low threshold for discovery." In many DUI cases, the defense need not present affidavits since the "good cause" required can be found directly from the attached reports.

Thursday, November 21, 2013

California Court Allows Prosecutor to Re-File Felony DUI Following Dismissal

In a felony criminal case, California law generally allows the district attorney to dismiss and refile a case twice, but what if the charge is actually a misdemeanor?  The Appeals Court answered that question today when it ruled that the prosecution was not barred from refiling substantive DUI counts as felonies after the DUI penalty allegation was dismissed once by a magistrate and the substantive DUI charges were dismissed once at the prosecution's request. The facts are as follows:

The defendant was charged by felony complaint with driving under the influence (Veh. Code, § 23152, subds. (a) & (b)) and as to each count it was alleged that he had been convicted of a prior felony DUI within the past ten years (Veh. Code, § 23550.5). At the preliminary hearing, the prosecutor failed to present evidence as to the prior conviction and the court held the defendant to answer on the DUI counts as misdemeanors. The prosecutor then dismissed the case and refiled the DUI charges as felonies with the prior conviction allegation after locating the evidence. The defense moved to dismiss pursuant to Penal Code section 1387 and the trial court denied the motion. In a petition for writ of mandate, the defense attorney argued that further prosecution of the DUI counts as felonies was barred because the felony charges had been dismissed for failure of proof and the identical misdemeanor charges had been dismissed on the prosecution's motion. The Court of Appeal rejected this argument. Section 1387 (the "two-dismissal" rule) generally bars further prosecution of a felony if the action has previously been twice dismissed. The appellate court reasoned that the prior DUI allegation in the complaint was a penalty provision and not a substantive offense within the meaning of section 1387. The penalty allegation was dismissed once as a matter of law when the magistrate found no evidence to support it. The substantive DUI charges were only dismissed once at the prosecution's request. Thus, the substantive DUI counts could be refiled as felonies with the prior DUI conviction allegation without violating the "two-dismissal" rule.

Saturday, November 16, 2013

New Officer Instructions For Blood Collection In Kern County DUI Cases

Officer's Instructions:
Obtain a Kern Regional Crime Laboratory Blood Collection Kit used for DUI cases. The laboratory provides these kits for pickup Monday – Friday, from 8 am - 5 pm. Please note: it is important to obtain blood specimens as soon as possible after the alleged offense. Please do not take parts from another kit due to kit expiration dates and lot numbers.
Remove all of the contents of the kit and set aside the evidence tape.
Contents of the kit include:

1. White cardboard box
2. Plastic box
3. 2 Vacutainer1 tubes inside plastic holders
4. Sterile syringe
5. 2 tube labels
6. Povidone-iodine prep pad
7. 5 pieces of evidence tape
8. Biohazard bag with absorbent pad

Once the contents of the kit are removed, please complete the following:

a. Accurately and neatly complete the two tubelabels for each blood tube
b. Accurately and neatly complete the label adhered to the top of the clear plastic box (blood collection report and chain of custody).
c. Accurately and neatly complete the label adhered to the bottom of the white cardboard box (request for analysis).

Take note of the white powder in the clear glass Vacutainer tubes. Please ensure that both tubes contain the white powder. Give the technician performing the blood draw the clear plastic box with 2 Vacutainer tubes and sterile needle. Witness the withdrawal of the blood samples by the DUI suspect - do not allow the blood tubes out of your observation at any time.

Tuesday, November 5, 2013

Challenging The "Nuetral Formula" Criteria in a DUI Checkpoint Case

California has grown increasingll dependent on DUI checkpoints in the arrest of DWI drivers.  There are ways to challenge these detentions and ensure that the police complied with the laws. Attacks on drunk driving roadblock arrests can be based upon any failure to comply with the “certain limitations,” which the Ingersoll opinion referred to. Each is discussed in detail in that opinion. Nothing in the U.S. Supreme Court’s decision in Michigan Dep’t of State Police v. Sitz (1990) 496 U.S. 444, criticized these guidelines or recommended others. The Ingersoll guidelines fall under the following general headings:

A. Decision Making at the Supervisory Level ( In many cases the checkpoint is set up by a Sergeant with limited      Supervisory Powers)
B. Limits on Discretion of Field Officers
C. Maintenance of Safety Conditions
D. Reasonable Location
E. Time and Duration
F. Indicia of Official Nature of Roadblock
G. Length and Nature of Detention
H. Advance Publicity

One of the best challenges to a DUI roadblock is to demonstrate the lack of uniformity in the operation of the checkpoint. With regard to the issue concerning the limits on discretion by field officers, the California Supreme Court, in Ingersoll v. Palmer, supra, noted the following:

A related concern is that motorist should not be subject to the unbridled discretion of the officer in the field as to who is to be stopped. Instead, a neutral formula such as every driver or every third, fifth or tenth driver, should be employed. To permit an officer to determine to stop any particular driver or car when there is no legitimate basis for the determination would be to sanction the kind of unconstrained and standardless discretion which the United States Supreme Court sought to circumcise in its decision in Prouse, supra, [citations omitted]. In all the checkpoint programs at issue here, neutral mathematical selection criteria were used. 

Matthew Ruff is a DUI Lawyer in Torrance California.

Friday, November 1, 2013

The HGN Test Explained

In a DUI case, officers use many tests to decide whether to arrest a person for DWI.  Among them is the HGN test, here is how it is performed:

A Stimulus, such as a pen or pencil is held in front of the subject’s face, approximately 12 to 15 inches (30 to 38 cm) from the subject’s nose and slightly above eye level. This elevated eye position raised the upper lids and allowed the evaluator a better view of the eyes, but did not affect the results of the test. The subject was instructed to keep his or her head still and follow the stimulus with the eyes only. The subject’s left eye was observed first during each of the three component tests. Smooth pursuit was assessed by moving the stimulus to extreme left gaze and then to extreme right gaze at about 30 deg/sec. The test was repeated at least once for each eye. Nystagmus at maximum deviation was assessed by moving the stimulus first to extreme left gaze, then to extreme right gaze, such that no temporal sclera showed at either position, and held at each position for at least 4 seconds. Onset of gaze nystagmus was assessed by moving the stimulus at about 15 deg/sec to each side until nystagmus was observed. If nystagmus was present, the evaluator determined whether the angle of onset was less than 45 degrees.

According to one DUI Attorney, the HGN test is scored by the number of signs present for the two eyes, scoring one sign each per eye for lack of smooth pursuit, sustained nystagmus at maximum deviation, and onset of gaze nystagmus prior to 45 degrees. Therefore, the maximum number of signs is six. Previous laboratory and field validation studies have consistently demonstrated that the presence of four or more signs is highly correlated with BAC at either 0.10% or 0.08%.

Saturday, October 26, 2013

AAA Reports The Cost Of A DUI Conviction in California Is Now $15,649.00

In 2010 the AAA did a study and found that a person can expect to pay over $12,000 if convicted of a DUI in California.  That study was revised for 2013 and it has risen over $3,000.  Due in large part to increased fines, booking fees and attorneys fees, the cost continues to skyrocket.  The important thing to keep in mind is that these costs only are incurred if you are convicted of the DUI, if the offense is reduced or dismissed in Court your costs would be significantly less.

DUI Driver Responsible For Other Driver's Medical Bills Even Though He Was Partly Resonsible For Accident

In a recent case in California, People vs. Watson, the appeals court ruled that a DUI driver convicted in court must pay all of other driver's medical bills even though that driver was partly to blame for the accident.  The defendant drove her dune buggy at night in the Imperial County dunes without headlights and at a high rate of speed. She hit a 15-year-old boy driving a quad, who suffered severe injuries to his leg during the collision. Defendant pled no contest to driving with a blood alcohol level of .08% or higher (Vehicle Code section 23153, causing injury while DWI. She received probation. At a restitution hearing, she presented expert testimony regarding the victim's comparative fault, but the court failed to reduce the amount of restitution. Defendant appealed. The Court Affirmed. Finding that Penal Code Section 1202.4 mandates restitution to cover victims' economic losses, absent "compelling and extraordinary reasons." In People v. Millard (2009) 175 Cal.App.4th 7, the court found the victim bore "substantial responsibility" for his injuries, and, as a result, "compelling and extraordinary reasons" justified the application of comparative fault principles. However, Millard does not require application of comparative fault in criminal proceedings, and, regardless, the victim was not substantially responsible for his injuries. In addition, restitution may be imposed under Penal Code section 1203.1 to serve broader goals, such as furthering rehabilitation, and, here, imposing the full victim restitution served rehabilitative purposes.

Sunday, October 20, 2013

Thursday, October 17, 2013

What is the South Bay DUI Task Force?

California cities are among the top in the nation for enforcement of drunk driving and the strict patrol of its streets for potential dangerous drivers who have consumed alcohol and are impaired.  One of the most prominent entities in the area that specialize in the arrest and prosecution of intoxicated motorists is known as the "South Bay DUI Task Force".  So, what is it and where does it operate?

The SBDUITF as it is known, is located in the cities of Torrance, El Segundo, Redondo Beach, Gardena, Hermosa Beach, Rancho Palos Verdes, Manhattan Beach, Rolling Hills, Lawndale, Hawthorne and Lomita.  The goal is to stop, detain, investigate and if necessary arrest a suspect believed to be DWI.  As a local Burbank DUI Attorney who has defended thousands of defendants accused of driving under the influence I can attest to the fact that the task force is effective in arresting people,  They hold the record for enforcement in Southern California and enlist the help of many cities to effectuate its goals,  they also get many thousands of dollars from the state and MADD and will continue to win awards well into the next decade due to the fact they are so good at doing what they do.

If you are driving in the South Bay during any holiday weekend, Saturday night or the first and last days of the month chances are you will be seen and possibly stopped by the task force.  Many think they are too aggressive and may push the limits of the laws, some even have alleged that they stop people in violation of their fourth amendment rights.

Friday, October 11, 2013

What is a "Pre-Hearing" Conference in A Criminal Case?

What is a pre-hearing conference. According to the CA Judge's Benchguide, most Judges conduct a prehearing conference and generally schedule it two days before the preliminary hearing in a criminal case. This conference may be referred to as a “pre preliminary hearing conference,” a “setting conference,” or a “preliminary hearing conference.” One of its purposes is the early disposition of cases by plea or application of diversion or deferred entry of judgment in drug cases when feasible. The prehearing conference is also used for taking waivers of time and waiver of the preliminary hearing when the attorneys want to stipulate to the charges in the criminal complaint, and for resolving pleading and other problems.

In high profile cases these conferences are used quite frequently. In a high profile criminal case, some judges set the prehearing conference several days before the preliminary hearing. Among the matters considered is whether the defendant will make a motion to close the hearing under California law when the facts warrant such a matter. If so, the court determines what and how advance notice should be given to the press and various news reporters that cover such cases in Court.

At the conference, many judges ask if defense counsel intends to make a motion to suppress under Pen C §1538.5 at the preliminary hearing which is a request that the Judge dismiss the case due to a violation of a client's 4th Amendment Rights. This information helps the judge to calendar the preliminary hearing realistically and to explore the range of evidence to be introduced, including the strengths and weaknesses of the prosecution and defense cases. In many cases, this information also permits the prosecutor to call witnesses necessary to litigate the motion, thereby avoiding a continuance.  Many judges also ask whether defense counsel intends to make a motion at the preliminary hearing to reduce a “wobbler” charged as a felony to a misdemeanor under applicable statutes that allow charges such as DUI and other non-violent offenses to be made a misdemeanor,  or whether the defense counsel or prosecutor intends to move to close the hearing.  Attendance at conference. The prosecutor, defense counsel, and the defendant must be present at the conference, as essential parties for effective plea negotiation.

Matthew Ruff is a Torrance Criminal Defense Attorney who focuses his practice on serious cases in the Courts of Southern California.

Friday, October 4, 2013

Will a "Wet Reckless" in California Prevent You From Entering Canada?

So you got a wet reckless deal reduced down from a DUI in California and now have aspirations of traveling to Canada on a business trip or perhaps on a pleasure vacation with your family, how will that past indiscretion affect your ability to fly into the country or depart a cruise ship into Canada?  Well, the short answer is that it may render you "inadmissible" which means you will be barred for entry into the country forever.  You see, Canada deems all misdemeanor crimes to be the same as a felony offence, these include minor traffic tickets such as reckless driving, exhibition of speed, driving while under suspension, drunk driving and DWI.

How does Canada find our about your past conviction?  All information that is available to U.S. authorities through various databases such as the FBI and California Department of Justice are shared with Canada.  While not all information is shared between the two countries, the current US-Canada security arrangements signed by President Obama do empower the Canadian and US border patrol agents to access our respective criminal registry systems.  Although the signed agreements were rarely applied in the pre "911" era, agents now routinely run checks and background investigations on all incoming travelers regardless if traveling by air, sea or land.

So what can be done.  According to one Torrance DUI Attorney who has represented numerous clients charged with DUI over the last 20 years, first, try and obtain an expungement of the conviction in California Court.  Try and get the case record sealed or dismissed whenever possible.  Avoid being placed on probation for any misdemeanor, attempt to obtain a diversion disposition which does nor result in a conviction on your record.  If this is not possible, you can apply for a temporary resident permit or a waiver if your travel is for short duration.  A criminal pardon is also possible if the crime occurred more than 5 years prior.  A "criminal rehabilitation application can be obtained and processed.  It is best to go through a Canadian attorney who has familiarity with the laws in that country.  A successful pardon can restore admissibility and erase the offense from your Canadian record.

At the end of the day, be honest with the immigration officials if asked about a prior arrest or criminal conviction.  many officers will give you a break and ignore minor transgressions if you are up front with them at the outset. Many DUI charges that were "back in the college day" or were isolated and remote are simply disregarded and the traveler is able to pass through.

Sunday, September 29, 2013

Is Restitution Mandatory in Hit and Run and DUI Cases?

Some people believe that just because a person is involved in a hit and run or DUI case that restitution is always required, not so.  In California, a conviction of a hit-and-run or misdemeanor DUI offense does not necessarily  establish responsibility for the accident in which defendant was involved.  Courts have decided that in a hit-and-run case the crime is the running, not the hitting. However, even though the crime did not cause the loss, the court may order restitution as a condition of probation, at least when “there is no question as to defen-dant’s responsibility for the loss.” Said the Court in People v Carbajal (1995) 10 C4th 1114, 1124 where the defendant conceded liability in hit-and-run accident and agreed to repay the damages caused in the accident.

Restitution is appropriate in these cases because it is reasonably related to the crime of which defendant was convicted and to the goal of probation to deter future criminality. According to a local Bakersfield DUI Lawyer who has fought and won these cases, it is particularly important for the court to:

1. Notify defendant that the court may consider requiring restitution as a condition of probation; and
2. Give defendant “a meaningful opportunity to controvert the information” that the court considers.
The Fourth District of the Court of Appeal in California has applied the reasoning of Carbajal in a nonprobation case. In that case the accused criminal defendant was convicted of felony hit-and-run resulting in death, sentenced to prison, and ordered to pay funeral expenses as direct restitution to victim’s family.

Whatever the Court's decision in a particular case, the following are guidelines that Judges use in cases involving DUI and hit and run related accidents:  1.  In the absence of a plea agreement, restitution in a hit-and-run case or misdemeanor DUI case (Vehicle Code §23152) should probably be ordered only when it is obvious or undisputed that defendant caused the accident. 2.  Convictions of felony DUI causing injury (CA Vehicle Code §23153) pose no causation problems and should be handled as mandatory restitution cases.

In some instances a Court may order that the defendant serve prison and pay restitution for a drunk driving case.  In those cases the state of California will secure the payments through the person's wages, tax refunds and other government aid.

Monday, September 23, 2013

Man Has Case Thrown Out On Appeal For Judge's Error

Many cases are reversed due to a misunderstanding or mis application of the law by Judges.  This case is a classic example of legal error which results in a case being reversed on appeal in California.  The accused was originally sentenced to a term of 25 years to life for a 1999 drunk driving conviction with two prior strikes. The strikes were based on his plea in a 1993 California DUI offense, in which one person was killed and another injured. In sentencing the defendant for the 1999 offense, the trial Judge examined the preliminary hearing transcript of the 1993 case and found he had "personally inflicted" great bodily injury on both victims, qualifying the offenses as strikes. A federal court vacated that sentence based on a violation of well settled principles of law. On remand, the trial court struck one strike but not the one based on the manslaughter offense, and resentenced the defendant to a six year term - doubling the three year upper term for drunk driving. On appeal the appellant claimed the trial court's finding of "personal infliction" of injury denied his right to a jury trial. The appeals court agreed and reversed.

The fact is, the justices found, that the defendant never admitted to conduct sufficient to establish personal infliction of injury in the 1993 DUI offense; actually, he disputed the relevant facts of his conduct. In addition to finding whether the defendant suffered the prior conviction, the applicable statutory definition of serious felony required the court to find that he personally inflicted great bodily injury on any person other than an accomplice. It could make the finding as to injury because this was implicit in the manslaughter plea. But it could not find that defendant personally inflicted the injury without resolving a factual dispute, as his plea only admitted he proximately caused the injury. The court did not have the power to resolve this dispute under California criminal law or federal law . The error was not harmless because the evidence in the record could reasonably support a jury's finding of reasonable doubt that the accused personally inflicted great bodily injury.

Wednesday, September 11, 2013

Double Jeopardy Applicable in Mistrial Scenarios

The concept of double jeopardy has been around for decades and is often raised in the context of DUI crimes, here, the legal theory was raised in a criminal case and the Court issued its ruling as follows:  Following a guilty verdict by the jury of Penal Code section 136.1 (attempting to dissuade a witness), the court granted appellant’s motion for new trial on the grounds that the verdict was contrary to the evidence (Pen. Code, sec. 1181(6)). In granting the motion, the court stated that it found "insufficient evidence to support the verdict." The court then granted appellant's request to dismiss the count on the grounds that he "has been in jeopardy on this." Reversed. In ruling on an 1118(6) motion for new trial, the judge must be satisfied that the evidence as a whole is sufficient to sustain the verdict. A trial court's ruling on the motion is within its complete discretion and will be upheld absent a clear abuse of discretion. Here, the appellate court rejected the prosecutions contention that the Judge used the wrong standard in ruling on the motion for new trial (i.e., whether the evidence was legally sufficient to support a conviction). Notwithstanding the trial court's reference to insufficient evidence, it is presumed that it applied the correct standard in granting the motion. However, the court did err when it then dismissed the charge because the grant of a section 1181(6) motion is the equivalent of a mistrial caused by a hung jury, with the judge acting as a 13th juror who is a "holdout" for acquittal. This rule permits a criminal court oversight of the verdict but ensures that the People have a right to have the charges resolved by a jury. In this case, the error in dismissing the charge was not harmless. Evidence was presented that appellant’s employee told the victim not to leave her house. It was reasonable to find that he did so at appellant’s instruction so that the victim would avoid service of a subpoena. "Advising a witness to conceal himself for the purpose of avoiding service of a subpoena is in violation of section 136.1

Saturday, September 7, 2013

California Appeals Courts Start To Decide Cases on Illegal DUI Blood Draws

Earlier this year the US Supreme Court ruled that a DUI blood draw against a person's consent violates the Constitution. Recently, in seven separate cases, each defendant was charged with misdemeanor driving under the influence (Veh. Code, § 23152, subds. (a), (b)) and filed a motion to suppress evidence pursuant to section 1538.5, contending that the blood drawn from his person subsequent to arrest and pursuant to the implied consent law should be suppressed under Schmerber v. California because the blood draw was not performed in a constitutionally reasonable manner. In each case, the arresting officer transported the defendant to the jail (or in one case a hospital) where phlebotomists or other technicians drew the blood. The officers observed the blood draw and testified that each defendant agreed to the test, no defendant experienced undue pain, and the draw was performed in a sanitary manner. The motions to suppress were denied in six of the seven cases. The appellate division of the superior court agreed with the defendants that the evidence should have been suppressed. The California Court of Appeal transferred the cases from the appellate division and consolidated the cases for decision. The Courts Reversed. Finding that the means and procedures used to obtain a blood sample from an arrestee in a DUI case must be reasonable under the Fourth Amendment. If a physician does not draw an arrestee's blood in a hospital, courts evaluate whether the conditions of the blood draw created an undue risk of harm to the arrestee. Testimony from a police officer who witnessed the blood draw may properly be considered in evaluating whether the blood draw was conducted in a constitutionally reasonable manner—expert testimony is not required. Here, the officers' unrebutted testimony showed that the blood draw did not expose the defendant to an unjustified element of personal risk of infection or pain and was not performed in a manner which created any undue harm or risk. The blood draws were conducted in a constitutionally reasonable manner.

Sunday, August 18, 2013

Does a DUI Checkpoint Need To Provide Signs and Turnouts?

The question comes up frequently whether a DUI checkpoint must provide a sign to those approaching it.  Put another way, must a sobriety checkpoint give advance warning to the driver and allow them an opportunity to turn out and avoid the operation if they desire?  The U.S. Supreme Court specifically rejected a lower state court's finding in that case that a checkpoint is unreasonable if law enforcement fails to demonstrate that motorists are made aware of their option to make If-turns or turnoffs to avoid DUI checkpoints.  The U.S, Supreme Court stated the lower court erred by misreading its precedent on what was an improper "subjective intrusion" that a checkpoint could make on an individual driver. A checkpoint's intrusion on motorists by causing "fear and surprise" in them is "not the natural fear of one who has been drinking over the prospect of being stopped at a sobriety checkpoint but, rather, the fear and surprise engendered in law-abiding motorists by the nature of the stop."

 According to one Long Beach DUI Attorney, The U.S. Supreme Court observed:  "The circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop .... At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion.' [Citation]" Martinez-Fuerte, 428 U.S., at 558." (Sitz, supra, 496 U.S. at p. 452.) Nowhere in Sitz does the U.S. Supreme Court state that a turn off must be provided before the announcement of a DUI checkpoint. It only states that checkpoints cannot cause fear and surprise in drivers by randomly stopping vehicles without reasonable suspicion, something which the Fourth Amendment guarantees against. To be reasonable under the Fourth Amendment, the checkpoint must provide visible signs of the officers' authority, must be regular in routine and not arbitrary or random, and provide visible evidence that the stops are duly authorized and serve the public interest. (Sitz, supra, 496 U.S. at p. 453; Martinez-Fuerte, 428 U.S., at p. 559.) It is true that in Ingersoll, the California Supreme Court found that the checkpoint had a road sign placed sufficiently in advance of the checkpoint that motorists could choose to avoid the checkpoint. (Ingersoll. supra, 43 Cal.3d at p. 336.) However, the U.S. Supreme Court in Sitz subsequently rejected that same objection made by defendants in that case.

In many DUI prosecutions, there is substantial evidence that the DWI checkpoint provided indicia of its official nature. There are usually uniformed personnel manning the checkpoint. The lanes are typically  divided with bright orange reflective cones. Police cars line the shoulder of the roadway and activated their flashing amber overhead lighting equipment. There are electronic construction-type sign at the beginning of the checkpoint area that are reflective orange in color, and bad light bulbs upon which is written "DL DUI checkpoint."  Most Courts will conclude that there was sufficient notice announcing the checkpoint given to drivers in advance of the checkpoint location to permit motorists to turn aside and avoid the checkpoint under these circumstances.  Most Judges will conclude that there is no constitutional requirement that a sign announcing the checkpoint be located prior to a turn off.

A History of Court Decisions on the Constitutionality of DUI Checkpoints

In 1987, the California Supreme Court addressed the question of whether DWI sobriety checkpoints were permissible under federal and state constitutions. (Ingersoll v. Palmer (1987) 43 Ca1.3d 1321, 1325.) "Federal constitutional principles require a showing of either the officer's reasonable suspicion that a crime has occurred or is occurring or, as an alternative; that the seizure is 'carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.' (Brown v. Texas (1979) 443 U.S. 47, 51, citing Delaware v. Prouse (1979) 440 U.S. 648, 663 and United States v. Martinez-Fuerte (1976) 428 U.S. 543,558-562.) As part of its analysis, the California Supreme Court in Ingersoll applied the federal test that was enunciated in Brown v. Texas, supra, 443 U.S. 47. 51 for determining whether the detention of the driver was reasonable.  The Brown test was a balancing test weighing the gravity of the governmental interest or public concern served and the degree to which the program advances that concern against the intrusiveness of the interference with individual liberty. 

The California Supreme Court "determined that (1) '[d]eterring drunk driving and identifying and removing drunk drivers from the roadways undeniably serves a highly important governmental interest,' and (2) sobriety checkpoints advance this interest. (Ingersoll. supra, 43 Cal.3d atpp. 1338-1341.) In examining the third prong of the Brown balancing test, which [it] rephrased as 'the intrusiveness on inclividua1liberties engendered by the sobriety checkpoints: [it] identified eight 'factors important in assessing intrusiveness,' noting that such factors 'provide functional guidelines for minimizing the intrusiveness of the DUI checkpoint stop." (People v. Banks (1993) 6 Cal. 4th 926,936.) It found these eight factors were important in assessing intrusiveness, noting that these eight factors "provide functional guidelines for minimizing the intrusiveness of the sobriety checkpoint stop."  These eight factors are:

(1) Whether the decision to establish a sobriety checkpoint, the selection of the site, and the procedures for the operation of the checkpoint are made and established by supervisory law enforcement personnel;
(2) Whether drivers are stopped according to a neutral formula, such as every third, fifth or tenth driver;
(3) Whether adequate safety precautions are taken, such as proper lighting, warning sign,and signals, and whether clearly identifiable official vehicles and personnel are used;
(4) Whether the location of the checkpoint was determined by a policymaking official, and was reasonable, i.e., on a road having a high incidence of alcohol-related accidents or arrests;
(5) Whether the time the checkpoint was conducted and its duration reflect "good judgment" on the part of law enforcement officials;
(6) Whether the checkpoint exhibits sufficient indicia of its official nature (to reassure motorists of the authorized nature of the stop);
(7) Whether the average length and nature of the detention is minimized;and
(8) Whether the checkpoint is preceded by publicity.

Three years after Ingersoll, the U.S. Supreme Court decided Michigan State Police Dept. v. Sitz (1990) 496 U.S. 444. In Sitz, the U.S. Supreme Court addressed the issue of whether sobriety checkpoints violated the Fourth Amendment of the US Constitution.  It found that the balancing test used in Brown v. Texas and United States v. Martinez-Fuerte (1976) 428 U.S. 543 [approved fixed immigration checkpoints to investigate the transport of illegal aliens] was the appropriate test. In applying the balancing test, the court held that a state's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighed in favor of a state sobriety checkpoint and was consistent with the Fourth Amendment. Three years after Sitz, the California Supreme Court decided People v. Banks (1993) 6 Ca1.4th 926.)  In Banks, the court considered whether advance publicity, one of the eight Ingersoll factors, was a constitutional prerequisite for a sobriety checkpoint. The Justices held that in light of Sitz and other authority, a DUI checkpoint that lacked advance publicity but otherwise conformed to the Ingersoll guidelines was not a unreasonable seizure.

The evolution of the Drunk Driver checkpoint is nearly 40 years in the making.  Most Attorneys understand that a challenge on fourth amendment grounds will be met with much opposition.  But, checkpoints can be fought if the person understands the cases and the requirements

Friday, August 16, 2013

Why are DUI Checkpoints Constitutional?

The U.S. Supreme Court upheld the constitutionality of sobriety checkpoints in 1990. If conducted properly, DWI checkpoints do not constitute illegal search and seizure in most states. The U.S. Supreme Court decision held that the interest in reducing alcohol-impaired driving was sufficient to justify the brief intrusion of a properly conducted sobriety checkpoint.

Most states, including California,  allow DUI checkpoints. Many states have set up and established their own guidelines to supplement the federal rules.  For instance, most jurisdictions require advance notice of the checkpoint to the public. A few states require the production of police studies showing why a checkpoint location is selected. One state requires police to obtain a Superior Court order before the checkpoint may be conducted. the laws in most states will dictate to what extent the police can go in stopping motorists to determine their sobriety .

According to one Torrance DUI Attorney, if a checkpoint complies with the federal requirements, it does not violate the United States Constitution.  Most states have decided the issue under their own constitutions as well.  In states where sobriety checkpoints are prohibited, the reasons vary as to why they aren’t allowed. Eleven states currently prohibit any type of sobriety checkpoint. California decided back in the 90's to allow the police to stop vehicles following the Federal law standards, put another way, the law in this state is that the cops can stop and search people as long as the stop complies with the U.S. Constitution, not the state Constitution.

So why is a DUI checkpoint legal?  One perspective is that, as citizens, most of us support the police to protect us from theft, burglary and assault. Yet, many otherwise law-biding citizens continue to view impaired driving merely as a traffic offense. Don’t be fooled. Impaired driving is no accident nor is it a victimless crime. s a serious crime that kills more than 16,000 people and injures nearly 305,000 others every year. Every 32 minutes, someone in America dies in an impaired driving crash. Every two minutes, someone is killed or injured by a DUI driver Law enforcement agencies in every State and locality are serving on the front lines in the fight against this deadly threat to this country's communities. Traffic crashes are not only a danger to our citizens but are also the leading cause of death for law enforcement officers on the road. More cities are also beginning to understand the economic cost of this criminal activity. Impaired driving (DWI) cost the public more than $110 billion a year. DUI related car crashes are deadlier and more serious than other accidents and they hurt everyone - annually people other than the drinking driver pay 50 plus billion of the costs of DUI drivers.

Sunday, August 4, 2013

Is a Felony DUI Defendant Eligible For Realignment?

California lawmakers initiated a program in California some time ago allowing for certain offenders to spend time in local county jails versus being sent to state prison.  A Felony DUI carries a sentence of state prison, however, can a convicted offender do that time in county?  The Coorts say no, according to a recent appeals case.  Appellant pled no contest to a section 23152, subdivision (b) violation, admitted a prior conviction under section 23550.5, and was sentenced to a two-year term in state prison. On appeal, he argued he was entitled to be sentenced to local custody because, absent disqualifying factors not present here, Penal Code section 1170, subdivision (h) provides that where the term for the offense is not specified, the underlying offense shall be punishable by imprisonment in a county jail for 16 months, two years or three years. Vehicle Code section 42000 provides unless a different penalty is expressly provided by this code, every person convicted of a felony for a violation of a provision of this code shall be punished pursuant to Penal Code section 1170, subdivision (h). Under appellant's reasoning, since section 23550.5 provides for, "imprisonment in the state prison," but does not provide for a specific term, he was eligible for local custody. The appeals court upheld the sentence. Section 23550, subdivision (a), but not section 23550.5 provides for sentencing pursuant to section 1170, subdivision (h). By failing to include language in section 23550.5 authorizing local custody, the Legislature intentionally excluded those convicted under this statute from serving the term in local custody.   So, no county jail time for felony DUI crimes in California.

Sunday, July 28, 2013

New DUI Laws. What's Ahead For California?

Mandatory jail for first offenders?  Lifetime revocation of you license for any second DUI offense?  10 year mandatory IID for all convicted drunk divers?  These are all being considered by the current lawmakers in the great state of California.  While these draconian measures may seem far fetched, they are on the wish list for many groups advocating for stiffer sentences and punishments for all drunk drivers in this part of the country where drinking and driving is still not regarded as a serious crime.

Currently, the state senate has many bills brought and written by MADD that all mandate that any DUI remain on the driver's DMV record for life.  This means that insurance companies will see the conviction and punish the defendant for all his life.  The bills are winding their way through the legislative process with few groups opposing them with the exception of California DUI Attorneys and some civil liberty groups.  In 2014 we will certainly see some change, it remains to be seen how far the state will go.

Facing Mandatory Jail for a DUI? Consider Pay To Stay

It is an unfortunate fact of life in California, if you are convicted of a DUI as a second or third offense you a looking at the real prospect of a stint in the county jail.  With this in mind, it may be wise to consider the various "pay to stay" programs offered in Los Angeles and Orange County.  These programs offer a defendant the opportunity to avoid going to county jail.  Why is this such a big fear?  Maany believe that the county jails are much more dangerous that the alternatives, particularly in metropolitan L.A. where gang violence is rampant and racial tensions are high.

Before starting the process there are many considerations.  First, can you afford the paid city jail options?  The cost of most facilities is at least $100 a day with some charging as much as 200 or more.  Second, you must submit to a TB test and have good general physical health.   Once you have been approved and paid the requisite fees you can start your time.  You will likely be given your own cell away from the general population.  You will be doing light work, such as washing police cars or cleaning the building,  and have much more freedom of movement than the other incarcerated persons.  Most jailers will give you additional privileges such as unlimited use of a phone, computer, internet and television. 

It would be great if everyone could afford private jail but they can't.  In the coming editions we will provide a list of the cities that offer this jail alternative.  In addition to DUI cases, the programs allow the private option where the case is non-violent and you have no extensive criminal record.

Saturday, July 20, 2013

Facing A License Suspension Following an APS Hearing? What You Can Do To Drive To Work

For many, the thought of a license supension in California can be terrifying.  The DMV is completely heartless and unsympathetic to your plight as it relates to your job, your family, keeping your home, etc.   There are immediate steps you can take to keep a provisional license after an unfavorable DMV APS hearing. 

The law does allow for a restricted license if you meet the following conditions:  1.  You are a first offender and have no past suspensions for any DUI related administrative sanctions,  2.  You must have taken a test and not refused.  3.  You must be over 21 and not on any form of DUI probation from any Court.   As long as you comply with the restriction conditions you can keep your license after a short 30 day period.

In addition to the foregoing, you must also get an SR-22 proof of insurance, get enrolled in the AB541 first offender alcohol program and pay all applicable re-issue fees, usually $120.

Sunday, June 30, 2013

Impossible to Get a Search Warrant in California For a Blood Draw? Not So Says A Long Beach DUI Attorney

Recently, in a United States Supreme Court case, the government argued that obtaining a search warrant for a blood draw of a DUI suspect was difficult to do withing the context of a drunk driving arrest.  However, in California a system is alreadfy in place to get a telephonic search warrant.  As an alternative to written affidavits California Penal Code 1526(b)(1) permits sworn oral statements that are subsequently transcribed. For example, the affiant may phone the magistrate, state probable cause, and obtain the magistrate’s verbal authorization to sign the latter’s name to the warrant under the Penal Code in the state. The resulting warrant is the so-called telephonic (or, more accurately, telephonically authorized) search warrant. The expression “telephonic search warrant” can give rise to the erroneous impression that the warrant itself is oral. All search warrants must be in writing. The only thing different about a telephonic warrant is that the affiant signs the magistrate’s name to a duplicate original search warrant.  This makes sense and allows for adequate protections in the remote context.

According to one Long Beach DUI Attorney, the CA Judges Benchguide offers detailed instructions to Judges on duty after hours and on weekends when the Courts are closed.  The statutes do not mention statements by the affiant over the telephone, but have been interpreted to permit them. The procedure is constitutional. No special circumstances need be shown for issuing a telephonic warrant.  Indeed, in Los Angeles County all telephonic search warrants are obtained through a District Attorney Command Post. Under this process, if the deputy DA believes the case is appropriate for a telephonic search warrant after talking with the affiant, the command post investigator sets up a conference call between the affiant, deputy DA, judge, and investigator (who runs the recording equipment). Courts may have different procedures. The following is an example adapted from various counties.  The affiant’s statement must be recorded. The judge should be sure to record the conversation, check that the equipment is switched on and operating. If the affiant is recording the conversation, the judge should ask whether the recording equipment is turned on.  These procedures ensue an adequate record on review.  There can be no doubt that the implementation of the current procedures can be re-tooled to allow for blood draw search warrants for DUI suspects on the roadside or at the police station after arrest.

Is a Citizen's Arrest in California for DUI Legal?

In California, a police officer is not the only individual that can effectuate an arrest for a DUI.  A citizen’s arrest for DUI is proper when based on the citizen’s observation that the defendant was driving under the influence; in so doing, the citizen may delegate to a peace officer the act of taking the defendant into physical custody. This authority is vested in CA Penal Code 837.   For example, in one recent case, the Court ruled a citizen may make arrest for misdemeanor committed in his or her presence Johanson v Department of Motor Vehicles (1995) 36 CA4th 1209,  Also in another appellate court case, the Justices opined, a parking lot attendant who, observed defendant trying to exit parking facility by driving wrong way and into facility’s entrance gate, called 911 and a police officer and reported his observations to officer who made arrest,  and in another published California DUI case, the Court found, an inspector of Department of Food and Agriculture who stopped defendant’s vehicle at inspection station, observed defendant was intoxicated and reported observations to highway patrol officer who arrested defendant.  The bottom line is that a suspected drunk driver cannot escape liability because the person making the contact was not law enforcement.

DUI Drivers Targeted This July 4th

July 4th weekend 2013 promises to be a banner holiday for law enforcement, the state of California has earmarked over a million dollars to checkpoint utilization and enforcement, saturation patrols will make up the remainder of the budget.  Los Angeles County alone has implemented a task force approach will will involve numerous city police agencies and a mobile phlebotomist who will be available to collect samples from DWI suspects for DMV and Court purposes.  The Torrance police alone have publicly stated that it will be on high alert status with its close proximity to the beach areas .  Redondo Beach and Hermosa both have announced a "zero tolerance" to those driving under the influence and has set aside additional resources to deal with the high number of anticipated arrests.

Tuesday, April 23, 2013

Can a Commercial Driver Survive a Second DUI?

It used to be that a DUI for a commercial driver in California would simply result in a short suspension and a return of the drivers license after a period of one year.  This went on for decades.  Not that a 1 year suspension was a walk in the park, but it was tolerable for most drivers.  In the last decade, however, the feds stepped in and announced that any commercial driver who suffers more than one conviction for a DUI or driving with a .08 or higher would be banned for life from ever driving a big rig or other commercial vehicle.  A lifetime revocation is now in full force and effect for any driver who may ever expect to drive for a living.  California DUI laws now demand that the life bar be imposed by the CA DMV.  So, what does a driver do?  Well, the best thing is to hire a lawyer who can fight the DUI and possible negotiate a lesser cahrge such as a reckless driving.

Thursday, April 11, 2013

Making the Case For Dashcams in Every Police Car

We see the stories every day, YouTube videos, and Internet videos gone viral, the visual impact that video has on a story cannot understated.  So why are there not videos cameras in every police car?  Many people believe that the Rodney King case would not have had the same result if a video was not taken of the incident.  Interestingly, it is that case that many think caused some agencies to not want video in the cars, but why not.  In one recent study it was determined that if a video is in a police cruiser the officer is more likely to be extra careful and honest in the police work they do.  In the King case, some of the officers involved were charged with filing false police reports do to the inconsistencies in what the video showed.  So, why not put videos in every patrol car?

The main argument advanced by the police departments opposed to the video equipped cars is the the cost involved.  In the study, the group found that the cost per car is minimal when compared to the savings a police agency will see in resolving baseless lawsuits and civil rights claims.  One expert suggested that the department can stagger the equipment so that some cars actually have working cameras and some will not, the officers will not know which cars have the video capability.  The expert argues that will save half the cost but have the same deterrent effect that would be obtained with 100 percent compliance.

In DUI cases the videos would save countless hours of unneeded testimony in Court, saving millions of dollars on an annual basis.  The video could resolve conflicts quickly between the accused making claims of abuse or misconduct and conversely the video could quickly and efficiently settle criminal trials once the tape shows the suspect is either guilty on not guilty of the charges.  So who is behind the opposition force in not equipping all cars with recording equipment, the Unions?  Is it true that police unions oppose cameras because they want the case to revolve around the officer's word, the statements in the police report that go unchallenged, the cop's word versus the criminal defendant's word?

According to one Bakersfield DUI Attorney who litigates criminal cases on a daily basis, the video in any given case causes the client to "come down to earth" quickly.  Once confronted with damning evidence of guilt, the client will typically want to settle the case without going to trial.  The memory of a defendant is often clouded and the video is a decisive factor in whether a case is plea bargained.  On the other hand, in some cases the video vindicates the defendant and can be used to persuade the District Attorney to dismiss charges in a case that otherwise may have led to an injustice.

In the final analysis, there can be no reasonable argument that a video in every criminal case is not a good idea.  The hard part is actually implementing a system that would make it happen, California needs to catch up to other states that have made it happen.

Do You Need TO Request A DMV Hearing if the DUI Involves Marijuana Only?

This question is one that has perplexed more people than any other.  Here is the scenario:  A driver is stopped and arrested for a DUI, he takes a breath test and there in no alcohol present, however the cop believes he is under the influence of a drug such as marijuana.  The person is booked and processed and released with a pending court date for driving under the influence.  The question then becomes:  Should the driver request a DMV hearing?

The answer depends, says Hermosa Beach DUI Attorney, if the driver did not receive an order of suspension and still has his license, calling the DMV may trigger and investigation for some other action, such as a medical issue or an addiction issue which could prompt a separate suspension.  However, if the driver was served an APS order incorrectly, then a quandary develops.  The quandary is that if the blood comes back with no alcohol then the APS should be set aside automatically when the DMV does a review of the case.  If no hearing is requested the APS could fall thru the cracks and a suspension could result

So, if the driver did not get a pink APS order, do nothing.  If the driver was incorrectly served then a hearing request may be prudent to protect the driving privilege and ensure that the DMV does the right thing and sets the action aside with no suspension.

Every year the drivers safety unit of the DMV gets well over a million hearing requests and they are backlogged, so be sure to follow up and demand that once the blood shows no alcohol present that the driver record be purged of the action.

Wednesday, April 10, 2013

At What Point Does A DUI Become a Felony in California?

With the recent case of the Nevada man charged with felony DUI, many folks ask: when does a DUI become a felony in the state of California?  There are a number of ways that a drunk driving charge can be elevated from a misdemeanor to a felony.  First of all, most standard first time DWI offenses in the state are considered misdemeanors, VC 23152 of the state code specifies that all DUI charges are misdemeanors unless they meet certain criteria.

One way that a driving under the influence can be a felony is if someone other than the offender himself is injured.  According to one Manhattan Beach DUI Attorney, if a person sustains a substantial injury that is caused as a result of the DUI driver violating the vehicle code, such as speeding, failure to stop at a red light or other infraction, and the offender is determined to be under the influence of alcohol or a drug or both then the crime becomes a felony which carries a potential prison sentence of up to 3 years. 

Another way a DUI can be a felony is when the violator has been convicted of 3 or more DUI cases in the last 10 years prior to the last charge. More on this crime in a later post.

Saturday, March 23, 2013

Does California Allow A Urine Test For A DUI?

The answer to this question is both yes and no.  Let me explain, if you are arrested for a DUI in California you are given an option of taking either a blood or breath test if you are suspected of driving with a BAC of ,08 or more.   These are the state mandated choice of tests that satisfy a driver's requirements under the implied consent laws.  But is a urine test an option at all?  The answer is yes.  Once a person gives the state required breath test and a valid sample is obtained, the driver then has an option of giving a urine sample as a way to preserve the evidence for later testing.  You see. a breath sample cannot be saved for later analysis so California law under a case called Trombetta allows the accused to take a blood or urine, at their own expense, for future testing once the case gets into Court.

There is another way a person has a right to take a urine test.  If the arresting officer believes that the DUI suspect is under the influence of drugs as well as alcohol or if the only substance is drugs.  the choice of tests at that point is either blood or urine since a person's breath cannot give an accurate reading of the presence of drugs such as marijuana.  In this instance, the driver has the absolute right to submit to a urine test rather than a blood test unless, for some reason a urine test is unavailable.  Should a suspected DUI driver refuse to take either a blood or urine test when suspected of a DUID, under California DUI Laws, the driver will face the possible punishment of a suspension of up to 3 years by the California DMV.

In conclusion, a urine test is an option in certain circumstances within a California drunk driving context.  Specifically, when the driver takes a breath test and wants a sample of his or her urine to be saved for future toxicological analysis at his or her own expense.   Also, when the DUI suspect is believed to be under the influence of a drug which cannot be detected by a breath test.

Sunday, March 10, 2013

Can a Police Officer Stop Your Car Just For Leaving a Bar?

DUI arrests are fast becoming the number one type of criminal charge in the U.S. today according to many sources.  The police are often encouraged and empowered to stop as many motorists as they can in the hopes of catching a driver who is impaired by alcohol or drugs, or sometimes both.  In the zeal for getting DUI drivers off the road we sometimes forget that the Bill of Rights affords each one of us the protection from unreasonable searches and detentions by law enforcement, with this being said, is it reasonable or legal to stop a car just because the driver was observed leaving a bar or drinking establishment?  Some say it is OK, others believe that unless the officer sees some illegal action, that type of stop would be illegal.

According to Bruce Blythe, a Bakersfield Criminal Defense Attorney who handles many DUI cases, a stop by police simply based on the fact that the driver was seen walking out of a bar would be Constitutionally impermissible.  The touchstone of the Fourth Amendment, according to Blythe, is the premise that any "seizure" of a citizen by the government must be based on a reasonable suspicion of criminal activity.  This suspicion need not rise to the level of actual certainty, but must cause a reasonable person to conclude that criminal activity may be afoot.  In the scenario presented, Blythe argues that the officer would lack any objectively reasonable belief due to the fact that patronizing a bar is not illegal, nor is there any fact upon which the officer could point to that would lead him to a conclusion that the driver had been drinking and was impaired to the degree that he or she could no longer drive the vehicle safely.

In this type of a fact pattern, the absence of any articulated facts to support the belief that the driver was impaired or above the legal limit in California would certainly result in a finding that the contact and subsequent DUI arrest  violates the Constitution and thereby would be illegal under CA state law.