Sunday, May 28, 2017

The Defense Of Officer Induced Confusion in a DUI Case

In a DUI case it is not uncommon to see a driver arrested and refuse to submit to a chemical test.  When this happens the attorney will look for a defense to the refusal in order to get around the suspension and revocation the DMV seeks to impose.  One possible defense is known as officer induced confusion.  

It is well recognized in law that when an officer simultaneously reads a driver his implied consent warnings (no right to refuse a test and no right to consult with or to have an attorney present during its administration) in conjunction with the Miranda admonition (right to refuse interrogation and to have an attorney present at all stages of a police interrogation, etc.), it will likely induce confusion. 

Therefore, in cases where a driver has been given Miranda insists on the presence of an attorney before choosing a test the courts have recognized that he [or she] may have been confused by the two warnings and the officers failure to clarify and explain the difference. In such a case the refusal to take a test has been held not to be a refusal within the meaning of California Vehicle Code section 13353. (Rust v. Department of Motor Vehicles (1968) 267 Cal.App.2d 545, 547.) 

The question of officer-induced confusion is one of fact, often dependent on statements in the report indicative of the defendants desire to speak to a lawyer coupled with signs of confusion about the officers demand for an answer to which test to take.  When a driver who has been given Miranda manifests confusion by asserting his [or her] alleged right to an attorney, it is incumbent upon the officer to explain that the right does not apply to these tests. (McDonnell v. Department of Motor Vehicles (1975) 45 Cal.App.3d 653, 658.  The failure of an officer to clear up the confusion renders any alleged refusal to submit to a test insufficient to suspend a drivers license as a result.

Matthew Ruff is a DUI Attorney in Torrance with over 20 years experience fighting both criminal charges and DMV suspensions in California.

Tuesday, May 9, 2017

Entering Canada With A DUI, What You Need To Know

Canada has some of the toughest restrictions on travelers entering the Country in the World.  If you have a conviction for any criminal offense in California or anywhere else in the United States, here is what you need to know:Canada is a major destination for travel and commerce. In some cases, travellers are being rejected at points of entry due to a previous criminal offence. Canada does not distinguish between a misdemeanour and a felony; therefore if you have a pending criminal charge or are on probation for a crime you may no longer be able to travel to Canada, even for a short trip. What makes a person Inadmissable?  Any conviction for a felony and most misdemeanors.  Interestingly, Canada does not distinguish between felonies and misdemeanors so a charge of DUI, drunk driving, reckless driving, manslaughter, theft, writing a bad check, etc.  can result in your denial of entry. If you are deemed inadmissible There are two ways in which one can overcome their inadmissibility to Canada: Criminal Rehabilitation and Temporary Resident Permits.  We will discuss both of them independently:

Criminal Rehabilitation will permanently resolve an individual’s inadmissibility on a permanent basis as long as 5 years have passed since the completion of their sentence for a non- serious crime. If successful, the conviction(s) will no longer be a limitation to enter Canada.

The first step is to determine if the offence that the individual was convicted of is equivalent to a criminal offence in Canada. However, this is a difficult task that often requires legal expertise.
At least 5 years must have elapsed since the completion of a sentence in order to be eligible for criminal rehabilitation.
If 10 years or more have elapsed, and the individual has only one non-serious conviction, s/he would be deemed rehabilitated and admissible to Canada. However, we recommend a Legal Opinion Letter in order to explain any history of criminality. 

Temporary Resident Permits will allow individuals who are criminally inadmissible to Canada to enter the country for a limited period of time.
Immigration officers will evaluate TRP applications and approve them if the individual has a signi cant reason for entering Canada. Travelling to Canada for business purposes and/ or for reasons that benefit Canada will improve their chance of success. 
A temporary resident permit is necessary for entry to Canada if:
Less than 5 years has passed since completing a sentence for a crime equivalent to a Canadian federal offence.

More than 5 years has passed and criminal rehabilitation has NOT been approved. 

Monday, May 1, 2017

How Does The California DMV Define a Refusal

A refusal to take a test following a DUI arrest carries the harshest penalty under law.  The state can revoke your driving privileges for up to 3 years.  How does California define a refusal in legal terms?

Before the DMV may suspend a driver's license for failure to submit to a chemical test, the DMV must make four findings: (1) the officer had reasonable cause to believe the person was driving a vehicle while under the influence of drugs or alcohol; (2) the person was arrested; (3) the person was told that if he or she refused to submit to, or did not complete, a chemical test his or her license would be suspended; and (4) the person refused to submit to, or did not complete, such a test. 

The question whether a driver "refused" a test within the meaning of the statute is a question of fact. To comply with the law, a `driver should clearly and unambiguously manifest the consent required by the law. Consent which is not clear and unambiguous may be deemed a refusal.' In determining whether an arrested driver's conduct amounts to a refusal to submit to a test, the court looks not to the state of mind of the arrested driver, but to "the fair meaning to be given [the driver's] response to the demand he submit to a chemical test.  As such, whether a driver intended to refuse or not is not the determining factor.