Police Ramping Up DUI Checkpoints

The authorities in the South Bay and Torrance will be deploying DUI checkpoints this holiday season.  Remember, the police do not need to publicize the locations of these enforcement techniques but often do.  Reminder to always use a designated driver if you choose to drink over the Christmas break.  Cops will have no sympathy on those breaking the law by driving while impaired and the phrase "the life you save may be your own" will be reiterated over the next few days.  Be safe!

Refusing To Forget, What Constitutes A Refusal In California

The CA DMV imposes the harshest license consequences for those who refuse to submit to a chemical test after arrested for a DUI.  However, 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."

How Hematocrit Can Affect Breath Test Results In DUI Cases

In DUI cases numerous medical conditions can influence how blood alcohol testing is done accurately. One big problem when testing a person for a specfic alcohol concentration is to take into consideration Hematocrit levels. Hematocrit represents the fraction of whole blood composed of red cells and is correlated with the acqueous content of the blood, the higher the hematocrit, the lower the concentration of water in the blood and vice versa. In the simplest terms it is a ratio or a formula. In other words, it is a value expressed as a ratio of the solid components of blood (cellular material) to the liquid components of blood (water). In a normal healthy being it can vary the amount of alcohol contained in the blood.  

People with abnormally low hematocrit are sometimes called "Anemic".  Normal hematocrit levels are 45 % for men and 40 % for women.  Perhaps the best way to imagine the concept of hematocrit  in your mind is to compare the sample with a glass full of rocks vs. a glass filled with no rocks. Here is the problem when it is related to DUI chemical testing for ethanol in the blood: The higher the hematocrit equals more solids in the blood, therefore less water and consequently a higher alcohol concentration. A person with lower than normal hematocrit has less solids in their blood, more water and therefore a lower blood alcohol concentration.

What does all this mean as far as DUI defense? Well, studies have concluded that a person whose hematocrit levels are out of whack or not within normal paramaters can have a breath test result with a higher than actual blood alcohol level as much as 14%, more commonly in the range of 10-14 percent variation.

How To Get Your License Back After A DUI In California

This article addresses what you need to do to get your license back after a DUI.  The DMV will not tell you, but there is a way to get your license back early, way before the date they gave you on the letter.

 California has the unenviable reputation of confiscating the most licenses from drivers after a DWI incident.  As if the arrest for DUI wasn't bad enough, the frustration in dealing with the DMV in order to get your license reinstated can be even more traumatic.  Remember, the police officer probably took your physical license from you at the time of arrest and you were issued a "temporary license" that you have been driving on since your release.  That temporary license did not have your photo and many entities will not accept it as a valid form of ID. This article is written to provide critical information necessary for a person to get their official photo license returned following a driving under the influence resolution in Court.  

Here is the step by step process to follow to get your drivers license from the California DMV after the 30 day "hard" suspension and a disposition in Court:

1. Get enrolled in the DUI school ordered by the Court or your attorney.  Take your paperwork from the Court to your chosen class and make sure they file the correct form with the DMV, they will sometimes give you the official form which you can file yourself, but you are paying them a fee so they should do it for you.  If you are a California resident you should confirm the class satisfies the requirements of the DMV. If you are a non-CA resident be sure to speak to your attorney about the options you have. Make sure the program also files the enrollment certificate with the Court as well. You must do this within 21 days of the resolution in Court so do not delay.
2. Make sure you have an SR-22 filed with the DMV.  An SR22 is nothing more than an official proof that you have the minimum required proof of insurance mandated by the DMV.  You cannot simply send in the little card you got from the insurance company, that will not be sufficient.  The proof must be sent in by the insurance company in order to comply with CA law.
3. If the offense occurred in Los Angeles County you must install an ignition interlock device in your vehicle.  The DMV will check to verify the ownership of any vehicles registered to you or any person at the home in which you reside and have access to.  If you do not own any vehicles, use any vehicle or have access to any car at the residence there is a waiver which you can fill you and send to the DMV, but the State will not reinstate your license unless and until you install an IID in a vehicle you drive.  For more information about IID, visit our IID information page.
4. You must pay a re-issue fee to the California Department of Motor Vehicles.  This fee  ranges from $140 to $240 dollars and must be submitted in order to receive your original license.
5. Ensure you have no outstanding tickets or "holds" on your license such as tickets you never paid or any FTA or failure to appear.

You must understand that this information is based on the criteria that the driver has no prior convictions for driving under the influence and has no prior administrative suspensions by the DMV for under 21 alcohol offenses.  If you still have a DMV hearing pending you must cancel it otherwise the Department will not consider reinstating your privilege.

Are You Safe From a DUI Arrest In Your Home?

 

While it is true that most DUI arrests take place on city streets, many do occur in the home. Many believe the police cannot arrest a person for a DUI if they are in their own home.  While this is generally true, the Courts have allowed the police to enter a person's home even without a warrant if there is probable cause to believe the person recently drove and is DUI. The most basic evidence the police need to arrest someone in their own home for DUI is to prove the person drove within 3 hours of arrival and did not consume any alcohol or drugs once they got home.

The seminal case on the subject is Welsh, a US Supreme Court case that ruled a search of a home for a DUI driver was illegal.   In Welsh v. Wisconsin (1984) 466 US 740, the US Supreme Court ruled that the Fourth Amendment was violated when an officer made a warrantless entry into a residence to arrest a DUI suspect.  Apparently though is Wisconsin the law treats DUI as a ticket which carries only a fine as punishment. Unlike Wisconsin, California treats DUI as a criminal offense, subject to fines and mandatory incarceration. This distinction was relied on by the California Supreme Court to find that a warrantless entry to arrest a recent DUI suspect did not violate the Fourth Amendment.

There have been more recent California cases which allow warrantless entry in a home for DWI suspects.  We will discuss these cases and the current legal trends in future articles.

Matthew Ruff is a DUI Lawyer in California, he can be reached at 310-527-4100

Court Rules Police Can Search Regardless Of Marijuana Prescription

Acting on a tip from an informant and surveillance evidence, police officers obtained a warrant to search the garage of Clark's residence for evidence of a marijuana grow. Officers seized marijuana plants, cocaine, and a shotgun. Clark filed a motion suppress the evidence, arguing that his cultivation of marijuana was legal under the Act and that there were no facts presented in support of the search warrant that the cultivation was illegal. Following the denial of the motion, Clark entered a plea of guilty. On appeal, Clark argued that the trial court erred because the Act imposes an affirmative duty on investigating law enforcement officers to inquire about a suspect's status as a qualified patient or primary caregiver.  This criminal case will be viewed very closely by many DUI attorneys representing those accused of possession of pot in this state.

The Court upheld the decision. While the Act provides a defense at trial, it does not grant any immunity from arrest that would require reversal of a conviction for possession or cultivation of marijuana whenever law enforcement officers fail to conduct an adequate investigation of the defendant's status as a qualified patient or primary caregiver prior to his or her arrest. Given the holding of Mower, the court here concluded that the Act cannot be interpreted to impose an affirmative duty on law enforcement officers to investigate a suspect's status as a qualified patient or primary caregiver under the Act prior to obtaining a search warrant. Motions and trials are used to investigate the truth and legal effect of the medical marijuana defense provided under the Act. The facts in the search warrant affidavit provided sufficient probable cause to search Clark's residence, and the suppression motion was properly denied.  According to a DUI Lawyer in Bakersfield, this case presents many questions as to how far judges will allow police to go when they are legal to possess marijuana in California.  

DUI Excluded From New Legislation

Prop 47 brings good news to many criminal defendants but the news is not helpful to DUI offenders.  Prior to Proposition 47's amendment to section 666, subdivision (a) allowed a petty theft conviction to be punished as felony only if the defendant had been convicted three or more times of specified crimes and had served a term for the offense in any penal institution or had been imprisoned therein as a condition of probation. Former section 666, subdivision (b) allowed a petty theft conviction to be punished as a felony when the person had been convicted of only one of the enumerated offenses (with the same imprisonment requirement) if the person was required to register or had previously been convicted of ANY serious or violent felony. The newly amended version of section 666 allows a petty theft conviction to be punished as a felony if the defendant (1) has been convicted of one of the specified crimes and incarcerated for the offense and (2) is required to register under CA law has a prior violent or serious felony conviction under section 667, subdivision (e)(2)(C)(iv), or has a section 368, subdivision (d) or (e) conviction.

Though not helpful to DUI offenders with prior convictions, The eligibility requirements for misdemeanor punishment in amended section 666 differ from the other statutes affected by Proposition 47. The other statutes provide that the offense at issue will be punished as a misdemeanor unless the defendant has one or more prior convictions for an offense specified in Penal Code section 667, subdivision (e)(2)(C)(iv) or an offense requiring registration under Penal Code section 290. In contrast to this, amended section 666 states that petty theft with a prior may only be punished as a felony if the above requirements are met. The nature of prior convictions permitting felony treatment is both narrower (prior conviction of only a certain class of serious or violent felonies elevate petty theft to felony level) and broader (any person required to register under SORA and any prior conviction of section 368, subdivision (d) or (e) (which is not a serious or violent felony) elevates petty theft to a felony). Rather than only excluding defendants who have one or more prior convictions for an offense requiring registration under section 290, amended section 666 excludes defendants who are required to register pursuant to SORA (Pen. Code, §§ 290-290.024). There may be cases where a defendant is required to register under SORA based on an offense that is not listed in Penal Code section 290.