Saturday, January 30, 2010

Source Code Litigation, What's all the Hoopla?

More and more these days we are seeing attorneys discussing source code litigation on their websites. What is it and how can it help a person facing DUI charges.

Well, the long and the short of it is as follows: If you were arrested and chose breath as your test that machine uses software that runs the process. That software is at the heart of the "source code" legal battles, attorneys want the software codes and some manufacturers refuse to turn it over. The lawyers argue that the code is necessary to defend the client against the machine result. On the other side is the breath machine companies that argue it is proprietary and protected and that is the battle. We will see more on this topic in the future.

Thursday, January 28, 2010

Instant Breath Testing, the New Age of DUI

For decades the norm in breath testing for DUI cases was to transport the arrestee to the station and have them blow into a tabletop breath machine. Times have changed, today many police departments have roadside breath instruments that can obtain a sample right on the side of the road. These devices present new challenges for reliability and integrity, the jury is still out on the permanency and widespread use of these point of use breath machines.

Sunday, January 24, 2010

Judges, Prosecutors and Jurors in Drunk Driving Cases

The crime of drunk driving is viewed much differently than other misdemeanor offenses in the criminal justice system. The danger of impaired driving hits home for most people much more than say a assault and battery. The mere mention of the term evokes very discerned emotion and sometimes even fear. Prosecutors have a much greater political pressure when plea bargaining DUI cases. As such, a very different approach must be taken when dealing with the judicial system, to ignore this can be fatal.

Marijuana and Impairment

The most commonly utilized chemical test for a marijuana after a DUI arrest is a urine test. In most of California typically a suspect detained for DUI will be required to submit to either a breath or blood, but when drugs such as marijuana are suspected the choice is restricted to blood or urine. Because most people will choose to take a leak in a cup over having a sharp needle jabbed in their arm, the most common test seen is that of urine. Problems can come into play with marijuana urine tests. The most often asked inquiry is how long does marijuana stay detectable in a persons urine?

It is commonly accepted in the scientific community that cannabis metabolite (a breakdown product) is detectable in urine for an extended period of time compared to other drugs. Initially, it is important to define what is meant by marijuana metabolite. Very often this term refers to a specific breakdown product of cannabis called delta-9-carboxy-tetrahydrocannabinal (otherwise known as THC). What is crucial to understand in the context of DUI prosecutions is that carboxy THC is not psychoactive and has no effect on ones physical performance or ability to drive an automobile safely. Carboxy THC is an oily substance that accumulates in a person's body fat over time after smoking and is slowly released into the blood and excreted into the urine as a waste product.

This is the main reason why carboxy THC is detectable in the urine for extended periods of time compared to that of other substances and their metabolites. Since the effects of pot seldom last beyond several hours, the presence of carboxy THC in the urine sample collected after an arrest for DUI does not necessarily prove that the individual was DUI or impaired by the recently smoked pot at the time of driving his or her motor vehicle.

Saturday, January 23, 2010

How Do the New California DUI Laws Affect Cases from 2009?

The answer to this question is not yet fully resolved. If you read the statute governing the new law the language does not fully explain how the issue of retro activity will be addressed. As such, DUI offenders with cases occurring before 2010 and before July of this year will need to be treated differently than offenses that occur after the law takes full effect. Any comments appreciated.

Wednesday, January 20, 2010

New California Law to Allow Restricted License for Second DUI Draws Criticism

The new law going into affect in July 2010 allows for second time DUI offenders to get a restricted license after serving just 90 days of a suspension. This new law is a far cry from the old law which mandated a minimum one year suspension before a restriction could be granted. The new ignition interlock restriction still has many in an uproar, particularly MADD proponents and those seeking to turn multiple DUI offenders into felons. Time will tell whether their will be a turnabout on the granting of early license reinstatement in the golden state.

The Emergence of HAMM

With increasing frequency Judges are ordering as a term of probation for DUI that offenders attend a hospital and morgue program, known as HAMM. The Courts want to take a shock approach with probationers and therefore require the programs that show the attendees dead bodies, injured individuals and the aftermath of DUi accidents. These Court ordered programs seeks to impress upon the students that drinking and driving causes death and despair for all. I am awaiting a study that presents any empirical evidence of the program's effectiveness. Anyone with info. please comment.

Sunday, January 17, 2010

Zero Tolerance, The Game Changer

Though not currently the state of the law, the idea of zero tolerance when it comes to DUI enforcement is not that far off. In California, we have already adopted a zero tolerance policy for persons on probation for drunk driving, we can see many changes in the application of this concept in the coming years I am sure.

Societal Misconceptions of DUI

The advent of the crime of driving under the influence has brought with it both good and bad. The good is that we have likely saved hundreds from senseless injury, death and pain due to getting those that are truly impaired off the roadway. The bad is that many folks who are not impaired and are of no risk to the public have been arrested for DUI because of hysteria of drinking and then getting into a motor vehicle. The police are quick (some may say rightfully so) to arrest someone with the mere odor of alcohol on their breath. As a lawyer I have seen many cases where an arrest takes place and later a breath test exonerates the driver with a BAC lower than .05, which is the level at which even the AMA admits a person is not impaired. Society has instilled a belief that having the odor of alcohol on your breath and drivinf is illegal, and MADD has instilled a societal belief that any drinking and driving is a crime. Right or Wrong? What are your thoughts.

Saturday, January 16, 2010

Hiring A Lawyer After a DUI Mishap

It is certainly commonsense and should be that those individuals that have the financial resources to retain a specialist in the area of driving under the influence litigation are much more likely to come out above the crowd when going into Court. Being stingy or tight fisted when arrested for a crime is not wise, only a lawyer familiar with the area of criminal law can extricate someone facing criminal prosecution. Do not look for the cheapest lawyer to defend you or your loved ones, spend the money to engage the services of an attorney that is experienced and has the knowledge to get you out of the mess you are in. Incarceration and harsh penalties can be avoided if the proper choices are made in a cool and logical manner. Conversely, those that are in dire straits financially may not have the choice.

MADD and the new decade

Everyone knows the impact Mothers Against Drunk Driving has had on the enforcement of DUI laws in our country. In the new decade, we will see a greater presence of MADD in every drunk driving sentence imposed. Most Judges are now requiring the attendance of all offenders to a MADD class that is put on by the Organization, instilling the MADD beliefs and principles in every attendee. More to Come.....

Trends in DUI Enforcement-The Blood test at the Scene of arrest

Recently, many DUI attorneys have been seeing an uptick in blood collection at the scene of a DUI arrest as opposed to the blood being collected at the hospital or in a clinic. The concern for many is the safety of the practice and the integrity of the collection system for criminal prosecution. This new trend attempts to do away with the problem of huge delays in blood tests from the time of driving to the time of the test at which time the blood alcohol level might drop or even rise. Stay Tuned for more on this issue.

Are California DUI Laws Too Tough

The answer to this question depends largely upon your views of drinking and whether society should tolerate one to drive with any amount of alcohol in their body. Prosecutors will tell you the laws are there to protect the public, I on the other hand see the tougher laws benefiting only special interests such as insurance companies, DUI schools, Ignition Interlock Companies, just to name a few. As the laws get tougher so to do the financial windfall to those special interests. Something to Ponder?

Thoughts about Letting Multiple DUI Offenders Drive for Work

As a DUI lawyer for well over a decade I have certainly seen the aftermath, death and destruction from DUI accidents and injuries. on the other hand I have seen tough sentencing laws cause great headship on the families of those convicted of DUI. In balance, I believe the law should be tough on you if you continue to commit criminal offenses such as driving while under the influence of alcohol or drugs. However, I also think one should be able to continue to drive to work so that they can be productive members of society. When I say drive, I mean legally drive. This should require an ignition interlock or other safe guards that ensure the driver cannot have any alcohol in their system.

The DUI Numbers are in For 2009 Holiday Arrests

From Christmas Eve through the end of Sunday, the California Highway Patrol arrested 1104 people on suspicion of a DUI, according to a state report released today. 251 people, accounting for nearly 23% of those arrests statewide, were in Los Angeles County.

Most of the driving under the influence arrests occurred on the weekend Saturday and Sunday. Between Christmas Eve and 6 a.m. Saturday morning, only 303 people had been arrested on suspicion of drunk driving statewide and 68 in Los Angeles County.

22 people were killed statewide with 2 of those fatalities located in Los Angeles County.
Because Christmas Eve fell on a Thursday, the holiday enforcement period was shorter than last year when the holiday weekend began on Wednesday evening. There were 1397 DUI arrests and 37 fatalities (7 in Los Angeles County) in 2008.

New California Law Allows for Restricted License for Second Time DUI Offenders

The California Legislature has enacted a new law that offers shortened license suspension and revocation periods for certain repeat DUI offenders who meet specific criteria.For example, a person convicted of their second drunk driving offense in California, within 10 years of the first one, may become eligible to apply for a restricted driving license after completing the first 90 days of a two year license suspension period.

Under the prior version of the law, the DUI Offender would have to wait for 12 months before applying for the restricted license.To qualify for the restricted California driver license, CA drivers must provide:-Either proof of enrollment or partial completion of a 18 or 30 month certified DUI program-Proof of financial responsibility (i.e. proof of SR 22 insurance)-Installation and maintenance of an ignition interlock device-Payment for any applicable DMV fees, including reinstatement, reissue and restriction fees.

The amount of time persons convicted of DUI must wait before becoming eligible to apply for the restricted license and the criteria for obtaining the license vary based on the type of DUI offense, the number of previous convictions and whether the offense included alcohol, drugs or a combination of both.

The DUI Times

The purpose of this blog is to discuss the current state of the law relating to DUI and the enforcement of drunk driving laws by law enforcement.
Society has demanded that our roads be free from persons that are impaired by alcohol and drugs and our legislators have answered the call by drafting and creating ever more harsh penalties for those convicted of driving under the influence.
In addition to tougher criminal laws, states such as California has enacted harsh sanctions relating to a person's driving privilege and drivers licenses.