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%.