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 In an unpublished opinion, the Court of Appeal upheld the denial of the defendant's suppression motion.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.