Friday, December 26, 2014

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!

Saturday, December 20, 2014

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.

Monday, November 24, 2014

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.

Tuesday, November 11, 2014

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

Sunday, November 9, 2014

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. 

New California Law Makes Many Felony Crimes a Misdemeanor, Not DUI

The On November 4, 2014, California voters passed Proposition 47, which enacts the Safe Neighborhoods and Schools Act. It reduces a number of low-level theft and drug offenses to straight misdemeanors unless the defendant has specified prior convictions. The statute focuses on drug and theft crimes, unfortunately DUI was not part of the law changes.  Voters obviously sounded off loudly about the prison overcrowding and this will work to reduce those incarcerated. 

Saturday, November 1, 2014

Can The Police Stop A Car For Driving Too Slow?

Many DUI cases begin with a traffic stop for violating the vehicle code.  In any case where the defendant asserts the police stopped him without legal cause the people have the burden of showing the warrantless seizure and search of the defendant was justified .  See People v. Williams (1999) 20 C4th 119, 83 CR2d 275; Wilder v. Superior Court (l979) 92 Cal.App.3d 90. The people have offered evidence that the initial seizure of the defendant, which lead to the unlawful search of her person and effects and subsequent arrest for DUI was justified by a violation of CVC 22400 (a) or driving too slow.

CVC 22400 (a) states:
No person shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic unless the reduced speed is necessary for safe operation, because of a grade, or in compliance with law.

CVC 22400 (a) clearly states no person shall stop “so as to impede or block normal and reasonable movement of traffic...” implying there is no violation of CVC 22400 if there is no impediment to traffic flow. The court need only look at the plain language of the statute to see the code section is meant to prohibit conduct which impedes traffic flow. Where there is no traffic flow on a roadway, it would be impossible to violate CVC 22400 because an essential element of the illegal conduct is missing.

Looking to case law interpreting the meaning of CVC 22400(a), in Shannon v. Thomas, 57 Cal. App. 2D 187, a California appellate court with binding authority specifically refused to hold, as a matter of law, that someone pushing a car on a public road in the dead of night constituted a violation of California's minimum speed law. [The Shannon case examined CVC 549, which was the predecessor to (and substantially similar) to CVC 22400.] The court held “we are impressed that it was for the jury to determine whether appellants in pushing their automobile on the highway in the manner they did, impeded or blocked the normal and reasonable movement of traffic at three o'clock in the morning...” A factor weighing on that court's decision was the time of night and the lack of traffic at that time. This analytical approach would be favorable to the Defendant before the court today, whose conduct occurred on a desolate road with little to no traffic late at night. No other California cases directly address CVC 22400, but persuasive authority interpreting the phrase “impede or block normal reasonable movement of traffic..” can be found in our sister jurisdictions. People v. Beeney 181 Misc. 2d 201; 694 N.Y.S.2d 583; 1999 N.Y. Misc. LEXIS 299, held:

...the dispositive factor when determining whether slow speed is a violation or may serve as reasonable articulable suspicion for a stop) is its effect upon other drivers. In other words, whether the slowness impedes traffic so as to pose a real danger to other motorists, as opposed to potential danger or temporary inconvenience.”

The reasoning in the Beeney adds compelling weight to the Defendant's argument that CVC 22400 simply was not and could not be violated on a roadway with no other traffic because there could not have been a impedement to other motorists if there were none there. The Beeney court looked to similar holdings from Pennsylvania, North Dakota, Michigan and Illinois.

Saturday, October 11, 2014

Can Breath Tests Be Wrong?

Breath testing machines have always had various faults that created potential defenses to a DUI attorney. The newest generation of machines also have a multitude of potential errors and faults that may render a breath test inaccurate. According to Matthew Ruff, a DUI Attorney in Torrance California, One of the best ways to attack a breath test is to use a defense expert in the area of toxicology. Many experts have a vast amount of experience working within the states crime lab and often bring with them a substantial amount of credibility given the fact they once worked and testified on behalf of the prosecution. When it comes to breath testing each case needs to be examined carefully to scrutinize the breath samples for possible error as it relates to a person's true blood alcohol level. One of the most fruitful areas of attack in recent years is on the issue of interfering substances. When we say interfering substances, we mean the breath machine is picking up substances other than alcohol but reporting them as a BAC result.  This is especially true for older breath machines and virtually all PAS devices sense the basic working of these machines rely on the use of a fuel cell that reacts to various substances and may display those substances as a blood alcohol level when in fact the true BAC or blood alcohol level may be much lower.

Some people in certain professions  are more prone to  interfering substances than others .for example occupational exposure  to toluene  for example will show up as alcohol  on various machines as well  substances containing acetone .when these substances are inhaled, for example ,during the course of a person's occupation ,this exposure can cause  a false  positive for alcohol  and can increase the  true blood alcohol levels by as much as  point .05 %.  Though this may not seem  like a significant amount for persons  subject to zero tolerance  even a fraction of a percentage point  can result  in termination  of employment or the loss  of their drivers license.  One example of a person  who may be exposed  to interfering chemicals  could be someone who works  in an industrial setting ,someone who paints for a living ,works in a auto body shop ,or is a janitor by trade .He or she may be exposed  to certain compounds  which can enter the bloodstream and cause  in interfering substance error  in the blood-alcohol test .

In one recent publicized case  a painter  was arrested for DUI  and  his  blood-alcohol level  was reported  as being  above the legal limit . it turns out is exposure  to certain chemicals  such as acetone  and the like  in its trade  may have  caused  in artificially high  BAC  level  and  subjected him  unfairly  to criminal prosecution . an expert in the area of toxicology  could be utilized  to convey  to the jury  at trial  how  certain substances  may  falsely influence  the breath machine . some scientific studies seem to  infer  that  interference  from a variety of  chemicals  may  have  a deleterious  affect  on  certain  breath  testing  machines  used  in  DUI  prosecutions .

DO I Need To Disclose My DUI Arrest On A Job Application?

Here is the scenario:  You are arrested for a DUI and are given a Court date to appear and  answer to the charges months away, before you ever even get to your arraignment to are in the process of job hunting which requires you to fill out job applications.  How do you deal with the DUI arrest on the application?

In order to answer this question we must first understand that being arrested alone does not mean you "have a DUI on your record".  An arrest under the law is requires a very low level of proof and it does not equate to being guilty of the offense for which you were arrested.  We must remember that under the United States and California Constitutions a person is "presumed innocent" unless and until the contrary is proven in a Court of law beyond a reasonable doubt.

So, how do you deal with a application for employment?  First, take a careful look at the question being asked.  Under California law it is actually illegal for a private employer to ask if you have ever been arrested.  This means that  most applications will not directly ask you about an arrest alonne.  the question is usually phrased as "Have you ever been convicted of a crime".  Under this scenario you can honestly answer "NO" to that question if your case has not yet been resolved in Court.  There are times when a private employer may ask if you have any "pending"  cases in Court.  This question is much more tricky and involves a more careful response.  You should consult your attorney to help respond in this type of situation.

In addition, there are governmental employers and jobs that require security clearances, etc.  which can be exceptions to the rule.  Remember, CA law only excludes "private employers from asking about arrests that do not culminate into a conviction.  If you are seeking employment from these entities consult your lawyer for a more detailed answer to these applications.

Sunday, September 28, 2014

What Is A Wet Reckless?

California is a state that has very serious consequences for dui and drunk driving offenses.  However, there are various reductions from the original charge that can mitigate the punishment and long term effects that flow from the charge of VC 23152 or driving under the influence.

The most common of these reduced charges is that of VC 23103.5 commonly referred to as a wet reckless.  This is not a substantive offense, that is that you cannot be charged with wet reckless, it is a creature of statute that allows a DA to reduce the case to a lesser offshoot of reckless driving or VC23103. It is called a "wet" reckless because the Court makes a finding that it involved alcohol or drugs which makes it priorable.  This means it can be used to enhance a future DUI crime into a second offense down the road.

The benefits of a wet reckless are numerous.  For one, the DMV will not require you to install an ignition interlock on your car after conviction.  Two, the DMV will not require an SR22 filing.  Three, the Court does not require the completion of a 3 month alcohol class.  Four, the fine is about half of what the full DUI fine turns out to be.  Finally, the case can be expunged much sooner than a driving under the influence conviction.

In the final analysis, a wet is always better than a full fledged DUI for many reasons.  According to one Torrance DUI Attorney, the wet reckless can also save the driver from losing their commercial drivers license.  You see, a VC23152 can result in a one year suspension if convicted in Court, the same does not apply for a VC 23103.5.

Friday, September 19, 2014

Surviving A DUI Conviction In California

The aftermath of a guilty or no contest plea to a VC 23152 driving under the influence charge should not be viewed as the end of the world or a "my life is over" kind of a moment.  Indeed, a criminal conviction is in fact serious and no one can say it is a trivial matter however it is not as life changing as many folks make it out to be.  First of all the crime is a misdemeanor, not a felony, and under CA law this has major ramifications.

  1. You DO NOT lose your right to vote for a misdemeanor. 
  2. You DO NOT lose your right to own or possess a firearm.
  3. You DO NOT automatically lose your right to get governmental benefits such as social security, student loans, welfare and the like.
  4. A misdemeanor can be dismissed and expunged after successfully completing probation.
In most cases, a plea to a DUI results in the imposition of sentence being suspended and the defendant given informal probation.  This means that they can return to Court once probation has ended, ask the judge to withdraw the plea and have the case dismissed.

At the end of the day the disposition can often be written off as youthful indiscretion and will not be given any significant weight if the person has otherwise lead a law abiding life.

Monday, September 15, 2014

Dealing With Emergency Response Costs For a DUI Arrest

Many people get bills from the arresting agency after their arrest for DUI and the question becomes, do you have to pay it?  The answer requires one to look at the specific facts involved in their individual case.  The answer is yes if two elements are met 1.  The person must in fact be guilty of driving under the influence, and 2.  There must be a "response" to a DUI related emergency.  In short the government must prove these two acts before the requirement to pay becomes legal.

Assuming the conditions are met, what are legitimate costs?   First, California law does allow police agencies to recover costs associated with an "emergency response" to a DUI related incident.  Courts have given broad meaning as to what constitutes a recoverable cost, for example, one recent case found that,   An “appropriate emergency response” to an incident includes the cost of providing police services at the scene, including, among other possible items, salary costs related to ensuring public safety at the scene of the incident, obtaining appropriate medical assistance, removing vehicles, investigating the cause of the incident, conducting field sobriety tests, and if appropriate arresting and detaining the subject.

Reimbursement may also be obtained for time spent away from the scene by responding public agency personnel, provided the response is reasonable and arises from the incident.   Thus, for example, salary costs may be recovered for time spent traveling to and from the scene, transporting the subject from the scene, booking the subject, performing chemical tests, writing customarily required reports (including all accident and DUI-related reports that must be completed as a consequence of the incident), and performing follow-up investigation necessary to complete the reports.   The case is Allende vs. CHP.

But what about costs associated with a simple stop for a non-accident, say where the driver was pulled over for not using a turn signal and that evolved into an arrest.  In this instance, the law may not allow the city to get reimbursed for the officers time.  Bottom line, if an accident occurs where there is a collision with some other vehicle or object and the police are dispatched out, you may be on the hook for payment.  This does not mean that you cannot negotiate with the agency for settlement.  I advise people to send a letter responding to the request, disputing payment of the amount first.  Then, state that you are offering a reduced amount as an accord and satisfaction of the disputed debt.  Write "payment in full" on the check and send it along with the letter.  Write "please see attached letter" somewhere on the check.  A good target for compromise may be 50 percent of the requested amount but you are free to negotiate whatever amount you wish.

One final thing.  In the event you do nothing they may pursue the claim in civil court, it has no bearing on the criminal case and you cannot be arrested for non-payment.  However, they may refer the case to collection and hound you for payment.

Thursday, September 11, 2014

Got GERD? A Blood Test May Be The Better Choice If Arrested For DUI

In California breath testing is a choice you have if you are arrested for DUI, but what you do not know about how the machine and people with certain medical conditions can hurt you.  You see, most breath testing devices are prone to false positives when the subject has an ailment known as gastro esophageal  reflux disorder or GERD for short.  The condition causes stomach contents to ruminate up into the airway and dissipate through the mouth, when a person is administered a breath test any remnants of alcohol in the stomach can flow up through the air pipe, and enter the machine, mixing with alcohol already in the blood coming from the lungs and exaggerating the blood alcohol concentration of the subject.

The basis of the GERD defense in DUI cases is that the subject is leaking alcohol from the stomach up into the airway where it will be analyzed by the breath  machine and report a false high BAC concentration.  As such, it is imperative that the individual actually have raw alcohol in their stomach which necessarily implies recent drinking.  In short, if the subject stopped drinking alcohol more than 5 hours before the test, there will be no issue.  In addition, criminal prosecutors will argue that the machine will detect this condition and void the test.  This is simply wrong.

The scientific community has addressed this issue with mixed opinions about the affect, if any, it has on ethanol concentrations for DUI suspects.  One study coming out of Australia concluded the medical condition renders anyone with GERD as not a good candidate for breath tests and should be offered blood instead.  The Wells and Farrar study was overshadowed in recent years by a study conducted by A.W. Jones who asserted that GERD was a non issue in breath testing within the context of drunk driving and as long as the safeguards inherent in the regulatory schemes are followed, such as a deprivation period, observation by the arresting officer, etc.  then a person with gastric reflux is ok to give breath.

Many in the legal and scientific community disagree with these conclusions and urge the state to do more testing and add additional steps to the breath testing process such as inquiry into whether the suspect has the condition which would allow them to choose blood where appropriate.  Whatever the law chooses to do about the issue, it remains clear that enough doubt does exist to cause concern about whether a GERD patient is truly getting a fair shake in the criminal justice system.

Saturday, September 6, 2014

Is Miranda Still Alive In DUI Cases?

California has slowly whittled away at the requirement that cops read a suspect his Miranda warnings in DUI cases.  This week, the Cal Supreme Court shed more light on when rights are required in a criminal case.  The case is People vs. Tom and here are the facts and decision:

Tom was speeding down a street and broadsided another car that was making a left turn in front of him. One person in the other car was killed and two others were severely injured. He was arrested after several officers smelled alcohol on his breath. At trial in its case-in-chief, the prosecution relied on evidence that Tom failed to inquire about the welfare of the occupants of the other car after the accident as evidence of his guilt. Tom was convicted of gross vehicular manslaughter and an allegation that he inflicted great bodily injury was found true. The Court of Appeal reversed the conviction, finding that the use of Tom's postarrest, pre-Miranda silence violated his Fifth Amendment rights. The prosecution's petition for review was granted. Held: Reversed. The issue of whether the Fifth Amendment bars the government from offering evidence in its case-in-chief of a defendant's postarrest, pre-Miranda silence in the absence of custodial interrogation has not been decided by the California Supreme Court or the United States Supreme Court, and there is a split of authority on the issue in the federal circuits and among other state courts. The court declined to decide the issue in this case. After discussing the holdings in a number of cases, the court held that a defendant who wishes to bar use of postarrest, pre-Miranda silence that occurs in the absence of custodial interrogation must clearly and timely invoke the Fifth Amendment privilege; it is not self-executing. The threshold inquiry is "whether a reasonable police officer in the circumstances would understand that the defendant had invoked the privilege either at or prior to the silence at issue." The exception to the objective invocation rule that applies when a suspect is subjected to custodial interrogation without Miranda warnings does not apply when a suspect is merely arrested, but not interrogated. The case was remanded to allow the Court of Appeal to determine whether Tom clearly invoked his Fifth Amendment privilege and, whether pre-Miranda silence was admissible under the Evidence Code.  (CCAP)

Tuesday, September 2, 2014

Your Options After An Adverse DMV Hearing Decision

California has some of the toughest laws in the nation for DUI and drunk driving related offenses and the consequences with regard to a drivers license are equally harsh.  The state does however allow an accused driver to request a full hearing in order to challenge the loss of a driving privilege.  These proceedings are referred to as an APS hearing (Administrative Per Se)

 At the hearing the licensee can present evidence to rebut the 3 main issues at the heart of any excessive BAC action: 1.  Was the person lawfully arrested  2.  Did the officer have reasonable cause to believe he or she was under the influence while behind the wheel.  3.  Did the driver have a blood alcohol level of .08 or higher while the vehicle was moving?

The licensee or lawyer can indeed offer evidence to show the ethanol level was incorrect or that the officer violated the rights of the suspect's fourth amendment rights such as an illegal search or traffic stop/detention.  If the respondent does manage to overcome the presumption of a suspension then the DMV must vacate or set aside the suspension pending against him.  According to Bruce Blythe, a Bakersfield DUI Lawyer , the chances of prevailing at such a tribunal are less than one in one hundred if there is no attorney.  With a legal advocate, the chances increase dramatically.  In fact, one recent report released by the state proclaimed that winning an APS hearing in pro per is about as likely as winning the lottery.

As is the case with many of these proceedings, the hearing officer will sustain the action, making positive findings on the three issues discussed previously.  When that occurs the driver has multiple options which we will discuss at length.  There are essentially 3 options available:
  1. The licensee can accept the ruling that was rendered and apply for a restricted license thereby allowing the individual to drive to and from work and during the course and scope of employment.  This option permits the person to move on with their life and end the stress and anxiety the process has caused them.
  2. Appeal the decision internally through the DMV administrative review process.  This option requires the driver to pay a fee to the Department of Motor Vehicles and file paperwork contesting the decision.  This procedure is handled by a separate division of the DMV and takes anywhere from 2 to 6 weeks.  It is helpful if a detailed points and authorities is also filed, laying out the error that is alleged and proposing a legal remedy.
  3. Appeal the finding in the Superior Court of California.  This process is referred to as "filing a writ"  and in essence is a lawsuit filed against the government for abuse of discretion.  A writ requires paying a filing fee with the Court and almost always requires the assistance of a lawyer due to the complex number of rules.  Many lawyers assert that this is sometimes a very risky alternative because if the writ is denied the defendant can be on the hook for the State's attorneys fees and costs which can be substantial.  This option is also very time consuming and can often take several months to get a decision while the suspension stays in effect.

At the end of the day, choosing which rote to take will be easier with the counsel of an experienced lawyer who can guide and advise the person of the pros and cons in any particular case.

Sunday, August 31, 2014

Long Beach Expected To Ramp Up DUI Checkpoints This Labor Day

Law enforcement agencies in Long Beach announced their intent to increase the number of sobriety checkpoints over the holiday weekend according to officials.  The city has always taken an active approach in curbing drunk driving through aggressive enforcement of drunk driving laws within its municipal boundaries.

The city is part of the avoid the 100 campaign that enlists the services of over one hundred police departments to encourage officers on patrol to keep a careful lookout for impaired drivers.  According to NHTSA, more people are killed by inebriated drivers than any other cause.  The police will seek to use this final holiday of the summer to deter partygoers from drinking and then driving.

The area has always had the most targeted enforcement of DWI motorists, says one Long Beach DUI Lawyer.  The officers that participate in this campaign will receive special training in spotting the signs of tipsy drivers such as weaving, lane straddling and other vehicle code infractions that are notorious signs of impaired drivers.  The limit for alcohol in California is .08 and that level will be checked by anyone suspected of driving under the influence.

We can also expect to see an increased number of people filling up the jails in Long Beach and that will carry over into a higher number of Court filings for Vehicle Code 23152, according to the attorney.  The punishment for a first offense DUI is up to 6 months in jail, a fine of upwards of  $2000 and completion of an alcohol education program.  In addition to the penalties in criminal court, the DMV can take a drivers license for up to one year and require the installation of an ignition interlock device on any car they drive.

Saturday, August 30, 2014

Torrance Attorney, Matthew Ruff Presented With Coveted "Client Distinction Award" For Second Year In A Row

The nation's largest attorney rating site AVVO, has again awarded Torrance DUI Attorney Matthew Ruff with its annual client distinction award based on the number of positive client reviews and favorable feedback regarding his representation of their case.  The award is based on a number of criteria such as knowledge of the law, communication ability, how well the attorney kept his clients informed and level of experience.

Thursday, August 28, 2014

The Miranda Rule Not Applicable When Questioning Is Minimal

There are a litany of cases interpreting the application of the Miranda rule in criminal cases.  For example, in DUI cases the courts have ruled that questioning about intoxication prior to conducting field sobriety tests does not trigger the advisement of rights required by Miranda.  In this recent case the appeals court extends that logic to cases where the questioning is limited to two questions of a handcuffed suspect.

The facts are as follows : Castillo and two others were handcuffed prior to the execution of a search warrant. One officer informed Castillo and the others that they were not under arrest, that they were being detained for the purpose of serving a search warrant, and asked who was responsible for the residence so the warrant could be served. After Castillo responded that he was responsible for the apartment, the officer asked if Castillo was responsible for all the property in the residence and Castillo said yes. The search was conducted, contraband was found, and Castillo was arrested. On appeal, Castillo contended that the officer's questions were intended to elicit incriminating statements and should have been suppressed because they were asked prior to Miranda warnings. Under the totality of the circumstances, Castillo was not in custody for purposes of Miranda. When police execute a search warrant on a residence, they may detain the occupants to prevent flight, minimize the risk of harm to the officers, facilitate orderly completion of the search, and determine the relationship of an individual to the premises. 

The justices opined that It is not unreasonable to detain an occupant in handcuffs for the duration of the search of the residence. Based on well established case law, the police properly detained Castillo during the search and he was not in custody when the officer questioned him. The trial court's finding that Castillo was not interrogated was supported by the evidence. Any error was harmless because other evidence found during the search established Castillo's dominion and control over the residence. 

These scenarios play out quite regularly when the police investigate criminal activity.  Many legal scholars have criticized how far Courts have gone to distiguish cases where Miranda does not apply.  One Long Beach Criminal Attorney comments that the police are given way too much freedom to interrogate suspects without advising them of their legal rights.  Notwithstanding that sentiment, the law will contiually be interpreted based on the changing times.

Tuesday, August 26, 2014

Federal Court Upholds Detention Citing Recent DUI Case

In United States v. Edwards the federal court for the ninth circuit has upheld a criminal case citing the recent DUI decision of Navarette.   In the opinion, the Justices ruled that a 911 caller provided officers reasonable suspicion to stop defendant; the stop did not become an arrest when officers drew guns on defendant and handcuffed him.

Here are the relevant facts.   Police received a 911 call from an unidentified man reporting that a "young black male" was shooting at passing cars, including the caller's. Officers responded to the area and stopped defendant and another man. Defendant was searched and a gun was found. After his motion to suppress was denied, he pled guilty to being a felon in possession of a gun. He appealed the conviction arguing that his fourth amendment rights were violated by the police and, although this was not a dui case, the court followed the reasoning of a US Supreme Court drunk driving decision in ruling against the defendant. 

The appeals court upheld the conviction.  Saying : "The totality of the circumstances determines whether and when an investigatory stop becomes an arrest." Two components of the detention are examined: (1) the intrusiveness of the stop (i.e., how aggressive were the officers; how much was defendant's liberty restricted), which is considered from the perspective of the person stopped; and (2) the justification for the officers' actions, which is determined from the officers' perspective. Here, the officers actions were intrusive—they drew their guns, forced the defendant to kneel, and handcuffed him. But this does not automatically convert an investigatory stop into an arrest that requires probable cause. The officers' conduct was reasonable because defendant was the only person in the vicinity of the shooter's reported location who fairly matched the 911 caller's description and the 911 caller provided specific facts regarding the shooter's clothing, height, and age. The officers had reason to believe defendant could be armed and dangerous, having possibly just committed a violent crime. Their concern for their safety justified the tactics they used to stabilize the situation before investigating further. 

According to Bakersfield DUI Attorney Bruce Blythe, this case is one of a stream of decisions that curtails the liberty we all enjoy on the roads of america.  The decision seems to follow the same reasoning in allowing law enforcement to stop citizens on nothing more than an anonymous tip that a crime is occurring and that is indeed troubling to many criminal lawyers who see a slippery slope if this case is followed says Blythe.

The landmark case on anonymous stops, California v. Navarette, decided earlier in the year continues to have deep and wide spreading impact on the way traffic stops are conducted.  Indeed, the Court held that brief investigatory stops are permissible when officers have a particularized and objective basis to suspect a person of criminal activity. When evaluating investigatory stops resulting from telephone tips it must be determined whether the tips "exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." In Navarette v. California (2014) 134 S.Ct. 1683, the Court held an anonymous call provided reasonable suspicion for a stop of a suspected DUI driver because: (1) the caller claimed to be an eyewitness to dangerous activity; (2) the caller reported the event soon after it occurred; (3) the caller used the 911 system, which can be traced to origin, guarding against false reports; and (4) the caller created reasonable suspicion of an ongoing and dangerous crime—drunk driving. Similar to Navarette, here the caller used the 911 system, gave specific details regarding the shooter, had eyewitness knowledge of the shooting, and reported an ongoing emergency situation. This provided officers with reasonable suspicion to stop defendant. 

Although the case is not binding on California, its reasoning and logic can have persuasive power on judges in similar cases. Special thanks to CCAP for its analysis.

Sunday, July 27, 2014

Why Is the Judge Telling Me About Deportation For A DUI When I Am A Citizen

In California, the Judge is required to tell anyone in a criminal case the consequences of a plea of guilty.  Among these consequences re those pertaining to immigration.   The Court cannot ask a defendant if they are here legally or what their status is.  The Judge must inform everyone as follows:

 If you are not a citizen of the United States, you should assume that your plea of [guilty/no contest] will result in your deportation from the United States, exclusion from admission to the United States, or denial of naturalization as a United States citizen. Do you understand that?
It is highly recomended that The court should give the Pen C §1016.5 advisement to all defendants because the court may not inquire into a defendant’s legal status. See Pen C §1016.5(d); People v Aguilera (1984) 162 CA3d 128, 133, 208 CR 418. 

Sunday, July 20, 2014

The Problem of Passive Inhalation of Marijuana

In California it is now legal to ingest marijuana if you have a medical condition warranting its use.  Many folks are using pot in social settings, restaurants, clubs, bars, etc.  Is it possible to be near someone smoking pot and have it enter your system through second hand smoke?  Some say yes and it could show up in a urine test that police take in DUI cases.

The amount of THC which the passive inhaler might absorb depends on several factors.  Not only the size of the room where the marijuana is smoked important but o is the number of joints smoked and the hours exposed to that smoke.  It is possible that a person exposed to passive inhalation in a room with 4 cigarettes smoked could result in that person showing positive for marijuana in a DUI urine test.

In one study, scientists revealed that volunteers subjected to marijuana smoke in a room could show positive results on a test for THC.  The experts all agree mor studies need to be done to see if this is a problem in common everyday scenarios where innocent people could be wrongfully accused of smoking pot when they have not done so.   The consequences could be dire, not only for those charged with DWI in a criminal context but also within the realm of employee drug tests and the like.

Monday, July 14, 2014

Torrance DUI Schools

Torrance has the unique distinction of having more than one choice for dui classes.  If you were convicted of a DUI in California you must attend an approved DUI program that is licensed by the state and county.  How do you find a DUI school in your area?  What is the right class in order to get your license back? There are three basic types of DUI classes that are available and which one you must attend depends on the kind of case you were charged with.  First is the SB 1176 program which is 12 hours long and is required if you were convicted in Court of a wet reckless.  Second is the AB762 which is six months in duration and is generally required for first time drunk driving offenders whose blood alcohol level is above a .15 BAC.  Third is the AB541 and it is the standard program for conviction of a VC23152 a or b offense first time offender.  The first offender ab541 program is composed of 10 group meetings, 3 individual sessions or interviews, one in the beginning of the class, one in the middle and the last one in the end.  Also, the course requires 6 AA meetings to complete the state guidelines.

Lastly, is the 9 month program required for anyone with a BAC above .20, this program is called the AB1353 class.  Essentially, it is the same as the ab541 just more of it, more aa meetings, more group sessions and more one on one interviews with a counselor.

For anyone convicted of a multiple offense DUI, say a second, third or fourth offense or greater, there is the SB38 program, an 18 month DUI school that is very comprehensive in nature.

Torrance DUI classes are accepted by the Courts and the DMV for purposes of reinstatement of  driving privileges.  California does require that anyone convicted of driving under the influence enroll in and complete an approved education program or risk losing their license until the class is finished.

There are two DUI schools located in Torrance that handle DWI programs:

Driver Benefits, Inc.
Santa Fe Business Park
2370 West Carson Street, Suite 150
Torrance, CA 90501
310-320-9550 (direct)
310-320-9448 (fax)

High Gain Program NCADD Of The South Bay
1334 Post Avenue
Torrance, CA 90501
Phone: (310) 328-1587
Fax: (310) 328-1964

Monday, July 7, 2014

California Court Rules Hit and Run Driver Not Responsible For Restitution

California has some of the toughest laws on hit and run and DUI, for example in Torrance a conviction may land you in Jail for a long spell.  With that being said, occasionally the Court comes down with a decision that makes sense when viewed from a legal standpoint.

In this case, the defendant pled guilty to leaving the scene of an accident , commonly referred to as hit and run, and admitted a probation violation in return for a three-year sentence with a concurrent term for the probation violation. The plea was based on evidence that defendant fled after the 12-year-old victim, who was riding on a scooter, collided with his vehicle in the street. The court sentenced the scofflaw  to the three-year term. After a hearing, the court ordered victim restitution of $425,654.63, yes that is correct nearly a half million daollars, following People v. Rubics (2006) 136 Cal.App.4th 452, which held that a defendant fleeing the scene of an accident can be ordered to pay restitution for costs incurred by the victim as a result of a collision.

However, On appeal, the defendant named Martinez claimed the court abused its discretion by imposing restitution for injuries sustained by the victim because he did not plead to any criminal offense regarding the collision that caused those injuries, and there was no factual determination made that he was responsible for the accident. The Court threw out the restitution.. When a defendant is sentenced to prison for a hit-and-run offense, restitution is proper only to the extent that the victim's injuries are caused or exacerbated by the offender's flight from the scene. There was no evidence here that Martinez's flight caused or exacerbated the victim's injuries. Rubics is factually distinguishable from this case, and to the extent that it is not, the court disagreed with its holding. Although Martinez executed a Harvey waiver, there were no other charges in the felony complaint that incorporated any type of criminal culpability for the collision. On remand, the prosecutor may prove that the victim's injuries were exacerbated by Martinez's flight. (CCAP)

This case, though not per se a DUI case, has many angry.

Sunday, May 25, 2014

Veteran CHP Officer Charged With Felony DUI

A California Highway Patrol officer charged with felony DUI stemming from a January four-car wreck while she was off duty pleaded not guilty today in Shasta County Superior Court.
Redding criminal defense attorney John Kucera entered the not guilty plea on behalf of his client, Doreen Bernice Shaw, 42, of Redding, as she stood next to him.
Shaw, who remains free of jail custody while on her own recognizance, is scheduled to have her preliminary hearing on April 12.
A 17-year CHP veteran, Shaw is charged with felony DUI with injury, a misdemeanor count of resisting or obstructing officers and a series of enhancements.
Shaw was not hurt in the Jan. 14 chain-reaction crash on South Bonnyview Avenue, but five others suffered minor injuries.
It was originally alleged in the criminal complaint that Shaw had a blood alcohol level of at least 0.20 percent, but Kucera said the complaint, which has been amended, now claims that her blood alcohol level ranged from 0.13 percent to 0.16 percent. The legal driving limit is 0.08 percent.
A Redding police report said Shaw, who reportedly admitted she was too drunk to drive, was belligerent, combative and screamed profanities at officers following the wreck. She also allegedly tried to walk away from officers after she was handcuffed and kneed RPD Officer Tyler Lanham in his left thigh before she was forcibly placed in the back of a patrol car, the police report said.

Friday, May 23, 2014

California Court Limits Scope Of Medical Marijuana Laws

With the passage of the marijuana compassionate use laws several years ago there has been a plethora of legal cases defining how far reaching the statute applies to criminal and DUI marijuana offenses, this cases limits the ability of growers and distributors inasmuch as the person cannot simply cultivate and thereafter sell limitless amount of pot with legal immunity.

In People vs. Mitchell, The defendant formed a non-profit corporation to cultivate marijuana and projected being paid as much as 60k annually for the marijuana. He then entered into two contracts to grow marijuana every month and sell it to a for-profit corporation, the K.I.M. Collective, that operated a medical marijuana collective of which he was personally a member. Police discovered his extensive marijuana growing facility and he was convicted of marijuana cultivation (Health & Saf. Code, § 11358). On appeal, he contended that he was entitled to the protections of Health and Safety Code section 11362.775 of the MMPA. Held: Affirmed. Section 11362.775 provides that specified persons "who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject" to certain criminal sanctions, including section 11358. However, no individual or group may cultivate medical marijuana for profit. 

In this case, the defendant was not convicted solely because of his collective or cooperative marijuana cultivation. He admitted that he intended to gain tens of thousands of dollars from his cultivation operation, expected to live off the income, and expected to be compensated for his expenses. He entered into contracts to provide marijuana to a for-profit corporation and his own corporation had no relationship with the K.I.M. Collective other than as a supplier of marijuana. Additionally, the other principal defenses available under the medical marijuana laws do not apply to the accused because the amount of marijuana he possessed exceeded the amount reasonably necessary for appellant's personal use, there was no evidence he was a primary caregiver, and the defense related to compensation for actual expenses does not apply to violations of section 11358. Thanks to (CCAP)

Sunday, May 4, 2014

Torrance DUI Attorney Matthew Ruff: Weekly Case Review

The issue of what constitutes a violation of the right of confrontation in both DUI and criminal cases has been a hot topic in the last few years.  The US Supreme Court has handed down no less than 2 major cases on the issue in the last few years and the California Courts are nearly tripling that number.  At its core, the right guarantees us all from a witness testifying against us without then in Court with the ability to cross examine them.  This recent case examines that right within the context of a drug and gang case.

In People v. Archuleta, A jury convicted the accused of possession of methamphetamine and active gang participation. Police officers received information that a homicide suspect could be found at appellant's residence. At the residence, they found appellant and another suspect in the garage, each holding suspected methamphetamine. (They did not find the homicide suspect.) At trial, the prosecution's gang expert, a sheriff's deputy, testified that appellant was a high-ranking member of and active participant in the East Side Victoria (ESV) criminal street gang. He based his opinion in part on the testimonial hearsay statement of another gang member, Perez. The court considered whether the expert's testimony violated appellant's Sixth Amendment right to confrontation and concluded that federal cases provide the proper standard. Experts may rely on testimonial hearsay in forming their opinions but may not simply parrot the content of such hearsay to the jury on direct examination unless the declarant is unavailable or the defendant had a prior opportunity for cross-examination. 

The Justices opined that the question is whether the expert is giving an independent judgment or merely acting as a transmitter of testimonial hearsay. The court found that admission of Perez's out-of-court statement that appellant directed an uncharged robbery of a drug dealer by ESV gang members, as the basis for the expert's opinion, violated appellant's Sixth Amendment rights. The statement essentially was offered for its truth and it was not shown that Perez was unavailable or that appellant had a prior opportunity to cross-examine him. However, the error was deemed harmless because the verdicts on the possession and gang participation charges were unattributable to the statement. 

What this effectively means is that although the Court found the evidence inadmissible, they still believed that there was enough evidence to uphold the conviction.  This case sheds additional light on this crucial right.  There are other cases within the DUI context that disallow an expert to testify about blood tests without being present in Court and available for cross examnation.

Saturday, May 3, 2014

DNA alone not enough to convict for a crime in California

The science in criminal and DUI cases has risen to a level of CSI proportions.  Courts have been very lenient in allowing people to be convicted based on scant scientific evidence.  Here, the courts draw the line.  The defendant herein was convicted of several crimes based solely on his DNA.  Here are the facts:  The owner of a nail salon discovered a window in the front door of his business had been broken and the store burglarized. Investigating officers swabbed for DNA evidence at the crime scene. One item tested was a palm-sized rock found inside the business. DNA from the rock was matched to appellant, who was convicted of second degree burglary. On appeal he challenged the sufficiency of the evidence. 
The appeals court threw the case out and reversed the conviction, exonerating the accused.   No evidence other than appellant's DNA on the rock tied appellant to the crime. The court noted this is "a case where the only evidence inculpating the defendant to the crime is the defendant's DNA." Relying on fingerprint-only cases, the Court of Appeal stated the issue is whether a trier of fact could reasonably conclude that "contact with an object could not have occurred other than in connection with the crime." The evidence in the trial court showed the rock was located inside the business underneath one of the nail stations, and contained appellant's DNA. There was no evidence regarding the origin of the rock and the evidence regarding its relationship to the crime was weak. The DNA expert could not say how long the DNA had been on the rock. Without evidence showing when and where appellant came in contact with the rock, the factfinder could not rely on the rock alone to convict him.  (CCAP).

Tuesday, April 15, 2014

California Appeals Court Upholds Red Light Camera Case

There has been a litany of cases recently by attorneys seeking to overturn the red light camera ticket laws in California.  From whether the evidence is admissible on hearsay grounds to the issue of the right to cross examine, the courts have painstakingly hashed through the legal morass to give some guidance in the area.  This case deals with yet another issue pertaining to these violations.

Vehicle Code section 21453, subdivision (a) allows a city to install automated traffic enforcement systems at intersections that will photograph a driver who fails to comply with the traffic signal. Section 21455.5, subdivision (b) requires the city to make a public announcement of the system at least 30 days prior to the commencement of the enforcement program, and to only issue warnings to violators for the first 30 days. In June 2006, Culver City installed a system at an intersection without complying with the public announcement or 30-day warning period. Two years later, the system photographed appellant as he drove through a red light, and a citation was issued. Applying rules of statutory construction, the court agreed with appellant's argument that the word "system" in section 21455.5 refers to the camera at a particular intersection rather than the entire city-wide red light camera enforcement program. Thus, for each new camera installed at an intersection, there must be compliance with the public announcement and 30-day warning period. However, these requirements are for the benefit of those violators within the initial 30 days after the system is activated and are not a jurisdictional prerequisite to enforcement of the red light traffic law. Thus, appellant's conviction for a red light violation two years after the system was installed was valid. (CCAP).

Matthew Ruff is a Culver City DUI Attorney with nearly 20 years experience in criminal defense.  His articles address the ever changing world of criminal law in the state.

Sunday, March 30, 2014

California Court Clarifies Driving While Texting Law

Recently, the California lawmakers made it illegal to text and drive.  Many DUI drivers violate this statute.  The law was instantly applauded by safety groups as innovative and necessary in the age of technology .  But what about those drivers that use their devices for looking at maps?  The law seemed to apply to those drivers, not so says a Central Valley appellate court.  In this case a CHP officer cited The driver for prohibited use of a wireless telephone while driving after the officer saw him check a traffic map on his phone. (Veh. Code, § 23123, subd. (a).) driver claimed he was not "using" the phone within the meaning of the statute. 

The defendant appealed the ruling by the trial judge and the appeals court overturned the conviction. Section 23123, subdivision (a) prohibits a driver from using a wireless telephone unless it is configured for hands-free "listening and talking" and is used in that manner while driving. Based on the wording of the statute, it does not require that the phone be used in a manner that allows for "hands-free looking," or "hands-free operation." The legislative history of the law reflects it was focused on prohibiting a driver from holding a wireless telephone while conversing on it. This interpretation is supported by subsequent laws, such as section Vehicle Code 23123.5, which prohibit texting while driving, as they would not have been necessary if section 23123 applied to all non-hands-free "uses" of wireless telephones while driving. (Thanks to CCAP).

This statute will likely be used often in the context of DUI enforcement.  Indeed, in one recent case,  Torrance DUI Attorney Matthew Ruff represented a motorist that was pulled over for this reason, we took the case to trial and the driver was acquitted.  Time will tell how police apply the law to those seen staring at there phone while driving.

Saturday, March 8, 2014

DMV Appeal For DUI Suspension

The law in California allows a person to appeal an adverse DMV decision for APS hearings.  The technical name for the appeal is called a departmental review.  Thousands of hearings are conducted every month throughout the state for driving above a .08 or refusal to submit to a chemical test such as blood of breath.  The consensus among attorneys handling these types of cases is that the odds are generally against the licensee.  With that being said, there are instances when the DMV takes away someone's driving privilege without a sufficient legal basis and it is in these cases when an appeal is appropriate.

The framework of an administrative hearing, commonly referred to as an APS, is quite complex and not easy to understand from the lay men's perspective.  For starters, the same person that is assigned to be the judge is also appointed as the prosecutor and jury, for lack of a better word.  This inherent conflict gives rise to many bad decisions that are influenced by a lack of objectivity.  Many would argue that the system needs to be revamped to allow a neutral fact finder to oversee the proceedings, but these attempts have all been shot down by the Department.

So, back to the topic of an administrative appeal.  First, the review itself must be requested within 14 days of the final decision by the hearing officer.  Failure to comply with this time deadline is fatal to the appeal.  Second, the cost to file an appeal of a APS decision is $120.  This fee is non refundable even if the appeal goes in the drivers favor.  Once the review is filed it often takes several weeks to complete.  The file is sent to Sacramento along with a copy of the tape recorded hearing.

Any administrative reviews are denied, the DMV will not allow for new evidence or witnesses to be presented.  The evidence that was submitted at the hearing is what is considered, period.  For hearings held in El Segundo California, the process usually takes a couple weeks and the drivers license suspension will not be stayed pending the review .

I hope this article is helpful to those considering filing a appeal for a license suspension for DUI, driving with a .08 or higher and refusal cases.

Saturday, February 1, 2014

California Courts Rule A Motor Home Is Not A House For Arson Crime

Many decisions have come down in the Torrance Court concluding that a motor home is the same as a house for many purposes, such as whether the police are required to obtain a search warrant prior to entry, for example.  In this recent case, the California appeals court went the other way.  Though this case has little to do with DUI, the principles set forth are interesting and could come into play within the context of drunk driving cases involving motor homes.

Here are the facts: Following an argument with his girlfriend, defendant used a vehicle to push an inoperable motor home next to the one in which he was living and in which his girlfriend was sleeping. He then set fire to it. The girlfriend escaped, but the fire spread to the home in which she had been sleeping, destroying both. A jury found defendant guilty of arson of an inhabited structure in violation of Penal Code section 451, subdivision (b) and was sentenced to 25 years to life under "Three Strikes." 

I his appeal, the defendant contended that the evidence was insufficient to show that the motor home in which he and girlfriend were then living was a "structure." The appellate court agreed and reversed. The motor home at issue is not a structure as that term is defined in the arson statutes. The court also held that because the only other crime on which the trial court instructed was arson of property, which is not a lesser included offense, the court could not exercise its authority under section 1181, subdivision 6, to reduce the conviction to that offense. Further, remand and a subsequent trial would constitute a new prosecution of the defendant based on the same evidence to prosecute the original charge, and is therefore prohibited. The District Attorney failed to prove its case against the accused offender, and the only option is reversal with instructions to the trial court to dismiss the charges. (Courtesy CCAP)

The DA now has a decision to make.  He can dismiss the charge and close the case.  He can proceed on a different theory of a crime or strike a deal for a lesses offense.