Sunday, November 26, 2017

I Received A Letter From California Board Of Nursing About My DUI, What Do I Do?

What should you do as a nurse arrested for DUI

California has some of the toughest laws that allow the state to take away a professional license if you are convicted of DUI.  Matthew Ruff has been fighting for nurses to prevent a DUI conviction and subsequent disciplinary action from the Board Of Nursing.

If you have been arrested for DUI in California and have a nursing license chances are the License Board will be notified of the arrest.  By law when a person holding a professional license is arrested the licensing agency is automatically notified at which time an investigation will commence.  The Board of Nursing will contact you for information about the law enforcement contact, it is always in your best interest to cooperate.

Regulations pertaining to the licensing of nurses in the state of California impose sanctions for a failure of the license to cooperate in a Board Investigation.  For example, California Code Of Regulations Sections 2504.1 and 2518.8(c) provides that licensees are required to provide the Board lawfully required documents and cooperate in any investigations or risk disciplinary action.

The California Board Of Nursing can take action against an RN, LVN or nursing assistant if they have engaged in conduct relating to their duties.  In DUI cases the state will want to see if the person is abusing drugs or alcohol to the extent that it affects their ability to care for their patients.

You may receive a letter requesting information about the incident.  What should you do.  Cooperate.  You are required by law to respond.  You should email, fax or mail a response with 30 days.  If you ignore the letter the Nursing Board will presume you have something bigger to hide and will react more aggressively than if you simply respond and acknowledge the arrest, while at the same time asserting you have not been found guilty or adjudicated by any Court.  At the end of the day an arrest is simply an accusation and in this country you are presumed innocent until the contrary is proven in a Court of law.

Here is a sample letter of the information you should provide:

(Your name, address and phone number)

California Board of Nursing

Case No.

To Whom it may concern,

I was arrested on (give the date)  by the (give the law enforcement agency, CHP, Los Angeles Sheriff, etc).  I was given a Court date of ( provide the date).  I have hired an attorney Matthew Ruff to represent me.  His number is 310-527-4100.

At this time I am informed no official charges have been filed against me.  I intend to cooperate fully with your investigation.

Should you require any additional information feel free to contact me.

(Sign your name here)

DUI Attorney For Airline Pilot

If you were arrested for DUI in California and you fly for a living Matthew a Ruff can help.  For 25 years he has been defending clients charged with driving under the influence, many of whom were pilots who faced the loss of their pilot license by the FAA.

A drunk driving arrest will be treated differently depending on what you do for a living.  If you are a commercial pilot a DUI can be devastating if not handled properly.  The FAA dictates the rules for pilots and what they do outside of work can also be considered.  If you fly for a living your company may also take action against you.  Here is what you need to know right now:

First, an arrest for driving under the influence is just an allegation.  Until there is some adjudication of guilt by a Court or governmental agency it remains an accusation only and you have rights.

What about Mandatory reporting requirements?  Yes, there are specific requirements to report a DUI conviction or administrative license suspension to the FAA.  Specifically, under 14 CFR 61.15 all pilots are obligated to report the incident to the FAA.  However, that only applies if you are convicted or your drivers license is actually suspended.  If you hire an attorney within 10 calendar days of the arrest an actual suspension of your drivers license can be avoided pending a hearing on the issue.

The first thing to do is hire a professional to assist you.  A DUI arrest for a pilot is not the type of thing you can handle DIY.  Find a lawyer local to the area where you were arrested.  The attorney should be well versed in the consequences a conviction will have on the pilots license and his job.  Immediate action must be taken to avoid a mandatory suspension of the drivers license on an administrative level as a suspension from the DMV may trigger a mandatory duty to report the incident to the FAA.

Attorney Matthew Ruff has represented many pilots for DWI and alcohol related offenses in the last 20 years with remarkable success.  Here are two recent examples of cases where Matt achieved phenomenal results.

Case example 1:  Matthew was retained by a pilot living in the South Bay after he was arrested in Redondo Beach for DUI.  He was caught up in a sobriety checkpoint and was arrested after the officers detected an door of alcohol on his breath, poor performance on FST's and slurred speech.  He took a breath test that reported his BAC to be .10 percent, .03 higher than the legal limit in California of .08 or more.  Matt immediately contacted El Segundo DMV Driver Safety for a hearing and demanded a stay of the suspension of his driving privileges.  He obtained the reports and evidence and carefully scrutinised them for evidentiary issues.  He was able to uncover problems with the test and worked with his toxicologist to build a Defense.  He used that strategy to negotiate a dismissal of the DUI charges in Torrance Court and subsequently obtained a set aside of the administrative suspension of his license.

Case example 2:  A commercial pilot was arrested in Long Beach for public intoxication after he was contacted by police leaving a bar on Pine.  He spent the night in jail and was released with a Court date.  He hired Matthew who immediately understood the consequences this would have on the client's job and FAA licensing.  Matt reached out to the local prosecutor and ultimately all charges were dropped prior to any Court date.  This resulted to no arrest record that could hurt the client's employment or pilots license.

If you are a pilot facing a criminal offense in California, Los Angeles, Redondo Beach, Torrance, Manhattan Beach or anywhere else, contact Matthew at 310-527-4100 for immediate help and advice on what to do.

Thursday, November 9, 2017

Matthew Ruff, Top Rated Attorney

Matthew Ruff is a Top Rated attorney with over 20 years experience.  All of the Internet rating services have given a Matthew the highest award, based largely on his experience and client feedback.  Read all of Attorney Matthew Ruff reviews.  Here is one example of a recent review posted by an actual client (edited to protect identity)

".....thanks again for your assistance.  I have read horror stories about the [first attorney I almost hired] and I am 100 percent certain I would have had a different outcome if I had retained his services.  I am quite pleased with this outcome.    I am going to remember you for quite some time and if any LA based pilots or those passing through have any legal issues and I become aware of it, I am going to insist they contact you and  retain your services.  I am carrying your contact info in my wallet.  It is hard to find a stand up person nowadays in a profession that attracts the likes of  [first attorney I almost hired]. I cringe at the thought of how much I could have spent on that guy or someone like him out of desperation, only to support their lavish lifestyle and horrible work ethic.  Your honest good work has been a breath of fresh air.  All the best. "

Matthew is always appreciative of the kind words sent by his clients.

Monday, June 5, 2017

DRE Use in Marijuana DUI Cases Called Into Question

The use of Drug Recognition Experts in Marijuana DUI investigations is on the rise.  Indeed, the numbers of officers with the enhanced training have proliferated over the last few years, influenced heavily by the changes in the laws related to recreational use of pot.

While training of any kind is certainly a good thing, it is important to not place too much reliance on the DRE.  Certainly cops who go through the block of extra training and are certified as a DRE are better suited to evaluate a suspected drugged driver, however we must be careful to not place too much emphasis on their conclusions.

Indeed, many of the DUI arrests associated with marijuana are based primarily on admissions by the defendant.  If the person admits to have smoked pot or ingested an edible containing THC the Officer builds his investigation with that in mind, often “finding” symptoms to fit within his predetermined conclusion that the driver is impaired due to marijuana.

Recently, the Press Enterprise published an article discussing these issues.  The article can be viewed here Attorney Matthew Ruff Quoted in DUI Marijuana Article.

Sunday, May 28, 2017

The Defense Of Officer Induced Confusion in a DUI Case

In a DUI case it is not uncommon to see a driver arrested and refuse to submit to a chemical test.  When this happens the attorney will look for a defense to the refusal in order to get around the suspension and revocation the DMV seeks to impose.  One possible defense is known as officer induced confusion.  

It is well recognized in law that when an officer simultaneously reads a driver his implied consent warnings (no right to refuse a test and no right to consult with or to have an attorney present during its administration) in conjunction with the Miranda admonition (right to refuse interrogation and to have an attorney present at all stages of a police interrogation, etc.), it will likely induce confusion. 

Therefore, in cases where a driver has been given Miranda insists on the presence of an attorney before choosing a test the courts have recognized that he [or she] may have been confused by the two warnings and the officers failure to clarify and explain the difference. In such a case the refusal to take a test has been held not to be a refusal within the meaning of California Vehicle Code section 13353. (Rust v. Department of Motor Vehicles (1968) 267 Cal.App.2d 545, 547.) 

The question of officer-induced confusion is one of fact, often dependent on statements in the report indicative of the defendants desire to speak to a lawyer coupled with signs of confusion about the officers demand for an answer to which test to take.  When a driver who has been given Miranda manifests confusion by asserting his [or her] alleged right to an attorney, it is incumbent upon the officer to explain that the right does not apply to these tests. (McDonnell v. Department of Motor Vehicles (1975) 45 Cal.App.3d 653, 658.  The failure of an officer to clear up the confusion renders any alleged refusal to submit to a test insufficient to suspend a drivers license as a result.

Matthew Ruff is a DUI Attorney in Torrance with over 20 years experience fighting both criminal charges and DMV suspensions in California.

Tuesday, May 9, 2017

Entering Canada With A DUI, What You Need To Know

Canada has some of the toughest restrictions on travelers entering the Country in the World.  If you have a conviction for any criminal offense in California or anywhere else in the United States, here is what you need to know:Canada is a major destination for travel and commerce. In some cases, travellers are being rejected at points of entry due to a previous criminal offence. Canada does not distinguish between a misdemeanour and a felony; therefore if you have a pending criminal charge or are on probation for a crime you may no longer be able to travel to Canada, even for a short trip. What makes a person Inadmissable?  Any conviction for a felony and most misdemeanors.  Interestingly, Canada does not distinguish between felonies and misdemeanors so a charge of DUI, drunk driving, reckless driving, manslaughter, theft, writing a bad check, etc.  can result in your denial of entry. If you are deemed inadmissible There are two ways in which one can overcome their inadmissibility to Canada: Criminal Rehabilitation and Temporary Resident Permits.  We will discuss both of them independently:

Criminal Rehabilitation will permanently resolve an individual’s inadmissibility on a permanent basis as long as 5 years have passed since the completion of their sentence for a non- serious crime. If successful, the conviction(s) will no longer be a limitation to enter Canada.

The first step is to determine if the offence that the individual was convicted of is equivalent to a criminal offence in Canada. However, this is a difficult task that often requires legal expertise.
At least 5 years must have elapsed since the completion of a sentence in order to be eligible for criminal rehabilitation.
If 10 years or more have elapsed, and the individual has only one non-serious conviction, s/he would be deemed rehabilitated and admissible to Canada. However, we recommend a Legal Opinion Letter in order to explain any history of criminality. 

Temporary Resident Permits will allow individuals who are criminally inadmissible to Canada to enter the country for a limited period of time.
Immigration officers will evaluate TRP applications and approve them if the individual has a signi cant reason for entering Canada. Travelling to Canada for business purposes and/ or for reasons that benefit Canada will improve their chance of success. 
A temporary resident permit is necessary for entry to Canada if:
Less than 5 years has passed since completing a sentence for a crime equivalent to a Canadian federal offence.

More than 5 years has passed and criminal rehabilitation has NOT been approved. 

Monday, May 1, 2017

How Does The California DMV Define a Refusal

A refusal to take a test following a DUI arrest carries the harshest penalty under law.  The state can revoke your driving privileges for up to 3 years.  How does California define a refusal in legal terms?

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.  As such, whether a driver intended to refuse or not is not the determining factor.

Monday, April 17, 2017

Arrested For DUI? Things You Should Know

There is a lot of stress and worry that follows a DUI arrest, knowing what to do and what not to do is important.  First of all, if the person arrested is in jail you should know that most people booked for driving under the influence are released without having to post bail.  The process is call an O.R. release or released on your own recognizance.  The individual signs a paper agreeing to appear in Court on a future date and they are free to go, usually 10-12 hours after arrest.  So hold off on contacting a bail bondsman in the first 24 hours.

Upon release the accused will receive a pink paper called a temporary license and notice of suspension.  This explains the hearing rights pertaining to the DMV suspension that will be triggered by the DUI arrest.  The person has 10 days to demand a hearing.

If an accident was associated with the arrest it is often advisable to consult with a lawyer prior to giving a recorded statement to the insurance company.

 Here are the most common mistakes people make:
1. Forget to demand a DMV hearing. This is THE MOST important thing to do because if you fail to act your rights will be lost forever. When you were released you received a pink piece of paper that has two purposes 1.  It is a temp license, 2.  It tells you that your driving privileges WILL BE SUSPENDED for up to 3 years because of the incident.  Matthew can STOP the suspension in its tracks.  He can acquire copies of the reports, chemical test and other evidence BEFORE any action is taken.
2. Not Hiring a Lawyer or Hire the cheapest lawyer in town. Attorneys are professionals and charge based on their experience and skill level. If you hire a cheap attorney you will get what you pay for.  Many folks don’t realize there are dozens of defenses in DUI cases ranging from illegal stop to attacking the breath or blood results.  For example, in one recent case Matt got the DUI charges dropped for a client in Los Angeles even though he had a blood test nearly three times the legal limit and crashed his car.  The bottom line is that Matt has the experience to detect mistakes in the case and use those to get charges dropped or reduced.  For a more detailed list of results Matt has obtained for clients in DUI cases, click here.
3. Miss your Court date. Many people believe that they will get a courtesy reminder in the mail from the Court telling them about their upcoming appearance. This in incorrect. Unlike a traffic ticket where a courtesy notice is sent, DUI cases are criminal which means you will have to look at the release paperwork you were given and be sure to attend that important arraignment unless you are told otherwise by your attorney.  Matthew can go to Court for you.  Many folks do not or cannot attend Court, Matthew can appear on your behalf and oftentimes resolve the case.
Attorney Matthew Ruff has over 25 years experience fighting DUI cases.  He has handled thousands of DMV hearings and won many cases for his clients.  If you want to schedule a consultation all Matt directly, toll free at 1-877-213-4453 or visit his website 
Best DUI Defense Attorney for more information.

Tuesday, February 14, 2017

What Does DMV Hearing Decision "Under Submission" Mean?

In California a DMV hearing is presided over by a state employee called a hearing officer.  This hearing officer listens to the evidence and arguments made by the attorney and decides whether the DMV has met their burden of proof with respect to a DUI arrest and whether the driver had a .08 or more or refused to take a test under state law.

After a hearing has been conducted a decision can be made immediately or can be given in writing by mail.  In many cases the hearing officer is presented with legal arguments from counsel that require him or her to review the evidence and make a final decision with regard to the case.  It is a good sign that the DMV hearing officer is taking the time to consider all of the issues.

A case taken under submission usually results in a decision being made within a few days or a couple weeks, however, during this time the person's license remains valid and they can continue to drive pending a final decision.

Wednesday, January 25, 2017

Understanding The Terms Of Probation On Your California DUI

Congratulations on the resolution of your DUI case.  You can begin to move on with your life and begin the process of putting this situation behind you.  This article is intended to help you understand the terms of your probation and obligations to the Court.  You will receive the paperwork with the terms of the case disposition and this will help to explain the specific orders and conditions the Judge imposed in your case.

First, you were granted informal Court probation meaning you will not need to report to any probation officer or check in on any monthly schedule.  As long as you follow the orders of the Court you will be in compliance and at the conclusion of 36 months you can seek to have your plea withdrawn and request that the case be dismissed and expunged.  Let's go into the specific terms that you must follow for the remainder of your probationary period, these are the basic terms, you may have additional terms imposed, be sure to read and understand the paperwork given to you by the Court:

  1. You cannot drive with any measurable amount of alcohol or drugs in your system.
  2. You cannot refuse to take and complete any chemical test, field sobriety test or preliminary alcohol screening test when requested by any peace officer.
  3. Do not drive unless licensed and insured and have the minimum insurance required by law.
  4. Obey all laws and orders of the Court.
  5. Enroll in within 21 days and complete the Court ordered DUI program.
  6. Pay all fines and fees imposed within the period ordered by the Court.
  7. Enroll in and complete any MADD or HAM program ordered.
  8. Complete any Court ordered community labor.
The foregoing are the most basic obligations.  There may be other conditions that apply to you so be sure to read and understand the specific sentence you were given.

Be sure to understand the deadlines imposed by the Court.  For example, unless you already enrolled in or completed the DUI school prior to your sentencing, you must enroll in the class within 21 days. If you do not, you will be in violation of your probation, you will be required to go back to Court and explain why you did not follow the Judge's orders and ask for a re-referral to the program.

Also, if you do not pay the fines and fees directly to the Court by the due date you will be in violation of your probation, a warrant will issue for your arrest and you may be denied an expungement.

Any violation of the Court imposed terms of probation could result in a warrant being issued for your arrest, you could be denied the opportunity to get the case expunged and have your probation extended beyond the initial term.

Tuesday, January 17, 2017

California Revamped Texting While Driving Laws In 2017

You may ask what texting while driving has to do with DUI.  In my 20 years of practicing drunk driving law I have seen a significant number of my clients stopped for sing a cell phone while driving which then leads to a full blown DWI investigation.  Therefore, here is the nuts and bolts of the new law:

California enacted new legislation in 2017 regarding texting and using a cell phone while driving. Vehicle Code § 23123.5 Is known as the law of Operation of Any Electronic Wireless Communications Device While Driving:

The “Texting While Driving” regulations have been deleted and replaced with the broader provisions, below:
(a) A person shall not drive a motor vehicle while holding and operating a handheld wireless telephone or an electronic wireless communications device unless the wireless telephone or electronic wireless communications device is specifically designed and configured to allow voice-operated and hands-free operation, and it is used in that manner while driving.
(b) This section shall not apply to manufacturer-installed systems that are embedded in the vehicle.
(c) A handheld wireless telephone or electronic wireless communications device may be operated in a manner requiring the use of the driver’s hand while the driver is operating the vehicle only if both of the following conditions are satisfied:
(1) The handheld wireless telephone or electronic wireless communications device is mounted on a vehicle’s windshield in the same manner a portable Global Positioning System (GPS) is mounted pursuant to V.C. § 26708(b)(12) or is mounted on or affixed to a vehicle’s dashboard or center console in a manner that does not hinder the driver’s view of the road.
(2) The driver’s hand is used to activate or deactivate a feature or function of the handheld wireless telephone or wireless communications device with the motion of a single swipe or tap of the driver’s finger.
(d) A violation of this section is an infraction punishable by a base fine of twenty dollars ($20) for a first offense and fifty dollars ($50) for each subsequent offense.
(e) This section does not apply to an emergency services professional using an electronic wireless communications device while operating an authorized emergency vehicle, as defined in V.C. § 165, in the course and scope of his or her duties.
(f) For the purposes of this section, “electronic wireless communications device” includes, but is not limited to, a broadband personal communication device, a specialized mobile radio device, a handheld device or laptop computer with mobile data access, a pager, or a two-way messaging device.

Monday, January 16, 2017

Is a Retrograde Extrapolation in DUI Cases Reliable?

Any DUI attorney in California worth his salt knows that prosecutors will pull out a bag of tricks in order to get a conviction.  One of the most common arguments used by the DA is that of Retrograde Extrapolation.

In many DUI trials the district attorney will ask the state’s expert to perform a retrograde extrapolation from the defendant’s blood test results to determine the defendant’s blood alcohol at the time of driving. Although the prosecution gets the benefit of a "3 hour presumption" that the chemical test is a true reflection of the defendant's BAC if they were driving within 180 minutes of the test, most DA's will try and guild the lily by bringing in this often very prejudicial evidence.

However, this area of science is fraught with reliability issues.  The criminalist doing the “retrograde extrapolation” calculation must know, among other things, that the test subject is in the “eliminative” phase. Thus, a criminalist cannot do a valid “retrograde extrapolation” without a drinking and eating history.  There is scant scientific literature or case law that supports a “retrograde extrapolation” when the expert or person performing the calculation does not have any of the following factors: (1) when the person began to drink; (2) when the person stopped drinking; (3) how much the person drank; (4) what the person drank; (5) how much the person weighs; and (6) if the person had a full or empty stomach.

One of the top blood alcohol experts in the nation, Dr. Kurt M. Dubowski, summarized the problems with “retrograde extrapolation” in his frequently cited article, “Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects,” first published in the Journal of Studies of Alcohol.  In that study Dr. Dubowski concluded “no forensically valid forward or backward extrapolation of blood or breath alcohol concentrations is ordinarily possible in a given subject and occasion solely on the basis of time and individual analysis results.   While cases dealing with this issue in California are few and far between, The Criminal Appeals Court of Texas in Mata v. State, 46 S.W.3d 902, addressed this issue and the scientific technique of “retrograde extrapolation” in excruciating detail. The Mata Court took judicial notice of scientific literature in the area and cited in its opinion numerous publications. The cited authority included that of Richard Watkins, Assistant Director of the Phoenix Crime Lab, and Eugene Adler, a toxicologist for the Arizona Department of Public Safety. Id. at 910; see “The Effect of Food on Alcohol Absorption and Elimination Patterns,” 38 J. of Forensic Science 285-291 (1993). The Mata Court, citing from Watkins and Adler, stated that: "The limitations and pitfalls associated with retrograde extrapolations are often not appreciated by lawmen and the courts. The authors [Watkins and Adler] conclude that “any attempt at retrograde extrapolations should be made with caution, and performed by a person able to assess and discuss the applicability of a retrograde extrapolation to a particular situation.” Id. at 910.

The court noted that Watkins and Adler were cautious about the reliability of retrograde extrapolation. Id. The court relying on other experts in the field wrote the following:  They [Watkins and Adler] write that retrograde extrapolation is a “dubious practice” and that expert testimony on the issue “requires careful consideration of the absorption kinetics of ethanol and the factors influencing this process.” They explain that “the absorption profile of ethanol differs widely among individuals, and the peak [BAC] and the time of its occurrence depends on numerous factors. Among other factors, the drinking pattern, the type of beverage consumed, the fed or fasted state, the nature and composition of foodstuff in the stomach, the anatomy of the gastrointestinal canal, and the mental state of the subject are considered to play a role.”

The Mata Court acknowledged that few jurisdictions have considered the reliability of “retrograde extrapolation” because many states have eliminated the need for “retrograde extrapolation” as a matter of law. Id. at 913. The statutes in these jurisdictions provide for a rebuttable presumption if the person’s BAC is over the legal limit, “assuming the test was conducted within a specified or reasonable time from driving.” Id.  The Mata Court was only able to find two courts in the entire nation that have touched upon issues of reliability of “retrograde extrapolation.” Id. An Arizona appellate court made reference to the issue in a footnote stating that “the science of ‘retrograde extrapolation’ has achieved general acceptance in the scientific field.” Id. citing Ring v. Taylor, 141 Ariz. 56, 59 fn 6. (Ariz. App. 1984).Thecourt that discussed the issue of “retrograde extrapolation” was the Alabama Court of Appeals in Smith v. Tuscaloosa, 601 So. 2d 1136 (Ala. Crim. App. 1992). Id. at 913-914. The Alabama Court disagreed with the Arizona Court and found from studies that “retrograde extrapolation” is an unreliable method of determining a persons BAC. Id.

The inadequacies of retrograde extrapolation extend beyond mere technical inaccuracies to problems that are inherent in the basic premises and calculations of this technique. These inadequacies render retrograde extrapolation inherently untrustworthy and therefore inappropriate for use as evidence to convict drunk drivers. Id. at 914.  After complete and thorough study of retrograde extrapolation, the Mata Court concluded that, even those who advocate retrograde extrapolation as a reliable technique, use it only if certain factors are known, “such as the length of the drinking spree, the time of the last drink, and the person’s weight.” Id. at 915. The Texas Court further concluded:  ​The court evaluating the reliability of a retrograde extrapolation should also consider (a) the length of time between the offense and the tests administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing the extrapolation. These characteristics and behaviors might include, but are not limited to, the person’s weight and gender, the person’s typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking. Id. at 916.

Saturday, January 14, 2017

Refusing To Submit To A Chemical Test For DUI Is Not A Violation Of PC 148

Many officers believe if a dui suspect refuses to take a breath or blood test during a drunk driving investigation then they are guilty of delaying an officer under PC 148.  Not so under California law according to People vs. Valencia 240 Cal.App.4th Supp. 11
In California, The “implied consent” sanctions under V.C. § 23612 are an administrative in nature, they being administrative- type sanctions only, which are necessary to encourage an arrestee to voluntarily submit to a blood or breath test and thus avoiding the possibility that force might be used (which it can if a warrant is obtained or the circumstances involve an exigency). And the enhanced penalties imposed under V.C. § 23577 apply only upon conviction for the underlying DUI offense itself. For these reasons, the Court found it “inappropriate” to charge and convict a person of P.C. § 148(a)(1) in the non-violent DUI refusal situation. Because the DUI laws already punish the person for not taking a test the court ruled a separate crime of PC 148 would not apply.

Wednesday, January 11, 2017

False Statements During DUI Stop Can Result In Charges of Lying To A Cop

An appeals Court in California recently decided that telling a cop you had nothing to drink during a dui investigation can be grounds for conviction of Vehicle Code 31, false statements to a law enforcement officer.

The facts of the case People v. Morera-Munoz, are as follows:
While being questioned by police regarding the possibility that he was driving under the influence of alcohol (DUI), defendant denied that he had been drinking. He was subsequently charged with various DUI misdemeanors and for providing false information to police (Veh. Code, § 31). He was found guilty of violating section 31. He appealed to the appellate division of the superior court, arguing that section 31 violates the First Amendment by criminalizing the giving of any false information without regard to its materiality. After the appellate division declared the statute unconstitutional and entered judgment for defendant, the cause was transferred to the Court of Appeal. Held: Reversed. The First Amendment prohibits the restriction of speech because of its content. 

California Vehicle Code Section 31 prohibits a person from giving false information to a peace officer while in the performance of his duties under the Vehicle Code, when the person knows the information is false. It was intended to make reports of accidents more valid and prevent a waste of manpower in disproving false statements during drunk driving investigations.  Section 31 legitimately criminalizes the making of false statements that interfere with the proper enforcement of the Vehicle Code and therefore does not implicate protected expressive activity. It is content neutral, and imposes only an incidental burden on speech. Under First Amendment scrutiny, such a restriction is valid if it furthers an important governmental interest which is unrelated to the suppression of free expression, and the restriction on speech is no greater than essential to further that interest. When construed to include a materiality element, section 31 meets constitutional requirements, the Court found.

In order to convict, the prosecution is required to prove the false statement was material in order to comply with due process standards. The test for materiality is "would a reasonable peace officer find the information relevant and material in his or her investigation?"  The Court found in this case the Judge failed to instruct the jury on this point but found that error harmless. The Court observed "the error was harmless beyond a reasonable doubt because defendant's responses to the officer investigating a possible DUI offense were clearly material to that inquiry." Thanks CCAP.

Monday, January 2, 2017

New Law In California May Allow For No Suspension For First Time DUI Offenders Who Install IID

California SB 1046 is a new law enacted in 2017 that permits first time offenders to avoid any mandatory license suspension as long as they install an ignition interlock on their car (IID).

While many critics opposed the law on the ground that it broadens what many deem to be an ineffective tool to prevent driving under the influence, the new California legislation is being hailed as a step in the right direction by many experts and legal professionals who have always complained DUI suspensions for first time offenders hurt the families of drunk drivers more than the offender himself.

Here are some facts about the new law
Allows any drunk driver to go on an ignition interlock instead of license suspension. Currently, drivers arrested and convicted of DUI must wait at least 30 days before going on ignition interlock.

•Drunk drivers can start the interlock time as soon as their license is suspended and they meet other DMV licensing requirements. Offenders who install an interlock sooner are eligible for a $500 fine reduction (cumulative fines and penalties) upon criminal court sentencing.

•A person who installs an interlock early can receive credit toward any court interlock order. SB 1046 also makes more indigent drunk drivers eligible to obtain an interlock at a reduced cost.  The law was written to require the interlock companies to pick up the cost.

•Currently, one of the 350 interlock locations determine indigence via tax return or three months of income statements. If one of these dealers fails to comply with the current income assistance requirement, the interlock dealers can be held responsible.

•Requires interlock vendors to provide individuals with information on income assistance and contact information for the bureau in case customers have complaints

California is the only state that requires interlock users to have their license revoked after completing the statutory time on an interlock. For example, a first-time offender who completes five months on an interlock must wait an additional six months before being able to drive unrestricted. A repeat offender who completes one year on an interlock must wait another year before driving legally. Under SB 1046, offenders can drive legally without restriction as soon as they complete their interlock period, which helps to close this loophole.