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the orders of the Court you will be in compliance and at the conclusion of 36 months you can seek to have your plea withdrawn and request that the case be dismissed and expunged.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.