California Court Allows Prosecutor to Re-File Felony DUI Following Dismissal

In a felony criminal case, California law generally allows the district attorney to dismiss and refile a case twice, but what if the charge is actually a misdemeanor?  The Appeals Court answered that question today when it ruled that the prosecution was not barred from refiling substantive DUI counts as felonies after the DUI penalty allegation was dismissed once by a magistrate and the substantive DUI charges were dismissed once at the prosecution's request. The facts are as follows:

The defendant was charged by felony complaint with driving under the influence (Veh. Code, § 23152, subds. (a) & (b)) and as to each count it was alleged that he had been convicted of a prior felony DUI within the past ten years (Veh. Code, § 23550.5). At the preliminary hearing, the prosecutor failed to present evidence as to the prior conviction and the court held the defendant to answer on the DUI counts as misdemeanors. The prosecutor then dismissed the case and refiled the DUI charges as felonies with the prior conviction allegation after locating the evidence. The defense moved to dismiss pursuant to Penal Code section 1387 and the trial court denied the motion. In a petition for writ of mandate, the defense attorney argued that further prosecution of the DUI counts as felonies was barred because the felony charges had been dismissed for failure of proof and the identical misdemeanor charges had been dismissed on the prosecution's motion. The Court of Appeal rejected this argument. Section 1387 (the "two-dismissal" rule) generally bars further prosecution of a felony if the action has previously been twice dismissed. The appellate court reasoned that the prior DUI allegation in the complaint was a penalty provision and not a substantive offense within the meaning of section 1387. The penalty allegation was dismissed once as a matter of law when the magistrate found no evidence to support it. The substantive DUI charges were only dismissed once at the prosecution's request. Thus, the substantive DUI counts could be refiled as felonies with the prior DUI conviction allegation without violating the "two-dismissal" rule.

New Officer Instructions For Blood Collection In Kern County DUI Cases

Officer's Instructions:
Obtain a Kern Regional Crime Laboratory Blood Collection Kit used for DUI cases. The laboratory provides these kits for pickup Monday – Friday, from 8 am - 5 pm. Please note: it is important to obtain blood specimens as soon as possible after the alleged offense. Please do not take parts from another kit due to kit expiration dates and lot numbers.
Remove all of the contents of the kit and set aside the evidence tape.
Contents of the kit include:

1. White cardboard box
2. Plastic box
3. 2 Vacutainer1 tubes inside plastic holders
4. Sterile syringe
5. 2 tube labels
6. Povidone-iodine prep pad
7. 5 pieces of evidence tape
8. Biohazard bag with absorbent pad

Once the contents of the kit are removed, please complete the following:

a. Accurately and neatly complete the two tubelabels for each blood tube
b. Accurately and neatly complete the label adhered to the top of the clear plastic box (blood collection report and chain of custody).
c. Accurately and neatly complete the label adhered to the bottom of the white cardboard box (request for analysis).

Take note of the white powder in the clear glass Vacutainer tubes. Please ensure that both tubes contain the white powder. Give the technician performing the blood draw the clear plastic box with 2 Vacutainer tubes and sterile needle. Witness the withdrawal of the blood samples by the DUI suspect - do not allow the blood tubes out of your observation at any time.

Challenging The "Nuetral Formula" Criteria in a DUI Checkpoint Case

California has grown increasingll dependent on DUI checkpoints in the arrest of DWI drivers.  There are ways to challenge these detentions and ensure that the police complied with the laws. Attacks on drunk driving roadblock arrests can be based upon any failure to comply with the “certain limitations,” which the Ingersoll opinion referred to. Each is discussed in detail in that opinion. Nothing in the U.S. Supreme Court’s decision in Michigan Dep’t of State Police v. Sitz (1990) 496 U.S. 444, criticized these guidelines or recommended others. The Ingersoll guidelines fall under the following general headings:

A. Decision Making at the Supervisory Level ( In many cases the checkpoint is set up by a Sergeant with limited      Supervisory Powers)
B. Limits on Discretion of Field Officers
C. Maintenance of Safety Conditions
D. Reasonable Location
E. Time and Duration
F. Indicia of Official Nature of Roadblock
G. Length and Nature of Detention
H. Advance Publicity

One of the best challenges to a DUI roadblock is to demonstrate the lack of uniformity in the operation of the checkpoint. With regard to the issue concerning the limits on discretion by field officers, the California Supreme Court, in Ingersoll v. Palmer, supra, noted the following:

A related concern is that motorist should not be subject to the unbridled discretion of the officer in the field as to who is to be stopped. Instead, a neutral formula such as every driver or every third, fifth or tenth driver, should be employed. To permit an officer to determine to stop any particular driver or car when there is no legitimate basis for the determination would be to sanction the kind of unconstrained and standardless discretion which the United States Supreme Court sought to circumcise in its decision in Prouse, supra, [citations omitted]. In all the checkpoint programs at issue here, neutral mathematical selection criteria were used. 

Matthew Ruff is a DUI Lawyer in Torrance California.

The HGN Test Explained

In a DUI case, officers use many tests to decide whether to arrest a person for DWI.  Among them is the HGN test, here is how it is performed:

A Stimulus, such as a pen or pencil is held in front of the subject’s face, approximately 12 to 15 inches (30 to 38 cm) from the subject’s nose and slightly above eye level. This elevated eye position raised the upper lids and allowed the evaluator a better view of the eyes, but did not affect the results of the test. The subject was instructed to keep his or her head still and follow the stimulus with the eyes only. The subject’s left eye was observed first during each of the three component tests. Smooth pursuit was assessed by moving the stimulus to extreme left gaze and then to extreme right gaze at about 30 deg/sec. The test was repeated at least once for each eye. Nystagmus at maximum deviation was assessed by moving the stimulus first to extreme left gaze, then to extreme right gaze, such that no temporal sclera showed at either position, and held at each position for at least 4 seconds. Onset of gaze nystagmus was assessed by moving the stimulus at about 15 deg/sec to each side until nystagmus was observed. If nystagmus was present, the evaluator determined whether the angle of onset was less than 45 degrees.

According to one DUI Attorney, the HGN test is scored by the number of signs present for the two eyes, scoring one sign each per eye for lack of smooth pursuit, sustained nystagmus at maximum deviation, and onset of gaze nystagmus prior to 45 degrees. Therefore, the maximum number of signs is six. Previous laboratory and field validation studies have consistently demonstrated that the presence of four or more signs is highly correlated with BAC at either 0.10% or 0.08%.

AAA Reports The Cost Of A DUI Conviction in California Is Now $15,649.00

In 2010 the AAA did a study and found that a person can expect to pay over $12,000 if convicted of a DUI in California.  That study was revised for 2013 and it has risen over $3,000.  Due in large part to increased fines, booking fees and attorneys fees, the cost continues to skyrocket.  The important thing to keep in mind is that these costs only are incurred if you are convicted of the DUI, if the offense is reduced or dismissed in Court your costs would be significantly less.

DUI Driver Responsible For Other Driver's Medical Bills Even Though He Was Partly Resonsible For Accident

In a recent case in California, People vs. Watson, the appeals court ruled that a DUI driver convicted in court must pay all of other driver's medical bills even though that driver was partly to blame for the accident.  The defendant drove her dune buggy at night in the Imperial County dunes without headlights and at a high rate of speed. She hit a 15-year-old boy driving a quad, who suffered severe injuries to his leg during the collision. Defendant pled no contest to driving with a blood alcohol level of .08% or higher (Vehicle Code section 23153, causing injury while DWI. She received probation. At a restitution hearing, she presented expert testimony regarding the victim's comparative fault, but the court failed to reduce the amount of restitution. Defendant appealed. The Court Affirmed. Finding that Penal Code Section 1202.4 mandates restitution to cover victims' economic losses, absent "compelling and extraordinary reasons." In People v. Millard (2009) 175 Cal.App.4th 7, the court found the victim bore "substantial responsibility" for his injuries, and, as a result, "compelling and extraordinary reasons" justified the application of comparative fault principles. However, Millard does not require application of comparative fault in criminal proceedings, and, regardless, the victim was not substantially responsible for his injuries. In addition, restitution may be imposed under Penal Code section 1203.1 to serve broader goals, such as furthering rehabilitation, and, here, imposing the full victim restitution served rehabilitative purposes.

Blood Kit for a Kern County DUI Case

What is the South Bay DUI Task Force?

California cities are among the top in the nation for enforcement of drunk driving and the strict patrol of its streets for potential dangerous drivers who have consumed alcohol and are impaired.  One of the most prominent entities in the area that specialize in the arrest and prosecution of intoxicated motorists is known as the "South Bay DUI Task Force".  So, what is it and where does it operate?

The SBDUITF as it is known, is located in the cities of Torrance, El Segundo, Redondo Beach, Gardena, Hermosa Beach, Rancho Palos Verdes, Manhattan Beach, Rolling Hills, Lawndale, Hawthorne and Lomita.  The goal is to stop, detain, investigate and if necessary arrest a suspect believed to be DWI.  As a local Burbank DUI Attorney who has defended thousands of defendants accused of driving under the influence I can attest to the fact that the task force is effective in arresting people,  They hold the record for enforcement in Southern California and enlist the help of many cities to effectuate its goals,  they also get many thousands of dollars from the state and MADD and will continue to win awards well into the next decade due to the fact they are so good at doing what they do.

If you are driving in the South Bay during any holiday weekend, Saturday night or the first and last days of the month chances are you will be seen and possibly stopped by the task force.  Many think they are too aggressive and may push the limits of the laws, some even have alleged that they stop people in violation of their fourth amendment rights.

What is a "Pre-Hearing" Conference in A Criminal Case?

What is a pre-hearing conference. According to the CA Judge's Benchguide, most Judges conduct a prehearing conference and generally schedule it two days before the preliminary hearing in a criminal case. This conference may be referred to as a “pre preliminary hearing conference,” a “setting conference,” or a “preliminary hearing conference.” One of its purposes is the early disposition of cases by plea or application of diversion or deferred entry of judgment in drug cases when feasible. The prehearing conference is also used for taking waivers of time and waiver of the preliminary hearing when the attorneys want to stipulate to the charges in the criminal complaint, and for resolving pleading and other problems.

In high profile cases these conferences are used quite frequently. In a high profile criminal case, some judges set the prehearing conference several days before the preliminary hearing. Among the matters considered is whether the defendant will make a motion to close the hearing under California law when the facts warrant such a matter. If so, the court determines what and how advance notice should be given to the press and various news reporters that cover such cases in Court.

At the conference, many judges ask if defense counsel intends to make a motion to suppress under Pen C §1538.5 at the preliminary hearing which is a request that the Judge dismiss the case due to a violation of a client's 4th Amendment Rights. This information helps the judge to calendar the preliminary hearing realistically and to explore the range of evidence to be introduced, including the strengths and weaknesses of the prosecution and defense cases. In many cases, this information also permits the prosecutor to call witnesses necessary to litigate the motion, thereby avoiding a continuance.  Many judges also ask whether defense counsel intends to make a motion at the preliminary hearing to reduce a “wobbler” charged as a felony to a misdemeanor under applicable statutes that allow charges such as DUI and other non-violent offenses to be made a misdemeanor,  or whether the defense counsel or prosecutor intends to move to close the hearing.  Attendance at conference. The prosecutor, defense counsel, and the defendant must be present at the conference, as essential parties for effective plea negotiation.

Matthew Ruff is a Torrance Criminal Defense Attorney who focuses his practice on serious cases in the Courts of Southern California.

Will a "Wet Reckless" in California Prevent You From Entering Canada?

So you got a wet reckless deal reduced down from a DUI in California and now have aspirations of traveling to Canada on a business trip or perhaps on a pleasure vacation with your family, how will that past indiscretion affect your ability to fly into the country or depart a cruise ship into Canada?  Well, the short answer is that it may render you "inadmissible" which means you will be barred for entry into the country forever.  You see, Canada deems all misdemeanor crimes to be the same as a felony offence, these include minor traffic tickets such as reckless driving, exhibition of speed, driving while under suspension, drunk driving and DWI.

How does Canada find our about your past conviction?  All information that is available to U.S. authorities through various databases such as the FBI and California Department of Justice are shared with Canada.  While not all information is shared between the two countries, the current US-Canada security arrangements signed by President Obama do empower the Canadian and US border patrol agents to access our respective criminal registry systems.  Although the signed agreements were rarely applied in the pre "911" era, agents now routinely run checks and background investigations on all incoming travelers regardless if traveling by air, sea or land.

So what can be done.  According to Torrance DUI Attorney Matthew Ruff, who has represented numerous clients charged with DUI over the last 30 years, first, try and obtain an expungement of the conviction in California Court.  Try and get the case record sealed or dismissed whenever possible.  Avoid being placed on probation for any misdemeanor, attempt to obtain a diversion disposition which does nor result in a conviction on your record.  If this is not possible, you can apply for a temporary resident permit or a waiver if your travel is for short duration.  A criminal pardon is also possible if the crime occurred more than 5 years prior.  A "criminal rehabilitation application can be obtained and processed.  It is best to go through a Canadian attorney who has familiarity with the laws in that country.  A successful pardon can restore admissibility and erase the offense from your Canadian record.

At the end of the day, be honest with the immigration officials if asked about a prior arrest or criminal conviction.  many officers will give you a break and ignore minor transgressions if you are up front with them at the outset. Many DUI charges that were "back in the college day" or were isolated and remote are simply disregarded and the traveler is able to pass through.