Ruminations From "Captain Motion"

The following is an excerpt from the famous "Captain Motion" the DUI motion King in California DUI Defense, taken from a seminar he recently attended:  "One of the biggest problems facing those doing constitutional defense for people accused of drunk driving is that drunk driving has long been, and is increasingly, a political crime. It is no secret that MADD, SADD, and other Prohibitionist political action groups, forgetting apparently that the 18th Amendment was repealed, elevating symbolic victimization to an art form, have bulldozed their way into legislative and judicial precincts so effectively that their governmental
patrons low-crawl around and pander to their extortion to keep them from demonstrating outside legislative chambers and courthouses. And those groups’ political terrorism has effectively engrafted drunk driving exceptions to the Constitution, and to common sense, onto our juro- political landscape such that “deuces” are harder for the defense effectively to litigate than are murders."

Can a Portable Breath Test Machine Be Used at Trial in My Bakersfield DUI?

Many DUI Attorneys argue thats since the purpose of the device is limited solely to assist the officer in establishing reasonable cause to arrest, and since reasonable cause to arrest is not an issue in the trial, the numerical results of the test are inadmissible as not relevant. Indeed, many Courts have recognized this principle and observed at that, “The preliminary alcohol screening test is not determinative of blood alcohol content, but is a field sobriety test which may be used as a further investigative tool in order to establish reasonable cause....”(citing Veh. Code, § 23157 (h).) There’s no question that the statutory authority for the PAS is limited for the sole purpose of reasonable cause. Further, one local Bakersfield DUI Lawyer has repeatedly argued that the statute does not authorize the use of the PAS device in every instance. Only if there is 1) a refusal to take FST’s or 2) incapacity to take the other FST’S, or 3) if the officer believes it is necessary to assist him as a further investigatory tool after an evaluation of the totality of the circumstances. In ab recent case in Michigan the court found that where a statute limited admissibility of PAS evidence to establish reasonable cause to arrest, it was error to admit such evidence at trial. In Michigan as in California, reasonable cause to arrest is a matter of law reserved to the court. Since the validity of an arrest is a question which is reserved for judicial officers and is to be decided as a matter of law many in the legal field say they do not believe that the legislature intended under any circumstances, that evidence admissible solely for the limited purpose of PC to arrest in a DUI context.

Can a Horizontal Gaze Nystagmus Test be Admitted in a DUI Trial?

A Nystagmus test is a FST given roadside to a supected DUI driver, the test looks for a jerking of the eyeball while it tracks a pen the officer is holding.  Before the officer may testify to the Horizontal Gaze Nystagmus test results, prosecution must produce expert testimony that the test is widely accepted for determining blood alcohol concentrations.  This expert cannot be an officer or a crime lab technician according to the california case of People v. Kelly (1976) 17 Cal. 3d 24 and a single expert will not be sufficient, as the Supreme Court said in Kelly, it is “Questionable whether the testimony of a single witness alone is ever sufficient to represent, or attest to, the views of an entire scientific community.” People v. Kelly, supra at p.37. Furthermore, the prosecution must prove that the test was correctly administered to the defendant. In People v. Williams, (1992, 5th  Dist.)  3 Cal. App.4th 1326, the arresting officer was permitted at trial to testify that in his opinion, based partly on the Nystagmus test, the defendant was under the influence of alcohol.  This was permitted by the trial court after the officer testified he had received 10-hours of classroom instruction on Nystagmus at the CHP Academy, 8-hours of laboratory time, and had given the test in the field about 250 times.  The trial court ruled that this was insufficient evidence to qualify the officer as an expert

California Appellate Court Delivers a Blow to Margin of Error Arguments in DUI Breath Cases

In the case of Borger vs DMV, the Court last week ruled that a statute (in this case VC 13353.2) says that you can't drive with a blood alcohol content of .08 or more. Here, where a breath test says that your number is .08 or above, that creates a rebuttable presumption that you've violated the law.  The driver in this case got  stopped by the police and blew .08 on an intoxilyzer 5000. An expert toxicologist testified  that the particular test used here has a range of .02; in other words, that someone who blows a .08 might actually have a .06 (or .10). The trial court gave credibility to the expert's testimony and, on that basis, concludes that there's insufficient evidence that the guy actually drove with .08 or more.  The Court of Appeal  however reverses. It holds that since the regulations allow the particular testing device used here, to hold otherwise would conflict with this approval and require everyone to essentially blow a .10 percent rather than a .08 percent.  The lesson learned from this case is that there needs to be more evidence presented than just a mere blanket assertion that the machine has a margin of error, this might be some specific evidence of error from the lab, specific studies related to the device, usage logs and other documents obtained through discovery, just to name a few.

Can a Rental Car Company Refuse to Rent a Car to Someone with a DUI?

Here is the scenario:  You were arrested, but not convicted of a DUI in California, you were given a temporary pink license or a paper that says you can drive.  The question is can I rent a car without any difficulty?  The answer to this question depends on two primary factors 1) Does the person have a valid license at the time of the request to rent, and 2) Does the person appear to be free from any present signs of impairment or signs of physical or mental incompetence?  If the answer to both of these questions is yes, then the rental company is not prevented by law to rent the licensee a vehicle, according to Matthew Ruff, a prominent DUI Attorney in California.  The California Appellate Court held in Flores vs. Enterprise Rent a Car, that a rental car company cannot be held liable for renting a car to someone with a pending DUI or prior DUI convictions.  As long as they have a valid license at the time and are not impaired they are legally able to rent a vehicle to the person. 

What about renting a car with the "temporary license" issued following a DUI arrest?  A temporary is as good as any other type of drivers license, use it in conjunction with a photo I.D. and there should be no problem.  The bottom line is that the Vehicle Code does not require the Rental Car Company to do anything more than verify that the prospective driver has a valid license and is not showing signs of being under the influence at the time. Prior DUI convictions or a pending DUI case are not per se a reason to decline a rental.  In many instances, the rent a car company will confirm the validity of the applicant's license with the DMV prior to releasing the car. Therefore, the "pink piece of paper" issued as a license after a DUI arrest should and indeed must suffice as a valid license to rent a car.

Some experts suggest the person get enrolled in the rental car companies preferred driving program.  This allows you to bypass the lines and desks that require you to show a license prior to picking up a car.  Also, get a California ID card that looks very similar to a license and can be used in conjunction with the paper temporary.  The process of getting a CA ID card is simple.

Breath Machines Are Not Always Right

The breath machine has come to be known as the DUI test in virtually all drunk driving arrests.  It has grown to a status that many cops believe to be infallible, but are they always reliable?  Many say no.  The science relating to the breath testing devices has its critics.  The importance of checking the maintenance history and accuracy checks of the particular breath machine is crucial.

I was arrested for DUI in Manhattan Beach, why does the police report say El Segundo?

No where is DUI enforcement as strong as in the South Bay of Los Angeles County.  Among the predominant police agencies involved in this enforcement is the El Segundo police department, not surprisingly then it is common for these drunk driving patrols to encroach and sometimes even go into neighboring cities.  Such is the case with these two law enforcement agencies according to one Manhattan Beach DUI Attorney who handles upwards of 100 cases a year in the area.  The two police forces will work together in many investigations since the towns neighbor one another.

Another reason why you will often see the two departments names on each others arrest reports is because they both participate in what is called the "South Bay DUI Task Force" which is an inter agency unit that is tasked with one job: to catch drunk drivers.  Indeed, when the task force is in full swing, it is not unusual to see cops from both forces driving around with each other says a El Segundo DUI Attorney .  The law does allow for one cop to cross over into  a different city to make an arrest for DUI, that is well settled says the lawyer.  The fact is it is impossible to not cross over sometimes when there may be 5 cities in a 10 mile radius.