Impossible to Get a Search Warrant in California For a Blood Draw? Not So Says A Long Beach DUI Attorney

Recently, in a United States Supreme Court case, the government argued that obtaining a search warrant for a blood draw of a DUI suspect was difficult to do withing the context of a drunk driving arrest.  However, in California a system is alreadfy in place to get a telephonic search warrant.  As an alternative to written affidavits California Penal Code 1526(b)(1) permits sworn oral statements that are subsequently transcribed. For example, the affiant may phone the magistrate, state probable cause, and obtain the magistrate’s verbal authorization to sign the latter’s name to the warrant under the Penal Code in the state. The resulting warrant is the so-called telephonic (or, more accurately, telephonically authorized) search warrant. The expression “telephonic search warrant” can give rise to the erroneous impression that the warrant itself is oral. All search warrants must be in writing. The only thing different about a telephonic warrant is that the affiant signs the magistrate’s name to a duplicate original search warrant.  This makes sense and allows for adequate protections in the remote context.

According to one Long Beach DUI Attorney, the CA Judges Benchguide offers detailed instructions to Judges on duty after hours and on weekends when the Courts are closed.  The statutes do not mention statements by the affiant over the telephone, but have been interpreted to permit them. The procedure is constitutional. No special circumstances need be shown for issuing a telephonic warrant.  Indeed, in Los Angeles County all telephonic search warrants are obtained through a District Attorney Command Post. Under this process, if the deputy DA believes the case is appropriate for a telephonic search warrant after talking with the affiant, the command post investigator sets up a conference call between the affiant, deputy DA, judge, and investigator (who runs the recording equipment). Courts may have different procedures. The following is an example adapted from various counties.  The affiant’s statement must be recorded. The judge should be sure to record the conversation, check that the equipment is switched on and operating. If the affiant is recording the conversation, the judge should ask whether the recording equipment is turned on.  These procedures ensue an adequate record on review.  There can be no doubt that the implementation of the current procedures can be re-tooled to allow for blood draw search warrants for DUI suspects on the roadside or at the police station after arrest.

Is a Citizen's Arrest in California for DUI Legal?

In California, a police officer is not the only individual that can effectuate an arrest for a DUI.  A citizen’s arrest for DUI is proper when based on the citizen’s observation that the defendant was driving under the influence; in so doing, the citizen may delegate to a peace officer the act of taking the defendant into physical custody. This authority is vested in CA Penal Code 837.   For example, in one recent case, the Court ruled a citizen may make arrest for misdemeanor committed in his or her presence Johanson v Department of Motor Vehicles (1995) 36 CA4th 1209,  Also in another appellate court case, the Justices opined, a parking lot attendant who, observed defendant trying to exit parking facility by driving wrong way and into facility’s entrance gate, called 911 and a police officer and reported his observations to officer who made arrest,  and in another published California DUI case, the Court found, an inspector of Department of Food and Agriculture who stopped defendant’s vehicle at inspection station, observed defendant was intoxicated and reported observations to highway patrol officer who arrested defendant.  The bottom line is that a suspected drunk driver cannot escape liability because the person making the contact was not law enforcement.

DUI Drivers Targeted This July 4th

July 4th weekend 2013 promises to be a banner holiday for law enforcement, the state of California has earmarked over a million dollars to checkpoint utilization and enforcement, saturation patrols will make up the remainder of the budget.  Los Angeles County alone has implemented a task force approach will will involve numerous city police agencies and a mobile phlebotomist who will be available to collect samples from DWI suspects for DMV and Court purposes.  The Torrance police alone have publicly stated that it will be on high alert status with its close proximity to the beach areas .  Redondo Beach and Hermosa both have announced a "zero tolerance" to those driving under the influence and has set aside additional resources to deal with the high number of anticipated arrests.

Can a Commercial Driver Survive a Second DUI?

It used to be that a DUI for a commercial driver in California would simply result in a short suspension and a return of the drivers license after a period of one year.  This went on for decades.  Not that a 1 year suspension was a walk in the park, but it was tolerable for most drivers.  In the last decade, however, the feds stepped in and announced that any commercial driver who suffers more than one conviction for a DUI or driving with a .08 or higher would be banned for life from ever driving a big rig or other commercial vehicle.  A lifetime revocation is now in full force and effect for any driver who may ever expect to drive for a living.  California DUI laws now demand that the life bar be imposed by the CA DMV.  So, what does a driver do?  Well, the best thing is to hire a lawyer who can fight the DUI and possible negotiate a lesser cahrge such as a reckless driving.

Making the Case For Dashcams in Every Police Car

We see the stories every day, YouTube videos, and Internet videos gone viral, the visual impact that video has on a story cannot understated.  So why are there not videos cameras in every police car?  Many people believe that the Rodney King case would not have had the same result if a video was not taken of the incident.  Interestingly, it is that case that many think caused some agencies to not want video in the cars, but why not.  In one recent study it was determined that if a video is in a police cruiser the officer is more likely to be extra careful and honest in the police work they do.  In the King case, some of the officers involved were charged with filing false police reports do to the inconsistencies in what the video showed.  So, why not put videos in every patrol car?

The main argument advanced by the police departments opposed to the video equipped cars is the the cost involved.  In the study, the group found that the cost per car is minimal when compared to the savings a police agency will see in resolving baseless lawsuits and civil rights claims.  One expert suggested that the department can stagger the equipment so that some cars actually have working cameras and some will not, the officers will not know which cars have the video capability.  The expert argues that will save half the cost but have the same deterrent effect that would be obtained with 100 percent compliance.

In DUI cases the videos would save countless hours of unneeded testimony in Court, saving millions of dollars on an annual basis.  The video could resolve conflicts quickly between the accused making claims of abuse or misconduct and conversely the video could quickly and efficiently settle criminal trials once the tape shows the suspect is either guilty on not guilty of the charges.  So who is behind the opposition force in not equipping all cars with recording equipment, the Unions?  Is it true that police unions oppose cameras because they want the case to revolve around the officer's word, the statements in the police report that go unchallenged, the cop's word versus the criminal defendant's word?

According to one Bakersfield DUI Attorney who litigates criminal cases on a daily basis, the video in any given case causes the client to "come down to earth" quickly.  Once confronted with damning evidence of guilt, the client will typically want to settle the case without going to trial.  The memory of a defendant is often clouded and the video is a decisive factor in whether a case is plea bargained.  On the other hand, in some cases the video vindicates the defendant and can be used to persuade the District Attorney to dismiss charges in a case that otherwise may have led to an injustice.

In the final analysis, there can be no reasonable argument that a video in every criminal case is not a good idea.  The hard part is actually implementing a system that would make it happen, California needs to catch up to other states that have made it happen.

Do You Need TO Request A DMV Hearing if the DUI Involves Marijuana Only?

This question is one that has perplexed more people than any other.  Here is the scenario:  A driver is stopped and arrested for a DUI, he takes a breath test and there in no alcohol present, however the cop believes he is under the influence of a drug such as marijuana.  The person is booked and processed and released with a pending court date for driving under the influence.  The question then becomes:  Should the driver request a DMV hearing?

The answer depends, says Hermosa Beach DUI Attorney, if the driver did not receive an order of suspension and still has his license, calling the DMV may trigger and investigation for some other action, such as a medical issue or an addiction issue which could prompt a separate suspension.  However, if the driver was served an APS order incorrectly, then a quandary develops.  The quandary is that if the blood comes back with no alcohol then the APS should be set aside automatically when the DMV does a review of the case.  If no hearing is requested the APS could fall thru the cracks and a suspension could result

So, if the driver did not get a pink APS order, do nothing.  If the driver was incorrectly served then a hearing request may be prudent to protect the driving privilege and ensure that the DMV does the right thing and sets the action aside with no suspension.

Every year the drivers safety unit of the DMV gets well over a million hearing requests and they are backlogged, so be sure to follow up and demand that once the blood shows no alcohol present that the driver record be purged of the action.

At What Point Does A DUI Become a Felony in California?

With the recent case of the Nevada man charged with felony DUI, many folks ask: when does a DUI become a felony in the state of California?  There are a number of ways that a drunk driving charge can be elevated from a misdemeanor to a felony.  First of all, most standard first time DWI offenses in the state are considered misdemeanors, VC 23152 of the state code specifies that all DUI charges are misdemeanors unless they meet certain criteria.

One way that a driving under the influence can be a felony is if someone other than the offender himself is injured.  According to one Manhattan Beach DUI Attorney, if a person sustains a substantial injury that is caused as a result of the DUI driver violating the vehicle code, such as speeding, failure to stop at a red light or other infraction, and the offender is determined to be under the influence of alcohol or a drug or both then the crime becomes a felony which carries a potential prison sentence of up to 3 years. 

Another way a DUI can be a felony is when the violator has been convicted of 3 or more DUI cases in the last 10 years prior to the last charge. More on this crime in a later post.