High Court Limits Testimony About Breath Tests In California

In this case the accused was arrested and charged with DUI and driving with a .08 or more.  At trial he hired one of the top breath testing experts in the country to testify about the unreliability of breath tests, the Judge would not allow it.  He was convicted and appealed.  The Supreme Court found no error with the trial court ruling as to the exclusion of testimony. Section 23152, subdivision (b) prohibits driving with either the specified blood-alcohol level or the specified breath-alcohol level. The statute defines the .08 percent breath-alcohol offense in light of the standard partition ratio, which the Legislature adopted based on studies correlating breath samples to the concentration of alcohol in the blood. The expert's testimony challenging the reliability of breath-testing machines generally because they fail to measure the alcohol content of the air from the alveolar region of the lungs was fundamentally at odds with the statutory per se offense. The statute and California Code of Regulations, title 17, section 1219.3 simply require a breath specimen consisting of the last portion of expired breath that is captured by an approved breath-testing machine that is properly calibrated and employed. A defense expert may not invite a jury to nullify the Legislature's determination about the fundamental reliability of approved breath-testing models. Other proposed defense expert testimony about physiological factors that may affect the results of breath-testing machines generally essentially constituted partition ratio variability evidence, which is barred in per se DUI prosecution

Buzzed Driving Campaign Kicks Off In California

Over this holiday season the media has been running the "drunk driving is buzzed driving" commercials with the hopes of getting the message out to young folks that driving after any drinking is unwise.  Who can argue with the message.  As a DUI Attorney who has handled as many as 3000 DUI cases over the last 20 years, I can tell you that if you drink anything, you should not drive, it is a precept I follow religiously.  Understand however, that I do not think that people who consume small amounts of alcohol and drive are necessarily legally DUI, but why take a chance.....

Federal Government to Require Breathalyzers In All Cars?

This week the Los Angeles Times reported that the National Highway Traffic Safety Board is considering requiring the installation of alcohol breathalyzers in all new cars as a way to eliminate or reduce the deaths caused every year by drunk drivers.  The report has raised many questions about the efficacy and costs of such a requirement.

Apparently, the devices would be hard installed in all new cars, as part of the electronic control system.  The hardware would prevent a car from being started or conceivably disable the vehicles engine in the event the driver is determined to be above the legal limit of alcohol, currently .08 in most states.   But questions and concerns have been raised about the reliability of such equipment.  How reliable are they?  Can they be disabled or bypassed in order to allow a drunk driver to start the car?

Personally, I have doubts about the accuracy of the machines as intended.  Most breathalyzer testing machines are designed to capture a sample of the suspect's breath by having the subject blow directly into the instrument.  The device then extrapolates the percentage of alcohol molecules in the captured sample and estimates a blood alcohol level.  If the conceived devices that are being suggested only capture a sample of the air inside the cabin of the vehicle how is that to be linked to the driver?  What if a passenger is drunk?  How will the machine tell is my question.  I guess we will have to wait and see how the devices will be built and operate in a "real world" environment.

DUI Attorney Matthew Ruff Offers Free Representation For Veterans

Coming back from the war has been hard for our brothers and sisters.  The government sent innocent humans into crazy places in the middle east, Iraq, Afghanistan, other places far far away that none of us can understand why we were there and who we were there to fight.  The people in the middle were our soldiers that undertook the mission and came back scarred and forever emotionally damaged.  They came back with demons in their soul that were acquired in the battlefield that was not like anything they were trained for.  Many were forever scarred by the things they saw and heard.  They came back looking for ways to numb themselves from the pain they endured and that has carried over to their everyday lives.  Drinking too much and using drugs in order to get through the day became the norm.  As a result, they may have been arrested for DUI, for public intoxication or any other manner of crimes that stem from a person trying to escape the demons in their lives.

For those soldiers that have been injected into the criminal justice system and face a case in the Courts Attorney Matthew Ruff is offering help.  He is accepting cases that veterans have picked up and do not know what to do.  In one recent case he defended a veteran that was charged with his third DUI and was looking at mandatory jail.  Matthew worked out a no jail disposition that allowed the client to get help and treatment. 

Call Matthew Ruff at 310-527-4100 if you or someone you know that served time in the armed forces and now needs help in a criminal case in California.

Attorney Matthew Ruff Wins A DMV Set Aside In Under 21 DUI Case

Earlier this month Matthew Ruff obtained a set aside on an under age 21 DUI out of Kern County.  The attorney established that although the officer swore under oath that the accused was driving under the influence and had a .09%BAC, well above the zero tolerance standard allowed for under 21 drivers, he got the DMV to dismiss and set aside the action on evidentiary issues related to the case.  For those that have never seen what a "set aside" letter looks like, we have attached the actual order.  The driver gets her license back with no scar on her record.

These types of wins are difficult to obtain in zero tolerance cases where the DMV deems any level of alcohol to be sufficient to suspend a licnse.  In this particular case, Matthew was able to establish that although the client did have a .09 in her blood at the time of arrest, that was not her blood alcohol level at the time she may have been driving her car.  The hearing Judge took testimony from the arresting officer and in rebuttal the attorney called two witnesses that were present in the car with the respondent at the time she was contacted by the police.

Short Primer On Pitchess Motions

The defendant in a criminal case may obtain information regarding citizen complaints of specific assaultive behavior, prejudice or other misconduct on a particular officer's part, and the reports of internal police investigations of those complaints.   The Defense may also obtain discovery about any discipline imposed as a result of the internal police investigations.  Information subject to disclosure is not limited to cases involving altercations between officers and arrestees, but may include other evidence of misconduct that is material to the subject matter in the pending litigation.  The standard governing the discovery of personnel records is not whether the information discovered is ultimately admissible at trial, but whether the records are material to  the subject matter in the pending criminal case. 

According to Bakersfield DUI Attorney Bruce Blythe , the standard for a trial court to grant a Pitchess motion is a "relatively relaxed standard."   The defendant must file a motion supported by affidavits showing "good cause for the discovery," first by demonstrating the materiality of the information to the pending litigation, and second by "stating upon reasonable belief" that the police agency has the records or information at issue. These requirements are set forth in the Penal Code. This two-part showing of good cause is a "relatively low threshold for discovery." In many DUI cases, the defense need not present affidavits since the "good cause" required can be found directly from the attached reports.

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.