California Court Clarifies Driving While Texting Law

Recently, the California lawmakers made it illegal to text and drive.  Many DUI drivers violate this statute.  The law was instantly applauded by safety groups as innovative and necessary in the age of technology .  But what about those drivers that use their devices for looking at maps?  The law seemed to apply to those drivers, not so says a Central Valley appellate court.  In this case a CHP officer cited The driver for prohibited use of a wireless telephone while driving after the officer saw him check a traffic map on his phone. (Veh. Code, § 23123, subd. (a).) driver claimed he was not "using" the phone within the meaning of the statute. 

The defendant appealed the ruling by the trial judge and the appeals court overturned the conviction. Section 23123, subdivision (a) prohibits a driver from using a wireless telephone unless it is configured for hands-free "listening and talking" and is used in that manner while driving. Based on the wording of the statute, it does not require that the phone be used in a manner that allows for "hands-free looking," or "hands-free operation." The legislative history of the law reflects it was focused on prohibiting a driver from holding a wireless telephone while conversing on it. This interpretation is supported by subsequent laws, such as section Vehicle Code 23123.5, which prohibit texting while driving, as they would not have been necessary if section 23123 applied to all non-hands-free "uses" of wireless telephones while driving. (Thanks to CCAP).

This statute will likely be used often in the context of DUI enforcement.  Indeed, in one recent case,  Torrance DUI Attorney Matthew Ruff represented a motorist that was pulled over for this reason, we took the case to trial and the driver was acquitted.  Time will tell how police apply the law to those seen staring at there phone while driving.

DMV Appeal For DUI Suspension

The law in California allows a person to appeal an adverse DMV decision for APS hearings.  The technical name for the appeal is called a departmental review.  Thousands of hearings are conducted every month throughout the state for driving above a .08 or refusal to submit to a chemical test such as blood of breath.  The consensus among attorneys handling these types of cases is that the odds are generally against the licensee.  With that being said, there are instances when the DMV takes away someone's driving privilege without a sufficient legal basis and it is in these cases when an appeal is appropriate.

The framework of an administrative hearing, commonly referred to as an APS, is quite complex and not easy to understand from the lay men's perspective.  For starters, the same person that is assigned to be the judge is also appointed as the prosecutor and jury, for lack of a better word.  This inherent conflict gives rise to many bad decisions that are influenced by a lack of objectivity.  Many would argue that the system needs to be revamped to allow a neutral fact finder to oversee the proceedings, but these attempts have all been shot down by the Department.

So, back to the topic of an administrative appeal.  First, the review itself must be requested within 14 days of the final decision by the hearing officer.  Failure to comply with this time deadline is fatal to the appeal.  Second, the cost to file an appeal of a APS decision is $120.  This fee is non refundable even if the appeal goes in the drivers favor.  Once the review is filed it often takes several weeks to complete.  The file is sent to Sacramento along with a copy of the tape recorded hearing.

Any administrative reviews are denied, the DMV will not allow for new evidence or witnesses to be presented.  The evidence that was submitted at the hearing is what is considered, period.  For hearings held in El Segundo California, the process usually takes a couple weeks and the drivers license suspension will not be stayed pending the review .

I hope this article is helpful to those considering filing a appeal for a license suspension for DUI, driving with a .08 or higher and refusal cases.

California Courts Rule A Motor Home Is Not A House For Arson Crime

Many decisions have come down in the Torrance Court concluding that a motor home is the same as a house for many purposes, such as whether the police are required to obtain a search warrant prior to entry, for example.  In this recent case, the California appeals court went the other way.  Though this case has little to do with DUI, the principles set forth are interesting and could come into play within the context of drunk driving cases involving motor homes.

Here are the facts: Following an argument with his girlfriend, defendant used a vehicle to push an inoperable motor home next to the one in which he was living and in which his girlfriend was sleeping. He then set fire to it. The girlfriend escaped, but the fire spread to the home in which she had been sleeping, destroying both. A jury found defendant guilty of arson of an inhabited structure in violation of Penal Code section 451, subdivision (b) and was sentenced to 25 years to life under "Three Strikes." 

I his appeal, the defendant contended that the evidence was insufficient to show that the motor home in which he and girlfriend were then living was a "structure." The appellate court agreed and reversed. The motor home at issue is not a structure as that term is defined in the arson statutes. The court also held that because the only other crime on which the trial court instructed was arson of property, which is not a lesser included offense, the court could not exercise its authority under section 1181, subdivision 6, to reduce the conviction to that offense. Further, remand and a subsequent trial would constitute a new prosecution of the defendant based on the same evidence to prosecute the original charge, and is therefore prohibited. The District Attorney failed to prove its case against the accused offender, and the only option is reversal with instructions to the trial court to dismiss the charges. (Courtesy CCAP)

The DA now has a decision to make.  He can dismiss the charge and close the case.  He can proceed on a different theory of a crime or strike a deal for a lesses offense.

California Court Rules Taking DNA From Arrestee Is Legal

For quite some time now, California has allowed the collection of  a DNA sample from someone convicted of a felony.  In this case, the Courts go further and permit a police officer to collect a swab of a person's DNA in instances of an arrest only.  The Judges opined:

The defendant was arrested for a felony, after his arrest, at the time of booking Lowe's arrest , police took a buccal swab DNA sample from inside his cheek without a warrant. . The DNA sample connected Lowe to a number of unsolved offenses and a jury convicted him of multiple burglaries, sex crimes and robberies. He was sentenced to 107 years to life. On appeal he challenged the trial court's denial of his motion to suppress the DNA evidence obtained from him, which he argued was taken in violation of the Fourth Amendment. In an unpublished opinion, the Court of Appeal upheld the denial of the defendant's suppression motion. The California Supreme Court granted review and transferred the case back to the Court of Appeal to reconsider its decision in light ofMaryland v. King (2013) 133 S.Ct. 1958 (concluding that collecting and analyzing DNA samples from persons arrested and charged with serious offenses is reasonable). Concluding its prior decision was correct, the Court of Appeal found the 2004 amendment to section 296 does not violate the Fourth Amendment. While nonconsensual extractions of biological samples deserve Fourth Amendment protection, felony arrestees have a diminished expectation of privacy. A mouth swab, such as the one performed on defendant, is minimally intrusive. The DNA profile developed from the fluid is used solely for identification purposes, which is useful to identify arrestees, solve past crimes, create a deterrent to commission of future crimes, and exonerate the innocent. Further, the profile is developed only from persons arrested for a felony based on probable cause. 

Ignition Interlocks Are Here To Stay

California saw its first real year having ignition interlocks as a requirement in some of its biggest counties.  Nationwide ignition interlocks have been the hottest issue in traffic safety legislation this year. Fourteen pieces of ignition interlock legislation have been passed and signed into law by Governors in twelve states. Seven more bills are still alive and any of these could move all the way and become part of that state’s statutes. The biggest of these fourteen are new laws in Colorado, Missouri, Tennessee and New York.

Colorado reduced its ignition interlock required high Blood Alcohol Content (BAC) standard from 0.17 to 0.15, which does not sound like much but 0.16 and 0.17 are the two most common BAC levels at the time of arrest. This will effect a large number of offenders, especially when you consider that Colorado already has huge numbers in their ignition interlock program.

Missouri and Tennessee amended their DUI laws relation to IID by changing their ignition interlock programs to a true “all offender” status. All BAC’s and all numbers of offenses in those states now require the installation of an ignition interlock to regain driving privileges. New York’s law makers did three things: It tightened up loopholes on the ignition interlock requirement, it extended the minimum term for these same offenders from six months to twelve, and increased the penalty of driving a vehicle (without an ignition interlock) from a traffic infraction to a felony.

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.....