Got GERD? A Blood Test May Be The Better Choice If Arrested For DUI

In California breath testing is a choice you have if you are arrested for DUI, but what you do not know about how the machine and people with certain medical conditions can hurt you.  You see, most breath testing devices are prone to false positives when the subject has an ailment known as gastro esophageal  reflux disorder or GERD for short.  The condition causes stomach contents to ruminate up into the airway and dissipate through the mouth, when a person is administered a breath test any remnants of alcohol in the stomach can flow up through the air pipe, and enter the machine, mixing with alcohol already in the blood coming from the lungs and exaggerating the blood alcohol concentration of the subject.

The basis of the GERD defense in DUI cases is that the subject is leaking alcohol from the stomach up into the airway where it will be analyzed by the breath  machine and report a false high BAC concentration.  As such, it is imperative that the individual actually have raw alcohol in their stomach which necessarily implies recent drinking.  In short, if the subject stopped drinking alcohol more than 5 hours before the test, there will be no issue.  In addition, criminal prosecutors will argue that the machine will detect this condition and void the test.  This is simply wrong.

The scientific community has addressed this issue with mixed opinions about the affect, if any, it has on ethanol concentrations for DUI suspects.  One study coming out of Australia concluded the medical condition renders anyone with GERD as not a good candidate for breath tests and should be offered blood instead.  The Wells and Farrar study was overshadowed in recent years by a study conducted by A.W. Jones who asserted that GERD was a non issue in breath testing within the context of drunk driving and as long as the safeguards inherent in the regulatory schemes are followed, such as a deprivation period, observation by the arresting officer, etc.  then a person with gastric reflux is ok to give breath.

Many in the legal and scientific community disagree with these conclusions and urge the state to do more testing and add additional steps to the breath testing process such as inquiry into whether the suspect has the condition which would allow them to choose blood where appropriate.  Whatever the law chooses to do about the issue, it remains clear that enough doubt does exist to cause concern about whether a GERD patient is truly getting a fair shake in the criminal justice system.

Is Miranda Still Alive In DUI Cases?

California has slowly whittled away at the requirement that cops read a suspect his Miranda warnings in DUI cases.  This week, the Cal Supreme Court shed more light on when rights are required in a criminal case.  The case is People vs. Tom and here are the facts and decision:

Tom was speeding down a street and broadsided another car that was making a left turn in front of him. One person in the other car was killed and two others were severely injured. He was arrested after several officers smelled alcohol on his breath. At trial in its case-in-chief, the prosecution relied on evidence that Tom failed to inquire about the welfare of the occupants of the other car after the accident as evidence of his guilt. Tom was convicted of gross vehicular manslaughter and an allegation that he inflicted great bodily injury was found true. The Court of Appeal reversed the conviction, finding that the use of Tom's postarrest, pre-Miranda silence violated his Fifth Amendment rights. The prosecution's petition for review was granted. Held: Reversed. The issue of whether the Fifth Amendment bars the government from offering evidence in its case-in-chief of a defendant's postarrest, pre-Miranda silence in the absence of custodial interrogation has not been decided by the California Supreme Court or the United States Supreme Court, and there is a split of authority on the issue in the federal circuits and among other state courts. The court declined to decide the issue in this case. After discussing the holdings in a number of cases, the court held that a defendant who wishes to bar use of postarrest, pre-Miranda silence that occurs in the absence of custodial interrogation must clearly and timely invoke the Fifth Amendment privilege; it is not self-executing. The threshold inquiry is "whether a reasonable police officer in the circumstances would understand that the defendant had invoked the privilege either at or prior to the silence at issue." The exception to the objective invocation rule that applies when a suspect is subjected to custodial interrogation without Miranda warnings does not apply when a suspect is merely arrested, but not interrogated. The case was remanded to allow the Court of Appeal to determine whether Tom clearly invoked his Fifth Amendment privilege and, whether pre-Miranda silence was admissible under the Evidence Code.  (CCAP)

Your Options After An Adverse DMV Hearing Decision

California has some of the toughest laws in the nation for DUI and drunk driving related offenses and the consequences with regard to a drivers license are equally harsh.  The state does however allow an accused driver to request a full hearing in order to challenge the loss of a driving privilege.  These proceedings are referred to as an APS hearing (Administrative Per Se)

 At the hearing the licensee can present evidence to rebut the 3 main issues at the heart of any excessive BAC action: 1.  Was the person lawfully arrested  2.  Did the officer have reasonable cause to believe he or she was under the influence while behind the wheel.  3.  Did the driver have a blood alcohol level of .08 or higher while the vehicle was moving?

The licensee or lawyer can indeed offer evidence to show the ethanol level was incorrect or that the officer violated the rights of the suspect's fourth amendment rights such as an illegal search or traffic stop/detention.  If the respondent does manage to overcome the presumption of a suspension then the DMV must vacate or set aside the suspension pending against him.  According to Bruce Blythe, a Bakersfield DUI Lawyer , the chances of prevailing at such a tribunal are less than one in one hundred if there is no attorney.  With a legal advocate, the chances increase dramatically.  In fact, one recent report released by the state proclaimed that winning an APS hearing in pro per is about as likely as winning the lottery.

As is the case with many of these proceedings, the hearing officer will sustain the action, making positive findings on the three issues discussed previously.  When that occurs the driver has multiple options which we will discuss at length.  There are essentially 3 options available:

1. The licensee can accept the ruling that was rendered and apply for a restricted license thereby allowing the individual to drive to and from work and during the course and scope of employment.  This option permits the person to move on with their life and end the stress and anxiety the process has caused them.
2. Appeal the decision internally through the DMV administrative review process.  This option requires the driver to pay a fee to the Department of Motor Vehicles and file paperwork contesting the decision.  This procedure is handled by a separate division of the DMV and takes anywhere from 2 to 6 weeks.  It is helpful if a detailed points and authorities is also filed, laying out the error that is alleged and proposing a legal remedy.
3. Appeal the finding in the Superior Court of California.  This process is referred to as "filing a writ"  and in essence is a lawsuit filed against the government for abuse of discretion.  A writ requires paying a filing fee with the Court and almost always requires the assistance of a lawyer due to the complex number of rules.  Many lawyers assert that this is sometimes a very risky alternative because if the writ is denied the defendant can be on the hook for the State's attorneys fees and costs which can be substantial.  This option is also very time consuming and can often take several months to get a decision while the suspension stays in effect.

At the end of the day, choosing which rote to take will be easier with the counsel of an experienced lawyer who can guide and advise the person of the pros and cons in any particular case.

Long Beach Expected To Ramp Up DUI Checkpoints This Labor Day

Law enforcement agencies in Long Beach announced their intent to increase the number of sobriety checkpoints over the holiday weekend according to officials.  The city has always taken an active approach in curbing drunk driving through aggressive enforcement of drunk driving laws within its municipal boundaries.

The city is part of the avoid the 100 campaign that enlists the services of over one hundred police departments to encourage officers on patrol to keep a careful lookout for impaired drivers.  According to NHTSA, more people are killed by inebriated drivers than any other cause.  The police will seek to use this final holiday of the summer to deter partygoers from drinking and then driving.

The area has always had the most targeted enforcement of DWI motorists, says one Long Beach DUI Lawyer.  The officers that participate in this campaign will receive special training in spotting the signs of tipsy drivers such as weaving, lane straddling and other vehicle code infractions that are notorious signs of impaired drivers.  The limit for alcohol in California is .08 and that level will be checked by anyone suspected of driving under the influence.

We can also expect to see an increased number of people filling up the jails in Long Beach and that will carry over into a higher number of Court filings for Vehicle Code 23152, according to the attorney.  The punishment for a first offense DUI is up to 6 months in jail, a fine of upwards of  $2000 and completion of an alcohol education program.  In addition to the penalties in criminal court, the DMV can take a drivers license for up to one year and require the installation of an ignition interlock device on any car they drive.

Torrance Attorney, Matthew Ruff Presented With Coveted "Client Distinction Award" For Second Year In A Row

The nation's largest attorney rating site AVVO, has again awarded Torrance DUI Attorney Matthew Ruff with its annual client distinction award based on the number of positive client reviews and favorable feedback regarding his representation of their case.  The award is based on a number of criteria such as knowledge of the law, communication ability, how well the attorney kept his clients informed and level of experience.

The Miranda Rule Not Applicable When Questioning Is Minimal

There are a litany of cases interpreting the application of the Miranda rule in criminal cases.  For example, in DUI cases the courts have ruled that questioning about intoxication prior to conducting field sobriety tests does not trigger the advisement of rights required by Miranda.  In this recent case the appeals court extends that logic to cases where the questioning is limited to two questions of a handcuffed suspect.

The facts are as follows : Castillo and two others were handcuffed prior to the execution of a search warrant. One officer informed Castillo and the others that they were not under arrest, that they were being detained for the purpose of serving a search warrant, and asked who was responsible for the residence so the warrant could be served. After Castillo responded that he was responsible for the apartment, the officer asked if Castillo was responsible for all the property in the residence and Castillo said yes. The search was conducted, contraband was found, and Castillo was arrested. On appeal, Castillo contended that the officer's questions were intended to elicit incriminating statements and should have been suppressed because they were asked prior to Miranda warnings. Under the totality of the circumstances, Castillo was not in custody for purposes of Miranda. When police execute a search warrant on a residence, they may detain the occupants to prevent flight, minimize the risk of harm to the officers, facilitate orderly completion of the search, and determine the relationship of an individual to the premises. 

The justices opined that It is not unreasonable to detain an occupant in handcuffs for the duration of the search of the residence. Based on well established case law, the police properly detained Castillo during the search and he was not in custody when the officer questioned him. The trial court's finding that Castillo was not interrogated was supported by the evidence. Any error was harmless because other evidence found during the search established Castillo's dominion and control over the residence. 

These scenarios play out quite regularly when the police investigate criminal activity.  Many legal scholars have criticized how far Courts have gone to distiguish cases where Miranda does not apply.  One Long Beach Criminal Attorney comments that the police are given way too much freedom to interrogate suspects without advising them of their legal rights.  Notwithstanding that sentiment, the law will contiually be interpreted based on the changing times.

Federal Court Upholds Detention Citing Recent DUI Case

In United States v. Edwards the federal court for the ninth circuit has upheld a criminal case citing the recent DUI decision of Navarette.   In the opinion, the Justices ruled that a 911 caller provided officers reasonable suspicion to stop defendant; the stop did not become an arrest when officers drew guns on defendant and handcuffed him.

Here are the relevant facts.   Police received a 911 call from an unidentified man reporting that a "young black male" was shooting at passing cars, including the caller's. Officers responded to the area and stopped defendant and another man. Defendant was searched and a gun was found. After his motion to suppress was denied, he pled guilty to being a felon in possession of a gun. He appealed the conviction arguing that his fourth amendment rights were violated by the police and, although this was not a dui case, the court followed the reasoning of a US Supreme Court drunk driving decision in ruling against the defendant. 

The appeals court upheld the conviction.  Saying : "The totality of the circumstances determines whether and when an investigatory stop becomes an arrest." Two components of the detention are examined: (1) the intrusiveness of the stop (i.e., how aggressive were the officers; how much was defendant's liberty restricted), which is considered from the perspective of the person stopped; and (2) the justification for the officers' actions, which is determined from the officers' perspective. Here, the officers actions were intrusive—they drew their guns, forced the defendant to kneel, and handcuffed him. But this does not automatically convert an investigatory stop into an arrest that requires probable cause. The officers' conduct was reasonable because defendant was the only person in the vicinity of the shooter's reported location who fairly matched the 911 caller's description and the 911 caller provided specific facts regarding the shooter's clothing, height, and age. The officers had reason to believe defendant could be armed and dangerous, having possibly just committed a violent crime. Their concern for their safety justified the tactics they used to stabilize the situation before investigating further. 

According to Bakersfield DUI Attorney Bruce Blythe, this case is one of a stream of decisions that curtails the liberty we all enjoy on the roads of america.  The decision seems to follow the same reasoning in allowing law enforcement to stop citizens on nothing more than an anonymous tip that a crime is occurring and that is indeed troubling to many criminal lawyers who see a slippery slope if this case is followed says Blythe.

The landmark case on anonymous stops, California v. Navarette, decided earlier in the year continues to have deep and wide spreading impact on the way traffic stops are conducted.  Indeed, the Court held that brief investigatory stops are permissible when officers have a particularized and objective basis to suspect a person of criminal activity. When evaluating investigatory stops resulting from telephone tips it must be determined whether the tips "exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." In Navarette v. California (2014) 134 S.Ct. 1683, the Court held an anonymous call provided reasonable suspicion for a stop of a suspected DUI driver because: (1) the caller claimed to be an eyewitness to dangerous activity; (2) the caller reported the event soon after it occurred; (3) the caller used the 911 system, which can be traced to origin, guarding against false reports; and (4) the caller created reasonable suspicion of an ongoing and dangerous crime—drunk driving. Similar to Navarette, here the caller used the 911 system, gave specific details regarding the shooter, had eyewitness knowledge of the shooting, and reported an ongoing emergency situation. This provided officers with reasonable suspicion to stop defendant. 

Although the case is not binding on California, its reasoning and logic can have persuasive power on judges in similar cases. Special thanks to CCAP for its analysis.