In many DUI cases a person is parked when the police arrive and arrest the subject. Here, the Supreme Court defines a detention to occur when the police pull in behind a car an turn on emergency lights.
Here are the facts in People vs. Brown, A deputy sheriff investigating an emergency call reporting a fight in progress pulled his car behind Brown's parked vehicle and activated his emergency lights. The officer found Brown to be intoxicated and he was charged with felony driving under the influence. Brown moved to suppress evidence of his intoxication as the fruit of an unlawful detention. The trial court denied the motion, concluding that Brown had not been detained until the deputy observed that he was intoxicated and, at that point, the deputy had a reasonable suspicion that Brown had been driving under the influence. The Court of Appeal affirmed. The California Supreme Court granted review.
Held: Affirmed. An officer seizes a person when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. In situations involving a show of authority, a person is seized if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave, or otherwise terminate the encounter, and if the person actually submits to the show of authority. (Brendlin v. California (2007) 551 U.S. 249, 255.) Without adopting a bright-line rule, the court concluded that a reasonable person in Brown's position would not have felt free to leave, and Brown demonstrated submission to police authority by staying in his car. Under the totality of the circumstances, Brown was detained.
However, the Court declined to dismiss the DUI because the detention was supported by reasonable suspicion and was justified because there was a reliable citizen's report of a violent fight potentially involving a firearm and the officer found Brown near the scene of the fight in an otherwise vacant alley only minutes later. (CCAP). As a Torrance DUI Lawyer I have seen this scenario in many cases. Usually the client is sleeping in the car when contacted. This case can be used in those situations when the police gave no reason to detain, such as when the car is legally parked.
Monday, September 14, 2015
Why Is My Court Date Being Changed?
All DUI cases start out with a police report, blood test or breath test results and if the case involves an accident, a collision investigation report detailing the specifics of the incident. Once these documents are prepared they are submitted to the local prosecutor for evaluation and determination of possible criminal charges. The District Attorney will file what is called a formal " complaint" with the local Court that alleges the crimes charged and what they intend to prove. Sometimes, however, the complaint is not filed before the date given to appear in Court. When this occurs the person will be sent a new Court date.
Why does this happen? Usually the arresting agency will not have submitted the necessary paperwork to the DA in order to file the case. This paperwork may include the results of a blood test or other chemical test given. In many cases there is a backlog at the local crime lab that does the analysis, sometimes the test is complete but the arresting agency is backlogged and simple hasn't submitted the final reports to the District Attorney. In some situations the DA has all of the reports but needs additional time to evaluate the evidence. Sometimes, the file is sent back to the arresting agency for more information or the DA may require some additional investigation to finalize their decision on what charges, if any, to file. For example, a witness may need to be re-interviewed or some additional evidence may need to be tested. In any case, the DA will usually notify the accused by way of a letter once the case is finally submitted and a new Court date will be issued.
It is important to remember that California Law gives the prosecutor one year to file a misdemeanor DUI and three years to file a felony charge. If the prosecuting agency fails to file charges within this period of time then they will be barred by the statute of limitations.
During the period of time between the investigation and the formal filing of charges the DA is under no obligation to release any information or reports. All official reports will be turned over to the defense attorney only once the complaint is filed with the Court.
Why does this happen? Usually the arresting agency will not have submitted the necessary paperwork to the DA in order to file the case. This paperwork may include the results of a blood test or other chemical test given. In many cases there is a backlog at the local crime lab that does the analysis, sometimes the test is complete but the arresting agency is backlogged and simple hasn't submitted the final reports to the District Attorney. In some situations the DA has all of the reports but needs additional time to evaluate the evidence. Sometimes, the file is sent back to the arresting agency for more information or the DA may require some additional investigation to finalize their decision on what charges, if any, to file. For example, a witness may need to be re-interviewed or some additional evidence may need to be tested. In any case, the DA will usually notify the accused by way of a letter once the case is finally submitted and a new Court date will be issued.
It is important to remember that California Law gives the prosecutor one year to file a misdemeanor DUI and three years to file a felony charge. If the prosecuting agency fails to file charges within this period of time then they will be barred by the statute of limitations.
During the period of time between the investigation and the formal filing of charges the DA is under no obligation to release any information or reports. All official reports will be turned over to the defense attorney only once the complaint is filed with the Court.
Sunday, September 13, 2015
The Two Test Requirement In Breath Testing
Many folks stopped for DUI will be asked to submit to so roadside breath test prior to arrest. These roadside preliminary breath tests are a commonly used tool by law enforcement in a Torrance and many other cities in Los Angeles.
Problems arise however when the officer only obtains one sample of breath. All scientific studies reveal that duplicate sample are necessary to achieve a reliable result. For example, The recommended guidelines for the use of breath testing results in law reinforcement: two breaths, taken two to ten minutes apart after observation / alcohol-deprivation period of fifteen minutes [Dubowski, K.M., National Safety Council Committee on Alcohol and Other Drugs, October 1986. Duplicate Breath- Alcohol Testing, Am J Forensic Med Pathol., 1988, Sep; 9(3): 272.]
"The human variables on the accuracy of breath testing make duplicate testing mandatory. It is well known that "with only one subject sample, it is not possible to know, with a reasonable degree of certainty that a random error did not occur in the subject test. The rationale of requiring replicate analysis for any quantitative procedure is universally accepted." [Jones A.W., Precision, Accuracy and Relevance of Breath Alcohol Measurements, Modern Problems of Pharmacopsychiatry, Vol. 11, S. Krager, Basel, Switzerland 1976 pp 69-78]. The use of a breath test that only uses one sample should therefore be viewed with caution in a legal setting.
If your DUI case only involves one breath blow contact an attorney to discuss strategies to throw out the test completely.
Problems arise however when the officer only obtains one sample of breath. All scientific studies reveal that duplicate sample are necessary to achieve a reliable result. For example, The recommended guidelines for the use of breath testing results in law reinforcement: two breaths, taken two to ten minutes apart after observation / alcohol-deprivation period of fifteen minutes [Dubowski, K.M., National Safety Council Committee on Alcohol and Other Drugs, October 1986. Duplicate Breath- Alcohol Testing, Am J Forensic Med Pathol., 1988, Sep; 9(3): 272.]
"The human variables on the accuracy of breath testing make duplicate testing mandatory. It is well known that "with only one subject sample, it is not possible to know, with a reasonable degree of certainty that a random error did not occur in the subject test. The rationale of requiring replicate analysis for any quantitative procedure is universally accepted." [Jones A.W., Precision, Accuracy and Relevance of Breath Alcohol Measurements, Modern Problems of Pharmacopsychiatry, Vol. 11, S. Krager, Basel, Switzerland 1976 pp 69-78]. The use of a breath test that only uses one sample should therefore be viewed with caution in a legal setting.
If your DUI case only involves one breath blow contact an attorney to discuss strategies to throw out the test completely.
Thursday, September 10, 2015
Judge George Bird, Getting Things Done In Torrance Court
For years Torrance Court has done without an EDP Court for misdemeanors. What this meant was many cases languished for long periods of time before resolving and the dispositions between the various cities were inconsistent. That all changed when Judge George Bird was appointed to the Torrance Bench last month. Now, cases are settling faster than before and the calendar is being cleared on a much more expedited basis.
Many attorneys are applauding the change because it creates an environment where sentences are handed down on a much more even handed consistent level with little variation between the city prosecutors. For example, a couple months ago if a person got arrested in Manhattan Beach for drunk in public the offer was quite different from a person arrested in Redondo or Hermosa Beach. This was unfair and confusing to the general public. As a local DUI attorney in Torrance I can say there has been a marked improvement of efficiency with the new EDP Court and Judge Bird at the helm in Division 3.
Many attorneys have also commented on the fact that Judge Bird has no problem disagreeing with a prosecutor when the offer they are making is unfair under the specific circumstances of the case. Overall his appointment has been well received by the local bar.
DUI cases in Torrance are processed differently than in other Courts. The following is a summary of how cases are assigned:
Initially all cases are heard in Division 3 on the second floor of the Courthouse. This Courtroom does all misdemeanor arraignments from all cities, including Redondo Beach, Hermosa, Gardena, Lomita, Manhattan Beach, Palos Verdes Peninsula and of course the city of Torrance. If a not guilty plea is entered the case is "sent out" to another division for all purposes including trial. The division breakdown is as follows:
Division 2, Judge Sandra Thompson: Redondo and Hermosa
Division P, Judge Nicole Bershon: Gardena, Palos Verdes Peninsula, Manhattan Beach
Division 5, Judge Gary Tanaka: City of Torrance
All felony DUI cases start in Div 4, Judge Thomas Sokolov.
Many attorneys are applauding the change because it creates an environment where sentences are handed down on a much more even handed consistent level with little variation between the city prosecutors. For example, a couple months ago if a person got arrested in Manhattan Beach for drunk in public the offer was quite different from a person arrested in Redondo or Hermosa Beach. This was unfair and confusing to the general public. As a local DUI attorney in Torrance I can say there has been a marked improvement of efficiency with the new EDP Court and Judge Bird at the helm in Division 3.
Many attorneys have also commented on the fact that Judge Bird has no problem disagreeing with a prosecutor when the offer they are making is unfair under the specific circumstances of the case. Overall his appointment has been well received by the local bar.
DUI cases in Torrance are processed differently than in other Courts. The following is a summary of how cases are assigned:
Initially all cases are heard in Division 3 on the second floor of the Courthouse. This Courtroom does all misdemeanor arraignments from all cities, including Redondo Beach, Hermosa, Gardena, Lomita, Manhattan Beach, Palos Verdes Peninsula and of course the city of Torrance. If a not guilty plea is entered the case is "sent out" to another division for all purposes including trial. The division breakdown is as follows:
Division 2, Judge Sandra Thompson: Redondo and Hermosa
Division P, Judge Nicole Bershon: Gardena, Palos Verdes Peninsula, Manhattan Beach
Division 5, Judge Gary Tanaka: City of Torrance
All felony DUI cases start in Div 4, Judge Thomas Sokolov.
Sunday, August 23, 2015
Torrance Court Sees A Change Of Procedure For DUI Cases
As of August 2015 the Torrance Court on Maple will change the way DUI and other misdemeanours are heard. It used to be that each city in the jurisdiction would have its own Courtroom for arraignment, Redondo Beach and Hermosa were in Division 2, Manhattan Beach and Palos Verdes were in Division P for example. This all has changed.
Now, all new cases will start in Division 3 for arraignment and what is called EDP or early disposition. The case can be resolved there and stay there for purposes of resolution. The Judge in that Courtroom is the well respected Honorable George Bird, a former local criminal defense attorney himself so he knows the ins and outs of working out a fair disposition to cases.
Should the case proceed to trial ,after a not guilty plea, the case will be transferred to one of the previously assigned courtrooms such as Division 2, 5, and P as follows:
Division P of the Torrance Court is presided over by the Honorable Judge Nicole Bershon. This Court hears all misdemeanor cases originating from Manhattan Beach and the Palos Verdes Peninsula.
Division 5 of the Southbay Court is presided over by the Honorable Gary Tanaka, a former public defender and County Counsel. This Court hears all cases coming the the city of Torrance, misdemeanors and drunk driving.
Division 2 is The Honorable Sandra Thompson who presides over all Redondo Beach and Hermosa Beach DWI cases and misdemeanours such as drunk in public.
All felony cases are assigned, depending on the case number, to Div L, G, C and other courts in the building.
Now, all new cases will start in Division 3 for arraignment and what is called EDP or early disposition. The case can be resolved there and stay there for purposes of resolution. The Judge in that Courtroom is the well respected Honorable George Bird, a former local criminal defense attorney himself so he knows the ins and outs of working out a fair disposition to cases.
Should the case proceed to trial ,after a not guilty plea, the case will be transferred to one of the previously assigned courtrooms such as Division 2, 5, and P as follows:
Division P of the Torrance Court is presided over by the Honorable Judge Nicole Bershon. This Court hears all misdemeanor cases originating from Manhattan Beach and the Palos Verdes Peninsula.
Division 5 of the Southbay Court is presided over by the Honorable Gary Tanaka, a former public defender and County Counsel. This Court hears all cases coming the the city of Torrance, misdemeanors and drunk driving.
Division 2 is The Honorable Sandra Thompson who presides over all Redondo Beach and Hermosa Beach DWI cases and misdemeanours such as drunk in public.
All felony cases are assigned, depending on the case number, to Div L, G, C and other courts in the building.
Thursday, August 20, 2015
I Drive A Motorcycle, Am I Required To Install An Ignition Interlock Device (IID)
Anyone convicted of a DUI in certain counties, such as Los Angeles, is required to install an ignition interlock device in order to get there license back. What about those who drive a motorcycle? Do they make ignition interlocks for motorcycles? As of August 2015 the answer is no.
The California Vehicle Code states " a "vehicle" does not include a
The California Vehicle Code states " a "vehicle" does not include a
motorcycle until the state certifies an ignition interlock device
that can be installed on a motorcycle. A person subject to an
ignition interlock device restriction shall not operate a motorcycle
for the duration of the ignition interlock device restriction period.
(f) This section shall become operative on July 1, 2010."
Therefore, you cannot drive a motorcycle until they make an IID that is capable of being installed on one. I suggest checking back in a couple months to see if the law changes. In order to drive legally you will have to park your bike and get a car, at least for the 5 months that the interlock is required.
Tuesday, August 18, 2015
Facts About Ignition Interlocks (IID) In California
After the Court resolution of your case you should work on getting the IID, there may be some delay in the paperwork so if the provider tells you that there is nothing in the system, you should wait a few days and have them check again.
What is an IID?
An IID is a device wired to a vehicle’s ignition that requires a breath sample from the driver before the engine will start. If the device detects alcohol on the breath, the engine will not start. As the individual drives, the device will request periodic breath samples to ensure continued absence of alcohol in the driver’s system. Many people wrongly believe they can avoid ever installing an IID if they transfer ownership of the vehicle to someone else, this may not work because the DMV will require an IID in order to get fully reinstated, also if there are any vehicles that you have access to at your residence.
What does an IID Cost?
The cost of IID devices vary but many companies offer coupons to check around. Some companies charge more than others but the range will be 50-75 per month. Intoxalock will offer free installation and the first month free for most customers if you mention the promotion and that you were referred by an attorney. Shop around though to find a deal that works for you, call a couple different installers.
Here is a link to one special IID offer, IID Discount
The following is a list of all Ignition Interlock Providers:
Low Cost Interlock
(800) 352-4872
Lifesafer Interlock, Inc.
(800) 210-8087
Draeger Safety Diagnostics
(800) 332-6858
Best Labs, Inc.
(877) 715-2253
Alcolock
(877) 258-5696
Instant Interlock
(800) 957-0036
Smart Start, Inc.
(800) 880-3394
Global Interlock Service
(877) 794-3984
Skyfine USA
(888) 886-5016
Autosense International
(800) 498-9071
Intoxalock
(877) 777-5020
Guardian Interlock Systems
(800) 499-0994
Blow and Drive Interlock Inc.
(877) 238-4492
Alcohol Detection Systems, Inc.
(888) 786-7384
Budget IID LLC
(844) 551-4883
Alco Alert Interlock, Inc.
(888) 663-9847
A & A Interlock Services
(800) 749-7791
Do I Need to Install an IID?
An IID is a device wired to a vehicle’s ignition that requires a breath sample from the driver before the engine will start. If the device detects alcohol on the breath, the engine will not start. As the individual drives, the device will request periodic breath samples to ensure continued absence of alcohol in the driver’s system. Many people wrongly believe they can avoid ever installing an IID if they transfer ownership of the vehicle to someone else, this may not work because the DMV will require an IID in order to get fully reinstated, also if there are any vehicles that you have access to at your residence.
What does an IID Cost?
The cost of IID devices vary but many companies offer coupons to check around. Some companies charge more than others but the range will be 50-75 per month. Intoxalock will offer free installation and the first month free for most customers if you mention the promotion and that you were referred by an attorney. Shop around though to find a deal that works for you, call a couple different installers.
Here is a link to one special IID offer, IID Discount
The following is a list of all Ignition Interlock Providers:
Low Cost Interlock
(800) 352-4872
Lifesafer Interlock, Inc.
(800) 210-8087
Draeger Safety Diagnostics
(800) 332-6858
Best Labs, Inc.
(877) 715-2253
Alcolock
(877) 258-5696
Instant Interlock
(800) 957-0036
Smart Start, Inc.
(800) 880-3394
Global Interlock Service
(877) 794-3984
Skyfine USA
(888) 886-5016
Autosense International
(800) 498-9071
Intoxalock
(877) 777-5020
Guardian Interlock Systems
(800) 499-0994
Blow and Drive Interlock Inc.
(877) 238-4492
Alcohol Detection Systems, Inc.
(888) 786-7384
Budget IID LLC
(844) 551-4883
Alco Alert Interlock, Inc.
(888) 663-9847
A & A Interlock Services
(800) 749-7791
Do I Need to Install an IID?
Yes, if you are convicted of a DUI in any one
of the four pilot counties for a violation that
occurred from July 1, 2010, through December
31, 2015. Before a driver license can be
reissued, you must serve a specified period
of suspension or revocation and provide the
DMV with the following:
• A Department of Motor Vehicles Ordered Verification of Ignition Interlock, DL 924, form.
• An alcohol treatment program Proof of Enrollment Certificate, DL 107, or Notice of Completion Certificate, DL 101 form.
• A California Insurance Proof Certificate, SR 22.
• A Department of Motor Vehicles Ordered Verification of Ignition Interlock, DL 924, form.
• An alcohol treatment program Proof of Enrollment Certificate, DL 107, or Notice of Completion Certificate, DL 101 form.
• A California Insurance Proof Certificate, SR 22.
• Pay all applicable reinstatement fees and a $45 administrative service fee.
Once you comply with all reinstatement requirements, DMV will restrict you to drive only vehicles equipped with a certified IID (in addition to any other applicable restrictions) until your IID restriction ends.
How do I get an IID Installed?
Once you comply with all reinstatement requirements, DMV will restrict you to drive only vehicles equipped with a certified IID (in addition to any other applicable restrictions) until your IID restriction ends.
During your IID restriction period, you cannot drive vehicles that are not equipped with a functioning
IID. The term of the IID restriction period is based on the initial DUI offense and the number of DUI
related offenses you have within the prior 10 years, as specified below:
Number of
Offenses
Within 10
Years
|
IID Restriction Period
for Conviction of
California Vehicle Code
(CVC) §23152
|
IID Restriction Period for
Conviction of CVC §23153 or
California Penal Code §191.5(b)
|
1
|
5 months
|
12 months
|
2
|
12 months
|
24 months
|
3
|
24 months
|
36 months
|
4 or more
|
36 months
|
48 months
|
How do I get an IID Installed?
Contact a California certified IID installer. To obtain a list of certified IID Installers you may:
• Visit DMV’s website at www.dmv.ca.gov/vehindustry/ol/forms/ignitioninterlockdevicelist.htm. • Call DMV at 1-800-777-0133.
• Visit a DMV field office.
IID installers in all counties are required to offer eligible pilot program participants reduced fees for IID installations and calibrations. The cost will be determined by your family’s income in comparison to current federal poverty guidelines.
What Happens After an IID is Installed?
• Visit DMV’s website at www.dmv.ca.gov/vehindustry/ol/forms/ignitioninterlockdevicelist.htm. • Call DMV at 1-800-777-0133.
• Visit a DMV field office.
IID installers in all counties are required to offer eligible pilot program participants reduced fees for IID installations and calibrations. The cost will be determined by your family’s income in comparison to current federal poverty guidelines.
What Happens After an IID is Installed?
Once installed in your vehicle, the IID must be calibrated and inspected by a certified installer at
least every 60 days. The inspections ensure that the device is working properly with no evidence of
tampering. If the installer notifies DMV that you failed to comply with any of the IID requirements,
DMV will “pause” the IID restriction. You will be ineligible to operate a vehicle until DMV receives a
new DL 924 or a letter from the IID installer indicating that the IID remains installed and is functioning
correctly, or that you are back in compliance with the IID maintenance and calibration requirements.
The full restriction term must be served before the IID restriction will be removed from your driving
record. If you violate your restriction and drive a vehicle without a functioning IID during your IID
What if I Don’t own a Vehicle?
What if I Don’t own a Vehicle?
To qualify for an exemption, you must submit
a signed Exemption for Ignition Interlock
Device, DL 4055B, form that certifies under
penalty of perjury that you:
• Do not own a vehicle.
NOTE: If you own a vehicle that is on a nonoperational status, you do not qualify for an exemption. DMV will access your registration record(s) to verify the certification.
• Do not own a vehicle.
NOTE: If you own a vehicle that is on a nonoperational status, you do not qualify for an exemption. DMV will access your registration record(s) to verify the certification.
-
No longer have access to a vehicle at your
place of residence.
-
No longer have access to the vehicle used
when your DUI offense occurred.
DMV will only approve signed exemption requests that are submitted within 30 days of the suspension or revocation notice mail date.
Additional information regarding the IID pilot program, IID installation, and related costs are available at www.dmv.ca.gov/dl/ iid_pilot_program_q-a.pdf.
Funding for this program was provided by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration.
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