Here is the scenario, an officer stops you for a traffic violation and subsequently sees evidence of possession of a legal amount of marijuana. Can they proceed to search your car on that basis? No, the law allows for possession of recreational marijuana and prohibits police from conducting exploratory searches on that basis alone. Specially, H&S § 11362.1(c) clearly provides that marijuana possessed under lawful circumstances is “not contraband nor subject to seizure,” nor does a subject’s lawful conduct pursuant to section 11362.1(a) “constitute the basis for detention, search, or arrest.” Also, People v. Torres et al. (2012) 205 Cal.App.4th 989, 993-998, held that a warrantless search upon the speculative belief that more marijuana than lawfully allowed may be found is illegal.
There are instances where a police officer may be justified in detaining you however. H&S § 11362.3(a) makes it illegal (an infraction) to smoke or ingest marijuana (1) in a public place (subd. (a)(1), which arguably includes in a vehicle while out on the public streets or in any other public place), (2) anywhere where smoking tobacco is prohibited (subd. (a)(2)), (3) within 1,000 feet (including simple possession, whether or not it’s being smoked, if on the grounds) of a school, day care center, or youth center while children are present (subd. (a)(3) & (5)), or (4) while driving or operating, or when riding in the passenger seat or compartment, of a motor vehicle, boat, vessel, or aircraft (subd. (a)(7) & (8)). It is also illegal for anyone to (5) possess (whether or not it’s being smoked) an open container or open package of marijuana while driving, operating, or riding in the passenger seat of a motor vehicle, boat, vessel, or aircraft. (Subd. (a)(4)).
Based on the foregoing, As long as you are over 21, there are no open containers inside the vehicle and you are not smoking the pot inside the car, there would be no legal basis to conduct a search of the vehicle for more marijuana.
Sunday, February 18, 2018
Sunday, February 11, 2018
Does Submission To An Officer’s Authority Constitute Consent To Draw Blood in a DUI Case?
No, says People vs. Ling (2017) 15 Cal App 5th Supp. 1
The Court held the People bear the burden of proving that a consent was, in fact, freely and voluntarily given. “This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” (Bumper v. North Carolina (1968) 391 U.S. 543, 548.) To be effective, consent must be voluntary. Voluntariness is to be determined by considering the “totality of the circumstances.” It is also the rule that “assent” alone is not necessarily “consent.” “Consent, in law, means a voluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice, to do something proposed by another . . . . [Assent] means mere passivity or submission, which does not include consent.” Neither is there consent when all we have is the mere submission to an express or implied assertion of authority. Defendant in this case was told that “(b)ecause you’re under arrest for DUI, you have to submit to a chemical test, which is a test of either your breath or your blood.” Never was he asked if he was willing to summit to such a test. Telling him that he “has to submit” to a chemical test of his blood communicates a reality where the chemical test will be conducted against defendant’s will, if necessary. He was also never given the opportunity of choosing between providing a breath sample or a blood sample.
In Ling, the Court found the defendant’s lack of physical or verbal resistance to submitting to a blood test, by itself, does not mean that he had consented to the procedure. In sum, the Court noted that “(t)he People fail to point to any evidence in the record showing that defendant consented to the blood draw nor could they.” The evidence instead shows that defendant submitted to a blood draw and that this submission was due to the officer's expression of lawful authority. As concluded by the Court; “absent evidence to the contrary, it cannot be presumed that individuals under arrest could reasonably construe a direction from an arresting officer that they must take some action as a mere query as to whether they will voluntarily consent to it. Consequently, the totality of the circumstances shows defendant did not consent to the blood draw.” The blood results, therefore, should have been suppressed.
In most DUI arrests the officer will read the suspect an advisement informing him or her of their obligations and rights to submit to a chemical test in the state of California. Here, that was not done.
It is clear that the arresting officer in this case was either totally oblivious to, or chose to ignore, the plethora of recent (i.e., post Missouri v. McNeely (Apr. 17, 2013) 569 U.S.__ [133 S.Ct. 1552].) cases discussing the need for a full explanation of the V.C. § 23612 implied consent rules, along with evidence that a DUI arrestee do more than merely acquiesce, and actually consents, to a blood or breath test, in order for the results to be admissible in court. The Court in fact makes some reference to the need for law enforcement officers to stay up on the law if their arrests are going be of any benefit. ( Courtesy of Robert Phillips).
The rule in this case is as follows: The results of a blood test in a DUI case are inadmissible absent evidence that the defendant did in fact consent to the taking of a blood sample. A mere submission to authority is not consent.
The Court held the People bear the burden of proving that a consent was, in fact, freely and voluntarily given. “This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” (Bumper v. North Carolina (1968) 391 U.S. 543, 548.) To be effective, consent must be voluntary. Voluntariness is to be determined by considering the “totality of the circumstances.” It is also the rule that “assent” alone is not necessarily “consent.” “Consent, in law, means a voluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice, to do something proposed by another . . . . [Assent] means mere passivity or submission, which does not include consent.” Neither is there consent when all we have is the mere submission to an express or implied assertion of authority. Defendant in this case was told that “(b)ecause you’re under arrest for DUI, you have to submit to a chemical test, which is a test of either your breath or your blood.” Never was he asked if he was willing to summit to such a test. Telling him that he “has to submit” to a chemical test of his blood communicates a reality where the chemical test will be conducted against defendant’s will, if necessary. He was also never given the opportunity of choosing between providing a breath sample or a blood sample.
In Ling, the Court found the defendant’s lack of physical or verbal resistance to submitting to a blood test, by itself, does not mean that he had consented to the procedure. In sum, the Court noted that “(t)he People fail to point to any evidence in the record showing that defendant consented to the blood draw nor could they.” The evidence instead shows that defendant submitted to a blood draw and that this submission was due to the officer's expression of lawful authority. As concluded by the Court; “absent evidence to the contrary, it cannot be presumed that individuals under arrest could reasonably construe a direction from an arresting officer that they must take some action as a mere query as to whether they will voluntarily consent to it. Consequently, the totality of the circumstances shows defendant did not consent to the blood draw.” The blood results, therefore, should have been suppressed.
In most DUI arrests the officer will read the suspect an advisement informing him or her of their obligations and rights to submit to a chemical test in the state of California. Here, that was not done.
It is clear that the arresting officer in this case was either totally oblivious to, or chose to ignore, the plethora of recent (i.e., post Missouri v. McNeely (Apr. 17, 2013) 569 U.S.__ [133 S.Ct. 1552].) cases discussing the need for a full explanation of the V.C. § 23612 implied consent rules, along with evidence that a DUI arrestee do more than merely acquiesce, and actually consents, to a blood or breath test, in order for the results to be admissible in court. The Court in fact makes some reference to the need for law enforcement officers to stay up on the law if their arrests are going be of any benefit. ( Courtesy of Robert Phillips).
The rule in this case is as follows: The results of a blood test in a DUI case are inadmissible absent evidence that the defendant did in fact consent to the taking of a blood sample. A mere submission to authority is not consent.
Sunday, November 26, 2017
I Received A Letter From California Board Of Nursing About My DUI, What Do I Do?
California has some of the toughest laws that allow the state to take away a professional license if you are convicted of DUI. Matthew Ruff has been fighting for nurses to prevent a DUI conviction and subsequent disciplinary action from the Board Of Nursing.
If you have been arrested for DUI in California and have a nursing license chances are the License Board will be notified of the arrest. By law when a person holding a professional license is arrested the licensing agency is automatically notified at which time an investigation will commence. The Board of Nursing will contact you for information about the law enforcement contact, it is always in your best interest to cooperate.
Regulations pertaining to the licensing of nurses in the state of California impose sanctions for a failure of the license to cooperate in a Board Investigation. For example, California Code Of Regulations Sections 2504.1 and 2518.8(c) provides that licensees are required to provide the Board lawfully required documents and cooperate in any investigations or risk disciplinary action.
The California Board Of Nursing can take action against an RN, LVN or nursing assistant if they have engaged in conduct relating to their duties. In DUI cases the state will want to see if the person is abusing drugs or alcohol to the extent that it affects their ability to care for their patients.
You may receive a letter requesting information about the incident. What should you do. Cooperate. You are required by law to respond. You should email, fax or mail a response with 30 days. If you ignore the letter the Nursing Board will presume you have something bigger to hide and will react more aggressively than if you simply respond and acknowledge the arrest, while at the same time asserting you have not been found guilty or adjudicated by any Court. At the end of the day an arrest is simply an accusation and in this country you are presumed innocent until the contrary is proven in a Court of law.
Here is a sample letter of the information you should provide:
(Date)
(Your name, address and phone number)
California Board of Nursing
Case No.
To Whom it may concern,
I was arrested on (give the date) by the (give the law enforcement agency, CHP, Los Angeles Sheriff, etc). I was given a Court date of (provide the date). I have hired attorney Matthew Ruff to represent me. His number is 310-527-4100.
I intend to cooperate fully with your investigation.
Should you require any additional information feel free to contact me.
Sincerely
(Sign your name here)
DUI Attorney For Airline Pilot
If you were arrested for DUI in California and you fly for a living Matthew a Ruff can help. For 25 years he has been defending clients charged with driving under the influence, many of whom were pilots who faced the loss of their pilot license by the FAA.
A drunk driving arrest will be treated differently depending on what you do for a living. If you are a commercial pilot a DUI can be devastating if not handled properly. The FAA dictates the rules for pilots and what they do outside of work can also be considered. If you fly for a living your company may also take action against you. Here is what you need to know right now:
First, an arrest for driving under the influence is just an allegation. Until there is some adjudication of guilt by a Court or governmental agency it remains an accusation only and you have rights.
What about Mandatory reporting requirements? Yes, there are specific requirements to report a DUI conviction or administrative license suspension to the FAA. Specifically, under 14 CFR 61.15 all pilots are obligated to report the incident to the FAA. However, that only applies if you are convicted or your drivers license is actually suspended. If you hire an attorney within 10 calendar days of the arrest an actual suspension of your drivers license can be avoided pending a hearing on the issue.
The first thing to do is hire a professional to assist you. A DUI arrest for a pilot is not the type of thing you can handle DIY. Find a lawyer local to the area where you were arrested. The attorney should be well versed in the consequences a conviction will have on the pilots license and his job. Immediate action must be taken to avoid a mandatory suspension of the drivers license on an administrative level as a suspension from the DMV may trigger a mandatory duty to report the incident to the FAA.
Attorney Matthew Ruff has represented many pilots for DWI and alcohol related offenses in the last 20 years with remarkable success. Here are two recent examples of cases where Matt achieved phenomenal results.
Case example 1: Matthew was retained by a pilot living in the South Bay after he was arrested in Redondo Beach for DUI. He was caught up in a sobriety checkpoint and was arrested after the officers detected an door of alcohol on his breath, poor performance on FST's and slurred speech. He took a breath test that reported his BAC to be .10 percent, .03 higher than the legal limit in California of .08 or more. Matt immediately contacted El Segundo DMV Driver Safety for a hearing and demanded a stay of the suspension of his driving privileges. He obtained the reports and evidence and carefully scrutinised them for evidentiary issues. He was able to uncover problems with the test and worked with his toxicologist to build a Defense. He used that strategy to negotiate a dismissal of the DUI charges in Torrance Court and subsequently obtained a set aside of the administrative suspension of his license.
Case example 2: A commercial pilot was arrested in Long Beach for public intoxication after he was contacted by police leaving a bar on Pine. He spent the night in jail and was released with a Court date. He hired Matthew who immediately understood the consequences this would have on the client's job and FAA licensing. Matt reached out to the local prosecutor and ultimately all charges were dropped prior to any Court date. This resulted to no arrest record that could hurt the client's employment or pilots license.
If you are a pilot facing a criminal offense in California, Los Angeles, Redondo Beach, Torrance, Manhattan Beach or anywhere else, contact Matthew at 310-527-4100 for immediate help and advice on what to do.
A drunk driving arrest will be treated differently depending on what you do for a living. If you are a commercial pilot a DUI can be devastating if not handled properly. The FAA dictates the rules for pilots and what they do outside of work can also be considered. If you fly for a living your company may also take action against you. Here is what you need to know right now:
First, an arrest for driving under the influence is just an allegation. Until there is some adjudication of guilt by a Court or governmental agency it remains an accusation only and you have rights.
What about Mandatory reporting requirements? Yes, there are specific requirements to report a DUI conviction or administrative license suspension to the FAA. Specifically, under 14 CFR 61.15 all pilots are obligated to report the incident to the FAA. However, that only applies if you are convicted or your drivers license is actually suspended. If you hire an attorney within 10 calendar days of the arrest an actual suspension of your drivers license can be avoided pending a hearing on the issue.
The first thing to do is hire a professional to assist you. A DUI arrest for a pilot is not the type of thing you can handle DIY. Find a lawyer local to the area where you were arrested. The attorney should be well versed in the consequences a conviction will have on the pilots license and his job. Immediate action must be taken to avoid a mandatory suspension of the drivers license on an administrative level as a suspension from the DMV may trigger a mandatory duty to report the incident to the FAA.
Attorney Matthew Ruff has represented many pilots for DWI and alcohol related offenses in the last 20 years with remarkable success. Here are two recent examples of cases where Matt achieved phenomenal results.
Case example 1: Matthew was retained by a pilot living in the South Bay after he was arrested in Redondo Beach for DUI. He was caught up in a sobriety checkpoint and was arrested after the officers detected an door of alcohol on his breath, poor performance on FST's and slurred speech. He took a breath test that reported his BAC to be .10 percent, .03 higher than the legal limit in California of .08 or more. Matt immediately contacted El Segundo DMV Driver Safety for a hearing and demanded a stay of the suspension of his driving privileges. He obtained the reports and evidence and carefully scrutinised them for evidentiary issues. He was able to uncover problems with the test and worked with his toxicologist to build a Defense. He used that strategy to negotiate a dismissal of the DUI charges in Torrance Court and subsequently obtained a set aside of the administrative suspension of his license.
Case example 2: A commercial pilot was arrested in Long Beach for public intoxication after he was contacted by police leaving a bar on Pine. He spent the night in jail and was released with a Court date. He hired Matthew who immediately understood the consequences this would have on the client's job and FAA licensing. Matt reached out to the local prosecutor and ultimately all charges were dropped prior to any Court date. This resulted to no arrest record that could hurt the client's employment or pilots license.
If you are a pilot facing a criminal offense in California, Los Angeles, Redondo Beach, Torrance, Manhattan Beach or anywhere else, contact Matthew at 310-527-4100 for immediate help and advice on what to do.
Thursday, November 9, 2017
Matthew Ruff, Top Rated Attorney
Matthew Ruff is a Top Rated attorney with over 20 years experience. All of the Internet rating services have given a Matthew the highest award, based largely on his experience and client feedback. Read all of Attorney Matthew Ruff reviews. Here is one example of a recent review posted by an actual client (edited to protect identity)
".....thanks again for your assistance. I have read horror stories about the [first attorney I almost hired] and I am 100 percent certain I would have had a different outcome if I had retained his services. I am quite pleased with this outcome. I am going to remember you for quite some time and if any LA based pilots or those passing through have any legal issues and I become aware of it, I am going to insist they contact you and retain your services. I am carrying your contact info in my wallet. It is hard to find a stand up person nowadays in a profession that attracts the likes of [first attorney I almost hired]. I cringe at the thought of how much I could have spent on that guy or someone like him out of desperation, only to support their lavish lifestyle and horrible work ethic. Your honest good work has been a breath of fresh air. All the best. "
Matthew is always appreciative of the kind words sent by his clients.
Monday, June 5, 2017
DRE Use in Marijuana DUI Cases Called Into Question
The use of Drug Recognition Experts in Marijuana DUI investigations is on the rise. Indeed, the numbers of officers with the enhanced training have proliferated over the last few years, influenced heavily by the changes in the laws related to recreational use of pot.
While training of any kind is certainly a good thing, it is important to not place too much reliance on the DRE. Certainly cops who go through the block of extra training and are certified as a DRE are better suited to evaluate a suspected drugged driver, however we must be careful to not place too much emphasis on their conclusions.
Indeed, many of the DUI arrests associated with marijuana are based primarily on admissions by the defendant. If the person admits to have smoked pot or ingested an edible containing THC the Officer builds his investigation with that in mind, often “finding” symptoms to fit within his predetermined conclusion that the driver is impaired due to marijuana.
Recently, the Press Enterprise published an article discussing these issues. The article can be viewed here Attorney Matthew Ruff Quoted in DUI Marijuana Article.
While training of any kind is certainly a good thing, it is important to not place too much reliance on the DRE. Certainly cops who go through the block of extra training and are certified as a DRE are better suited to evaluate a suspected drugged driver, however we must be careful to not place too much emphasis on their conclusions.
Indeed, many of the DUI arrests associated with marijuana are based primarily on admissions by the defendant. If the person admits to have smoked pot or ingested an edible containing THC the Officer builds his investigation with that in mind, often “finding” symptoms to fit within his predetermined conclusion that the driver is impaired due to marijuana.
Recently, the Press Enterprise published an article discussing these issues. The article can be viewed here Attorney Matthew Ruff Quoted in DUI Marijuana Article.
Sunday, May 28, 2017
The Defense Of Officer Induced Confusion in a DUI Case
In a DUI case it is not uncommon to see a driver arrested and refuse to submit to a chemical test. When this happens the attorney will look for a defense to the refusal in order to get around the suspension and revocation the DMV seeks to impose. One possible defense is known as officer induced confusion.
It is well recognized in law that when an officer simultaneously reads a driver his implied consent warnings (no right to refuse a test and no right to consult with or to have an attorney present during its administration) in conjunction with the Miranda admonition (right to refuse interrogation and to have an attorney present at all stages of a police interrogation, etc.), it will likely induce confusion.
Therefore, in cases where a driver has been given Miranda insists on the presence of an attorney before choosing a test the courts have recognized that he [or she] may have been confused by the two warnings and the officers failure to clarify and explain the difference. In such a case the refusal to take a test has been held not to be a refusal within the meaning of California Vehicle Code section 13353. (Rust v. Department of Motor Vehicles (1968) 267 Cal.App.2d 545, 547.)
The question of officer-induced confusion is one of fact, often dependent on statements in the report indicative of the defendants desire to speak to a lawyer coupled with signs of confusion about the officers demand for an answer to which test to take. When a driver who has been given Miranda manifests confusion by asserting his [or her] alleged right to an attorney, it is incumbent upon the officer to explain that the right does not apply to these tests. (McDonnell v. Department of Motor Vehicles (1975) 45 Cal.App.3d 653, 658. The failure of an officer to clear up the confusion renders any alleged refusal to submit to a test insufficient to suspend a drivers license as a result.
Matthew Ruff is a DUI Attorney in Torrance with over 20 years experience fighting both criminal charges and DMV suspensions in California.
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