San Diego DUI attorney saw this on the Internet:

Objective-I am seeking a position with good-natured and essentially functional alcoholic. I would prefer a position of equals, but will accept sidekick role. Gender of buddy does not matter, but if female, buddy must accept half the responsibility for any unfortunate and nil-planned hook-ups. Occasional morning drinker a must.

Experience

January 2000-June 2001
Drinking Buddy
Ron Hibshoosh Trust Company
Chicago, Illinois
Duties included lamenting about women; whiskey-cokes; commiserating on state of folk music; discussing the books of Genesis and Job; suicide humor; Leonard Cohen; Jack and cokes; vomiting; smoking; light typing (college papers); white russians; and Tom Waits.

January 1999-June 2001
Drinking Buddy
The Adrianne Lona Fund
Chicago, Illinois
Duties included Pixies; drunk-driving; booze in any available form; depression; Silver Jews; and cooperative self-destruction.

April 2000-October 2000
Drinking Buddy/Baseball Guy
The Mark Paulik Foundation
Chicago, Illinois
Duties included Jason Kendall admiration; beer; fantasy baseball jargon including OPS and K/BB; whiskey on rocks; and light fistfighting.

December 1999-January 2000
Whipping Boy
Nicholas Gilewicz and Jeremy Lawrence Associated
Chicago, Illinois
Duties included quarrelsome chess; arguing T.S. Eliot's The Waste Land; boilermakers; dancing to Talking Heads, the Who, and Neil Young; 7&7's; abortive emotional connections with each other and outsiders; beer; and Bob Dylan.

October 1997-December 1998
Apprentice Alcoholic/Sidekick
Martin Golando Corporation
Chicago, Illinois
Duties included vodka; salting wounds; classical languages; condescension; beer; debating poetry; essential understanding of the meaning of art; kicking a man when he's down; and trying to become my father.

December 1997-September 1998
Social and Emotional Crutch
Sarah Mason Limited
Chicago, Illinois
Duties included listening to Pavement; sarcasm; Smirnoff straight, wince chaser; Sonic Youth; living in the past; storytelling; and envy.

October 1995-August 1997
Drinking Buddy
Rusty Sticha Emporium
Bainville, Montana
Duties included self-loathing; fearing the inevitable; Old Milwaukee; Keystone Light; drunk-driving; and a rudimentary understanding of Marx.


Education

DAD in Youth 1979-Present
Life Lesson--
"Son, life is a tough business sometimes. I'd quit now if I were you."

BA in Literature 2001
University of Chicago
Senior Project--
"Romanticizing Alcoholism: Living Out a Myth of Poetic Souls and Booze"

AA in Dreams 2000
38 Geary Hangover chapter
Essay--
"Correctly Analyzing Just How Easy Those Twelve Steps Are: I CAN Quit Anytime"

Diploma in 1997
Bainville High School
Senior Thesis--
"Life is Boring and Tedious after High School: The Making of An American Drunk"


Skills

Thinking self into a rut, dead languages, storytelling, quoting literature, telling you what's wrong with you, going to movies and shows while intoxicated, pipedreaming, telling you what's wrong with me, obsessing, not doing anything about it, doing and saying outrageous things to strangers, anger, getting out of there in the morning, buying a round, and sorrow.

Out to fix one of the oddities of Arizona law, Senator Jim Waring has developed something of a reputation for injecting common sense into Arizona's DUI laws.

He's the guy who saw last year's "Expect the max" signs on freeway billboards and wondered when, exactly, we were supposed to expect it. He's the guy who spearheaded a successful drive last spring to require a driver convicted of extreme DUI to actually serve the sentence set in law. He's the guy who now wonders what the heck is with the state's "administrative per se" law.

If you drive drunk, you can lose your driver's license. But if you drive drunk and kill someone, your right to get behind the wheel and careen down the streets remains intact.

The quirk in the law came to light earlier this year, after a Phoenix grandmother died after being hit by a driver who was toasted more than four times over.

It was just before noon on Feb. 16 and Phyllis Martin had just picked up her 4-year-old grandson from preschool. She was headed north on 43rd Avenue toward Thunderbird when a southbound pickup crossed the center line and hit her head on.

Lori Ann Gilbert, 36, told police she'd had two beers. Blood tests put her alcohol level at 0.328 percent.

Police didn't take her driver's license that day, despite a law that allows them to begin proceedings to suspend the driving privileges of suspected drunken drivers.

Four months later, Gilbert was still legally licensed to drive. Marana police spotted her just before midnight on June 27, driving up onto a sidewalk then drifting across several lanes and onto the center median. A breath test put her at 0.243 percent.

They didn't take her license either, deciding to wait on blood test results. In August, they were still waiting.

Finally, after the story hit public view, a judge seized her license.

Waring, meanwhile, was astonished that Gilbert was still licensed to drive, seven months after police found her with a dead grandmother at her feet and a 0.328 percent alcohol level in her blood.

Arizona law allows police to seize a suspected drunken driver's license and notify the state Motor Vehicle Division so that it can administratively suspend said license. But the so-called "administrative per se" law applies only when a person is arrested for DUI. Police don't pursue DUI charges in manslaughter cases, for fear of jeopardizing the more serious charges.

Thus, you can drive drunk in Arizona and lose your license. But you can drive drunk and kill someone and keep on driving right up until the time when you go to prison.

For now. Waring has a bill aimed at closing that loophole when the Legislature convenes Jan. 14.

"You shouldn't have people out driving around who have just committed such an incident," he said. "We want to make sure that at least if they're going to do it again they're not going to be doing it with a valid driver's license."

Senate Bill 1008 would allow police to take the license of those suspected of driving drunk and killing or maiming someone. In addition, the suspension would be immediate, eliminating the current 15-day lag in the law, there to allow the driver time to take his case to an administrative judge. (The driver still could appeal to a judge under Waring's bill, he just wouldn't be driving again until a judge OK'd it.)

Waring predicts smooth sailing for his bill. I'm not so sure, given the prospect of on-the-spot suspensions without first going before a judge.

"We've had big fights with lobbyists about these kinds of bills in the past but I wouldn't think this would be a target-rich environment for them," he said. "What are you really going to say. We want these people to drive?"

A judge ruled today that breath-test results obtained as part of a drunken-driving prosecution of King County Councilwoman Jane Hague will not be admissible in court.

The ruling may make it harder for prosecutors to win a conviction against Hague, who was arrested on suspicion of drunken driving after she was stopped June 2 on Highway 520.

King County District Court Judge Peter Nault agreed with defense arguments that Hague was not properly warned of the implications of consenting to such a test.

Lynn Moberly, special prosecutor in the case, said Nault's decision was "very disappointing," but added that it is possible to win a DUI case without using breath-test results.

"It makes it more difficult," she said, although other materials, such as officer statements and physical evidence, still can be used at trial.

Nault also approved a tentative schedule in the case that calls for hearing further motions Jan. 14, the beginning of jury selection Jan. 31, and a trial from Feb. 5 to Feb. 8.

Hague was charged with DUI July 16. She pleaded not guilty July 30.

AUSTIN, Texas: Authorities in the United States are seeking the extradition of a Peru resident accused of being drunk when she caused a fatal car wreck 11 years ago while studying at the University of Texas.

Evelyn Mezzich, 29, who now lives in Lima, Peru, faces a charge of intoxication manslaughter stemming from the November 1996 death of her then-roommate Lindsay Brashier.

Mezzich, who posted a US $10,000 bail, disappeared about a year into her court proceedings, authorities said.

"This is not about revenge," said Brashier's mother, Marilyn Datz of Houston, who has campaigned to bring attention to the case.

"Her life just needs to be interrupted," Datz said. "She needs a wake-up call."

Today in Americas
In Iowa, evangelicals give Huckabee a boostEfforts increase to enfranchise U.S. citizens abroadChavez says Venezuela will have no relationship with Colombian presidentThe FBI notified Texas prosecutors in 2001 that Mezzich was in Peru, but extradition efforts stalled because a treaty between the U.S. and Peru did not cover the crime she was accused of.

But the extradition rules were expanded after the Sept. 11, 2001, terrorist attacks.

Mezzich was born in Canada and has citizenship in Peru, the country of her parents' birth, prosecutors said.

According to an arrest warrant affidavit, Mezzich was driving on Nov. 10, 1996, when she crashed into a pole. Brashier, Mezzich's roommate, was pronounced dead at the scene. Another roommate, Tatiana Sartori of Brazil, was paralyzed.

Travis County Assistant District Attorney Claire Dawson-Brown said an evidence packet will be sent by the end of the year to the U.S. Justice Department, which will then work with Peruvian authorities to have Mezzich arrested.

After the field sobriety test and the ride to the police station, comes the make-or-break moment for the thousands of Connecticut motorists arrested each year on suspicion of drunken driving: blowing into the Intoxilyzer 5000.

A reading from the state's breath-testing device is the chief weapon for police officers in proving that someone was driving under the influence.

But in a daylong hearing Tuesday at the Department of Motor Vehicles in Wethersfield, three defense lawyers argued that the device is fundamentally imperfect in measuring blood-alcohol content and can even be biased against women, small men and people with respiratory conditions such as emphysema and asthma.


The state's chief toxicologist defended the accuracy of the test in testimony Tuesday.



But a University of Washington expert said physiological factors can cause readings to vary widely for a single person — for example, a higher percentage of alcohol for suspects who hold their breath before exhaling and a lower one for suspects who have hyperventilated.

First offenders who refuse to submit to a chemical test face an automatic six-month license suspension under state law.

If the lawyers ultimately convince a Superior Court judge that the Intoxilyzer 5000 is inaccurate — a charge state officials and DMV attorneys reject — the ruling could affect DUI cases pending across the state. It also could force Connecticut police departments to take blood or urine samples from suspected drunken drivers, a significant change in policy and everyday practice.

"The state will have to throw out 169 $5,000 machines," said defense lawyer Jay Ruane of Ruane Attorneys at Law, a Connecticut firm that focuses on DUI cases and takes on about 500 new ones a year.

Ruane considers blood samples to be "the gold standard" in intoxication testing: "Because if you want to know what's in somebody's blood, why would you test their breath when you can test their blood?" he asked.

Judge George Levine ordered the DMV hearing a year ago in Superior Court in New Britain while presiding over an administrative appeal of two men who had their driver's licenses suspended after failing Intoxilyzer 5000 tests. The two men, represented by the Ruane law firm, challenged the legitimacy of the machine, which the state certified for law enforcement use in 2001.

Levine said he wanted more evidence and sent the case — now involving four plaintiffs — back to the DMV and DUI attorneys to argue six points before a hearing officer. Among the major issues Levine seeks to determine are what the machine measures, how it does that and whether the method falls within state law and public safety regulations.

On Tuesday, the state's chief toxicologist, Dr. Robert Powers, testified that not only is the breath test a fair and widely accepted way of determining blood-alcohol concentration — 0.08 percent or higher is illegal in Connecticut — but that the Intoxilyzer 5000's readings are "probably an underestimate" of someone's true alcohol level.

The machine measures the amount of ethyl alcohol in a person's air sample, which is believed to be equivalent to the amount of alcohol in the person's blood if both were tested at the same time, said Powers, who served as the DMV's expert witness.

But Dr. Michael Hlastala, a professor and researcher in the School of Medicine at the University of Washington in Seattle, disputed that equivalency, calling it an "old paradigm" of thought held by the nation's forensic toxicologists.

Hlastala argued that the alcohol recorded in a breath test does not come from a deep part of the lungs, as Powers testified, but from the surface tissue of a person's airway. Hlastala depicted breath-alcohol testing as inherently flawed after citing research stating that the level of alcohol rises as a person exhales and continues to exhale.

"If you have alcohol in your system and you breathe in different ways, either before the test or when you breathe in for the test, you'll change the alcohol reading," Hlastala said. "For example, hyperventilation. That'll reduce the amount of alcohol," because breathing rapidly "flushes away" the alcohol that was stuck on the airway's surface, he said.

Holding one's breath will elevate the alcohol reading, he contended, because the alcohol is being charged before the breath is released.

Hlastala also argued that a people who have a smaller lung volume — such as women or people with asthma and chronic bronchitis — will yield higher blood-alcohol readings because they need to exhale a greater fraction of available breath for the machine to register a reading.

The hearing is expected to wrap up this morning. After compiling all the evidence, Hearing Officer William D. Grady will have 90 days to make his recommendations to Levine.

The judge will then decide on the license suspensions and, ultimately, the Intoxilyzer 5000's validity.

San Diego DUI criminal defense lawyers & sports fans news:

Future Hall of Fame Major League Basetball Cardinals manager Tony La Russa pleaded guilty to a DUI / drunk driving charge in Florida on Wednesday, essentially resolving a case that began in March when he was arrested during Spring Training.

According to multiple reports, La Russa will serve six months probation and perform 50 hours of community service, pay a fine and attend a DUI / DWI school. He was arrested March 22 in Jupiter, Fla., the Cardinals' Spring Training home, when he was found asleep at the wheel of his sport-utility vehicle.

"We addressed this matter with Tony last season and the nature of those discussions will remain private," said Cardinals principal owner Bill DeWitt Jr. in a statement issued by the team. "We have been satisfied with Tony's responsible approach to this issue and we respect his decision. With today's news, our ball club considers the matter closed."

The Associated Press and the St. Louis Post-Dispatch reported that La Russa's DUI criminal defense attorney, David Roth, issued a statement on behalf of the manager:

"I accept full responsibility for my conduct, and assure everyone that I have learned a very valuable lesson and that this will never occur again."

In a DUI / DWI drunk driving case against an off-duty Chicago cop accused of pointing a gun at a motorist in a road-rage incident, there's a battle.

Officer Kevin Carey was arrested in May and charged with aggravated assault and DUI - driving under the influence, misdemeanors.

Carey, 28, refused to take a Breathalyzer in the criminal case, but took one for the department's internal investigation. He was stripped of his police powers and faces firing.

Now prosecutors are fighting to use the Breathalyzer as evidence in the DUI case. Carey's blood-alcohol level was .145, nearly twice the .08 legal limit, records show.

Prosecutors argued the Fourth Amendment's search-and-seizure protections don't bar them from using the Breathalyzer results. There was probable cause to arrest Carey, so his consent isn't needed, prosecutors say.

The Fraternal Order of Police is defending Carey, arguing in court papers that he was "deceived into agreeing to submit to the tests believing the tests would not be used in his criminal prosecution."

On Nov. 15, Traffic Court Judge Steve Goebel ruled in Carey's favor, throwing out the Breathalyzer results as evidence. But the fight is not over.

"We're planning an appeal," said John Gorman, a spokesman for the state's attorney's office.

Early on May 5, Willie Flood, a coffee server at a hotel near O'Hare Airport, was heading to work on Western near 72nd. He told police he cut off Carey, who then started tailgating Flood's Mercedes SUV.

Flood said he sped north, trying to lose Carey, who allegedly pointed a gun at Flood on the Kennedy Expy. near Division. Flood had called 911 and was on the phone with the State Police when he pleaded, "Before he starts shooting, somebody help me!" records show.

The State Police urged Flood to go to a Northwest Side police station, but he stopped miles away near the 2600 block of North Kedzie when he spotted officers. Flood jumped out and yelled, "There's a man chasing me and he's got a gun!" police reports say.

The officers said they saw Carey pointing a handgun at Flood.

Carey obeyed a sergeant's command to drop his weapon and identified himself as an officer. Carey smelled of alcohol, his speech was slurred and his eyes were bloodshot, the officers said in police reports.

Both men were taken to the Humboldt Park District police station, where Carey was arrested. Flood declined comment. Carey's DUI defense lawyer has not yet given a statement.

A tough DUI judge sentences a Summit County man to six years in prison for his 13th DUI / DWI / drunk driving conviction.

Terry Cradlebaugh, 51, was most recently arrested in July and pleaded guilty to DUI.

His attorney argued that his client knows that he is wrong and the reason that he fled from police in his latest arrest was that he wanted to be with his mother who's dying from cancer.

The prosecution reminded the judge that Cradlebaugh didn't just run from police.

"Your honor, he also fled from this court. This court ordered the sentencing when Mr. Cradlebaugh was present and he failed to appear for that sentencing. He didn't turn himself in. He was captured by the fugitive task force and even at that time, he was found hiding under a pile of clothes in a closet," said Summit County Assistant Prosecutor Greta Johnson.

Judge Marvin Shapiro said that Cradlebaugh is lucky that he had never killed anyone while driving drunk.

A man convicted of DUI / DWI / drunk driving for the fourth time since he caused a 1981 crash that killed four people was sentenced Wednesday to from 1 1/3 to four years in state prison.

Robert Madison told Onondaga County Judge Joseph Fahey that he had found God in recovery and wanted one more chance, but Fahey ignored his plea and imposed the maximum sentence that he could.

"Forewarned is forearmed. If you get convicted of drunk driving again, I'm going to send you to prison for the rest of your life," said Fahey, who disregarded a county probation department report that recommended a six-month sentence at a shock camp.

Madison, 46, of Onondaga, was pulled over for driving without his headlights on at 1 a.m. on April 9. A jury found him guilty of driving with a blood alcohol level of 0.13 percent, above the legal limit of 0.08 percent. He admitted to police he had 10 to 12 beers.

Madison has a misdemeanor DWI conviction from 1985 and felony DWI convictions from 1992 and 1997.

In 1981, Madison _ then 19 _ caused a head-on crash when he drove across the center line on a two-lane state highway and hit an oncoming car. Killed in the accident were John McLaughlin, 62, of DeWitt; Martha McMahon, 55, of Syracuse; and Demetrio Ascioti, 65, and his wife, Evelyn Ascioti, 49, both of Onondaga.

Even though he had been out drinking, Madison was not charged with DWI. The crash was blamed on narcolepsy, a sleep disorder.

"Clearly, alcohol was a factor in the accident," Fahey said. "I don't see the change. I see a consistency that already had lethal consequences."

Madison pleaded guilty to criminally negligent homicide charges in the fatal crash and was sentenced to probation.

Madison tried to read his mercy plea in court, but was quickly overwhelmed by emotion and had to hand it off to his DUI / DWI / Drunk Driving criminal defense attorney, James Chatwin, to finish. In his statement, Madison said the tragedy caused his drinking problems but he is now in recovery and a "dramatically changed man."

Chatwin also asked Fahey for leniency, noting that Madison had gone nearly 10 years since his last DWI conviction.

NEWS for SAN DIEGO DUI defense attorneys

Washoe County establishes DUI court

A new program being established in Washoe County will provide third-time DUI offenders a chance to participate in an intense, court-supervised treatment program instead of going to prison.

DWI / DUI defense attorney news

Tacoma, Washington

November 27, 2007


DUI Deputy facing legal trouble after double DUI

A Pierce County Sheriff’s Deputy has been suspended from duty after being arrested twice within two hours Saturday on DWI / DUI / drunk driving charges. In both cases, his blood-alcohol level was reported to be more than twice the legal limit. Robert Glen Carpenter, 37, pleaded not guilty in Chelan County District Court Monday.
Pierce Sheriff Paul Pastor said Tuesday he was launching an internal investigation into the South Hill patrol officer’s conduct.

"We will conduct a thorough investigation and the results will be made public," he said. “I expect our people to be fully subject to the law, as are all citizens. We have a long history of holding our people accountable.”

A current phone listing for Carpenter was not available. He has been with the department since 1993 and has a clean record, department officials said.

According to Washington State Patrol reports, Carpenter was pulled over by state troopers on Highway 2 in Chelan County at 12:30 a.m. after being clocked going 95 mph past troopers conducting another traffic stop.

Outside his truck, Carpenter had a hard time maintaining his balance and smelled strongly of alcohol, trooper Albert Arrey wrote in his report. A tall can of Foster’s beer was found on the floor inside the truck, about 80 percent full.

At 1:54 a.m., the 200-pound deputy’s blood-alcohol level was .21, records show. It is illegal to drive with a level of .08 or higher.

Carpenter also had his loaded .40-caliber Glock service pistol in a holster under his coat.

While Pierce Sheriff’s officials said it is legal to carry a firearm in Washington while drunk, Pastor said, “We do not require our people to carry weapons while off duty. I do not believe anyone should carry a weapon while intoxicated.”

Carpenter was released into the custody of his girlfriend, who came to pick up Carpenter’s truck and dog, according to the report.

State Patrol Lt. Mike Warren said troopers have discretion on DUI arrests whether or not to book a suspect into jail or release them if someone can pick them up.

“He was not given any favors,” Warren said.

Reports don’t say exactly how long after his 2 a.m. breath test Carpenter was released, but he was stopped again by a Chelan County deputy at 2:44 a.m. for speeding.

State Patrol Sgt. Art Nelson responded to the scene, and in his report, said, “Based on my training and experience and with the knowledge that less than one hour before the stop Carpenter’s breath alcohol concentration was above .20 grams per 210 Liters of breath it would be impossible for it to have declined appreciably prior to his being stopped...”

Carpenter was booked into the Chelan County jail and his truck was towed.

Instead of answering Nelson’s questions about whether Carpenter understood his rights, he just nodded his head. “It was clearly obvious Carpenter was exercising his constitutional right to remain silent,” Nelson wrote.

A new breath sample taken at 4:22 a.m. allegedly showed a reading of .168.

After the test, Carpenter said he was embarrassed and thanked Nelson for his professionalism, the report purports.

DUI criminal defense lawyers & drunk driving defense attorneys news

Legal challenge to DUI breath-test machine
Legal challenge to DUI breath-test machine - by Kent Pierce





Intoxilyzer 5000


Intoxilyzer 5000 EN - Manufacturer's web site



One method of busting drunk drivers in the state comes under fire today. Some Connecticut attorneys are calling on the DMV to take a closer look at the test and law in place when it comes to cracking down on those driving under the influence.

It seems simple enough -- You get pulled over, you blow into a tube and a machine figures out your blood alcohol level. It's a machine they've been using for years. Today's hearing is all about whether the device the police use to determine if a driver is drunk actually does that in the way the state drunk driving laws are written.

"The expectation of the Commissioner was that the Intoxilyzer 5000 produced results at time of use, basically that are consistent with the statutory requirements of the state of Connecticut," state toxicologist Dr. Robert Powers said.

The state says the machine is fine, but lawyers representing drivers who got their licenses suspended for drunk driving argue the machine is not certified to measure the right thing.

"Certification does not mean that the machine is certified to produce a measurement meeting the statutory definition of elevated blood alcohol. The Intoxilyzer reports in a weight-volume measurement," defense attorney Gene Riccio said.

"Very basically, the breathalyzer - really called the "Intoxilyzer 5000 EN" - measures alcohol in your breath, but the law calls for a measure of alcohol in your blood, so the machine has to convert the measurement," Riccio said.

"This is not new science. These devices are in use all over the country," said John Yacavone, legal counsel for the Department of Motor Vehicles. "There are a number of routines that the device performs to make what we call the conversion."

Yacavone says if anything in that conversion, the Intoxilyzer 5000 underestimates blood alcohol level, giving the benefit to the driver.

The attorney for those drivers say they have evidence that the conversion actually can make people seem drunker than they really are.

Five people were killed and 128 arrested for San Diego DUI on San Diego County roadways during the Thanksgiving holiday, according to the latest figures released by the California Highway Patrol.

In San Diego County, five people died on the road during this year's Thanksgiving holiday, compared to one in 2006, said California Highway Patrol. There were 34 fatalities statewide this year, compared to 37 in 2006.

Also on county roads, 128 people were arrested by CHP officers on suspicion of San Diego DUI - driving under the influence -- 14 less than over the same period last year.

Statewide, 1,497 people were arrested on suspicion of San Diego DUI - driving under the influence, compared to 1542 San Diego DUI in 2006.

San Diego Criminal Defense Attorneys news

Filed 11/26/07



IN THE SUPREME COURT OF CALIFORNIA



TARIQ CHAMBERS, )
)
Petitioner, )
) S143491
v. )
APPELLATE DIVISION OF THE )
SUPERIOR COURT OF SAN DIEGO )
COUNTY, ) Ct.App. 4/1 D047661
)
) San Diego County
Respondent. ) Super. Ct. No. GIC856399
)
SAN DIEGO POLICE DEPARTMENT )
)
Real party in Interest. )
)

Here we consider whether derivative information, developed by independent investigation after Pitchess disclosure in an earlier case, is subject to a protective order under Evidence Code section 1045, subdivision (e) (section 1045(e)). We hold that derivative information is not generally subject to the statutorily required protective order when a subsequent defendant files his or her own Pitchess motion and receives the name of the same complainant to which the derivative information pertains. We therefore affirm the Court of Appeal’s judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant Tariq Chambers was charged with one count of resisting, delaying, or obstructing a peace officer. (Pen. Code, § 148, subd. (a)(1).) According to the police report, on July 29, 2004, Officer E. and his partner responded to a report of domestic violence at Chambers’s residence. Chambers became belligerent and rushed toward Officer E. three times. Officer E. used pepper spray to protect himself.
In January 2005, Chambers filed a Pitchess motion, seeking information in Officer E.’s personnel file regarding “excessive force, aggressive conduct, unnecessary violence, unnecessary force, false arrest or detention, false statements in reports, false claims of probable cause or reasonable suspicion or any other evidence of, or complaints of dishonesty, by Officer [E].” Defense counsel filed a supporting declaration asserting that Officer E. overreacted and used excessive force by spraying Chambers with pepper spray. Chambers denied rushing at or physically threatening the officers, and asserted Officer E. lied when he reported that conduct. After Chambers had been disabled by the spray, both officers allegedly had their guns drawn and threatened to shoot him. Judge Willis found good cause to inspect Officer E.’s personnel file, but found no relevant information to disclose.
In August 2005, Chambers filed a supplemental Pitchess motion through his public defender, Kristin Scogin. After being assigned to Chambers’s case, Scogin was assigned to take over a case involving a Ms. Washington (People v. Washington (Super. Ct. San Diego County, No. M947152) (Washington).). As a result, Scogin learned Pitchess information about Officer E. that was ordered disclosed in the Washington case, along with derivative information that had been independently developed.
The trial court in the Washington case had imposed a protective order limiting “[u]se of the information ordered disclosed from the officer’s personnel files” to “the defense of this criminal matter.” On Chambers’s behalf, and as relevant here, Scogin asked the court to release the name of one of the complainants that had been disclosed to Washington. She also asked permission to use, on behalf of Chambers, the derivative information independently developed after the complainant had been disclosed to Washington. In a sealed declaration, Scogin described that derivative information, but did not refer to the complainant by name.
The city attorney opposed the supplemental motion, and Chambers ultimately sought reconsideration of his original Pitchess motion. The trial court concluded the defense was “precluded from using information developed in other Pitchess motions,” but reexamined the personnel file “to make sure that [it] did not miss anything.” The trial court again found no relevant information regarding other complainants.
Defendant’s petition for writ of mandate to the superior court appellate division was denied, but he obtained writ relief from the Court of Appeal. The Court of Appeal held that information regarding the complainant disclosed in the Washington case should be disclosed by the trial court to Chambers subject to an appropriate protective order under section 1045(e). It further held that because it was ordering disclosure of the complainant’s identity to Chambers, the deputy public defender would not violate the section 1045(e) protective order in the Washington case if she used the derivative information acquired during investigation of the Washington matter in the Chambers case.
We granted the San Diego Police Department’s petition for review.
II. DISCUSSION
A. Background
In Pitchess, supra, 11 Cal.3d 531, “we held that a criminal defendant has a limited right to discovery of peace officer personnel records in order to ensure ‘a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.’ ” (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1037, fn. 3 (Alford).) “In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as ‘Pitchess motions’ . . . through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81, fns. omitted (Santa Cruz).)
A Pitchess motion must describe “the type of records or information sought” and include “[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.” (§ 1043, subds. (b)(2) & (3).) If the defendant establishes good cause, the court must review the records in camera to determine what, if any, information should be disclosed. (§ 1045, subd. (b); People v. Mooc (2001) 26 Cal.4th 1216, 1226.) In providing for in camera review, “the Legislature balanced the accused’s need for disclosure of relevant information with the law enforcement officer’s legitimate expectation of privacy in his or her personnel records.” (Mooc, at p. 1220.)
“ ‘As a further safeguard,’ ” an order of disclosure ordinarily involves revelation of only the “ ‘name, address and phone number of any prior complainants and witnesses and the dates of the incidents in question.’ ” (Alford, supra, 29 Cal.4th at p. 1039.) Section 1045(e) requires the court to impose a protective order providing that the “records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law.” (§ 1045(e).)
The “relatively low threshold for discovery embodied in section 1043 is offset, in turn, by section 1045’s protective provisions which: (1) explicitly ‘exclude from disclosure’ certain enumerated categories of information (§ 1045, subd. (b)); (2) establish a procedure for in camera inspection by the court prior to any disclosure (§ 1045, subd. (b)); and (3) issue a forceful directive to the courts to consider the privacy interests of the officers whose records are sought and take whatever steps ‘justice requires’ to protect the officers from ‘unnecessary annoyance, embarrassment or oppression.’ (§ 1045, subds. (c), (d) & (e).)” (Santa Cruz, supra, 49 Cal.3d at pp. 83-84.)
B. Derivative Information
We consider a situation in which defense counsel has obtained complainant information through the Pitchess process, and defense investigators have interviewed that complainant. If that counsel later represents another defendant and, pursuant to Pitchess, discovers the same complainant information, may the lawyer refer to the derivative information obtained during the earlier follow-up investigation without violating the section 1045(e) protective order?
As noted, section 1045(e) provides that when a court permits disclosure pursuant to section 1043, it must also “order that the records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law.” (§ 1045(e).) In Alford, supra, 29 Cal.4th 1033, we held the language “ ‘a court proceeding pursuant to applicable law’ ” refers to the statutory Pitchess scheme, and restricts “use of the disclosed information to the proceeding in which it was sought.” (Id. at pp. 1040, 1042, italics added.) This “interpretation of section 1045(e) harmonizes the entire statutory scheme and retains its effectiveness by furthering the legitimate interests of both the defendant and the peace officer.” (Id. at pp. 1042-1043)
In reaching our conclusion, we rejected Alford’s argument that an order limiting use of Pitchess material to the case in which it is sought “undermines fair representation and encourages inefficiency and duplication of effort, in that members of the public defender’s office must feign ignorance of Pitchess information personally known to them and instead file repeated Pitchess motions in subsequent cases, not ‘using’ previously disclosed information in making showings of good cause for disclosure.” (Alford, supra, 29 Cal.4th at p. 1043.) Alford identified no “impediment to the public defender’s ability to represent him,” and the specific Pitchess judicial obligation arguably superseded a public defender’s office rules concerning “attribution to all deputies of knowledge gained by any one of them.” (Ibid., italics omitted)
Alford involved “the information disclosed pursuant to a Pitchess motion.” (Alford, supra, 29 Cal.4th at p. 1037, fn. 2.) We noted that the “parties have not briefed, and we express no views concerning, the treatment of information developed as a result of the receipt of information disclosed pursuant to a Pitchess motion.” (Ibid.; see also id. at p. 1063 (conc. & dis. opn. of Moreno, J.).) That issue is presented here.
Section 1045(e) refers to “records disclosed or discovered.” We conclude that this language means the personnel file information that is ordered disclosed by the trial court. As noted, this information is generally limited to the name, address and telephone number of a prior complainant, other witnesses, and the date of the incident. In that general situation, the statutory description of “records disclosed or discovered” does not extend to information subsequently developed. However, derivative information could reveal that a complaint had been made against a particular officer and the name of the complainant. As a result, it could relate back to information that was disclosed and fall under the protective order. In this situation, however, there is no danger of an unjustified disclosure, as Chambers will receive the name of the officer through his own Pitchess motion.
We adopt the rule formulated by the Court of Appeal for this narrow factual situation. When complainant information has been ordered disclosed to counsel who, when later representing a different defendant, succeeds under Pitchess in discovering the same complainant information relating to the same officer, counsel may then refer to the derivative information uncovered as part of the earlier followup investigation.
Application of the rule is illustrated by the following scenario: Counsel for Defendant A files a Pitchess motion and receives complainant information. An investigator then interviews that complainant, and perhaps other witnesses, thus developing derivative information.
The same attorney later represents Defendant B. Even though the same law enforcement officer may be involved in Defendant B’s case, counsel cannot simply use the derivative information developed in Defendant A’s case. Doing so would reveal complainant information from the officer’s record that is subject to the section 1045(e) protective order under which the disclosure was made in Defendant A’s case.
However, if counsel files a new Pitchess motion in Defendant B’s case, seeking information about the officer and then receives the same complainant’s name as he or she did in Defendant A’s case, the attorney is free to use derivative information previously garnered during the followup investigation.
The section 1045(e) protective order is designed to ensure that disclosure of confidential information is limited to the proceeding in which the disclosure is ordered. Once a subsequent defendant obtains that same information under a valid Pitchess order, there is little justification for precluding review of derivative information. As the Court of Appeal observed, the second “litigant obtains nothing beyond that which the Pitchess statutory scheme contemplates he is able to obtain,” and counsel for the first Pitchess litigant “has not permitted the information to be used for any court proceeding in which a Pitchess relevance determination has not been made.”
This approach is consistent with the purpose of the Pitchess scheme to balance the police officer’s privacy interest in his or her personnel records with the criminal defendant’s interest in obtaining all pertinent information. As the Court of Appeal observed, the “defendant remains able to prepare a defense, and the officer’s privacy interest in the data contained in his personnel file is not affected beyond that which occurred when Pitchess disclosure was ordered.”
The San Diego Police Department relies on a line of cases holding that other discovery methods cannot substitute for compliance with the Pitchess statutory scheme. Here, however, Chambers followed the Pitchess process, and will receive the complainant information that was also released in the Washington case. Our resolution requires both defendants to bring Pitchess motions, and for a trial court to find good cause and relevance in each case.

III. DISPOSITION
The Court of Appeal’s judgment is affirmed.
CORRIGAN, J.
WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.










CONCURRING OPINION BY BAXTER, J.


I concur in the majority’s narrow holding that “[w]hen complainant information has been ordered disclosed to counsel who, when later representing a different defendant, succeeds under Pitchess [v. Superior Court (1974) 11 Cal.3d 531] in discovering the same complainant information relating to the same officer, counsel may then refer to the derivative information uncovered as part of the earlier follow up investigation.” (Maj. opn., ante, at pp. 8-9, italics added.) After counsel has won a second Pitchess disclosure, involving the same officer and the same complainant information, no purpose of the statutes and protective orders that safeguard confidential police officer personnel records is served by requiring counsel to perform a meaningless duplicate investigation before using, at trial, derivative information counsel already possesses.
However, I do not interpret the majority’s opinion, or its judgment, to imply that counsel may employ information learned as a direct result of the first Pitchess disclosure to support a later request for Pitchess disclosure in a different case. The statutory scheme, and the protective orders issued thereunder, restrict “use of the . . . information [disclosed through a Pitchess motion] to the proceeding in which it was sought.” (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1042 (Alford), italics added.) In this context, I see no reason to distinguish between direct and derivative “use.” Otherwise counsel could win Pitchess disclosure against an officer in one case, obtain derivative information as a result, then invade the hapless officer’s confidential file again and again, in circumvention of Alford, simply by bringing an infinite number of subsequent Pitchess motions, using the previously obtained information to demonstrate the need for new disclosure.
As Alford explained, the statutes’ “careful[] balanc[ing] [of] peace officers’ privacy interests in their personnel records against defendants’ rights of access to information relevant to their defense” requires that Pitchess disclosure be ordered “only on a showing of materiality to a particular case.” (Alford, supra, 29 Cal.4th at p. 1042, italics added.) To establish such materiality, and obtain in camera inspection of the officer’s files, the defendant need only present a “plausible factual foundation” for a claim that, in his or her case, the officer lied or committed other relevant misconduct. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1025.) The in camera determination whether the files contain relevant and discloseable information should similarly be guided by the circumstances of the particular case in which disclosure is sought. Accordingly, the statutory balance would be upset by allowing counsel to “pile on” against the officer by using, in later Pitchess proceedings, information obtained as the result of an earlier Pitchess disclosure.
On the assumption that the majority opinion and judgment are thus circumscribed, I concur in both.

BAXTER, J.










CONCURRING OPINION BY MORENO, J.


I fully concur with the majority’s holding that derivative information developed through investigation after Pitchess disclosure (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) in an earlier case is not generally subject to a protective order under Evidence Code, section 1045, subdivision (e), when a subsequent defendant files a Pitchess motion and receives the name of the same complainant to which the derivative information pertains. (Maj. opn., ante, at pp. 1-2.) I write separately to express my continuing disagreement with the notion that section 1045, subdivision (e), restricts “ ‘use of the disclosed information to the proceeding in which it was sought.’ ” (Maj. opn., ante, at p. 7, citing Alford v. Superior Court (2003) 29 Cal.4th 1033, 1042 (Alford).)
As I explained in my concurring and dissenting opinion in Alford, supra, 29 Cal.4th at pages 1057-1063, such a conclusion is neither prescribed by the plain language of section 1045, subdivision (e), nor is it supported by the legislative history. Both support the conclusion that Pitchess disclosure “may be used in any court proceeding pursuant to applicable law.” (Alford, supra, 29 Cal.4th at p. 1059 (conc. & dis. opn. of Moreno, J.).)
Nor was the court’s conclusion in Alford necessitated by the concededly legitimate privacy interests of law enforcement. The Pitchess process contains adequate safeguards if disclosed records were to be admitted in a subsequent proceeding. (Alford, supra, 29 Cal.4th at p. 1061 (conc. & dis. opn. of Moreno, J.).) As I noted in Alford, the screening process preceding the initial disclosure and the requirement that admission in a subsequent proceeding comport with various Evidence Code statutes (e.g., §§ 210 [relevance], 352 [prejudice]) sufficiently protect officers’ privacy. (Alford, supra, 29 Cal.4th at p. 1061 (conc. & dis. opn. of Moreno, J.).) Additionally, a trial court in a subsequent proceeding could order any records filed under seal pending its ruling on the records’ admissibility. (§ 1045, subd. (d).)
On the other hand, the court’s interpretation in Alford “forces defense attorneys, city attorneys and trial judges to ‘reinvent the wheel’ with each ‘new’ Pitchess request regarding the same peace officer — defense attorneys must write motions, city attorneys must scour records, and judges must conduct in-chambers hearings, simply to make the same Pitchess determination over and over again. . . . Repetitive Pitchess motions are an unnecessary and enormous waste of scant judicial and governmental resources.” (Alford, supra, 29 Cal.4th at pp. 1061-1062 (conc. & dis. opn. of Moreno, J.).)
Accordingly, I remain of the opinion that section 1045, subdivision (e) allows defendants to use Pitchess discovery in any “court proceeding pursuant to applicable law.”
MORENO, J.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Chambers v. Appellate Division of the Superior Court of San Diego County
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 5/4/06 – 4th Dist., Div. 1
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S143491
Date Filed: November 26, 2007
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Stephanie Sontag

__________________________________________________________________________________

Attorneys for Appellant:

Steven J. Carroll, Public Defender, Kristin Scogin and Matthew Braner, Deputy Public Defenders, for Petitioner.

Michael P. Judge, Public Defender (Los Angeles), Albert J. Menaster and Mark Harvis, Deputy Public Defenders, for Los Angeles County Public Defender as Amicus Curiae on behalf of Petitioner.

Mary Greenwood, Public Defender (Santa Clara) and Kelley Paul Kulick, Deputy Public Defender, for California Public Defenders Association and Public Defender of Santa Clara County as Amici Curiae on behalf of Petitioner.
__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Michael J. Aguirre, City Attorney, and David M. Stotland, Deputy City Attorney, for Real Party in Interest.

Dennis Barlow, City Attorney (Burbank) and Juli C. Scott, Chief Assistant City Attorney, for League of California Cities as Amicus Curiae on behalf of Real Party in Interest.





Counsel who argued in Supreme Court (not intended for publication with opinion):

Matthew Braner
Deputy Public Defender
233 “A” Street, Suite 800
San Diego, CA 92101
(619) 338-4705

David M. Stotland
Deputy City Attorney
1200 Third Avenue, Suite 1100
San Diego, CA 92101-4100
(619) 533-5800

Juli C. Scott
Chief Assistant City Attorney
275 E. Olive Avenue
Burbank, CA 91510
(818) 238-5707

San Diego DUI criminal defense attorneys - Source Code litigation New Jersey update:

State v. Chun, et al.
New Jersey Supreme Court
Docket Number 58,879

New Jersey's Source Code question, per closing arguments record presented by an excellent DUI defense attorney John Menzel, J.D. to Judge Michael Patrick King:

Is firmware version 3.11 used in the Alcotest 7110 MK-III-C scientifically reliable by clear and convincing evidence?

From the testimony by examiners on both sides of the question, from revelations dawning for the first time during cross examination, from the overwhelming weight of the evidence, the answer is: NO!

This software is not scientifically reliable at all.

The following remarks address these issues:

¨ What the Supreme Court charged us to do.
¨ What we have learned about that charge in this case.
¨ The legal standards of general acceptance which we must apply.
¨ The particular scientific field in which source code resides.
¨ The relevant scientific community we must consider.
¨ How that scientific community was represented in this case.
¨ How general acceptance is defined.
¨ The quality of proof required.
¨ The burden of proof.
¨ Methods of proof.
¨ The application of standards.
¨ The problems of complexity and culture.
¨ How standards may one day fix these problems.
¨ What to do now.

The Supreme Court’s Charge

After we concluded the first round of these hearings last year, Your Honor ultimately came to these conclusions about Draeger’s source code:
¨ We do not think that this dispute about the source codes has any substantial relevance to our ultimate conclusion, that the Alcotest 7110 instrument is very good at measuring breath alcohol.[1]
¨ The firmware currently in the Alcotest NJ Version 3.11, and any future modifications or upgrades of that present firmware, does not impact upon or affect the scientific reliability, accuracy or precision of the Alcotest evidential breath test instrument to detect, analyze and accurately report a breath alcohol reading.[2]
This was because Your Honor saw “no hint of source code problems or failure throughout this litigation.”[3]
The Supreme Court disagreed. It has now charged us to perform a particular task in this case. Here is what they said:
IT IS ORDERED that, the matter is temporarily remanded to the Special Master for the limited purpose of providing defendants the opportunity to conduct, at defendants' expense, an analysis of the software referred to as Firmware version...3.11 used in the Alcotest 7110..., which analysis is to be limited to determining whether Firmware version...3.11 reliably analyze[s], record[s] and report[s] alcohol breath test results....
The Supreme Court directed Draeger to provide an independent software house for the purpose of:
conducting that analysis...in accordance with the methodology previously agreed upon by defendants and DSDI, as set forth in Addendum A....
Addendum A, a.k.a. the “Sachs protocol” and D-232, provides that
This software house will examine the source code for obvious concerns within the code, and also for consistency with the algorithms as documented in the software.... [and to] certify to the State and the public that the software properly employs the algorithms and that no errors exist in the source code.[4]
Of course, being a Fine Arts major in college, I would not know an “obvious concern” if it bit me.
But two examiners were retained for the purpose of source code review: (a) SysTest, represented by Bruce Geller, and (b) BaseOne, represented by John Wisniewski. They each found what they considered “obvious concerns” with the code, the most telling of which were excessive cyclomatic complexity and an excessive use of global variables.
From their respective examinations, neither examiner could certify to either condition demanded by the Supreme Court. They could not certify that the software properly employs the algorithms. Nor could they certify that no errors exist in the source code.
Without going any further, the State and Draeger have failed to meet the requirements established for this case by our Supreme Court.

What We Have Learned in General
Of course, we have learned a number of things in these hearings that no one knew or appreciated when we started.
First, we learned that the Sachs protocol was incomplete in that the way a software house examines code must be specified with reference to some standard. We saw how a cursory review where no concerted effort is made to find “obvious concerns” will yield a report with innocuous findings and conclusions which, on the surface, sound impressive but, on closer examination, mean nothing. We will speak more of standards later.
Second, we learned that no source code is error free. But code can be written in a way that makes it reliable. So the effort to find error-free code is not a fool’s errand. In reliable code, we constantly search for errors and, when we find them, we correct them according to a systematic, standardized, well-thought-out method. Each time a correction is made over the life of such code, it just gets better and better.
Unfortunately, the Alcotest source code is not reliable. My previous colleagues have provided many examples of just how unreliable this Alcotest source code is.
In any event, the final step of the Sachs protocol’s examination -- that the Alcotest be “tested against and measured in compliance with O.I.M.L. [International Organization of Legal Metrology] specifications adopted and current at the time of such tests” -- is not now applicable to this case.

The Legal Standard We Must Apply
The legal standard we must apply to version 3.11 has been stated in our cases thus:
“[T]he thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”[5]
“Thus, the test in criminal cases remains whether the scientific community generally accepts the evidence.”[6]
Here is how we must apply these legal requirements:
¨ First, we define the particular field in which this source code analysis resides.
¨ Second, we must consider who is the scientific community encompassing this particular field.
¨ Third, we must consider whether the source code in question here would be generally accepted within the relevant scientific community.

The Particular Field in Which Source Code Resides
The particular fields with which we are concerned in this case are those of computer science, electrical engineering, and software programming -- fields separate and distinct from that of forensic science with which we were so concerned last year. We know this because:
¨ NHTSA [National Highway Traffic Safety Administration] has no programming standards. NHTSA’s Ed Conde relied on incomplete computer generated data -- the alcohol influence reports -- and flawed data, accepting one test that the Alcotest itself rejected.
¨ All of those witnesses from last year that purported to be members of the forensic science field -- Edward Conde, Samuel Chappell, Barry Logan, Rod Gullberg, J. Robert Zettl, Patrick Harding, Thomas Brettell for the State; even Michael Hlastala and Gerald Simpson for the defense -- not only professed no knowledge of computer science but affirmatively disavowed such knowledge.
No one from that community of forensic scientists put it more poetically than Robert Zettl, who declared that, for all he knew, “two magic rocks from Ireland banging together will give you a .10....”[7] Rod Gullberg, recognizing his limitations as a statistician and forensic scientist, specifically recommended that source code be independently verified.[8] That is what our Supreme Court has charged us to do here.

The Relevant Scientific Community
Thus, we leave the field of endeavor in which we examined the Alcotest last year -- that of the forensic science community -- and consider it in these new and closely aligned fields of computer science, electrical engineering, and software programming that encompass source code review.
The relevant witnesses presented by the State last year were Stephen Seidman, Norman Dee, and Hansuli Ryser. This year, the State called SysTest’s Bruce Geller and Norman Dee. Your Honor called Draeger’s Brian Shaffer. The defense called expert examiner John Wisniewski of BaseOne and standards expert Thomas Workman.

Source Code Witnesses
Geller, Wisniewski, and Shaffer had the advantage of having actually reviewed the source code itself, albeit from three distinctly different perspectives.
¨ Geller, hired by Draeger, was able to compile the code early with the help of Draeger’s Shaffer. He used certain automated tools for his examination, including something called Module Finder EX, a “proprietary” program created by SysTest which apparently has problems of its own given the way it has been developed in secret and not according to any recognizable standard. Your Honor may recall Geller’s lament when asked, “Were any development standards adhered to when Module Finder was built?” His response: “Sadly, not.”[9] It is ironic that Geller examined the secret Alcotest code with another secret program for which SysTest could only claim reliability by asserting that it is a trade secret and gave SysTest a competitive edge. Geller’s regrets Module Finder’s lack of standardization because of how hard it has become to maintain that program.
¨ Wisniewski began working on this project believing he was hired by the State. Later, he discovered otherwise. But, nonetheless, he conducted his review using automated tools much like SysTest. But Wisniewski used different automated tools -- notably, a program called lint, a generally available open-source tool which has been described as “verbose,” probably because it found so many errors. Coupled with his demonstrably superior practical experience in embedded system programming for applications from aerospace to washing machines, Wisniewski homed in on very significant specific problems in the Alcotest source code.
¨ Shaffer, the company man, is Draeger’s principle programmer of the application now before us. He uses no standard methodology. Indeed, his coding style seems to be de-evolutionary, given the way he has deleted headers within the code that would ordinarily provide signposts for others to follow. He has conceded to introducing unintentional error like the buffer overflow that Draeger created as a very helpful exhibit in this litigation. The high point of Shaffer’s experience with embedded systems programming prior to his employment with Draeger was in the model railroading field.
Geller, Wisniewski, and Shaffer all appeared to be credible. None had ever testified in court before. Their lack of familiarity with what has been described as this ancient form of Anglo-Saxon combat may have affected the way they prepared for or answered questions. But some specific comments about each of these witnesses are warranted:
¨ First, Geller: He was somewhat evasive when answering questions. He often paused for long periods before giving a response. He often disclaimed a challenge citing the limited scope of his assigned task. He often distanced himself from the report he and the others at SysTest wrote. One must question whether it is the opinion of Geller or SysTest by which we should be guided. It was awful troubling that he lacked command of the powers of two and did not know the definition of an average.
¨ Second, Shaffer: He appeared to respond credibly, even when constrained by his status as a Draeger employee. His responses seemed thoughtful and, for the most part, direct. Indeed, on cross examination, he disclosed errors that neither SysTest nor BaseOne detected -- most notably the algorithm that forced EC and IR results to agree when the EC value drifts too far aware from the IR value. His confession of engaging in questionable practices like deleting header information within the code seems borne more of ignorance than an intent to deceive. Like Geller, he had difficulty with the powers of two and the definition of an average.
¨ Finally Wisniewski: He appeared to be the most objective and credible in his remarks. He began his task under the mistaken impression that he worked for the State. He is the epitome of the independent software reviewer the Supreme Court probably had in mind when they ordered this remand. For the most part, he was able to document every error he discovered and reported about. His discomfort with the use of the term “standards” seemed more semantic than substantive. He preferred the term “developmental methodologies.” The latter term was more consistent with the way he himself reviewed and developed reliable code throughout his career.

Expert Witnesses
The remaining experts -- Norman Dee, Stephen Seidman, and Thomas Workman -- did not have the benefit of actually seeing source code, except for the few snippets offered in evidence. But Thomas Workman is probably the person who is most representative of what the relevant scientific community is for this case. He has more than 30 years experience working in high technology for various corporations in many capacities, including management, engineering, research, quality assurance, and software development.
¨ He has written source code and developed coding standards.
¨ He has used and applied standards in the course of source code review and vendor selection for such massive technology-based companies as Hewlett-Packard, Digital Equipment, Xerox, and Texas Instruments.
¨ As HP’s representative on the IEEE Computer Standards Board, he wrote and reviewed standards. He peer reviewed the work of Thomas McCabe, the man recognized by both BaseOne and SysTest, for developing ways to measure cyclomatic complexity.
¨ For Digital, he performed ISO 9000 certification for a major corporation with operations here and in Scotland .
¨ He has worked with embedded systems dependent on sensors, much as the Alcotest is dependent on sensors.
¨ A major scientific principle in the field, “Workman’s Law,” is named after him!
¨ He has testified not only in courts but also before Congress as an expert on computer software issues.
¨ He is unrebutted by anyone else who has testified in this hearing.
Workman also provides the added credential of patent attorney, adding much depth to his weighty opinions, which Your Honor should not dismiss.
Stephen Seidman testified last year about source code with errors. Your Honor stated:
¨ “If there were errors in the software, Seidman would want to know about them as they would raise questions in his mind about the instrument's accuracy....”[10]
¨ “When shown several AIRs with apparent errors, Seidman said that he would want to understand the reasons for them before he gave an opinion on the accuracy of New Jersey 's breath-testing program....”[11]
Norman Dee, on the other hand, still holds the opinion that source code review is unnecessary and minimizes the importance of the reviews done for the present hearings. This view is clearly at odds with the instructions handed down from our Supreme Court in this case.

General Acceptance Defined
Now that we have defined the scientific community and discussed how they are represented in this case, we can ask: How does a court determine what scientific reliability is, and what are the hallmarks of general acceptance in this community?
To answer this question, let us examine what science and the scientific method is. Scientific method rests on a foundation of testing, standards, and peer review and publication. The U.S. Supreme Court described scientific method this way:
¨ Testing:
Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.[12]
¨ Standards:
[T]he court ordinarily should consider the known or potential rate of error...and the existence and maintenance of standards controlling the technique's operation....[13]
¨ Peer Review and Publication.
Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication.”[14] This is because “submission to the scrutiny of the scientific community is a component of ‘good science,’ in part because it increases the likelihood that substantive flaws in methodology will be detected.[15] **** The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.[16]

Quality of Proof
Our cases hold that “a belief that the device is broadly accurate is not sufficient.”[17] “Proving general acceptance ‘entails the strict application of the scientific method, which requires an extraordinarily high level of proof based on prolonged, controlled, consistent, and validated experience.’"[18]
All four pillars -- prolonged, controlled, consistent, and validated experience -- must stand to support a finding of scientific reliability by that highest of the civil burdens of proof, clear and convincing evidence -- a standard of proof defined as:
evidence that “'produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established,' evidence 'so clear, direct and weighty and convincing as to enable [the fact finder] to come to a clear conviction, without hesitancy, of the precise facts in issue.'"[19]

Burden of Proof
“[T]he responsibility for establishing all conditions as to the admissibility of [Alcotest] results is properly allocated to the State.”[20] And, by extension Draeger, thanks to our Supreme Court’s order permitting Draeger to intervene. As we will see, they have failed to meet that burden. While the defense has no burden whatsoever, we have, nonetheless, not only called the code and Alcotest into question; we have affirmatively demonstrated that it is unreliable and should not be used.

Methods of Proof
A proponent of a newly-devised scientific technology can prove its general acceptance in three ways: (1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis; (2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and (3) by judicial opinions that indicate the expert's premises have gained general acceptance.[21]
Let’s review these three methods of proof in the present case in reverse order.
We see no judicial opinions about Draeger source code reliability at all. That is because this case is the first of its kind. Other jurisdictions are fighting over discovery of source code. Some have even ordered the production of code. But nowhere else has a review of code taken place as it has here.
Similarly, there are no authoritative scientific or legal writings about Draeger source code. But there is ample authority in the scientific community about what makes source code and computer programs reliable. One need look no further that the bibliography included with Workman’s report to understand the technical and scientific underpinnings of what Wisniewski called proper coding methodologies.
Finally, we examine expert testimony. The great weight of credible expert testimony in this case clearly demonstrates what it takes for a computer program (as represented by source code) to be considered scientifically reliable.

The Application of Standards
For the computer science community, the hallmarks of reliability are embodied in the application of standards -- or more descriptively -- standardized developmental methodologies. John Wisniewski, in the context of his experience and the present code review, discussed such standardized developmental methodologies as yielding, in a technical sense, more reliable code. Tom Workman, from his career experience, told us of how standards were developed, how they are employed, and what makes them scientific.
He told us how standards take into account the first requirement of science by requiring the statement of hypotheses through documentation -- with a requirements document at the outset of coding and further documentation for error detection and error correction.
He told us how standards were developed in a collaborative fashion, subjected to rigorous peer review, and requiring a high degree of consensus. As I recall, the degree of consensus required was something on the order of 80 percent. Dissenters had to explain their dissent, and those views were given full consideration before their proposals were either accepted or rejected.
Standards were developed by industry, IEEE -- not imposed by governments. But governments do adopt them as part of their product specifications when a high degree of reliability is required. Standards are used to keep rockets from blowing up and satellites from crashing. Standards keep hearts beating and help motorists find their way with GPS technology. Standards are important because we know that source code, like human beings, can never be perfect. But, through the application of standards, source code can be scientifically reliable.
Standards have been in use at least 30 years. While there may have been some debate whether coding standards were necessary 20 or 30 years ago, there is no true debate any more. If an application is sufficiently important, it must be developed and maintained according to some standard. There is nothing new or novel about this concept. The use of standards is a prerequisite to a determination that source code is scientifically reliable.
The application with which we are concerned is clearly important. Evidence developed with this technology will send people to jail, particularly in the context of per se offenses under N.J.S. 39:4-50. I daresay it already has. The importance of the application here is more on par with airplane landing gear, pace maker functioning, and satellite navigation than it does with a model train whistle or even a voting machine.
So, would Draeger’s version 3.11 software in use in its Alcotest 7110 MK-III-C be considered generally acceptable for such an important application? The answer is a resounding, NO. This is so for many reasons, including these:
¨ There is no sign of any standard developmental methodology ever being used. If software development standards were like a building code, Draeger’s code would be a slapped-together slipshod tumbled-down shack.
¨ There is no documentation -- no initial requirements document, no pseudo-code, nothing. Norman Dee spoke of pseudo-code, but his definition of pseudo-code differs from that of IEEE. For IEEE, pseudo-code is prospective and the result of prior planning. For Dee , pseudo-code is retrospective and the product of reverse engineering.
¨ Draeger’s source code is too complex and disorganized. As changes are made from one version to the next, errors will be inserted and the code will become more and more unreliable with each revision. It contains blind alleys within a maze of unused, walled-off, and errant code.
¨ The range of accepted deviation was increased to mask potential error. In New Jersey , the legal standard for agreement of results from two breath samples was .01, then 10 percent. That increased to the greater of .02 or 20 percent, effectively eliminating any need for requiring third test verification.
Furthermore, both SysTest and BaseOne found specific problems in the code that raise serious questions as to its reliability. These include:
¨ The disabling of fundamental safeguards.
¨ Incorrect functions as fundamental as averaging.
¨ Arbitrarily substituting data values at various points.
¨ Forcing drifting fuel cells to agree with the infrared sensors, thereby putting the lie to the claim that these two technologies, IR and EC, cross check and verify each other.
My colleagues have already discussed most of these problems, they are extensively catalogued in the reports from BaseOne and SysTest, and they were extensively discussed and explained in testimony from Shaffer, Wisniewski, and Geller.

The Complexity Problem
Let me focus a little now on complexity. The Alcotest source code is much too complex -- a complexity which invites error both in the original coding and in updates to the present code. Both SysTest and BaseOne found complexity to be a real problem undermining any finding of reliability.
McCabe complexity metrics tell us just how complex Draeger’s source code is. Complexity levels should exceed no more that 10, with a level less than 7 recommended, according to SysTest. After all, software engineers, being human beings, can only track so many things at one time. With most of Draeger’s source code modules well exceeding this level, the code is prone to corruption and unpredictable execution. Indeed, one snippet of the code produced by the 3.11 proponents shows how Draeger’s programmer Shaffer unintentionally inserted error when he “upgraded” the source code from version 3.8 to 3.11 by failing to correct buffer capacity and thereby creating the famous buffer overflow.
The prospect of error insertion is very real, given that source code revisions must be made to the present program to account for several factors, including:
¨ The change in Daylight Savings Time.
¨ The need to list the temperature probe serial number and probe value of that temperature probe on any report where such information is relevant, including the AIR, New Standard Solution Change Report, and Calibration, Control Test, and Linearity Reports.
¨ The need to “deploy a software program to create and maintain a centralized data base of digital information stored by all Alcotest 7110s throughout the State.”[22]
Further changes to source code will be inevitable as the law and other circumstances change.
Adding to this complexity is the presence of an excessive number of global variables and a rat’s nest of excess, irrelevant, and purportedly unused code. Indeed, between 40 and 60 percent of the code appears to be irrelevant to the hardware’s functioning. This isn’t just bad housekeeping. These excessive bits and pieces of superfluous code are invitations for error and unnecessarily expose anyone tested on the Alcotest to undetectable error. As Thomas Workman said of our Middlesex County data, the 1900+ alcohol influence reports in that universe appear to be 99 to 100 percent reliable, but in actuality, none can be considered reliable. The notion, as Your Honor had held, that “the Alcotest 7110 uses newer technology and is more transparent because it produces a printout,”[23] is simply incorrect.

The Institutional Problem
Complexity and errors are certainly real issues compromising the scientific reliability of Alcotest source code. So, too, is Draeger’s failure to document its coding processes and its failure to use standards. But the biggest problem of all is institutional. Draeger’s corporate culture elevates:
¨ False appearances above scientific reliability.
¨ So-called trade secrecy above objective verification.
¨ Profits above justice.
Compounding Draeger’s culture of concealment is our own Attorney General’s culture of ignorance. While the AG’s office knew it was embarking into a novel scientific field with equipment dependent on a computer, it failed to consult anyone with the requisite expertise in computer science -- a negligent lack of inquisitiveness. They not only failed to see any problems. They did not even look.
Draeger can implement standards, but that implementation may fail if their culture of concealment persists. The State may find an appropriate breath testing instrument, but only if they open their eyes and look the right way and in the right places.

How Standards Fix the Problems
Despite these complementary cultures of concealment and ignorance, perhaps Draeger and the State, respectively, can save the Alcotest -- but not with its present source code version. It is impossible to make the Alcotest using version 3.11 reliable. If throwing all readings out in pending cases is “throwing the baby out with the bath water,” that is what must be done.
To save the Alcotest -- to make it scientifically reliable -- to avoid the necessity of serial courtroom proceedings to determine whether the device is scientifically reliable -- Draeger, with direction from the State, must adopt recognized standards. They must make sure to take a scientific approach to source code development, error detection, and error correction -- just as I am sure they do with their medical devices. Standards will force Draeger to:
¨ Assure that, in initial coding, most common errors are avoided.
¨ Assume that all released code is still imperfect.
¨ Institutionalize a systematic search for imperfections.
¨ Require documentation at both implementation stage and for each correction.
In short, the Alcotest source code must be rewritten from scratch and deployed correctly, scientifically, according to a recognized standard, and in a traceable provable way. Only then can it be considered scientifically reliable.

Conclusion
We have learned that the Alcotest 7110 using firmware version 3.11 is just as likely to produce results that inculpate the innocent and exculpate the guilty. We know that the code, and, thus, the instrument itself, is scientifically unreliable.
The right thing to do is to throw out all of its results from every case now pending.
But knowing what the right thing to do is, and doing it, are often two different things. Factors beyond the realm of objective scientific principles may affect these decisions.
I fear that extraneous unrelated facts that have nothing to do with whether the Alcotest is reliable will dictate an unjust outcome to this case. Those facts relate to the way both the State and our Supreme Court have handled the Alcotest and disserved the public to date.
The State selected, approved, and implemented the Alcotest program improperly by:
¨ Formulating a bid specification that permitted only one manufacturer’s product and precluded any competition in the selection process.
¨ Delaying the replacement of the antiquated Breathalyzer until it became so out of date that it could no longer be equipped or maintained.
¨ Promulgating regulations that handcuffed it to the Alcotest.
¨ Rolling out the Alcotest in such a reckless and overpowering way that it is now the only technology available for breath testing in most of New Jersey .
¨ Ordering arbitrary changes to the source code such that range of agreement between breath test results would obscure issues third tests might otherwise flush out.
The Supreme Court disregarded well-established evidentiary principles and constitutional protections by:
¨ Issuing a premature order in January 2006 that requires municipal courts to receive Alcotest results.
¨ Entering this Order sua sponte without providing the parties with an opportunity to be heard.
¨ Encompassing within the Order not only the present parties to the above captioned matter but all similarly situated defendants [i.e., those defendants with cases involving Alcotest 7110 breath test evidence].
¨ Requiring defendants to face conviction based on unreliable incompetent evidence.
¨ Creating a presumption of guilt based on presumably incompetent evidence.[24]
¨ Precluding the right of defendants to timely confront this evidence against them.[25]
¨ Causing undue prejudice and unfair trials.
¨ Improperly imposing collateral consequences like insurance premium increases, job loss, and driving privilege revocations for out-of-State drivers.
¨ Unduly delaying disposition, implicating the right to a speedy trial.[26]
As a result:
¨ Innocents have faced conviction based on this incompetent evidence.
¨ Guilty people have been released, also based on this incompetent evidence.
¨ Those whose driving privileges should have been revoked were allowed to drive.
¨ Those whose driving privileges should not have been revoked have lost jobs, gone broke, failed their friends and families.

I am concerned that the tragic and untimely death of a young woman by another woman whose DUI conviction was stayed based on the Supreme Court’s Order in this case will lead to an over-reaction.

I am concerned that, given the way the State and the Supreme Court have created an almost untenable situation in the administration of DUI defendants, this Court will “throw the baby out with the bath water” by whitewashing the terrible truth that was uncovered in this case and, to save face, convict innocent people.

Unfortunately, there is no easy, face-saving way to rationalize these extraneous mistakes away. This Court, the Attorney General, can only acknowledge that these mistakes were made and make amends by learning from their mistakes.

Relief Requested

The only reasonable recommendations to make to the Supreme Court are these:

¨ Declare the Alcotest 7110 using firmware version 3.11 unreliable and unscientific.
¨ Exclude all Alcotest results in all prosecutions affected by the Supreme Court’s January 2006 Order.
¨ Vacate all refusal convictions where there was some indication that the defendant blew into the machine.




--------------------------------------------------------------------------------

[1] SMR45.
[2] SMR233.
[3] SMR45.
[4] Emphasis added.
[5] State v. Harvey, 151 N.J. 117, 169 (1997), quoting Frye v. United States, 293 F. 1013, 1013-14 (D.C.Cir. 1923) (emphasis added).
[6] State v. Harvey, 151 N.J. 117, 170 (1997).
[7] 15T7-21/23.
[8] 13T52-13/24, 13T53-24/54-4; D-16
[9] 72T155-8/10.
[10] SMR108, citing 18T67.
[11] SMR108, citing 18T77, D-59, D-60, D-61, D-62, D-63, D-64).
[12] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
[13] Id. , 509 U.S. at 594 (citations omitted).
[14] Id. , 509 U.S. at 593.
[15] Id.
[16] Id. , 509 U.S. at 594.
[17] In re LTI Marksman 20-20 Laser Speed Detection System, 314 N.J.Super. 211, 230 (Law Div. 1996) [“Laser I”].
[18] State v. Harvey, 151 N.J. 117, 171 (1997), quoting Rubanic v. Witco Chemical Corp., 125 N.J. 421, 436 (1991).
[19] In re Seaman, 133 N.J. 67, 74 (1993) (citations omitted).
[20] Romano v. Kimmelman, 96 N.J. 66, 91 (1984).
[21] State v. Harvey, 151 N.J. 117, 170 (1997).
[22] SMR247.
[23] SMR108, citing 57T23-24.
[24] Romano v. Kimmelman, 96 N.J. 66, 90 (1984). See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
[25] See Pointer v. Texas , 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); see also Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
[26] See State v. Farrell, 320 N.J.Super. 425 (App.Div. 1999); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

San Diego DUI criminal defense attorneys news

For about $11, San Diego County area DUI Police could capture & save all or part of a San Diego DUI arrestee's breath sample. The Intoxilyzer 5000 in Colorado and New Hampshire saves the last part of the breath sample in a "Toxtrap".

Books & Journals/Journal of Forensic Sciences Volume 30, Issue 1 (January 1985)

ISSN: 0022-1198
Published Online: 1 January 1985
Page Count: 8

Observations on ToxTrap Silica Gel Breath Capture Tubes for Alcohol Analysis
Bergh, AK
Laboratory director, Ventura Sheriff's Crime Laboratory, Ventura, CA.

Experimental studies were carried out to investigate the accuracy, precision, and reliability of ToxTrap silica gel tubes relative to the capture, from Intoxilyzers®, and subsequent analysis of alcohol derived from Simulator vapors or breath samples. Factors influencing analytical results, such as the presence of moisture in the tubes, were investigated. Comparisons were made between immediate, direct Intoxilyzer results and ToxTrap tube results obtained by a gas chromatographic technique.

Paper ID: JFS301850186

Link to the Case Preview: http://supreme.justia.com/us/467/479/

Link to the Full Text of Case: http://supreme.justia.com/us/467/479/case.html

U.S. Supreme Court
CALIFORNIA v. TROMBETTA, 467 U.S. 479 (1984)
467 U.S. 479
CALIFORNIA v. TROMBETTA ET AL.
CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT

No. 83-305.

Argued April 18, 1984
Decided June 11, 1984



When stopped in unrelated incidents on suspicion of drunken driving on California highways, each respondent submitted to a Intoxilyzer (breath-analysis) test and registered a blood-alcohol concentration high enough to be presumed to be intoxicated under California law. Although it was technically feasible to preserve samples of respondents' breath, the arresting officers, as was their ordinary practice, did not do so. Respondents were then all charged with driving while intoxicated. Prior to trial, the Municipal Court denied each respondent's motion to suppress the Intoxilyzer test results on the ground that the arresting officers had failed to preserve samples of respondents' breath that the respondents claim would have enabled them to impeach the incriminating test results. Ultimately, in consolidated proceedings, the California Court of Appeal ruled in respondents' favor, concluding that due process demanded that the arresting officers preserve the breath samples.

Held:

The Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath-analysis tests at trial, and thus here the State's failure to preserve breath samples for respondents did not constitute a violation of the Federal Constitution. Pp. 485-491.


(a) To the extent that respondents' breath samples came into the California authorities' possession, it was for the limited purpose of providing raw data to the Intoxilyzer. The evidence to be presented at trial was not the breath itself but rather the Intoxilyzer results obtained from the breath samples. The authorities did not destroy the breath samples in a calculated effort to circumvent the due process requirement of Brady v. Maryland, 373 U.S. 83, and its progeny that the State disclose to criminal defendants material evidence in its possession, but in failing to preserve the samples the authorities acted in good faith and in accord with their normal practice. Pp. 485-488.

(b) More importantly, California's policy of not preserving breath samples is without constitutional defect. The constitutional duty of the States to preserve evidence is limited to evidence that might be expected to play a role in the suspect's defense. The evidence must possess an exculpatory value that was apparent before it was destroyed, and must also be of such a nature that the defendant would be unable to obtain

Page 467 U.S. 479, 480

comparable evidence by other reasonably available means. Neither of these conditions was met on the facts of this case. Pp. 488-490.


142 Cal. App. 3d 138, 190 Cal. Rptr. 319, reversed and remanded.
MARSHALL, J., delivered the opinion for a unanimous Court. O'CONNOR, J., filed a concurring opinion, post, p. 491.

Charles R. B. Kirk, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were John K. Van De Kamp, Attorney General, William D. Stein, Assistant Attorney General, and Gloria F. De Hart, Deputy Attorney General.

John F. DeMeo argued the cause for respondents. With him on the brief were Thomas R. Kenney, J. Frederick Haley, and John A. Pettis.*


[Footnote *] Briefs of amici curiae urging reversal were filed for the State of Minnesota et al. by Hubert H. Humphrey III, Attorney General of Minnesota, James B. Early, Special Assistant Attorney General, and Thomas L. Fabel, Deputy Attorney General, Jim Smith, Attorney General of Florida, Linley E. Pearson, Attorney General of Indiana, Edwin Lloyd Tittman, Attorney General of Mississippi, and Mike Greely, Attorney General of Montana; for the Appellate Committee of the California District Attorney's Association by John R. Vance, Jr.; and for the National District Attorneys Association, Inc., et al. by David Crump, Wayne W. Schmidt, James P. Manak, and Edwin L. Miller, Jr.

George L. Schraer and Lisa Short filed a brief for the State Public Defender of California as amicus curiae urging affirmance.

Briefs of amici curiae were filed for the State of North Carolina by Rufus L. Edmisten, Attorney General, and Isaac T. Avery III, Special Deputy Attorney General; for the County of Los Angeles by Robert H. Philibosian, Harry B. Sondheim, and John W. Messer; and for the California Public Defender's Association et al. by Albert J. Menaster, William M. Thornbury, and Ephraim Margolin.

JUSTICE MARSHALL delivered the opinion of the Court.

The Due Process Clause of the Fourteenth Amendment requires the State to disclose to criminal defendants favorable evidence that is material either to guilt or to punishment. United States v. Agurs, 427 U.S. 97 (1976); Brady v.

Page 467 U.S. 479, 481

Maryland, 373 U.S. 83 (1963). This case raises the question whether the Fourteenth Amendment also demands that the State preserve potentially exculpatory evidence on behalf of defendants. In particular, the question presented is whether the Due Process Clause requires law enforcement agencies to preserve breath samples of suspected drunken drivers in order for the results of breath-analysis tests to be admissible in criminal prosecutions.


I
The Omicron Intoxilyzer (Intoxilyzer) is a device used in California to measure the concentration of alcohol in the blood of motorists suspected of driving while under the influence of intoxicating liquor.[Footnote 1] The Intoxilyzer analyzes the suspect's breath. To operate the device, law enforcement officers follow these procedures:


"Prior to any test, the device is purged by pumping clean air through it until readings of 0.00 are obtained. The breath test requires a sample of `alveolar' (deep lung) air; to assure that such a sample is obtained, the subject is required to blow air into the intoxilyzer at a constant pressure for a period of several seconds. A breath sample is captured in the intoxilyzer's chamber and infrared light is used to sense the alcohol level. Two samples are taken, and the result of each is indicated on a printout card. The two tests must register within 0.02 of each other in order to be admissible in court. After each test, the chamber is purged with clean air and then

Page 467 U.S. 479, 482

checked for a reading of zero alcohol. The machine is calibrated weekly, and the calibration results, as well as a portion of the calibration samples, are available to the defendant." 142 Cal. App. 3d 138, 141-142, 190 Cal. Rptr. 319, 321 (1983) (citations omitted).


In unrelated incidents in 1980 and 1981, each of the respondents in this case was stopped on suspicion of drunken driving on California highways. Each respondent submitted to an Intoxilyzer test.[Footnote 2] Each respondent registered a blood-alcohol concentration substantially higher than 0.10 percent. Under California law at that time, drivers with higher than 0.10 percent blood-alcohol concentrations were presumed to be intoxicated. Cal. Veh. Code Ann. 23126(a)(3) (West 1971) (amended 1981). Respondents were all charged with driving while intoxicated in violation of Cal. Veh. Code Ann. 23102 (West 1971) (amended 1981).
Prior to trial in Municipal Court, each respondent filed a motion to suppress the Intoxilyzer test results on the ground that the arresting officers had failed to preserve samples of respondents' breath. Although preservation of breath samples is technically feasible,[Footnote 3] California law enforcement officers

Page 467 U.S. 479, 483

do not ordinarily preserve breath samples, and made no effort to do so in these cases. Respondents each claimed that, had a breath sample been preserved, he would have been able to impeach the incriminating Intoxilyzer results. All of respondents' motions to suppress were denied. Respondents Ward and Berry then submitted their cases on the police records and were convicted. Ward and Berry subsequently petitioned the California Court of Appeal for writs of habeas corpus. Respondents Trombetta and Cox did not submit to trial. They sought direct appeal from the Municipal Court orders, and their appeals were eventually transferred to the Court of Appeal to be consolidated with the Ward and Berry petitions.[Footnote 4]

The California Court of Appeal ruled in favor of respondents. After implicitly accepting that breath samples would be useful to respondents' defenses, the court reviewed the available technologies and determined that the arresting officers had the capacity to preserve breath samples for respondents. 142 Cal. App. 3d, at 141-142, 190 Cal. Rptr., at 320-321. Relying heavily on the California Supreme Court's decision in People v. Hitch, 12 Cal. 3d 641, 527 P.2d 361 (1974), the Court of Appeal concluded: "Due process demands simply that where evidence is collected by the state, as it is with the intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and

Page 467 U.S. 479, 484

systematic procedures to preserve the captured evidence or its equivalent for the use of the defendant." 142 Cal. App. 3d, at 144, 190 Cal. Rptr., at 323.[Footnote 5] The court granted respondents Ward and Berry new trials, and ordered that the Intoxilyzer results not be admitted as evidence against the other two respondents. The State unsuccessfully petitioned for certiorari in the California Supreme Court, and then petitioned for review in this Court. We granted certiorari, 464 U.S. 1037 (1984), and now reverse.

Page 467 U.S. 479, 485



II
Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed "what might loosely be called the area of constitutionally guaranteed access to evidence." United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.

The most rudimentary of the access-to-evidence cases impose upon the prosecution a constitutional obligation to report to the defendant and to the trial court whenever government witnesses lie under oath. Napue v. Illinois, 360 U.S. 264, 269-272 (1959); see also Mooney v. Holohan, 294 U.S. 103 (1935). But criminal defendants are entitled to much more than protection against perjury. A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. Brady v. Maryland, 373 U.S., at 87. Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant's guilt. United States v. Agurs, 427 U.S., at 112. The prosecution must also reveal the contents of plea agreements with key government witnesses, see Giglio v. United States, 405 U.S. 150 (1972), and under some circumstances may be required to disclose the identity of undercover informants who possess evidence critical to the defense, Roviaro v. United States, 353 U.S. 53 (1957).

Page 467 U.S. 479, 486


Less clear from our access-to-evidence cases is the extent to which the Due Process Clause imposes on the government the additional responsibility of guaranteeing criminal defendants access to exculpatory evidence beyond the government's possession. On a few occasions, we have suggested that the Federal Government might transgress constitutional limitations if it exercised its sovereign powers so as to hamper a criminal defendant's preparation for trial. For instance, in United States v. Marion, 404 U.S. 307, 324 (1971), and in United States v. Lovasco, 431 U.S. 783, 795, n. 17 (1977), we intimated that a due process violation might occur if the Government delayed an indictment for so long that the defendant's ability to mount an effective defense was impaired. Similarly, in United States v. Valenzuela-Bernal, supra, we acknowledged that the Government could offend the Due Process Clause of the Fifth Amendment if, by deporting potential witnesses, it diminished a defendant's opportunity to put on an effective defense.[Footnote 6] 458 U.S., at 873.

We have, however, never squarely addressed the government's duty to take affirmative steps to preserve evidence on behalf of criminal defendants. The absence of doctrinal development in this area reflects, in part, the difficulty of developing rules to deal with evidence destroyed through prosecutorial neglect or oversight. Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed. Cf. United States v. Valenzuela-Bernal, supra, at 870. Moreover, fashioning remedies for the illegal destruction of evidence can pose troubling choices. In nondisclosure cases, a court can

Page 467 U.S. 479, 487

grant the defendant a new trial at which the previously suppressed evidence may be introduced. But when evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing - as the California Court of Appeal did in this case - the State's most probative evidence.

One case in which we have discussed due process constraints on the Government's failure to preserve potentially exculpatory evidence is Killian v. United States, 368 U.S. 231 (1961). In Killian, the petitioner had been convicted of giving false testimony in violation of 18 U.S.C. 1001. A key element of the Government's case was an investigatory report prepared by the Federal Bureau of Investigation. The Solicitor General conceded that, prior to petitioner's trial, the F. B. I. agents who prepared the investigatory report destroyed the preliminary notes they had made while interviewing witnesses. The petitioner argued that these notes would have been helpful to his defense and that the agents had violated the Due Process Clause by destroying this exculpatory evidence. While not denying that the notes might have contributed to the petitioner's defense, the Court ruled that their destruction did not rise to the level of constitutional violation:


"If the agents' notes . . . were made only for the purpose of transferring the data thereon . . ., and if, having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practices, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right." Id., at 242.

In many respects the instant case is reminiscent of Killian v. United States. To the extent that respondents' breath samples came into the possession of California authorities, it was for the limited purpose of providing raw data to the

Page 467 U.S. 479, 488

Intoxilyzer.[Footnote 7] The evidence to be presented at trial was not the breath itself but rather the Intoxilyzer results obtained from the breath samples. As the petitioner in Killian wanted the agents' notes in order to impeach their final reports, respondents here seek the breath samples in order to challenge incriminating tests results produced with the Intoxilyzer.

Given our precedents in this area, we cannot agree with the California Court of Appeal that the State's failure to retain breath samples for respondents constitutes a violation of the Federal Constitution. To begin with, California authorities in this case did not destroy respondents' breath samples in a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland and its progeny. In failing to preserve breath samples for respondents, the officers here were acting "in good faith and in accord with their normal practice." Killian v. United States, supra, at 242. The record contains no allegation of official animus towards respondents or of a conscious effort to suppress exculpatory evidence.

More importantly, California's policy of not preserving breath samples is without constitutional defect. Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense.[Footnote 8]

Page 467 U.S. 479, 489

To meet this standard of constitutional materiality, see United States v. Agurs, 427 U.S., at 109-110, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Neither of these conditions is met on the facts of this case.

Although the preservation of breath samples might conceivably have contributed to respondents' defenses, a dispassionate review of the Intoxilyzer and the California testing procedures can only lead one to conclude that the chances are extremely low that preserved samples would have been exculpatory. The accuracy of the Intoxilyzer has been reviewed and certified by the California Department of Health.[Footnote 9] To protect suspects against machine malfunctions, the Department has developed test procedures that include two independent measurements (which must be closely correlated for the results to be admissible) bracketed by blank runs designed to ensure that the machine is purged of alcohol traces from previous tests. See supra, at 481-482. In all but a tiny fraction of cases, preserved breath samples would simply confirm the Intoxilyzer's determination that the defendant had a high level of blood-alcohol concentration at the time of the test. Once the Intoxilyzer indicated that respondents were legally drunk, breath samples were much more likely to provide inculpatory than exculpatory evidence.[Footnote 10]

Page 467 U.S. 479, 490


Even if one were to assume that the Intoxilyzer results in this case were inaccurate and that breath samples might therefore have been exculpatory, it does not follow that respondents were without alternative means of demonstrating their innocence. Respondents and amici have identified only a limited number of ways in which an Intoxilyzer might malfunction: faulty calibration, extraneous interference with machine measurements, and operator error. See Brief for Respondents 32-34; Brief for California Public Defender's Association et al. as Amici Curiae 25-40. Respondents were perfectly capable of raising these issues without resort to preserved breath samples. To protect against faulty calibration, California gives drunken driving defendants the opportunity to inspect the machine used to test their breath as well as that machine's weekly calibration results and the breath samples used in the calibrations. See supra, at 481-482. Respondents could have utilized these data to impeach the machine's reliability. As to improper measurements, the parties have identified only two sources capable of interfering with test results: radio waves and chemicals that appear in the blood of those who are dieting. For defendants whose test results might have been affected by either of these factors, it remains possible to introduce at trial evidence demonstrating that the defendant was dieting at the time of the test or that the test was conducted near a source of radio waves. Finally, as to operator error, the defendant retains the right to cross-examine the law enforcement officer who administered the Intoxilyzer test, and to attempt to raise doubts in the mind of the factfinder whether the test was properly administered.[Footnote 11]

Page 467 U.S. 479, 491



III
We conclude, therefore, that the Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath-analysis tests at trial.[Footnote 12] Accordingly, the judgment of the California Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.


It is so ordered.


Footnotes
Footnote 1 Law enforcement agencies in California are obliged to use breath-analysis equipment that has been approved by the State's Department of Health. See 17 Cal. Admin. Code 1221 (1976). The Department has approved a number of blood-alcohol testing devices employing a variety of technologies, see List of Instruments and Related Accessories Approved for Breath Alcohol Analysis (Dec. 20, 1979), reprinted in App. 238-247, of which the Omicron Intoxilyzer is the most popular model, see Brief for Petitioner 6, n. 6.

Footnote 2 Under California law, drunken driving suspects are given the choice of having their blood-alcohol concentration determined by either a blood test, a urine test, or a breath test. Cal. Veh. Code Ann. 13353 (West 1971 and Supp. 1984). Suspects who refuse to submit to any test are liable to have their driving licenses suspended. Ibid.


Footnote 3 The California Department of Health has approved a device, known as an Intoximeter Field Crimper-Indium Tube Encapsulation Kit (Kit), which officers can use to preserve breath samples. App. 247. To use the Kit, a suspect must breathe directly into an indium tube, which preserves samples in three separate chambers. See 142 Cal. App. 3d 138, 142, 190 Cal. Rptr. 319, 321 (1983). The breath trapped in each chamber can later be used to determine the suspect's blood-alcohol concentration through the use of a laboratory instrument known as a Gas Chromatograph Intoximeter, which has also been approved by the California Department of Health. App. 242-243. Because the suspect must breathe directly into the indium tube, the Kit cannot be used to preserve the same breath sample used in an Intoxilyzer test. See, supra, at 481-482. Other devices,

Page 467 U.S. 479, 483

similar in function to the Kit, can be attached to an Intoxilyzer and used to collect the air that the Intoxilyzer purges, see Brief for Respondents 18-19, but none of these devices has yet received approval from the California Department of Health, see Reply Brief for Petitioner 3-4.


Footnote 4 The California Court of Appeal expressed some doubt whether respondents Trombetta and Cox were entitled to appeal their suppression orders and ultimately ordered that their appeals be dismissed. 142 Cal. App. 3d, at 140, 143, 190 Cal. Rptr., at 320, 323. The court, however, ruled on the merits of their claims and thereby exercised jurisdiction over their appeals. Id., at 144, 190 Cal. Rptr., at 323. As to Trombetta and Cox, the Court of Appeal decision was comparable to a judgment affirming a suppression order, which is reviewable in this Court under 28 U.S.C. 1257(3). Cf., e. g., Michigan v. Clifford, 464 U.S. 287 (1984).


Footnote 5 People v. Hitch involved another device used to measure blood-alcohol concentrations. With that device, a suspect's breath bubbles through a glass ampoule containing special chemicals that change colors depending on the amount of alcohol in the suspect's blood. 12 Cal. 3d, at 644, 527 P.2d, at 363-364. In keeping with California procedures, law enforcement officials in Hitch discarded the ampoule after they had completed their testing, even though the ampoule might have been saved for retesting by the defendant. Relying on this Court's decisions in Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150, 153-154 (1972), the California Supreme Court concluded that the Due Process Clause is implicated when a State intentionally destroys evidence that might have proved favorable to a criminal defendant. 12 Cal. 3d, at 645-650, 527 P.2d, at 364-370. The Hitch decision was noteworthy in that it extrapolated from Brady's disclosure requirement an additional constitutional duty

on the part of prosecutors to preserve potentially exculpatory evidence. See Note, The Right to Independent Testing: A New Hitch in the Preservation of Evidence Doctrine, 75 Colum. L. Rev. 1355, 1364-1368 (1975); cf. United States v. Bryant, 142 U.S. App. D.C. 132, 141, 439 F.2d 642, 651 (1971) (Wright, J.) (Government must make "`earnest efforts' to preserve crucial materials and to find them once a discovery request is made").

For a number of years, there was uncertainty whether the California courts would extend the Hitch decision to the Intoxilyzer. In People v. Miller, 52 Cal. App. 3d 666, 125 Cal. Rptr. 341 (1975), a Court of Appeal panel refused to extend Hitch because the Intoxilyzer does not reduce breath samples to a preservable form comparable to the ampoules created with the device involved in Hitch. The Court of Appeal in Trombetta declined to follow Miller, and reasoned that as long as there were other methods of preserving specimens (such as the Indium Tube Kit, see n. 3, supra), the State was obliged to preserve a breath sample equivalent to the one used in the Intoxilyzer. 142 Cal. App. 3d, at 143-144, 190 Cal. Rptr., at 322-323.


Footnote 6 In related cases arising under the Sixth and Fourteenth Amendments, we have recognized that criminal defendants are entitled to call witnesses on their own behalf and to cross-examine witnesses who have testified on the government's behalf. See Davis v. Alaska, 415 U.S. 308 (1974); Washington v. Texas, 388 U.S. 14 (1967).


Footnote 7 We accept the California Court of Appeal's conclusion that the Intoxilyzer procedure brought respondents' breath samples into the possession of California officials. The capacity to preserve breath samples is equivalent to the actual possession of samples. See n. 5, supra.


Footnote 8 In our prosecutorial disclosure cases, we have imposed a similar requirement of materiality, United States v. Agurs, 427 U.S. 97 (1976), and have rejected the notion that a "prosecutor has a constitutional duty routinely to deliver his entire file to defense counsel." Id., at 111; see also Moore v. Illinois, 408 U.S. 786, 795 (1972) ("We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case").


Footnote 9 The Intoxilyzer has also passed accuracy requirements established by the National Highway Traffic Safety Administration of the Department of Transportation. See 38 Fed. Reg. 30459 (1973); A. Flores, Results of the First Semi-Annual Qualification Testing of Devices to Measure Breath Alcohol 10 (Dept. of Transportation 1975).


Footnote 10 The materiality of breath samples is directly related to the reliability of the Intoxilyzer itself. The degree to which preserved samples are material depends on how reliable the Intoxilyzer is. This correlation suggests that a more direct constitutional attack might be made on the sufficiency of the evidence underlying the State's case. After all, if the Intoxilyzer were

Page 467 U.S. 479, 490

truly prone to erroneous readings, then Intoxilyzer results without more might be insufficient to establish guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979).


Footnote 11 Respondents could also have protected themselves from erroneous on-the-scene testing by electing to submit to urine or blood tests, see n. 2, supra, because the State automatically would have preserved urine and

Page 467 U.S. 479, 491

blood samples for retesting by respondents. Respondents, however, were not informed of the difference between the various testing procedures when they were asked to select among the three available methods of testing blood-alcohol concentrations. But see Cal. Veh. Code Ann. 13353.5 (West 1971) (enacted in 1983) (requiring suspects to be informed that samples will be retained only in urine and blood tests). To the extent that this and other access-to-evidence cases turn on the underlying fairness of governmental procedures, it would be anomalous to permit the State to justify its actions by relying on procedural alternatives that were available, but unknown to the defendant. Similarly, it is irrelevant to our inquiry that California permits an accused drunken driver to have a second blood-alcohol test conducted by independent experts, since there is no evidence on this record that respondents were aware of this alternative.


Footnote 12 State courts and legislatures, of course, remain free to adopt more rigorous safeguards governing the admissibility of scientific evidence than those imposed by the Federal Constitution. See, e. g., Lauderdale v. State, 548 P.2d 376 (Alaska 1976); City of Lodi v. Hine, 107 Wis. 2d 118, 318 N. W. 2d 383 (1982).

JUSTICE O'CONNOR, concurring.

Rules concerning preservation of evidence are generally matters of state, not federal constitutional, law. See United States v. Augenblick, 393 U.S. 348, 352-353 (1969). The failure to preserve breath samples does not render a prosecution fundamentally unfair, and thus cannot render breath-analysis tests inadmissible as evidence against the accused. Id., at 356. Similarly, the failure to employ alternative methods of testing blood-alcohol concentrations is of no due

Page 467 U.S. 479, 492

process concern, both because persons are presumed to know their rights under the law and because the existence of tests not used in no way affects the fundamental fairness of the convictions actually obtained. I understand the Court to state no more than these well-settled propositions. Accordingly, I join both its opinion and judgment.

Page 467 U.S. 479, 493

San Diego criminal defense attorneys - DUI / drunk driving court news

A young Fountain Valley woman who was allegedly California DUI - under the influence of alcohol and narcotics when she rolled her car on Interstate 5 in Camp Pendleton, killing a passenger, pleaded not guilty to vehicular manslaughter while intoxicated.

Marian Teri Kahale, 18, was arrested after the crash, which took place just after 2 a.m. Sunday on southbound Interstate 5 near Las Pulgas Road.

The San Diego DUI accident killed friend Natasha Dannov, also 18. Kahale, who was crying through most of the DUI arraignment hearing, had her right arm in a cast and sling.

Deputy District Attorney Chryseis Starros alleged that Kahale and Dannov celebrated the victim's birthday at Knott's Berry Farm in Buena Park, where the defendant took the drug ecstasy, then went to a party in Mission Viejo, where she drank vodka.

Toxicology results on Dannov's body were pending.

Just inside San Diego County, Kahale's SUV rolled "multiple times" when she purportedly lost control of the vehicle.

"The front passenger was ejected and was deceased on the spot," Starros said.

A bottle of vodka and can of beer were found in the vehicle, but it was unknown how much of the beverages remained, the prosecutor alleged.

About an hour and a half after the crash, the defendant's blood-alcohol level was .12 percent, above the state limit of .08 percent, she claimed.

Judge Marshall Hockett set bail at $250,000 and ordered the defendant to abstain from alcohol and driving if she's released. A January felony DUI readiness conference was set.

LOST star Daniel Dae Kim has pleaded not guilty to charges of drunk driving / driving under the influence (DUI) in Hawaii.

The actor, who plays Jin-Soo Kwon in the hit series, was stopped by police in Honolulu, where the show is filmed, in October after cops spotted him allegedly driving erratically.

Patrick McPherson, Kim's DUI criminal defense attorney, said at the hearing on Friday, "He made an apology to the state, the people of Hawaii and his fans. He pleaded not guilty and requested a trial date." Kim did not appear at the DUI Drunk Driving arraignment.

DUI / DWI / Drunk Driving incidents have plagued the Lost cast in Hawaii - castmates Cynthia Watros and Michelle Rodriguez both pleaded guilty to DUI or drunk driving in January 2006 and April 2007.

San Diego DUI criminal defense attorney - San Diego California drunk driving criminal defense lawyers news http://www.sandiegodrunkdrivingattorney.net


Breathalyzer drug's claims woozy, pros say


A Web site claims its tablets can lower blood alcohol levels, so drinking drivers can’t be arrested for DUI. Don’t believe it.

Sunday, November 25, 2007
By JOHN BRANTON, renown Columbian writer

Talk about the marvels of modern science - and just in time for the holiday season!

A new product, chewed while drinking alcohol, will "eliminate odor and decrease Breathalyzer readout by up to 60 percent."

That's according to a recent flurry of spam e-mails and a new Web-site pitch.

The seller, a company called DUIX Ltd., is hoping you'll believe its claims that the tablets can lower alcohol levels in your body, and thus protect drinking drivers from being arrested for DUI.

The company wants you to send in your credit-card number to order 10 tablets for $12.99, or 60 for $29.95.

That's a tiny price to pay, you might think, since a first-time DUI conviction here in Clark County can easily cost $8,000, with all the fines, fees, insurance hikes and legal costs.

DUIX Ltd. agrees.

"The Alcohol Breathalyzer is definitely not in your favor and can cost you everything from your job, freedom, thousands of dollars or all of the above," the Web site says.

In a "testimonial," Robert J. of Tulsa, Okla., tells Web-site visitors he got DUIX from a friend, drank three glasses of wine with dinner and was pulled over by police as he left the restaurant.

"That night I was asked to take a breath test," he says, "and nothing showed on the reading."

When The Columbian started getting the unsolicited e-mails in mid-November, a reporter looked into it.

The Web site provides no address or phone number for the company, and doesn't say what the active ingredient in DUIX is.

And it offers only one way to reach the company, a contact link, unless you enter a credit-card number and make a purchase.

Police advise against giving credit-card numbers to strangers who might be identity thieves.

When searches of the Nexis news and business databases for the past two years showed few if any hits, it was clear that DUIX, with a 2007 "copyright date" on the Web site, isn't an established, well-known product.

So a reporter used the Web site's contact link several times, asking what's in DUIX and whether it's a scam.

The Columbian also asked an ethical question: Might the sales pitch encourage people to buy DUIX, then drink and drive, which is the No. 1 cause of fatal traffic accidents in Washington?

Several days later, there was no response.

A Whois.net search of domain names indicated the Web site is based in Aberdeen, U.K., and gave a Torontomail.com, e-mail address. A message sent there also brought no response.

At the National Institute on Alcohol Abuse and Alcoholism, spokeswoman Ann Bradley said, "We have no research at present - nor do I know of any - on agents to defeat Breathalyzer tests."

Rod Gullberg, a research analyst with the Washington State Patrol, said scientists have been studying the metabolism of alcohol for about 100 years. And it's not the first time sellers have claimed their products can alter it.

"There's never been found any nutritional supplement, or anything you take, that speeds up or slows down the natural process of the liver in metabolizing alcohol," Gullberg said. "Nothing has been found to meet the claims of these manufacturers."

WSP Trooper Mike Kesler said he's heard of a fizzy drink whose sellers make similar claims.

Further checks revealed more problems with the credibility of DUIX Ltd.:

The Web site prominently displays the logo of the Better Business Bureau's BBBOnLine Reliability Program. But several searches on the BBB's Web site got no hits for DUIX.

In addition, the BBB says clicking on their logo, if it's valid, should confirm participation and provide other information. However, clicking on the logo brought no response.

There was a recent mention of the product on the California DUI Lawyer Center Blog, simply noting what the Web site claims. http://www.sandiegodrunkdrivingattorney.net

Rick Mueller, a specialist member of the state's DUI Lawyers Association who checked the blog, told The Columbian he knew nothing about DUIX and added, "I'm a bit suspicious, I must admit." http://www.sandiegodrunkdrivingattorney.net/2007/11/60-decrease-in-california-dui-breath.html


A search revealed one small story about DUIX in November on the news Web site msnbc.com , under the title "Lozenges for lushes."

The writer, associate editor Brian Tracey, noted that DUIX offers a money-back guarantee to unsatisfied customers.

Tracey added, "Great, that refund will be certainly appreciated after you make bail."


http://www.sandiegodrunkdrivingattorney.net

http://www.sandiegodrunkdrivingattorney.net/2007/11/60-decrease-in-california-dui-breath.html

San Diego criminal defense lawyer news - drunk driving & DUI idea

Northern California DUI police are offering a new idea: instead of having your "mug shot" taken at the Shasta California jail after being arrested for driving under the influence, why not instead get a mug of your very own by being a designated driver?

California DUI officers in Redding will be giving away blue "designated driver" coffee mugs when they "catch" a sober driver giving their friends a ride home.

A grant from the California Office of Traffic Safety that increases local California DUI enforcement efforts also included a small portion of funds for agencies to show appreciation for designated drivers.

Police have about 140 mugs made that will be given to bartenders for distribution or that officers will hand out if they spot a designated driver during their patrol shifts.

Although California DUI arrests have nearly tripled this year because of stepped-up California drunk driving enforcement, officers also have noticed a growing number of people choosing not to drive drunk.

Taxicabs "on some nights line the streets at closing time" in front of popular bars, and officers have spotted more designated drivers. So what if it's bad business for California DUI criminal defense attorneys.

San Diego Criminal Defense Lawyer news - San Diego DUI Attorney commentary

What can a Tennessee drug user, wife beater and burglar do that someone convicted of driving under the influence can't? All but Tn. DUI offenders are eligible to have their criminal records wiped clean. Such harsh terms normally apply only to the most violent perpetrators, such as murderers and sexual predators.

Criminal defense attorneys say that's one more reason drivers should be careful this holiday season, a time when DUI arrests typically rise.

But Nashville criminal defense attorney Doug Thurman is among several defense lawyers who say DUI arrests stay on a person's record all because of a law that is politically motivated and needs to be changed.

"A DUI is going to be held against you for the rest of your life,'' Thurman said.

He says it's not right that felons are allowed to get a chance at having their records wiped clean when first-time DUI offenders, who've been convicted of a misdemeanor charge, can't.

The law — which has been discussed by a state DUI task force and may come up for debate in the next legislative session — has serious consequences for people convicted of DUI, Thurman said.

"DUI has a mandatory jail sentence if you're convicted, and you're going to lose your license," he said. "So a further punishment here is the non-expunge ability. I just think that's a little too much for somebody who's never been in trouble and makes one mistake."

Advocates who work at keeping drunken drivers off the road say laws need to be tough because intoxicated drivers pose such a danger.

"I think what folks need to realize is that when they get in a car and they drive that they're basically driving a weapon," said Kendall Poole, director of the Governor's Highway Safety Office. The head of the state office of Mothers Against Drunk Driving agreed.

"They could have just as easily committed homicide," Laura Dial, executive director of MADD of Tennessee, said of the first-time DUI offenders. "It's vehicular homicide, which is murder. So, they got lucky when they decided to drive drunk and they didn't kill someone and then become convicted of vehicular homicide or vehicular assault.''

Dial said studies show that a person arrested on a first-time DUI charge has usually been driving drunk 87 times before but just never got caught.

Ken Worthing, 34, an information technology professional who was arrested on a DUI charge in Nashville, took issue with MADD's numbers.

"I'm not going to say I never drove after having a few drinks — I know I have — but 87 times seems hard to believe," he said.

Worthing, who has since moved to Washington state, said he had no idea that having a few beers with dinner after work would leave him with a permanently stained record. He said he didn't think he was impaired when an officer pulled him over for speeding on West End Avenue.

He didn't realize how seriously the charge was treated until after his August 2005 arrest — and didn't realize what role the charge, to which he pleaded guilty, might play if he decides to leave his current job. Having a DUI arrest on one's record can complicate everything from an employment background check to professional school applications to car insurance rates.

"I don't know what I'll do if and when that time comes," Worthing said.



'They're easy targets'

Worthing and others arrested on DUI charges face a hostile political climate, another defense attorney said.

"I think DUI offenders are the whipping children of the legislature," Nashville attorney Patrick Frogge said. "They're easy targets and there's an effective lobbying organization that keeps DUIs on the legislature's agenda."

He said it makes no sense that DUIs are lumped in with crimes that are considered too serious to be erased from the record. The most serious violent felonies, along with most sex crimes, and DUI can't be expunged from a criminal record, he said.

In most cases, a DUI charge has to be dismissed or a judge or a jury has to acquit the defendant in order for the arrest to be expunged from the record. Charges are also eligible to be expunged if the case is dismissed.

Even if a drunken driving defendant pleads guilty to a lesser charge, such as reckless driving, the DUI arrest will be on his record, lawyers say.

Metro Jail records show that DUI is the single most common charge for which people are arrested once and never get booked again into the jail.

Thurman said that figure makes perfect sense because most people who get arrested for a first-time DUI are normally good citizens. Many, he said, are people who have a drink or two after work and get pulled over for driving a few miles over the speed limit.

But Dial of MADD said the Metro Jail figures don't include the number of times people have been rearrested for DUI in outlying counties. She did, however, acknowledge that a lot of otherwise good people were getting arrested on the charge and said it should serve as a warning to people who plan to go out drinking.

San Diego California DUI criminal defense attorneys & drunk driving lawyers news

Any attempt to modify West Virginia’s drunken driving statutes must come sometime after the November interims.

While the agenda isn’t known yet to some members, the chief group seeking stronger DUI laws — Mothers Against Drunk Driving — says it understands nothing is to be done until either the December meetings or January, just days before the 2008 session.

Two key items are being pushed by MADD in an effort to reverse the trend of highway deaths and non-fatal injuries attributed to drunken motorists.

One calls for mandatory use of Interlocks that block an ignition from turning on if a breath test shows an illegal level of alcohol in the blood stream. Another proposal would impose escalating penalties in correlation with the blood alcohol content — an idea strongly favored by one panelist, freshman Sen. Mike Green, D-Raleigh, a former Beckley police officer.

With committee action delayed, a safety program that officially will be launched at a Monday news conference at the Capitol to focus on the problem with drinking motorists over the holiday season, running through New Year’s Day.

There is an increase in travel, a lot of people are on the road, and it’s also a time for holding parties. And that’s when there are more Drunk Drivers and DUI cases.

California DUI San Diego criminal defense attorney news DMV blood test case

8/29/07 Kuo v. DMV CA1/3

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

PHILIP FENG MING KUO,
Plaintiff and Respondent,

v.

DEPARTMENT OF MOTOR VEHICLES,

Defendant and Appellant.
A116448
(Alameda County

Super. Ct. No. RG06273544)


The Department of Motor Vehicles (DMV) appeals from a judgment granting Philip Feng Ming Kuo’s petition for a writ of administrative mandamus. The judgment on Kuo’s petition set aside the DMV’s four-month suspension of Kuo’s driving privileges imposed for his driving with a blood alcohol level over the legal limit. We reverse.

BACKGROUND

On August 15, 2005, Moraga Police Officer Ron Ward observed Kuo driving at 12-15 miles per hour in a 35 mile-per-hour zone and crossing into the northbound lane of the road more than five times over a half-mile distance.

Ward pulled Kuo over and conducted a preliminary alcohol screening (PAS) test. The results of two PAS tests administered at 9:55 and 9:57 p.m. showed a preliminary blood alcohol content (BAC) of 0.124% and 0.113%, respectively. Kuo was then taken into custody. Breath tests administered at the Moraga Police Department at 10:30 and 10:34 p.m. showed a BAC of 0.09%. Kuo also elected to take a blood test, as allowed under Vehicle Code section 23614.

Kuo was arrested and charged with driving under the influence, and was notified that his driver’s license was to be administratively suspended. Kuo requested a hearing to challenge the administrative suspension. (See generally Veh. Code, § 13353.2; Gikas v. Zolin (1993) 6 Cal.4th 841.) The hearing was originally set for September 16, 2005, but was continued five times at Kuo’s request before it was finally held on February 2, 2006. On January 30, 2006, Kuo requested another continuance because his attorney had not yet received the blood test results and police communication tapes or logs he had requested from the DMV. The DMV denied the request and on February 1, 2006, one day before the hearing date, Kuo for the first time asked the DMV to subpoena the results of the blood tests and the police communication tapes or logs.

At the administrative hearing Kuo’s attorney argued that Kuo had repeatedly asked the DMV for the results of his blood tests since September. A number of written requests from Kuo or his lawyer to the DMV and the district attorney’s office for the results of those tests were admitted as exhibits. “The blood test,” counsel argued, “is absolutely germane and completely relevant to determine whether [Kuo] was or was not above the legal limit at the time he drove the car. And from the inception of the case, he and the documents there set that out, he clearly was asking continuously back in November and October of last year, for the blood test. When we came into the case we contacted the DA’s Office, of which we have provided letters to you showing we’ve done that. They have not provided any blood test. . . . We’ve written to the Moraga Police Department asking them for the blood test . . . and again, we have no case pending so there’s no way for me to issue a subpoena, I have no power to issue a subpoena without a pending case. That’s why we wrote to the Department asking for a continuance because still repeatedly after many, many months, this evidence which is absolutely germane to his defense, which is exculpatory in nature, has not been produced. So we then, when that was denied, we then asked the Department in our letter of February 1st, to issue subpoenas to the Contra Costa Sheriff’s Department for the blood sample and for the CAD tapes . . . but it’s my understanding that the Department is not going to issue the subpoenas. . . .” Counsel argued that the DMV’s failure to issue subpoenas for the requested tests and tapes violated his constitutional right to due process and statutory rights under the Vehicle Code.

The hearing officer rejected Kuo’s argument and upheld the suspension. Among other things, she found that “[c]ounsel’s argument and inability to obtain evidence to rebut the Department case was noted and does not appear to support any Due Process violation as claimed.”

Kuo requested a written review of that decision. The basis for the request, counsel explained, “is simply that Mr. Kuo requested, as is his statutory right to collect evidence that would exonerate him, a blood test result. It is undisputed that the documentary evidence before the DMV reveals that he did request a blood test and that a blood test was given to him. We have sought to obtain the results of the aforesaid blood test but as of the date of the hearing no criminal charges were filed against Mr. Kuo and therefore we had no way to obtain a court subpoena for the blood test result evidence. Furthermore, we specifically requested that the Department issue a subpoena so that we could obtain the evidence which would exonerate Mr. Kuo of being above the legal limit; however, you expressly stated at the hearing on record that you would not issue a subpoena for Mr. Kuo to obtain this exculpatory evidence (as required by California Vehicle Code Section 14104.5 and Government Code Section 11450.20.)” The DMV upheld the suspension.

Kuo then challenged the suspension in a petition for writ of administrative mandamus. The petition alleged that Kuo’s counsel had asked the DMV to issue a subpoena to obtain the blood sample both at, and prior to, the administrative hearing.1 This claim figured prominently at the hearing on the petition, when the trial court repeatedly stated its view, reinforced by Kuo’s counsel, that Mr. Kuo had been trying to obtain the blood sample itself; that, unlike the results of the blood test, the sample was “not something that you can subpoena to a hearing and presto magic you get a new reading on that blood”; and that “[i]n the criminal prosecution arena” continuances are frequently necessary because of delays incumbent in obtaining and analyzing blood samples. When the hearing concluded the court took the matter under submission and advised DMV’s counsel that “on February 2nd when the hearing was had and the attorney says we still haven’t been able to get the blood from the entity that has it, I believe that the hearing officer should have absolutely, unequivocally given him an additional continuance to permit him to do that, and I think it’s a deprivation of procedural due process to not permit it.”

The court granted the petition and ordered the DMV to set aside the suspension because Kuo “was not allowed a fair opportunity to obtain significant exculpatory evidence for the administrative hearing held on February 2, 2006.” This appeal timely followed.

DISCUSSION

I. Standards of Review

In ruling on an application for a writ of mandate following an order of suspension, a trial court uses its independent judgment to determine whether the weight of the evidence supports the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456-457.) However, “the court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816-817.)

On review from an order granting a writ of administrative mandamus, this court reviews the record to determine whether the trial court’s findings are supported by substantial evidence. We resolve all evidentiary conflicts and draw all reasonable inferences in favor of the trial court’s decision, and may overturn the trial court’s factual findings only if the evidence is insufficient as a matter of law to sustain them. (Lake v. Reed, supra, 16 Cal.4th at p. 457.) However, where the determinative issue is legal rather than factual we exercise our independent judgment. (Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1233.)

II. Analysis

Despite some apparent factual confusion before the trial court, the question presented is a simple one: whether the DMV denied Kuo a fair opportunity to obtain potentially exculpatory evidence. We conclude it did not.

The confusion, and the court’s ruling, stems from its misconception that Kuo’s efforts at discovery were directed at obtaining his actual blood sample rather than his blood test results. Between September 14, 2005, and January 30, 2006, Kuo sent the DMV, the Moraga Police Department and the district attorney’s office a number of written requests for discovery material specifically seeking the blood test results—but not the blood sample itself.2 On February 1, 2006, the day before the hearing, Kuo for the first time asked the DMV to subpoena the blood test results; even then, however, he did not ask it to subpoena or otherwise obtain his blood sample. In short, while Kuo states in his writ petition and argued in his administrative hearing that he asked the DMV to subpoena the blood sample before the administrative hearing, he is incorrect. The administrative record contains no evidence of such a request.

The question, then, narrows down to this: whether the DMV’s refusal to continue the February 2, 2006, hearing in order to subpoena the blood test results violated Kuo’s due process rights. It did not. Vehicle Code section 14104.5, subdivision (a) provides in relevant part that: “Before a hearing has commenced, the department, or the hearing officer or hearing board, shall issue subpoenas or subpoenas duces tecum, or both, at the request of any party, for attendance or production of documents at the hearing.” (Italics added.) Similarly, under Government Code section 11450.20, subdivision (a), “Subpoenas and subpoenas duces tecum shall be issued by the agency or presiding officer at the request of a party, or by the attorney of record for a party . . . .” (See also Gov. Code, § 11450.10, subd. (a), italics added.)

Kuo’s efforts to obtain the evidence were too little and too late. He never tried to obtain his blood sample by subpoena. Nor does the record reveal efforts by Kuo or his attorney to directly subpoena the blood test results or request that the DMV do so until the day before the February 2, 2006, hearing.3 Their efforts were untimely: California Code of Regulations, title 13, section 115.05, subdivision (b) specifies that “A request for discovery must be made at least 10 days prior to the date set for commencement of the hearing to receive discovery prior to the hearing.” The hearing had already been continued some five previous times since the original September 16, 2005, hearing date and Kuo did not request a subpoena until February 1, 2006. The hearing officer was not obligated to grant yet another continuance to accommodate his eleventh hour request. (See generally Arnett v. Office of Admin. Hearings (1996) 49 Cal.App.4th 332, 342-343 [administrative law officer may grant continuance on good cause “guided by same principles applicable to continuances generally in adjudicative settings”; Veh. Code, § 14112, subd. (a).) To the extent Kuo’s petition and appeal may be construed as challenging the denial of the continuance, the DMV correctly points out that he is jurisdictionally barred from challenging that denial because he did not appeal it to the superior court within 10 days of the administrative ruling. (Gov. Code, § 11524, subd. (c).)

Nor were Kuo’s previous written requests for discovery an effective substitute for the statutory subpoena procedures. While his letters prior to February 1, 2006, asked for production of various discovery materials including blood test results, or followed up on earlier such requests, not a one asked the DMV to issue subpoenas for the results or even referred to the authorizing statutes. Under these circumstances it was not incumbent upon the DMV to issue subpoenas that Kuo had not requested. (See Monaghan v. Department of Motor Vehicles (1995) 35 Cal.App.4th 1621, 1625-1626 [letter that did not expressly request issuance of subpoena as required by statute was insufficient to compel witness’s attendance at administrative hearing, despite written demand for cross-examination].)

The relevant sections of the Government and Vehicle Codes provide those in Kuo’s position the opportunity and means to subpoena evidence in advance of their administrative hearing. That Kuo, represented by counsel, failed to properly utilize those available mechanisms does not constitute a due process violation. Because the record establishes that Kuo failed to properly seek to subpoena his blood test results (and never requested the blood sample itself until his counsel made reference to his blood sample in closing argument in the administrative hearing), the court’s finding that he was deprived of a fair opportunity to obtain potentially exculpatory evidence is without evidentiary support. Consequently, the judgment must be reversed.

DISPOSITION

The judgment granting the writ of administrative mandamus is reversed.

_________________________

Siggins, J.

We concur:

_________________________

Pollak, Acting P.J.

_________________________

Horner, J.*



1 It also noted that the criminal driving under the influence charges against Kuo were dismissed on April 18, 2006, after the administrative hearing, because the blood sample was lost or destroyed, and that Kuo pled guilty to a “dry reckless,” a violation of Vehicle Code section 23103. The DMV objected to admission of the April 18, 2006, transcript and any documents and information not contained in the administrative record. The court sustained the objection.



2 As late as March 7, 2006, in his request for review of the suspension order, Kuo stated that the basis for the request “is simply that Mr. Kuo requested, as is his statutory right to collect evidence that would exonerate him, a blood test result.”



3 Kuo had retained counsel at least by December 22, 2005.



* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

San Diego California DUI criminal defense lawyers news

A California deputy district attorney who specializes in prosecuting California drunk driving / DUI cases was arrested early Saturday on suspicion of a California DUI.

Sgt. Bill East of the California Highway Patrol said officers arrested Patricia Jean "PJ" Haley, 28, at 2:38 a.m. after an officer pulled her over on Argyle Road south of Hartnell Avenue in Redding on suspicion of a routine traffic violation.

The officer allegedly noticed Haley appeared to be California DUI - driving under the influence and gave her a California DUI field sobriety test.

Her breath purportedly registered a 0.10 blood alcohol level. The legal limit for driving in California is 0.08. Haley was booked into the Shasta County jail on misdemeanor charges of a California DUI - driving under the influence but released.

Haley's arrest comes at a time when the Shasta County District Attorney's Office and other area law enforcement agencies have stepped up their California DUI drunk driving enforcement efforts, with increased California DUI checkpoints, more officers and public DUI awareness campaigns.

In August, Shasta County supervisors accepted a $256,982 state grant to boost prosecutions of misdemeanor arrests for California dui driving under the influence.

The money made it possible for Benito's office to hire an attorney to work full time on the cases.

The grant came after the city of Redding received money for two officers specializing in California DUI drunk driving enforcement cases and as the county Superior Court is seeking a grant to set up a California drunk driving DUI court.

Her California DUI criminal defense attorney was not announced.

SAN DIEGO California DUI news

November 22, 2007

To try to get San Diego DUI & San Diego drunk drivers off the roads during the holiday season, San Diego police will step up intensive San Diego Drunk Driving DUI DWI enforcement beginning tonight.

“We'll be sending out three saturation patrols to Pacific Beach, downtown and Mid-City areas,” said San Diego DUI Police. “We want to get the word out that we'll be out and about this holiday season.”

Each patrol of five or six San Diego DWI officers and a sergeant will patrol from about 8 p.m. to 3 a.m. Saturday.

“We want to let people know we are serious about DUI and alcohol enforcement,” say the San Diego DUI Police. “Our primary way of getting (the word) out is through education and enforcement.”

The San Diego DUI Police Department has two grants that fund anti-DUI efforts – “Avoid the 14” and “Arrive Alive.” Avoid the 14 is a county-wide grant, and Arrive Alive money comes from the California Highway Patrol. Both grants are paying overtime for the San Diego drunk driving enforcement officers involved in this holiday weekend's San Diego DUI patrols.

San Diego DUI criminal defense lawyers will protect rights of those accused of a San Diego Drunk Driving, DWI or DUI .

San Diego criminal dui attorney

Texas: Cops Frame Man for DUI
A Dallas, Texas area musician sues police after finding evidence they may have conspired to frame him for DUI.

A sober motorist is suing four Plano, Texas police officers after uncovering evidence that they may have conspired to frame him on DUI / drunk driving/ driving under the influence of alcohol (DUI) charges on October 18, 2006. Tray Boswell, a Dallas area musician, is now fighting back. He filed a federal civil rights lawsuit in the Texas Eastern District Court in September, charging officers Jon Britton, Scott Copeland, Ron Kress and Michael Nunns with conspiring with his ex-wife, Sarah Boswell, to arrest him for DUI in October last year. At the time, the Boswells were in the midst of a divorce where such an arrest could have swayed the proceedings.

The alleged conspiracy failed after the DUI trial gave Tray Boswell access to Sarah Boswell's mobile phone records. These showed multiple contacts between her and the personal cell phones of each of the four officers both prior to and after the arrest. Prosecutors quickly dropped the charges against Tray Boswell, but officials insist the officers did nothing wrong.

San Diego california dui criminal defense lawyer news

A Chicago police officer was charged Monday with misdemeanor DUI / drunk driving in a crash that happened more than five months ago in which a passenger on his motorcycle was killed.

Eugene Bikulcius, 45, was charged with misdemeanor DUI - driving under the influence Monday in the June crash, said Andy Conklin, a spokesman for the Cook County state's attorney's office.

Bikulcius, who was off duty at the time of the crash, had a blood-alcohol content of 0.24, three times the legal limit. He did not know when the DUI test was taken.

Shortly after the DUI crash, which occurred near 87th Street and Kolin Avenue, the other driver involved, Carol Miller, was charged with misdemeanor DUI, Conklin said.

His passenger, Denise Gerzen, 35, died from multiple injuries in the crash. Bikulcius, who has been on medical leave since the cDUI rash, will be relieved of his duties now that he has been charged with DUI.

San Diego California DUI criminal defense lawyer news

A Julian restaurant worker must stand trial on California DUI / drunk driving and other charges in a fatal car crash that occurred in August, a judge ruled yesterday.

Virginia Hernandez Lopez, 44, is charged with vehicular manslaughter while intoxicated, California DUI - driving while under the influence causing injury, and California DUI - driving with a measurable level of blood alcohol, in connection with the Aug. 18 California DUI crash that killed Allan Cole Wolowsky, 45, of Julian.

California DUI Judge Larrie Brainard ordered Lopez held on $250,000 bail and scheduled a California DUI trial for Jan. 22.

If convicted of the California DUI, Lopez would face a maximum penalty of four years in prison, Deputy District Attorney Marlene Coyne said.

Witnesses testified yesterday that on the night of the California DUI crash, Lopez had been drinking at the Rong Branch Restaurant and Saloon, where she bused tables and helped serve customers.

A cook at the restaurant, Natalio Acosta, testified that he bought Lopez two tequila shots with soda chasers after she finished work just before 10:30 p.m.

Authorities said Lopez was eastbound on Julian Road in a 2000 Ford Explorer when she crossed into the westbound lane near Calico Ranch Road and slammed head-on into a 2007 Toyota driven by Wolowsky.

Wolowsky, who was maintenance director with YMCA Camp Marston in Julian, was returning from a memorial service in Rancho Bernardo, Coyne said. Wolowsky's wife, Sandra, was following Wolowsky in another car and saw the California DUI crash, the prosecutor said.

Quentin Porter, a passer-by who came upon the crash moments after it happened, told deputies that Lopez was trying to restart her vehicle when he saw her. Lopez told Porter that “she was going too fast and crashed,” sheriff's detective Dean Stowers testified.

Stowers said Porter reported smelling alcohol on Lopez's breath.

Lopez had a California DUI blood-alcohol level of 0.09 percent, Coyne said. The California DUI legal limit for a driver is 0.08 percent.

Dui DEFENSE attorneys - drunk driving criminal lawyers

Buccaneers: June arrested on DUI charge Monday 11/19

Tampa Bay linebacker Cato June was arrested early Monday morning after being stopped for speeding and DUI / drunk driving / driving under the influence. June was out celebrating a win against the Falcons and his twenty-eighth birthday, which just happened to be Sunday night.

There is no telling whether the office of Roger Goodell will levy a suspension under the league's personal conduct policy. Head coach Jon Gruden does not believe that the incident will be a distraction for his team.

Falcons: Vick checks in to prison early Monday 11/19

Former Falcons quarterback Michael Vick surrendered to U.S. Marshalls and began serving his prison time three weeks before his December 10 sentencing. Vick pleaded guilty to federal dog-fighting conspiracy charges in August, and has worked out a deal to voluntarily enter custody prior to sentencing.

This move was probably made to attempt to lighten his sentence, although it may not work. Vick should only be on deep dynasty league rosters, since he not only has to serve jail time, but also would need to be reinstated by the league, and find a team that will take him. Vick could end up being the next great Arena Football League star.

San Diego California dui criminal defense lawyers news

Monday started like a normal work day for Walter Castillo. But the 25-year-old never finished his shift at a Folsom bakery where Sacramento County sheriff deputies came in and put him in handcuffs.

Castillo was one of dozens of people with outstanding DUI warrants picked up by deputies and Rancho Cordova police officers during the sweep which targeted more than 200 people.

"It's incumbent on a person that's arrested to finish what a judge has told them or ordered them to do," said deputy Caludio Sotelo after he cuffed Castillo and put him in the back of a patrol car.

Starting early Monday morning, the eight teams of officers hit the streets, each with a stack of outstanding warrants. Many of the warrants are for misdemeanor drunk driving, the kind officers usually don't have time to target.

"This time of year especially, it becomes a very dangerous time and we want to get these people off the street as soon as we can," said Sgt. Jeff Hattersley.

Sometimes it's hard to track people down. Before Castillo was arrested, officers tried to find him at his parents' home. Castillo was only the second person they found after the team had tried to serve about a dozen warrants.

"Even though they may list an address, they move around quite a bit," said Sotelo. "It's just hit or miss. Sometimes they're home, sometimes they're not."

At house after house, deputies were told the person they wanted doesn't live there anymore. In one case, the suspect had moved to Montana, according to the resident.

In most cases, the warrants are issued because the person failed to appear in court after being arrested for DUI, or failed to finish a work project or counseling after a conviction.

Officers hope the sweep gets suspected drunk drivers off the street as well as sends a warning to others they don't find.

"This is something that's going to be held over their head and until they clear it up, they're always going to be watching their back," said Sotelo.

The DUI sweep is expected to continue on Tuesday. To avoid an embarrassing arrest at home or work, those with outstanding warrants are urged to turn themselves in and clear the warrant at the downtown headquarters of the Sacramento County Sheriff's Department.

Drunk driving drunk boating bui dui criminal defense lawyers

The number of skippers caught driving vessels while under the influence of alcohol has risen sharply, causing fears over possible boat collisions near Busan.

Local maritime police said they have apprehended the skippers of 21 boats for drunk driving in the nation's biggest port city so far this year, up 30 percent from a year earlier.

Arrests of captains of vessels weighing over five tons rose from three to nine during the same period.

The police are intensifying the crackdown on cargo and passenger boasts being driven by intoxicated skippers to head off a massive mishap, a police officer said.

Anyone caught driving vessels drunk faces up to two years in prison and 15 million won in fines.

Drunk Driving defense lawyers - DUI defense attorney news

In 2004, Men's Health magazine named Denver the drunkest city in America.

In the upcoming December issue of Men's Health, Denver is again named the No. 1 drunkest city — and to put a capper on it, we're the "most dangerously drunk city."

Colorado Springs comes in as the third drunkest city. Aurora is the 19th drunkest city.

"Today, Colorado once again leads the nation in its attitude towards alcohol — but now, the mandate seems to be 'drink till you drop.'" writes Men's Health.

The magazine came up with the rankings by factoring in "annual death rates due to alcoholic liver disease, as well as who's headed there by regularly downing five or more drinks in a sitting. Next, we factored in drunk-driving arrests

Drunk City, Colorado

Discuss Men's Health Magazine's confirmation of Denver's long-held title as "drunkest city."
and the percentage of fatal accidents involving intoxicated motorists. Then, after tallying the MADD (Mothers Against Drunk Driving) report card on state efforts to cut down on excessive drinking, we had our ranking and, for the state of Colorado, a invitation to AA."
"You can make statistics say anything," says Rich Grant, spokesman for the Denver Metro Convention & Visitors Bureau.

"I can show you statistics that say we're the thinnest city, with the most sporting goods stores per capita, and the largest bike and trail system in the country. And I'm sure there are more liquor sales per capita in Las Vegas than there are here."

criminal defense lawyers news - drunk driving attorney info


Make sure you're stone cold sober when you leave your holiday get-together or your mugshot could be pasted all over Valley freeways and streets on billboards.

The new billboards are going up just in time for the holiday season.

County Attorney Andrew Thomas says, "The point is don't commit a dui or you'll face a number of consequences. You'll face incarceration, consequences with your driver's license, and the fact that you could be potentially shamed."

One of the convicts featured on the billboards going up is a repeat offender, serving eight years. In addition to that, your face could wind up on the county attorney's drunk driving Web site.

In addition to the billboards, there are new radio and television public service announcements promoting the Web site.

The campaign costs $700,000. Convicted criminals are paying for most of it, because the funding is from assets siezed through RICO (Racketeering Influence and Corrupt Organization) statutes. The remainder comes from $188,530 allocated by the DUI abatement fund.

The billboards will be up through New Year's day.

More information online: www.stopduiaz.com


Or you can see yourself online if convicted of DUI:

You are convicted of DWI - DRUNK DRIVING - getting behind the wheel while legally intoxicated, be prepared to say “Cheese!”

In an effort to discourage and prevent people from drinking and driving, the county’s chief prosecutor will expose any convicted Valley DUI offender with an online mug shot and a detailed case description.

The Maricopa County Attorney’s Office will post offenders’ photos at stopduiaz.com.
County Attorney Andrew Thomas introduced the new campaign Sunday on the front steps of the Maricopa County Attorney’s Office.

“Day after day, our prosecutors deal with cases involving intoxicated drivers who destroy lives,” Thomas said.

“This campaign represents an appeal to all drivers to think of the consequences of drinking and driving,” he said.

High-visibility billboards displayed along freeways and streets throughout the Valley warn motorists that if they drink and drive, there are more than legal consequences to be faced.

Thomas said he hoped offenders would learn from the embarrassing, shameful repercussions of their convictions, too.

The online posts will expose drivers convicted of a DUI offense not only through their mug shots, but also with case information, fines and jail sentences, Thomas said.

Total cost of the campaign is just under $700,000.

San Diego criminal lawyers news

A Wrong Murder Conviction -- Key Testimony and the Science Behind It Have Been Discredited

The prosecutor had held up an officer's off-duty .38-caliber revolver and assured jurors that science proved the gun had been used to kill Kulbicki's mistress.

"I wonder what it felt like, Mr. Kulbicki, to have taken this gun, pressed it to the skull of that young woman and pulled the trigger, that cold steel," the prosecutor had apparently incorrectly said during closing arguments.

Information from Joseph Kopera, who worked as a firearms expert for the Maryland State Police, was used to convict James A. Kulbicki of murder.

Prosecutors had linked the weapon to Kulbicki through forensic science. Maryland's top firearms expert said that the gun had been cleaned and that its bullets were consistent in size with the one that killed the victim. The state expert could not match the markings on the bullets to Kulbicki's gun. But an FBI expert took the stand to say that a science that matches bullets by their lead content had linked the fatal bullet to Kulbicki.

The jurors were convinced, and in 1995 Kulbicki was convicted of first-degree murder in the death of his 22-year-old girlfriend. He was sentenced to life in prison without the possibility of parole.

For a dozen years, Kulbicki sat in state prison, saddled with the image of the calculating killer portrayed in the 1996 made-for-TV movie "Double Jeopardy."

Then the scientific evidence unraveled.

Earlier this year, the state expert committed suicide, leaving a trail of false credentials, inaccurate testimony and lab notes that conflicted with what he had told jurors. Two years before, the FBI crime lab had discarded the bullet-matching science that it had used to link Kulbicki to the crime.


Now a judge in Baltimore County is weighing whether to overturn Kulbicki's conviction in a legal challenge that could have ripple effects across Maryland. The case symbolizes growing national concerns about just how far forensic experts are willing to go to help prosecutors secure a conviction.

"If this could happen to my client, who was a cop who worked within this justice system, what does it say about defendants who know far less about the process and may have far fewer resources to uncover evidence of their innocence that may have been withheld by the prosecution or their scientific experts?" said Suzanne K. Drouet, a former Justice Department lawyer who took on Kulbicki's case as a public defender.

Prosecutors are fighting to uphold Kulbicki's conviction, arguing that there is still plenty of evidence that proves his guilt.

"While much of the evidence against the petitioner falls into the category of circumstantial evidence, the state presented a mountain of evidence, both direct and circumstantial," prosecutors argued in a motion earlier this year opposing Kulbicki's request for a new trial.

Police had lots of circumstantial evidence. A jacket with the victim's blood on the sleeve was found hanging in Kulbicki's closet. And four bone chips and a bullet fragment were found in his truck. Tiny drops of blood also were found in the truck, and one spot of blood on the holster of his off-duty weapon. But the blood spots were so small and their quality so poor that they could not be matched to the victim.

Sadly, criminal defense lawyers often go up against bad forensic evidence leading to convictions.

San Diego DUI criminal attorneys

Salinas DUI checkpoint handing out turkeys to sober drivers
11/19/2007

SALINAS, California

Sober drivers passing through a California DUI checkpoint in Salinas will be getting the bird.

Up to 300 turkeys will be given to drivers who successfully pass through the sobriety checkpoint Tuesday. The location for the California drunk driving / DUI checkpoint isn't being disclosed.

The Salinas Police Department and the Safe Teens Empowerment Project in Salinas are joining forces in the turkey giveaway.

Carla Olson was the 43-year-old college sociology professor and mother of three grown children who was killed by a California drunk driver in August 2003 as she and her husband, Wayne, were riding their motorcycles on Irvine Boulevard.

The guy who killed her, Jonathan Paul Michael Barber, now 28, had a long sheet of drug and alcohol offenses and was driving on a suspended license when his car hit Carla's Harley-Davidson from behind at 100 mph. Barber fled the scene, was caught and showed a .20 on the blood-alcohol test, 2 1/2 times the DUI level.

And what set it apart from so many other sadly similar cases is what Barber so coldly and callously said to a California Highway Patrolman as he was being treated for some minor scrapes. What he said was, "I didn't mean to kill the bitch. So why don't you have some sympathy for me?"

That was more than four years ago – four long years of seemingly endless legal motions and hearings and various and assorted delays before the case went to trial. Finally in August a jury found Barber guilty of second-degree murder, and sentencing was set first for September, then moved again to last Friday.

And so on Friday morning the Olson family gathered outside a courtroom in Santa Ana, as they have so many times before: Carla's husband, their three children, her mother, her sister, and various other relatives, in-laws and friends. They came all the way from Yucca Valley and San Diego and throughout Orange County, ready to see justice finally done, to see Barber receive an expected 15-years-to-life sentence.

Several of them had planned to make their pre-sentencing "victim impact statements" in court, to tell the judge – and Barber himself – about the pain Carla's death had caused them, and what Barber had stolen from them. Wayne Olson, who attended every single court hearing over the past four years, had lain awake the night before, going over what he wanted to say and wondering if it really was going to be over.

But then it wasn't over. Just before the scheduled sentencing, Barber, who's been locked up in the county jail for the past four years and has nothing to lose, exercised his legal right to fire his lawyer and hire a new one – which meant the sentencing had to be postponed yet again.

Now the new lawyer will review the trial transcript and find some imagined legal flaw and he'll make a motion for a new trial and there'll be another hearing and the motion will almost certainly be denied and then there'll be a new sentencing date set, all of which will probably take at least another six months.

Outside the courtroom the prosecutor, Dep. District Attorney Cameron Talley – he's a good prosecutor; it's not easy to get a murder conviction in a DUI case – tried to explain the legal situation to them. He said he understood their pain and frustration with the delays, but that criminal defendants have rights that must be protected, and that the legal system in America, as slow and imperfect as it may be, is still preferable to countries where an accused person doesn't get a trial at all but instead gets a bullet summarily delivered to the head.

San Diego DUI criminal attorney news

A man has been sentenced to three years in prison for a DUI drunk driving accident in 2006 that killed his father.

Ezequiel Gonzales pleaded no contest in July to homicide by intoxicated use of a motor vehicle. The charge carries a maximum prison sentence of 25 years.

Racine Wisconsin Circuit Court Judge Charles Constantine said Friday it was a difficult Drunk Driivng case, but said the sentence was meant to deter others from drinking and driving.

Prosecutors say in January 2006, Gonzales spent a night drinking and playing pool with his father at a bar. Afterward, with his father in the passenger seat, he ran a stop sign and hit a truck.

The truck driver suffered minor injuries, and 59-year-old Severo Gonzales.

Before sentencing, Ezequiel Gonzales apologized to his family and the truck driver. He said he was ready to take responsibility for killing his father in a drunk driving / DWI / DUI accident.

California DUI Checkpoints / California drunk driving roadblocks compilation

Town/City/Municipality: Apple Valley
Description of roadblock location: Intersection of Thunderbird Road and Wichita Road
Time of day: Anytime of Day
Purported purpose of roadblock: Registration, Insurance, Seatbelts
Regularity of roadblock: Infrequently set up but location remains constant
Percentage of cars stopped or checked: Stopped and checked 25% to 75% of vehicle
Registry date: 01/2006
Additional information about this roadblock or notes on roadblock encounter:
I did not experience this roadblock personally, but read the following in the San Bernardino Sun: "About 55 drivers were cited during a six-hour safety checkpoint Friday (12-30-05) conducted by San Bernardino County Sheriff's Department's Apple Valley deputies. A total of 901 vehicles passed through the checkpoint at Thunderbird and Witchita roads. Twenty-seven vehicles were towed when the drivers were arrested for suspended licenses." The article did not state the time of day that the roadblock was in action nor how often it is set up.


Town/City/Municipality: Baker
Description of roadblock location: Hwy 127
Time of day: Anytime of Day
Purported purpose of roadblock: fireworks
Regularity of roadblock: Frequently set up in this area, but exact location changes
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles (more than 75%)
Registry date: 07/2007
Additional information about this roadblock or notes on roadblock encounter:
They ask where are you travelling from, and if they cant check your trunk they will have a dog serch the car if you do not comply they are issueing ticket for any fireworks they find.


Town/City/Municipality: Brea
Description of roadblock location: Imperial Hwy west of 57
Time of day: Anytime of Day
Purported purpose of roadblock: Seatbelts, Emissions, Vehicle Equipment, Racial profiling
Regularity of roadblock: Infrequently set up but location remains constant
Percentage of cars stopped or checked: Stopped and checked 25% to 75% of vehicle
Registry date: 04/2003
Additional information about this roadblock or notes on roadblock encounter:
Brea Police have set up this roadblock for westbound traffic. I was harassed about my STOCK exhaust and lighting. They particularly like to target modified "rice rocket" imports under the pretense that the checkpoint is for the use of seat belts.


Town/City/Municipality: Buena Park
Description of roadblock location: Beach Bl near Durango
Time of day: Late Night
Purported purpose of roadblock: Unknown
Regularity of roadblock: Infrequently set up but location remains constant
Percentage of cars stopped or checked: Stopped and checked 25% to 75% of vehicles
Registry date: 09/2003
Additional information about this roadblock or notes on roadblock encounter:
Several motorcycle officers greet you ahead of the checkpoint and will zap you with K-band Instant-On. You cannot turn around as there's an island in the middle of the road. There is no sign that identifies that you were running into a checkpoint, nor was there any indication as to what they were checking for. Officers appeared to pick and choose cars to stop and question. This checkpoint was set up at a known speed trap location.


Town/City/Municipality: Burbank
Description of roadblock location: San Fernando Blvd North of Burbank (Ralph's)
Time of day: Late Night
Purported purpose of roadblock: registration, alchohol, insurance, drugs, seatbelts, residency, vehicle equipment, destination, warrants, criminal convictions, activities travel
Regularity of roadblock: Infrequently set up but location remains constant
Percentage of cars stopped or checked: Stopped and checked 25% to 75% of vehicles
Registry date: 09/2007
Additional information about this roadblock or notes on roadblock encounter:
Lots of police force shown...many Burbank squad cars and motorcyles circling the area and stopping vehicles. There are warning signs, many lights, and cones around the immediate area. Stopping traffic on San Fernando going both ways.


Town/City/Municipality: Ceres
Description of roadblock location: Hatch Road b/w Herndon & Richland
Time of day: Late Night
Purported purpose of roadblock: registration, alchohol
Regularity of roadblock: Frequently set up in this area, but exact location changes
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles (more than 75%)
Registry date: 01/2007
Additional information about this roadblock or notes on roadblock encounter:
Officers were extremely rude and seemed to have singled out a good number of drivers. Customers at nearby businesses were detailing their experiences of being harassed by police. Shopping center entrances were guarded by motorcycle officers and anyone who attempted to enter (or evade) were quickly stopped and harassed.


Town/City/Municipality: Colton
Description of roadblock location: Corner of San Bernardino Ave & Indigo Ave
Time of day: Mid-day
Purported purpose of roadblock: Unknown
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked 25% to 75% of vehicle
Registry date: 10/2005
Additional information about this roadblock or notes on roadblock encounter:
I personally have not been thru the roadblock but, I have lived in the area for 3yrs and can tell you that the Colton P.D. sets up a roadblock just about every 2-3 months with no warning that you are coming up to one nor do you have a chance to turn around. Also besides the roadblocks, cops will be sitting right on Indigo Ave. facing southbound towards San Bernardino Ave. as this is a stop sign waiting for their next victim.


Town/City/Municipality: Costa Mesa
Description of roadblock location: Northbound Newport Blvd. @ 19th St.
Time of day: Late night
Purported purpose of roadblock: Alcohol
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 01/2006
Additional information about this roadblock or notes on roadblock encounter:
Usually on weekends. Depending on traffic, stops every vehicle or every other 3 or 5 vehicles.


Town/City/Municipality: Costa Mesa
Description of roadblock location: Eastbound 17th between Orange and Santa Ana ave.
Time of day: Late night
Purported purpose of roadblock: Alcohol
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 01/2006
Additional information about this roadblock or notes on roadblock encounter:
Usually on weekends. Depending on traffic, stops every vehicle or every other 3 or 5 vehicles.


Town/City/Municipality: Diamond Bar
Description of roadblock location: Diamond Bar Blvd/Sunset Crossing
Time of day: Late Night
Purported purpose of roadblock: registration, alchohol, insurance, drugs, seatbelts, vehicle safety
Regularity of roadblock: Infrequently set up but location remains constant
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 07/2006
Additional information about this roadblock or notes on roadblock encounter:
LASD set up a DUI/CDL checkpoint going west on Diamond Bar Blvd on June 30th, 2006.


Town/City/Municipality: Elk Grove
Description of roadblock location: Grant Line Rd, eastbnd, between Hwy 99 and RR xing
Time of day: Late Night
Purported purpose of roadblock: alchohol, drugs, seatbelts, destination, racial profiling, activities travel
Regularity of roadblock: Infrequently set up but location remains constant
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles (more than 75%)
Registry date: 01/2007
Additional information about this roadblock or notes on roadblock encounter:
Very high profile roadblock, with many, many black/white cop cars, police motorcycles, fire trucks and paddy wagons. Staffed by Elk Grove PD, Folsom PD, Sacramento PD, county Sherriffs and CHP. Lots of cops standing around BSing with each other (your tax dollars at work). All cars stopped and checked for alcohol, drugs, licensing, registration, your destination and where you are coming from. As you approach, cop cars/motorcycles are on the side of the road to go after anyone who attempts to turn around. Location is eastbound, just before the railroad tracks. If you are alert, you can see the lights in time to quickly turn left into the ARCO station, pump a couple gallons, then choose another route by going north on Hwy 99 to Elk Grove Blvd, to cut back to Grant Line after the checkpoint. Due to the number of cars stopped, expect about a 10 minute delay waiting in line before they interrogate you.


Town/City/Municipality: Enfield
Description of roadblock location: HWY 190 on the Enfield side of the 190 bridge
Time of day: Late Night
Purported purpose of roadblock: alchohol, seatbelts
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles (more than 75%)
Registry date: 09/2007
Additional information about this roadblock or notes on roadblock encounter:
After the roadblock we stopped to participate in a survey about bogus media events and then asked to volunarily take a breathalyzer!!! No Way!!


Town/City/Municipality: Eureka
Description of roadblock location: U.S. 101
Time of day: Late Night
Purported purpose of roadblock: registration, alchohol, insurance, drugs, seatbelts, residency, vehicle safety, child safety seats, warrants
Regularity of roadblock: Infrequently set up but location remains constant
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles (more than 75%)
Registry date: 07/2007
Additional information about this roadblock or notes on roadblock encounter:
EPD announced it will have 6 checkpoints in 2007. They are usually on U.S. 101 when it turns into Broadway and splits into 4th and 5th streets in town. They also have held checkpoints on small streets in which only a couple dozen people passed through. They have also held them on Mrytle. Remember that the tallest building in Humboldt County is the jail and these small town cops love to show their power.


Town/City/Municipality: Fallbrook
Description of roadblock location: Sandia Creek Road
Time of day: Anytime of Day
Purported purpose of roadblock: Drugs, Residency, Destination, Racial Profiling, Activities Travel, Dogs
Regularity of roadblock: Infrequently set up but location remains constant
Percentage of cars stopped or checked: Stopped and checked 25% to 75% of vehicles
Registry date: 03/2004
Additional information about this roadblock or notes on roadblock encounter:
US Border Patrol Temporary checkpoint sometimes sets up to 1/4 mile past Sandi Creek Rd./De Luz Rd. intersection to intercept vehicles circumventing NB I-15 checkpoint. Rarely sets up.


Town/City/Municipality: Founation Valley
Description of roadblock location: Brookhurst St between Warner Ave and Edinger Ave
Time of day: Late night
Purported purpose of roadblock: Alcohol, Seatbelts, Destination
Regularity of roadblock: Frequently set up in this area,
but exact location changes
Percentage of cars stopped or checked: Stopped and checked 25% to 75% of vehicle
Registry date: 01/2006
Additional information about this roadblock or notes on roadblock encounter:
They take cars in groups of 5-6 and have an officer at each car asking about sobriety and destination. Each time I've been stopped, the officer made small talk for 2-3 minutes in what I assume to be an attempt to confirm sobriety. However, it is entirely possible that the officer could have just been killing time until the next group was sent through.


Town/City/Municipality: Fullerton
Description of roadblock location: Chapman Av west of Berkeley Av
Time of day: Late Night
Purported purpose of roadblock: Alcohol
Regularity of roadblock: Infrequently set up but location remains constant
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 08/2005
Additional information about this roadblock or notes on roadblock encounter:
Checkpoint is set up for westbound traffic. Berkeley Av is closed in the southbound direction and motorcycles await to nab those who attempt to turn right onto Berkeley to avoid the checkpoint. Drivers are harassed as to why they're attempting to avoid the checkpoint and questioned as to whether they were drinking, along with a brief sobriety test. The officers will also attempt to justify the stop with ticket(s) for frivolous traffic and equipment violations.


Town/City/Municipality: Fullerton
Description of roadblock location: Chapman (Fullerton) / Raymond
Time of day: Late Night
Purported purpose of roadblock: Alchohol
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked 25% to 75% of vehicles
Registry date: 01/2004
Additional information about this roadblock or notes on roadblock encounter:
No comments available.


Town/City/Municipality: Fresno
Description of roadblock location: Blackstone northbound at the main shopping mall
Time of day: Anytime of Day
Purported purpose of roadblock: registration, alchohol, insurance
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 10/2006
Additional information about this roadblock or notes on roadblock encounter:
There is no turnoff from this roadblock! Officers use MADD personel to direct traffic and comandeer the mall parking lot for their activities. Driver's licenses are checked, along with the above, and frequently it is heard "Have you had anything to drink tonight?


Town/City/Municipality: Fresno
Description of roadblock location: Shaw westbound at Wishon
Time of day: Anytime of Day
Purported purpose of roadblock: registration, alchohol, insurance
Regularity of roadblock: Frequently set up in this area, but exact location changes
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 10/2006
Additional information about this roadblock or notes on roadblock encounter:
I witnessed CHP officers manning this roadblock force a crippled man out of his vehicle and have him attempt various field sobriety tests. When they determined he was in fact crippled after about fifteen minutes, they allowed him on his way, his dignity intact I'm sure.


Town/City/Municipality: Garden Grove
Description of roadblock location: Northbound Harbor blvd. @ Woodburry
Time of day: Late night
Purported purpose of roadblock: Alcohol
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 01/2006
Additional information about this roadblock or notes on roadblock encounter:
D.U.I and C.D.L checkpoint.


Town/City/Municipality: Garden Grove
Description of roadblock location: Valley View North of Chapman
Time of day: PM Rush Hour
Purported purpose of roadblock: Alchohol,
Regularity of roadblock: Infrequently set up but location remains constant
Percentage of cars stopped or checked: Stopped and checked 25% to 75% of vehicles
Registry date: 01/2004
Additional information about this roadblock or notes on roadblock encounter:
No comments available.


Town/City/Municipality: Glenddora
Description of roadblock location: Southbound lanes of Grand Avenue and Mona Loa
Time of day: Anytime of Day
Purported purpose of roadblock: registration, alcohol, insurance, drugs, seatbelts, residency, vehicle safety, racial profiling
Regularity of roadblock: Infrequently set up but location remains constant
Percentage of cars stopped or checked: Stopped only a few vehicles (less than 25%)
Registry date: 05/2007
Additional information about this roadblock or notes on roadblock encounter:
This stop activity is usually performed in the November, December, and January hollidays. They randomly pick a vehicle out of the stopped traffic to pull out of the flow of stopped vehicles.


Town/City/Municipality: Hayward
Description of roadblock location: Mission Blvd. between Tennyson and Carlos Bee.
Time of day: Late Night
Purported purpose of roadblock: unknown, alcohol
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 10/2006
Additional information about this roadblock or notes on roadblock encounter:
No comments.


Town/City/Municipality: Highland Park
Description of roadblock location: York Blvd. right after Eagle Rock Blvd
Time of day: Late Night
Purported purpose of roadblock: Registration, Alchohol, Insurance, Drugs, Seatbelts, Residency, Curfew, Vehicle Safety, Child Safety Seats, Vehicle Equipment, Destination, Warrants, Criminal Convictions, Trucker Stop, Racial Profiling, Child Support, Minor Truancy, Dogs
Regularity of roadblock: Infrequently set up but location remains constant
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 09/2007
Additional information about this roadblock or notes on roadblock encounter:
Time delay, addition traffic, unconstitutional.


Town/City/Municipality: Irvine
Description of roadblock location: Irvine Center Drive/Sand Canyon
Time of day: Late Night
Purported purpose of roadblock: Registration, Alchohol, Insurance, Drugs, Seatbelts, Residency, Curfew, Vehicle Safety, Child Safety Seats, Vehicle Equipment, Destination, Warrants, Criminal Convictions, Trucker Stop, Racial Profiling, Child Support, Minor Truancy, Dogs
Regularity of roadblock: Frequently set up in this area,
but exact location changes
Percentage of cars stopped or checked: Stopped and checked 25% to 75% of vehicles
Registry date: 11/2003
Additional information about this roadblock or notes on roadblock encounter:
I have decided to list this in the road block registry. Just this past Summer, I saw something fishy going on.They had police, K-9 dogs,and black and white trailers. It sounded like something serious was going on. However, I feel that this might of been a road block in progress. Most of the police/Sheriff agencies in the Orange County area have random road blocks. Just watch for them!


Town/City/Municipality: Jacumba
Description of roadblock location: EB I-8 3 miles past Jacumba exit
Time of day: Any time
Purported purpose of roadblock: Drugs, Residency, Racial Profiling, Dogs
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked 25% to 75% of vehicle
Registry date: 07/2005
Additional information about this roadblock or notes on roadblock encounter:
US Border Patrol temporary checkpoint located right past the two gas stations.


Town/City/Municipality: La Verne
Description of roadblock location: Intersection of Arrow Highway and Carrian Road
Time of day: PM Rush Hour
Purported purpose of roadblock: registration, alchohol, insurance, drugs, seatbelts, residency, warrants, racial profiling, dogs
Regularity of roadblock: Infrequently set up but location remains constant
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 05/2007
Additional information about this roadblock or notes on roadblock encounter:
THey had wwhat appeared to be every 'officer and those retired' in full force and unifform. There were lane to lane 'persions' in all east bound lanes. They took their time to see your papers. There were 2 in each lane a little over a car length apart in each lane, looking at both front and rear of each vehicle!!! There were in excess of 25 agents. No females were in attendance. They had several tables and at least 12 CRUIZERS in place, with 2 occupied and running. Domestic Terrorism never had it so good.


Town/City/Municipality: Los Banos
Description of roadblock location: Pacheco Blvd, westbound in front of the CHP office
Time of day: Late Night
Purported purpose of roadblock: registration, alchohol, insurance, seatbelts
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked 25% to 75% of vehicle
Registry date: 10/06
Additional information about this roadblock or notes on roadblock encounter:
This checkpoint has a turnoff, but it is after the cone pattern begins, so most do not avail themselves of it. Officer in charge says the CHP no longer chases vehicles that turn off to avoid the roadblock. A local commander told me, after spouting the party line, when I asked him his personal opinion-- "Complete waste of time."


Town/City/Municipality: McKinleyville
Description of roadblock location: Central Ave.
Time of day: Anytime of Day
Purported purpose of roadblock: registration, alchohol, insurance, drugs, seatbelts, stolen property, firearms, curfew, vehicle safety, child safety seats, fireworks, vehicle equipment, destination, warrants, criminal convictions, activities travel, minor truancy
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 09/2007
Additional information about this roadblock or notes on roadblock encounter:
Between Taco Bell and Burger King. This is an unincorporated community so CHP gets to run the checkpoints.


Town/City/Municipality: Moreno Valley
Description of roadblock location: Most anywhere in the city
Time of day: Anytime of Day
Purported purpose of roadblock: registration, alchohol, insurance, seatbelts
Regularity of roadblock: Frequently set up in this area, but exact location changes
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 09/2006
Additional information about this roadblock or notes on roadblock encounter:
Road blocks are usually set up on holiday weekends. Confication of vehicles is common for no insurance, or whatever reason that the current laws allow.


Town/City/Municipality: Newport Beach
Description of roadblock location: Jamboree Road at Santa Barbara Drive
Time of day: Late night
Purported purpose of roadblock: Unknown, Alcohol
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked 25% to 75% of vehicle
Registry date: 12/2005
Additional information about this roadblock or notes on roadblock encounter:
No comments.


Town/City/Municipality: Niland
Description of roadblock location: NB Hwy 111
Time of day: Anytime of Day
Purported purpose of roadblock: Drugs, Residency, Destination, Trucker Stop, Racial Profiling, Activities Travel, Dogs
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 03/2004
Additional information about this roadblock or notes on roadblock encounter:
US Border Patrol checkpoint set up 1 mile N of Frink Rd. Very light traffic on highway.


Town/City/Municipality: Norwalk
Description of roadblock location: Imperial Hwy @ Studebaker Rd.
Time of day: Mid-day
Purported purpose of roadblock: Registration, Alcohol, Insurance, Drugs, Seatbelts, Firearms, Warrants
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 04/2003
Additional information about this roadblock or notes on roadblock encounter:
This roadblock has been here for the past 6 years. The police stop the cars and have them pull into the Food 4 Less parking lot.


Town/City/Municipality: Ontario
Description of roadblock location: Holt Blvd. and Lemon (Euclid)
Time of day: PM Rush Hour
Purported purpose of roadblock: Registration, Insurance
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 05/2005
Additional information about this roadblock or notes on roadblock encounter:
The principal thing they ask for is the CA Driver's licence, if don't have it then they ask for registration and insurance. These guys get a lot of cars over there!!!


Town/City/Municipality: Palo Verde
Description of roadblock location: EB Hwy 78 E of Brawley
Time of day: Anytime of Day
Purported purpose of roadblock: Drugs, Residency, Destination, Trucker Stop, Racial Profiling, Activities Travel, Dogs
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 03/2004
Additional information about this roadblock or notes on roadblock encounter:
US Border Patrol checkpoint set up 2 miles N of Ogilby Rd. K-9 run past exterior of vehicles in line .


Town/City/Municipality: Pauma Valley
Description of roadblock location: Highway 76 1-1/2 miles East of I-15
Time of day: Late Night
Purported purpose of roadblock: Alchohol, Residency, Racial profiling
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked 25% to 75% of vehicle
Registry date: 04/2003
Additional information about this roadblock or notes on roadblock encounter:
INS sets this one up every fri and sat nite to alledgedly look for undocumented workers. Th e location is a rel traffic hazard.


Town/City/Municipality: Pine Valley
Description of roadblock location: 2 miles past Buckman Springs Road Exit
Time of day: Anytime of Day
Purported purpose of roadblock: Drugs, Residency, Destination, Trucker Stop, Racial Profiling, Dogs
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 06/2003
Additional information about this roadblock or notes on roadblock encounter:
U.S. Border Patrol checkpoint set up all the time.


Town/City/Municipality: Richmond
Description of roadblock location: Barrett Avenue near 13th
Time of day: Anytime of Day
Purported purpose of roadblock: Unknown
Regularity of roadblock: Frequently set up in this area, but exact location changes
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 03/2007
Additional information about this roadblock or notes on roadblock encounter:
County Sherrif Deputies (tan uniforms) were at my car asking for driver license. Other agencies were represented by uniformed people in the area. Maybe CHP, maybe Richmond police. They had lights and parked cars and a bus nearby. Some people say they are sniffing for immigration status violations.


Town/City/Municipality: Salton City
Description of roadblock location: Northbound Hwy 86
Time of day: Anytime of Day
Purported purpose of roadblock: Drugs, Residency, Destination, Trucker Stop, Racial Profiling, Dogs
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked 25% to 75% of vehicles
Registry date: 06/2003
Additional information about this roadblock or notes on roadblock encounter:
U.S. Border Patrol Checkpoint searching for drugs and illegals.


Town/City/Municipality: San Anselmo
Description of roadblock location: Sir Francis Drake Blvd past The Hub
Time of day: Late Night
Purported purpose of roadblock: registration, alchohol, seatbelts
Regularity of roadblock: Infrequently set up but location remains constant
Percentage of cars stopped or checked: Stopped and checked 25% to 75% of vehicles
Registry date: 11/2007
Additional information about this roadblock or notes on roadblock encounter:
Popular spot around holidays at night, westbound SFD by Sunny Hills shopping center AM/PM. Drunk driving focus but will pull aside any car with visible infraction. Most waved through and some singled out randomly (single males? beaters?). Do not try to turn around, motorcycles will pounce on you. If heading to Fairfax use Center Blvd but lookout for Fairfax PD - you can go the back way up over the hill at Lansdale.


Town/City/Municipality: San Clemente
Description of roadblock location: Interstate 5
Time of day: Anytime of Day
Purported purpose of roadblock: Drugs, Residency, Destination, Trucker Stop, Racial Profiling, Dogs
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped only a few vehicles (less than 25%)
Registry date: 06/2003
Additional information about this roadblock or notes on roadblock encounter:
U.S. Border Patrol Checkpoint searching for drugs and illegals.


Town/City/Municipality: San Dimas
Description of roadblock location: Arrow Hwy 1 Block West of Lone Hill
Time of day: PM Rush Hour
Purported purpose of roadblock: registration, alchohol, destination, activities_travel
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles (more than 75%)
Registry date: 01/2007
Additional information about this roadblock or notes on roadblock encounter:
Not always asked about destination or other activities. One time I came up to a traffic jam there, I couldn't see why so I turned into a gas station to avoid it. I live around the corner. Upon turning I see 2 Motor Officers then I knew. I was forced to go through the line or I would be cited and possibly jailed. Alcohol was not an issue and they knew it.


Town/City/Municipality: San Dimas
Description of roadblock location: Arrow Hwy, east of Walnut
Time of day: PM Rush Hour
Purported purpose of roadblock: Registration, Vehicle Equipment
Regularity of roadblock: Frequently set up in this area,
but exact location changes
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 08/2003
Additional information about this roadblock or notes on roadblock encounter:
LA County Sheriff deputies set up the checkpoints in this area under the pretense that it is a "driver license check" but they will ask questions or for paperwork about your vehicle's (modified) equipment.


Town/City/Municipality: San Mateo
Description of roadblock location: Hillsdale and Saratoga
Time of day: PM Rush Hour
Purported purpose of roadblock: Alcohol, Seatbelts
Regularity of roadblock: Infrequently set up but location remains constant
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 06/2005
Additional information about this roadblock or notes on roadblock encounter:
Open as of 6/17/2005


Town/City/Municipality: Santa Ysabel
Description of roadblock location: S-2/Hwy 78 intersection
Time of day: Anytime of Day
Purported purpose of roadblock: Drugs, Residency, Destination, Trucker Stop, Racial Profiling, Dogs
Regularity of roadblock: Infrequently set up but location remains constant
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 06/2003
Additional information about this roadblock or notes on roadblock encounter:
US Border Patrol sets up at scissors crossing sometimes.


Town/City/Municipality: Sausalito
Description of roadblock location: Southbound US 101 at Spencer Avenue Exit
Time of day: Anytime of Day
Purported purpose of roadblock: Trucker Stop
Regularity of roadblock: Infrequently set up but location remains constant
Percentage of cars stopped or checked: Stopped only a few vehicles (less than 25%)
Registry date: 05/2003
Additional information about this roadblock or notes on roadblock encounter:
Trucks travelling toward the Golden Gate Bridge were stopped and drivers were asked to open the back. No reason was given, but it is connected with the Orange Alert level of Homeland Security. No warrant or probable cause is given for the search, and those who object are not permitted to cross the bridge.


Town/City/Municipality: Temecula
Description of roadblock location: Interstate 5
Time of day: Anytime of Day
Purported purpose of roadblock: Drugs, Residency, Destination, Trucker Stop, Racial Profiling, Dogs
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped only a few vehicles (less than 25%)
Registry date: 06/2003
Additional information about this roadblock or notes on roadblock encounter:
U.S. Border Patrol Checkpoint set up 2 exits past Mission Road in Fallbrook.


Town/City/Municipality: West Hollywood
Description of roadblock location: Sunset Blvd
Time of day: Late Night
Purported purpose of roadblock: Registration, Seatbelts, Destination, Activities Travel
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 01/2004
Additional information about this roadblock or notes on roadblock encounter:
West Hollywood Sheriffs stopped ALL cars at this checkpoint. Other times this checkpoint is part of the anti-cruising enforcement. Motors were strategically positioned to prevent anyone from escaping the checkpoint via side streets. The "accessible" side streets were dead-ends.


Town/City/Municipality: West Hollywood
Description of roadblock location: Sunset Blvd
Time of day: Late Night
Purported purpose of roadblock: Destination, Activities Travel, Audio
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 08/2003
Additional information about this roadblock or notes on roadblock encounter:
This is a "cruising control" checkpoint under the pretense of easing traffic congestion (when in fact the opposite was the result). LASD works both directions. Vehicles are videotaped as they are stopped by deputies. The vehicle's license is recorded and entered into a database. The driver and all passengers receive a warning the first time through not to pass through the control area again (or face a $100 fine each for cruising). Deputies also inquire about your destination or reason for traveling through the strip. They have also stopped vehicles and cited them for loud sound systems. Heavily fortified with police.


Town/City/Municipality: Winterhaven
Description of roadblock location: WB I-8 California/Arizona Border
Time of day: Anytime of Day
Purported purpose of roadblock: : Drugs, Residency, Destination, Trucker Stop, Racial Profiling, Activities Travel, Dogs
Regularity of roadblock: Set up at this location on a regular or frequent basis
Percentage of cars stopped or checked: Stopped and checked all cars or most vehicles
(more than 75%)
Registry date: 01/2004
Additional information about this roadblock or notes on roadblock encounter:
US Border Parol checkpoint set up 24/7. Replaced agriculture inspection station. K-9 run on exterior of vehicles waiting in line.


San Diego DUI criminal defense lawyers often share information designed to help San Diego &/or California drivers.

San Diego Drunk driving criminal defense attorneys believe these California DUI roadblocks are unnecessarily inconvenient, expensive, and unduly invade the privacy.

San Diego DUI criminal defense lawyer news

17 November 2007

A DUI court here sentenced an international Saudi player to 80 lashes for DUI / drunk driving /driving under the influence of alcohol and then causing a DUI / drunk driving accident.

The player — whose name, the game he plays and the name of his club have all been withheld — was said to have been driving on King Abdul Aziz Road in Jeddah while DUI / drunk driving / under the influence of alcohol. He crashed into another car and caused heavy damage to both the vehicles. The driver of the other car was seriously injured.

Judge Saleh Al-Zahrani, who heard the DUI / drunk driving case, sentenced the player to 80 lashes because of the seriousness of the DUI / drunk driving accident. The damage to the other car, owned by a Saudi and driven by a Pakistani, was estimated at SR12,000.

The DUI / drunk driving police, on arriving at the DUI / drunk driving crash site, saw the condition of the player and immediately transferred the case to the Commission for General Investigation and DUI / drunk driving Prosecution. The DUI / drunk driving case was then presented in the DUI / drunk driving court where the player was sentenced for the DUI case.

Here comes a brave Arizona DUI criminal defense warrior attorney with good news:


TUCSON CITY COURT
103 E ALA/'IIEDA • P.O. Box 27210 • Tucson, Arizona 85725-7210 • Phone (520) 791-4216
State
of Arizona Docket Number Citation Number Agency Number vs SEE PAGE 2 RECEI'JE~ PAGE 1 OF 4 AND3 MULTIPLE DEFENDANTS NOV 16 2011, Defendant N. sf l & W ~p ,..
A Continuance requested by
o Plaintiff 0 Defendant and extraordinary circumstances
eXisting.
Continuance granted
Time is o excluded per Rule 8
:
o included
Ariz. Rules of Criminal procedure
o Pretrial o Trial/Civil Hrg.D Hearing [Xl EVID HRG
o Continued U Set for
DEC 4,2007
date
at 9:00AM
o Defendant U Bond Poster FAILED TO APPEAR
o Forfeit Bond/Deposit
ORDERS OFTHE COURT
IT IS ORDERED THAT
Name
on at
is to appear and show cause why:
D Arrest warrant should not issue Default jUdgement Sh~uld not issue Bond should not forfeit
?=
He/She should not be held in Contempt
~
FOR
D Failure to appear in court this date
o Failure to pay fine D Third party custodian not obeying Orders
of the court D Willful disobedience of Court Order, to wit §ISSUE WARRANT ORDER DEFAULT
Set Bond
Defendant not appearing at ;: Arrai~nment Pretnal
=
=
Hearing
Trial
=
Sentencing
==
Release defendant
o from the custody of Sheriff Detain in custody
o until full satisfaction
On
November 5, 2007 the counsel for the parties appeared and discussed a variety of issues related to motions filed concerning the Intoxlizer 8000. The Court order is contained in the attached memorandum. I have received a copy of this Minute Entry UPull for review by undersigned Date Defendant DaB 0 \T~t?Address November 8, 2007 NG'T Citv ZIP Date Maaistrate
(Rev.6/01 )
[XJFile [XlAttorney ODefendant [XJProsecutor DProbation Dother
State of Arizona, Plaintiff
Docket Number
Citation Number
MINUTE EN"rRY
vs
PAGE 2 OF 4
MULTIPLE DEFENDANT'S
Defendant
ORDERS OF THE COURT
1.
BENNETT, ARNOLD CR 7069897
2.
BRACKER, WILLIAM CR 7023034 & CR 7023052
3.
BROWN, MELISSA TR 7053896
4.
CORRAL, MARYANN TR 7065987
5.
DELGADO, JESUS CR 7065584
6.
ELLIOTT, MATTHEW TR 7066556
7.
GONZALEZ, JOSE TR 7065611
8.
JACULlK, RAYMOND TR 7076275
9.
LEWIS, VIRGIL TR 7061639 &TR 7061642
10.
MALLOY, MARY TR 7062914
11.
MATTHEWS, CHRIS TR 7075396
12.
MCNEAL, TRISTAN TR 7054497
13.
MIRANDA, MONICA TR 7077699
14.
MOLNO, BARBARA TR 7066489
15.
MUNOZ, MARTHA TR 7007233
16.
MUSCAT, SIMON TR 7011325
17.
NEILL, JASON TR 7049607
18.
PARLEY, LILLIAN TR 7037918 &CR 7067727
19.
PHARR, DIANE TR 7055959
20.
ROCHE, JEROME TR 7033037
21.
ROJO, MICHAEL TR 7000149 &TR 7000150
22.SCHROEDER,BRANDON TR 7054228
23.
SCOTT, BRIAN TR 7044634
24.
STONE, YVETTE TR 7005165
25.
TOWE, ROY TR 7028819
26.
WOLFE, MATTHEW TR 7012497
Nov 8,2007 THOMAS BERNING Date Judge
(Rev,SL6I01 )
IXIFile [X\Attorney DDefendant IXIProsecutor Dprobation []other
State of Arizona, Plaintiff
Docket Number
Citation Number
MINUTE ENTRY
vs
PAGE 3 OF4
MULTIPLE DEFENDANT'S
Defendant
ORDERS OF THE COURT
27.
WUOR, MATHEW TR 7049343
28.
VONFELD, DONALD TR 7083038
29.
ROTH, BRIAN TR 7072670
30.
GANZ, ERIK TR 7071367
31.
NUNN, RUSSELL TR 7056334
Nov 8, 2007 THOMAS BERNING Date Judge
(Rev.SL6I01)
[X]File [XlAttorney DOefendant [X]Prosecutor DProbation [))ther
Re: Consolidated Cases-Intoxilizer 8000
1.
The Court will review the record ofthe proceedings of the "Frye Hearing" to be held by Judge Million on December 4, 2007 and will subsequently issues orders as deemed appropriate.
2.
Defense Counsel shall file withing 30 days ofthe date ofthis Order any pre-trial motions not related to the Intoxilzer 8000. The State shall respond within 30 days. The Public Defender shall file any motions within 45 days ofthe date ofthis Order. The State shall respond within 30 days to those motions.
3.
The Court has reviewed both the transcript ofthe proceedings conducted by Judge Klotz in State v. Martinez et al. and the pleadings ofthe parties in that case. Except where delineated below the Court adopts the findings of fact and conclusions of law issued by Judge Klotz on August 23, 2007.
4.
Should either party desire this Court will authorize issuance of a subpoena to CMI for the "source code" subject to the same terms and conditions imposed by Judge Klotz.
5.
This Court defers any ruling on the admissibility of Intoxilizer 8000 breath evidence until after the Frye hearing.
6.
This Court defers any ruling on the Defendant's Request for Sanctions until after the conclusion of these proceedings.
7.
This Court agrees with Defense Counsel that a fair reading ofthe contract between CM! and the Arizona Department of Public Safety for the purchase ofthe Intoxilizer 8000's (paragraph 3.7) is that the State "owns" any software adapted or created specifically for Arizona (the "Arizona software") and such software is subject to disclosure independent of issues related to the underlying source code. The Court authorizes issuance of a subpoena to DPS for the Arizona software. The subpoena shall be subject to the same terms and conditions set forth by Judge Klotz for the CMI subpoena.
8.
A status conference shall be held on January 7, 2008 at 10:00 am in Judge Klotz's
courtroom.

San Diego DUI criminal defense attorney news

Drunk-driving simulator aims to keep students between lines

November 15, 2007

With assistance from D.A.R.E. officer Cindy Ackison, Doug Scoles, Ohio's executive director for MADD, reacts to an unanticipated obstacle while driving with a simulated .15 blood alcohol level. The Grove City Police Department is one of the first in the nation to have the technology.


It felt as if I had had 19 drinks in one hour.

I could barely see. My vision was blurry. It felt like I was looking at the world through a paper towel tube.

I got in my car. Vehicles lined the street in the residential neighborhood where I was parked.

I hit the ignition.

As I pulled out onto the roadway, I put my foot down on the gas. But it wasn't responding. So I mashed it down and the car lurched forward. I knew I was going over the speed limit, but when I looked down at the speedometer the numbers were fuzzy.

I began drifting left of center. I turned the wheel, but overcompensated. I began weaving from one side of the street to the other. I knew, or felt I knew, that I was still traveling over the speed limit.

I felt I was driving at an unsafe speed.

But when I hit the break, it, like the gas pedal, wasn't responding.

I kept stomping on the brake, still weaving from side to side. But the car just wasn't responding, and my vision was still horrible. I was doing everything I could to keep the car under control, but it just wasn't working. And then I saw it. A car pulled out into my lane.

I jammed my foot down even harder on the brake. I heard the tires squeal. The back end of my car felt like it was fishtailing. The taillights of the car ahead of me loomed large in my tunnel vision. Then...

Smash!

I hit the vehicle. Both cars came to a complete halt. Cracks began to spider-web all over my windshield.

When I took off the virtual reality goggles of the Grove City Police Department's new $22,000 drunk-driving simulator late last week, I felt seasick. My stomach was raised into my esophagus.

"If this saves one child's life," said South-Western City Schools spokeswoman Sandy Nekoloff, "it's worth the dollars that were put into it."

The simulator was purchased with D.A.R.E. money.

I got out of the D.A.R.E. pick-up truck and tried to get my bearings.

"(The simulator) actually puts you behind the wheel of a real vehicle," said Chief G. Joseph Wise. "You realize more that this is not a video game."

It doesn't feel like a video game. Sure, when you turn your head with the virtual reality goggles on you can see out the side windows at a computer landscape. But, your hands still grip a real steering wheel, and your foot is still on a real gas or brake pedal.

It's not fun. Intriguing, yes. Fun, no.

"There are only eight of these (simulators) in the world," said Grove City spokeswoman Nancy Schlagheck.

Grove City's police department is believed to be the first in Ohio to have one.

Wise said that the D.A.R.E. program officers will begin after the first of the year taking the drunk-driving simulator to Grove City and Central Crossing high schools, and to the SWCS Career Academy.

"Drunk driving kills 13,000 people in this country every year," said Doug Scoles, executive director for Ohio Mothers Against Drunk Driving. "And we're finding that people are drinking at an earlier age. Auto crashes are the number one killer of people aged 15-20. And alcohol is related to a third of those."

San Diego DUI criminal defense lawyer news

A Ramona California woman arrested 5 times since May for San Diego DUI - driving under the influence of drugs, has pleaded guilty to three charges of drugged driving - California DUI - driving under the influence of drugs.

Tiffany Anne Adamo, 26, still faces one San Diego DUI felony charge of driving under the influence of drugs, and a second charge will be filed soon, top DUI Prosecuting Deputy District Attorney Victor Barr maintained today.

The well-respected Mr. Barr said Adamo also could face prescription fraud charges pending the outcome of an investigation into how she received multiple prescriptions for pain killers and a muscle relaxant.

Adamo is being held in jail in lieu of $1 million bail pending a Dec. 6 court hearing.

She pleaded guilty in El Cajon Superior Court Thursday to driving under the influence of drugs June 28 and Sept. 27, Victor Barr proclaimed. He said she pleaded guilty Friday in San Diego Superior Court to San Diego DUI - driving under the influence May 25.

Adamo faces a felony driving under the influence charge for an Oct. 13 incident in which she pinned a 7-year-old boy against his mother's car in a parking lot, then tried to drive away.

Barr said he will file a second felony charge for Adamo's Oct. 10 arrest for San Diego DUI - driving under the influence. By law, someone can be charged with a felony when they have three prior misdemeanor convictions for California DUI / driving under the influence within 10 years, Barr astutely pointed out.

San Diego DUI criminal defense attorney newsflash

For every new software product there are the inevitable bugs, patches and updates. In time, errors creep into -- or already exist in -- their operation and conflicts with other programs or versions emerge. These are common occurrences that all computer users have learned to accept. But errors are unacceptable when a piece of software is used to operate a breath-testing device or any technology with forensic potential.

More fundamentally, does the software that operates these tools do what it claims? Due process demands that defendants have the opportunity to examine the programs that run the machinery of scientific testing.

The source code is the linchpin. It contains the operating instructions that tell a computer, and the mechanism it controls, how to perform its job. And the results of that performance become evidence that may support probable cause for an arrest or convince a jury of guilt beyond a reasonable doubt.

In the computing world, there are open source codes and closed ones. The former are posted on Web sites and freely shared by developers to promote the use and evolution of their software. The closed codes are trade secrets and protected by intellectual property laws. Their theft or misuse can lead to civil and criminal liability.

DWI cases have been at the forefront of source code litigation. And defense lawyers have been assailing the reputation of breath-test machines by focusing on their computer operating instructions.

New York, like many states, allows breath-test evidence without expert foundation when the machine used appears on approved state or federal agency lists.

The Appellate Division, Third Department, in People v. Hampe[FOOTNOTE 1] held that breath-testing devices have met the Frye standard for accuracy and reliability when the machine, the BAC Verifier in this case, appeared on the Department of Health list of breath-testing instruments. An exception noted by the court was evidence "casting doubt upon the accuracy or reliability of the BAC Verifier test."

Source code litigants have identified a litany of potential errors that can be uncovered by a forensic expert's examination of the software.[FOOTNOTE 2] In a recent national review of the problems created by breath-testing software failure, the authors noted that malfunctions could lead to "high BAC readings, unexplained readings, sample volume irregularities, and false reports that the defendant refused, because they failed to provide an adequate sample of their breath."[FOOTNOTE 3]

Lawyers seeking the closed source codes behind breath-testing operations have had an uphill battle. In New York and elsewhere, discovery motions for the machine's source code have been rejected because the information was not in the possession of the prosecution and the manufacturer refused to disclose trade secrets.

In the first published New York decision on this issue, People v. Cialino,[FOOTNOTE 4] the defendant was charged with driving while intoxicated [N.Y. Vehicle and Traffic Law 1192(2)(3)] and made a discovery motion under N.Y. Crim. Proc. Law (CPL) 240.20(1) asking for the source code for the Intoxilyzer 5000. Acknowledging that the device was approved for use as a breath-testing device [10 NYCRR §59.4(b)(4)(xv)] the defense made an inventive argument that there was "'no way of telling just what software version must be loaded to meet the criteria for approval.'"

Nonetheless, the court denied the motion because the information was not in the actual or constructive possession of the prosecution, citing similar conclusions reached by judges in Florida and Connecticut. The court cautioned Cialino that it was up to him "to show that a software change has altered the reliability of the machine."

Halfway across the country, Dale Lee Underdahl agreed to a breath test when he was arrested in Minnesota on a drunken-driving charge.[FOOTNOTE 5] During his implied consent hearing, he made a motion to obtain a copy of the source code for the Intoxilyzer 5000EN manufactured by CMI.

The court granted his motion. However, the commissioner of public safety resisted the order by filing a writ of prohibition, claiming the court exceeded its authority and the information was beyond discovery.

To understand the state's obligation to disclose this information, the court considered the circumstances behind the adoption of this breath-testing instrument for use by Minnesota law enforcement.

In the state's original request for proposal (RFP), CMI transferred all interest in copyrightable material arising from the contract to the state. In other words, the state owned the source code developed specifically for their breath tester.

Since the source code was not proprietary, there were no concerns about trademark or copyright violations raised in Cialino and other cases. Moreover, the RFP required CMI to provide "information ... to be used by attorneys representing individuals charged with crimes in which a test with the [Intoxilyzer 5000EN] is part of the evidence." To obtain the complete source code requested by defendant, the commissioner needed only to enforce its contract with CMI.

Since the source code was in the commissioner's possession and discoverable, the writ of prohibition was denied by the appellate courts.

NEW JERSEY CHALLENGE

In New Jersey, litigation challenging the scientific reliability of the Alcotest breath test is under way.

In a consolidated action involving 20 alleged drunken-driving defendants from Middlesex County, the admissibility and reliability of the Alcotest 7110 MKIII-C firmware version NJ 3.11 has been called into question.[FOOTNOTE 6] The state Supreme Court ordered a special master to conduct a hearing on the validity of this model breath analyzer.

The master's report found that the Alcotest 7110, NJ 3.11 was "scientifically reliable, under the clear and convincing evidence standard, when the test protocol is carefully followed by the operator and the instrument is functioning properly."

After reviewing the report, the Supreme Court ordered the case remanded for the sole purpose of allowing the defense to analyze the source code. The scope of the analysis was confined to learning "whether Firmware versions 3.8 and 3.11 reliably analyze, record and report alcohol breath test results."[FOOTNOTE 7]

The manufacturer of the Alcotest, Draeger Safety Diagnostics, who joined the case as an intervenor, was required to release the information and cooperate with defendants.

Notably, there were two daunting aspects to this discovery order: the costliness of the tests and the time constraints (90 days).[FOOTNOTE 8] Nonetheless, reports from the defense and the manufacturer's software houses have been completed.

Now the special master will have an opportunity to review those findings and weigh their effecr on his original conclusions. Markedly, defense expert Base One Technologies' analysis identified serious defects in the software's operations.[FOOTNOTE 9]

Source code litigation has also raised the stakes for the prosecution of DWI cases and the manufacturers' noncompliance with court ordered discovery.

In the Minnesota case, neither CMI nor the Bureau of Criminal Apprehension has produced the breath test source code, according to news articles published in early September.[FOOTNOTE 10] This could result in preclusion of the breath-test results, dismissal of the charges, a new round of plea bargaining, or a contempt finding for the manufacturer. In Florida, some trial courts have already fined one manufacturer for dilatoriness in granting defense counsel access to their source code.[FOOTNOTE 11]

DISCOVERY

A defendant has the right to discover and independently test the prosecution's evidence,[FOOTNOTE 12] and even make use of the exclusive expertise of a government agency.[FOOTNOTE 13] And evidence not immediately in the prosecution's actual possession is still discoverable under certain conditions.

If a close relationship or "extensive cooperation" between a state prosecutor's office and another agency shows free access to files and shared investigations, constructive knowledge of exculpatory evidence or prior written statements can be imputed to them.[FOOTNOTE 14]

Notwithstanding the mandates of Brady and Rosario, New York's statutory discovery law can provide strong support for disclosure of information related to scientific testing of evidence.

When Joseph DaGata was headed for trial on rape and sodomy charges, his attorney requested "copies of any and all reports of scientific tests or experiments and memoranda prepared in connection with this case." DaGata and the complainant had already submitted blood samples for testing, and the prosecution sent them to the Federal Bureau of Investigation Criminalistics Laboratory for DNA analysis.

The defendant received a one-page summary, without lab notes, stating: "No DNA profile results unlike the K-1 [dried blood] sample from the victim were obtained for specimen Q-1 [vaginal swabs]; therefore, no comparisons could be made with the known specimen from the suspect."

The lab notes were requested throughout the proceedings, starting with an omnibus motion, then a renewed demand after opening statements, again post-verdict, and finally in a CPL 330 motion. Each time the prosecution resisted, claiming that the notes were not in their possession. Ultimately, defendant's motions were denied and that result affirmed by the Appellate Division.

However, the Court of Appeals noted that an important aspect of the policy behind CPL 240.20(1)(c) was the defendant's right to examine his "opponent's evidence." Without relying on Brady or Rosario, the judges reasoned that: "The highly technical nature of this evidence, perhaps open to interpretation given the rapid pace of advances in the development of this field, should be subject to the evaluation and strategy of defendant's counsel and experts."[FOOTNOTE 15]

They pointed out that the defense could have used those notes to challenge the FBI lab's methodology, testing protocols, storage methods and "whether other tests or analyses could have resulted in a more proficient reading of the materials analyzed."

In camera reviews were no substitute for the defendant's right to examine those lab notes, which the trial court conducted for Brady purposes. And the prosecution did not offer any good reasons for denying access except "their reluctance to seek the notes themselves."

A defendant's decision whether to pursue independent testing begins with New York's discovery statute CPL 240.20(1), particularly those sections concerning disclosure of scientific testing (c) and (k). And a challenge to the testing method can call into question the reliability of the mechanism used to perform the test.

CONCLUSION

Testing and analysis of source codes ought to be allowed to meet the requirements of due process. Since an accused is entitled to independently test physical and biological evidence, there is a compelling and essential need to question the proficiency of the machines that do the analyzing and measuring. This is particularly important when the evidence, whether time sensitive or consumed by examination, no longer exists.

When it comes time to face the output from an analysis by a computer driven machine, a human being has the right to know whether the inner workings of that witness are reliable. And every defendant ought to be entitled to examine those inner workings with the help of an expert.

These source code cases suggest the need for quality assurance and proficiency testing of computerized scientific equipment in the same vein as the protocols for forensic laboratories. Although sophisticated and impressive, computer programs should be answerable for their errors.



::::FOOTNOTES::::

FN1. 181 AD2d 238 (3d Dept. 1992).

FN2. See Patrick T. Barone, "The Sauce on Source Codes: Obtaining DUI Dismissals From Software Non-Disclosures," 23 Michigan Beverage Journal No. 5 (May 2006) reprinted in Michigan Drunk Driving Defense, http://tinyurl.com/2kud62.

FN3. See generally William C. Head and Thomas E. Workman Jr., "An Analysis of 'Source Code' Litigation in the United States," reprinted in California DUI Lawyer Center Blog, Sept. 7, 2007, http://tinyurl.com/39qzf2.

FN4. 14 Misc.3d 999 (N.Y.C. Crim. Ct. Richmond County 2007).

FN5. Underdahl v. Comm'r of Pub. Safety, 735 N.W.2d 706 (Minn. 2007).

FN6. State v. Chun, 2007 N.J. LEXIS 39 (N.J. Feb. 13, 2007).

FN7. State v. Chun, 191 N.J. 308 (2007).

FN8. John Holl, "Court Will Allow Review of Alcohol-Test Technology," New York Times, May 6, 2007, at 2, col. 5.

FN9. "Findings From Alcotest Software House Analysis," Muni-Mail, Sept. 5, 2007, http://tinyurl.com/3bbkgc.

FN10. See, e.g., Anne Broache, "Source Code Standoff in Breathalyzer Case," Cnet News Blog, Sept. 4, 2007, http://www.news.com/8301-10784_3-9770621-7.html.

FN11. Todd Ruger, "Firm Ready to Open Up Breath Test," Herald Tribune, Oct. 6, 2007, http://tinyurl.com/36uo37.

FN12. People v. White, 40 N.Y.2d 797, 798 (1976).

FN13. People v. Evans, 141 Misc.2d 781, 783 (Sup. Ct. N.Y. County 1988).

FN14. People v. Santorelli, 95 N.Y.2d 412 (2000).

FN15. 86 N.Y.2d 40, 44-45 (1995).

New DWI test superior, review finds

November 14, 2007,

In 2005 the alcotest was demonstrated at NJ State Police technical laboratories. A new instrument they hope will replace the breathalyzer statewide. A new computerized device police are using to detect drunk drivers is a far superior to the antiquated Breathalyzer, according to a new report released today following a review of its software and technology quirks.

Results from the Alcotest 7110 should be allowed in court because it is more precise and less prone to operator error, the report says. However, because it is run with a computer source code - rather than calibrated by police officers - it is important to be vigilant to make sure the software it is using is checked regularly, said the report from the New Jersey Supreme Court's special master on the device.

"We are firmly convinced that the Alcotest is much more reliable than the prior state-of-the-art breath testing instrument. ... Quite obviously, developing source code in this context is a dynamic, evolutionary process, not a static undertaking. The process should be re-examined and re-evaluated periodically," wrote retired state Appellate Division Judge Michael Patrick King in the 108-page report. "We should fear stagnation; we should not create an idolatry of status quo."

The report marks the latest chapter in what has been a lengthy debate over whether to replace the Breathalyzer, which was invented in 1954. The state started using Alcotest - a fully automated device connected to a computer several years ago, and successfully defended its use in a pilot program in Camden County four years ago. But a trial court judge and appeals panel said the ruling was not binding statewide. Meanwhile, Alcotest has been put into use in 17 of 21 counties around the state.

The New Jersey Supreme Court is now reviewing the matter and will hear arguments in January.

VISTA – A schoolteacher who had been drinking wine before she crashed her car on Highway 78 in Oceanside, injuring two of her three pre-teen daughters, was sentenced Wednesday for her San Diego County DUI case to a dozen weekends in county jail and five years probation.

Judge Aaron Katz said Jill Lori Drennon Brady, 43, of Poway, must serve her jail time on consecutive weekends beginning in January.

He also ordered her to complete 50 hours of community service in a teaching or tutoring capacity.

Drennon Brady was arguing with her daughters when she lost control of her car, which rolled over near College Boulevard on June 28, according to the California Highway Patrol.

The woman's vehicle landed in the center median, crushing the divider and sending debris into lanes, slowing traffic on both sides of the freeway.

The defendant and her 11- and 12-year-old daughters were treated for injuries at Tri-City Medical Center. Her youngest daughter, then 9, was unhurt.

Drennon Brady had only a blood-alcohol level of .05 percent – well below the state's .08 percent limit – when arrested.

She pleaded guilty to a misdemeanor count of San Diego California DUI - driving under the influence of alcohol causing injury.

Prosecutor Christine Israel said at a prior hearing that the defendant filled a thermos with wine and had it with her on a trip to take the girls to see their father in San Clemente.

A “terrible misjudgment” jeopardized both her safety and her children's, the judge said.

The defendant has been a teacher at Lincoln Elementary School in Escondido for 19 years, according to a report filed by the county Probation Department.

San Diego criminal defense & DUI lawyer / attorney news

A police officer checking on a truck that got stuck in the mud at a city park was startled to find a 13-year-old boy behind the wheel. The officer also was surprised that the boy appeared to be drunk.

So did the teen's father, who was riding in the front seat. He told police that he had turned over the driving duties to his son because he'd had too much to drink.

Open containers of beer and liquor were found in the vehicle, said Clio Police Chief James McLellan.

"(The boy) even said he didn't want to drive because he was too drunk," McLellan told The Flint Journal for a story published Thursday.

The father, 41, is facing several misdemeanor counts, including child endangerment, allowing an intoxicated person to drive his vehicle and allowing an unlicensed minor to drive.

The boy has been petitioned into juvenile court on charges that include DUI / DWI / drunk driving / driving while intoxicated.

California DUI Warrant Sweep

The Sacramento County Sheriff’s Department, in conjunction with the Rancho Cordova Police Department, will conduct a warrant sweep targeting individuals with active driving under the influence (DUI) warrants in Sacramento County. The Sheriff’s High Impact Motor Unit, Problem Oriented Policing Officers, Special Investigations Intelligence Bureau, and Major Crimes Bureau will be conducting this sweep during the holiday season.

This advanced notice is intended to encourage those with active California DUI warrants to turn themselves in. The alternative is to risk being arrested at home or at their place of employment, and taken to jail for their warrant(s). The four-day period: Tuesday November 13 through November 16, 2007, has been set aside as a grace period. This grace period is to allow individuals with an active California DUI warrant time to turn themselves in. After November 16, the warrant sweep will begin.

Those who have California DUI outstanding warrants can report to the Warrant Counter which is located in the Sheriff’s Administration Building at 711 G Street, Sacramento. The Warrant Counter is open Monday through Friday 7:00 a.m. to 4:30 p.m. Individuals eligible to receive a California DUI court date will be processed at the Warrant Counter without being booked into jail.

Those who have questions regarding their active California drunk driving warrants may call the Sheriff’s Warrant Bureau at 874-5391.

Sergeant Tim Curran,
Sheriff's Spokesman

Rancho Cordova California residents with active warrants for drunk driving have until Friday to turn themselves in, officials stated today.

After that, those DUI suspects run the risk of being arrested at their homes or places of employment as the Sacramento County Sheriff's Department launches a major sweep designed to get those people off the road and into jail for the holidays.

The sweep will involve deputies assigned to the Rancho Cordova Police Department, the sheriff's high impact motorcycle enforcement unit, problem-oriented policing officers, and the sheriff's special investigations intelligence and major crimes bureau.

People with outstanding warrants are encouraged to report to the Warrant Counter in the sheriff's administration building, 711 G Street in downtown Sacramento. The counter is open Monday through Friday from 7 a.m. to 4:30 p.m. Individuals eligible to receive a court date will be processed without being booked into jail.

Any questions about active warrants can be answered by calling the Warrants Bureau at (916) 874-5391.

Drunk Driving criminal defense attorneys - Boat DUI case

A Sioux City man drove his boat while allegedly DUI or while drunk driving aka intoxicated was found him guilty of violating the law and causing a death.

The drunk boating accident happened on July 22, 2006 when the boat struck a wing dike flipping the boat and a passenger apparently drowned.

Drunk driving / DUI laws apply equally to boat operation.

The average cost of an DUI / DWI / Drunk Driving / OWI offense increases with the number of offenses: For a first it's around $4,435; a second is $4,935.00; a third $5,935.00. Along with that amount you need to consider the 49 hours in jail for a first, 7 days for a 2nd, and 30 days to 5 years for a 3rd.

If someone dies you have to pay another $150,000.00.

As another Manitoban faces drunk driving charges linked to a fatal crash, lawmakers and lobbyists are demanding stricter penalties for the crime.

A Lockport man was hospitalized after the Chevy pickup truck he was driving crashed into a tree and fence at Keewatin Street and Pacific Avenue on Nov. 7, killing a 36-year-old male passenger.

Const. Jacqueline Chaput, a spokeswoman for Winnipeg police, said the injured man was charged Saturday, shortly after he was released from hospital.

Dennis Joseph McKay, 40, is charged with criminal negligence causing death, impaired driving causing death, failure to provide a blood sample, driving while suspended and assault, said Chaput.

Chaput said the assault charge is linked to allegations McKay struck someone at the hospital, but it's not clear why he had been suspended.


None of the allegations has been proven in court.

Meanwhile, the Manitoba chapter of Mothers Against Drunk Driving is calling on citizens to write their MPs demanding support for the federal Conservatives' "tough on crime" bills, which include stricter penalties for those who refuse impairment tests.

"Every day this is delayed we hear of more people refusing to provide samples and escaping justice," said Rod Sudbury, the branch's spokesman. "You can almost bank on it that there will be more injuries and deaths and more people refusing to provide samples. We want to hold people accountable for their actions."

MANDATORY SAMPLES

Sudbury said his organization now supports Bill C-2 over MADD's recent lobby to make blood samples mandatory for those involved in a crash that kills or causes serious injuries.

MADD believes the federal legislation would avoid constitutional challenges forced blood samples might trigger.

Bill C-2 proposes to make refusing to give a police-requested breath or blood sample punishable by up to life in prison if the suspect was a driver in a crash that resulted in a death. This would apply after a drug recognition expert identifies the person as impaired.

"This tried to get around technical offences that a lot of impaired drivers have been avoiding responsibility on," said Vic Toews, Manitoba's senior federal cabinet minister and a former justice minister.

Wednesday's crash is the second fatal Winnipeg collision where drunk driving is suspected in just two weeks.

In the former crash, Therese Hadley, 63, was killed when her car was broadsided by an alleged impaired driver two weeks ago.

Ex-Public Works and Energy Minister Savenaca Draunidalo appeared in court yesterday on a charge of DUI - driving under the influence of alcohol in July.

The 60-year-old appeared at the Suva Magistrate's Court where his drunk drivingcase was called.

Police prosecutor Constable Robert Prasad said Draunidalo was stopped by police conducting a breathalyzer along Ratu Mara Road at about 9.55pm on July 29.

Officers who tested him found that he had 96 milligrams of alcohol for 100 ml of his breath.

Mr Druanidalo's criminal defense lawyer, Viren Kapadia said he had not been furnished with second phase disclosures from police yet.

This would include confirmation that the DUI machine used to test Draunidalo had been properly calibrated.

How do we get the drunks off the road before someone's one-more-for-the-road leads to yet another heartbreaking funeral?

Maybe you feel it's not that big a deal despite recent figures showing alcohol contributes in up to 17,000 traffic-related fatalities a year in this country, or about two-fifths of the total such deaths. A lot of civil libertarians balk at tough love.

Japan feels differently. That country has so thoroughly cracked down that incidents of alcohol-related accidents have been halved since a new law took effect last September.

Reuters news service reports that drunk drivers can be jailed for up to five years or be heavily fined; the law punishes passengers who ride with a drunk and people who serve alcohol or lend a car to someone who may then drive under the influence.

In Massachusetts, a first arrest might win you loss of license for a couple of months. There are drivers who have been arrested over and over again, and return to offend.
ADVERTISEMENT



Japan's strong-arm approach could help deconstruct the entrenched problem of drunk driving that puts everyone on the road at risk. You want to drink and drive, you can plan on spending five years in the can. If it sounds unfair, what's your remedy for a crime that puts everyone on the road in danger? The stories come at us, one after another.

An alleged drunken driver from Wrentham was charged Thursday in an early morning two-vehicle rollover crash that killed the driver of a pickup truck on Interstate 93.

This arrest comes on the heels of more horror in Barrington, R.I., a crash which prompted a Family Court judge there to declare last week it's "an utter shame" that parents in that town "don't take responsibility" for underage drinking, which has been linked to the deaths of four local teens in the last couple of years.

The judge made the comments during a hearing in which a 16-year-old boy was accused of drinking six beers and driving more than twice the speed limit before slamming a car into a tree a week ago, killing one of his passengers.

Three years ago, a New Mexico representative introduced a bill to force every registered driver to install an ignition interlock device; it would require breathing into a tube before starting a car. The bill actually made some temporary headway.

It died, of course, but was another indication of the desperation felt whenever another life is lost because a driver felt impunity about weaving across a parking lot, slouching in behind the wheel and setting out with tons of metal as a weapon.

"Harsh" sounds more appealing than "dead."

THE drunken driving case against MP Cedric Frolick, who was arrested last Friday, has been postponed to March 3 next year without him formally appearing in court.

The ANC chief whip of Parliament‘s sports portfolio committee was arrested in Stanford Road at 10pm on Friday.

Frolick, who was detained at the Bethelsdorp police station for four hours, was due to appear in the Gelvandale magistrate‘s court yesterday.

None of the court officials knew of the case and those handling dockets said they had not received Frolick‘s.

According to sources, Frolick‘s lawyer had arranged the date with a prosecutor on Saturday, but attorney Lineen Swarts said he did not know anything about this. He said his client‘s blood sample would be sent to Cape Town.

According to a court official, drunken driving cases that did not involve accidents were not put on the court roll until blood results came back. This took six to eight weeks.

Drunk Driving criminal defense lawyers association - dui defense news

The Association representing restaurants in Quebec is worried the government's plan to lower the legal blood alcohol limit will be bad for business.

Quebec's transport minister has confirmed she will table a bill in the National Assembly, that would lower the legal level from 0.08% to 0.05%.

But Dominique Tremblay who speaks for the ARQ says the government is "trying to hit the wrong target." She says the government should be focusing on repeat offenders, and heavy drinkers.

"People will be afraid to drink even one glass of wine," she says.

But Theresa-Ann Kramer of Mothers Against Drunk Driving says the ARQ's argument holds no water. She says Quebec is the last of the provinces to lower its blood alcohol limit to 0.05%.

"The restaurateurs in the other provinces haven't suffered," she says pointing out diners can simply plan to take a taxi ahead of time.

Kramer points out in four out of ten drunk driving deaths are caused by drivers at or below the legal limit.

"Is it more important to make money, or keep our roads safe," says Kramer.

Transport minister Julie Boulet has confirmed she will table a bill making changes to the highway safety code on Wednesday. It is also expected to put in place stricter punishment for drunk driving, and speeding; ban cell phones at the wheel (with an exception for hand-held devices). The bill will also call for trucks to have limiters installed to keep their speed below 105 km/h; and to allow pilot projects for photo radar and red-light cameras.

DUI / Drunk Driving big deal with some college students.

Everyone knows that danger is inherently a part of driving. However, some people make choices that drastically increase the risk to others on the roads. In my opinion, and in the eyes of the law, drunk drivers really are criminals.

Drunk driving is not a "mistake." It is a choice. A drunk driver (sometimes underage) chooses to drink alcohol and then get behind the wheel of a car. I am sick of excuses. Call a cab or stay where you are. There is absolutely no excuse for drunk driving, and in my opinion, neither Notre Dame nor Saint Mary's do enough to punish students who receive a DUI on or off campus. Fines and community service are not enough. I believe that all three schools need to partner up with the South Bend and Mishawaka police to create a registry that alerts the schools when a student receives a DUI. That student should then be expelled from the University or College, just as he or she should be for committing any other heinous crime.

Drunk driving is not a joke, so we need to stop treating it like it is. Students who make the ridiculously unintelligent choice to drive drunk and gravely endanger the lives of those around them and innocent people in other cars must be punished justly. I urge the schools in this area to seriously reevaluate their policies on off-campus DUIs and institute a much more strict policy.

San Diego criminal attorney news

Shad Nicks' mother is not happy that a Papillion woman charged in connection with the DUI accident that killed her son, an off-duty sheriff's deputy, now faces only up to five years in prison, instead of twenty.

And it's all because of mislabeled evidence in a drunk driving case.

"They dropped this sentence down to one to five years. The most she will get is two, two and a half years. The most. For murder, that's what it was," said Mimi Buyas, Nicks' mother.

You could call it a case with botched evidence. After a head-on DUI collision last May, the Nebraska State Patrol mislabeled a vial of blood.

The blood belonged to 27-year-old Heather Henning. Investigators say she was driving with a blood alcohol level more than twice the legal limit.

"The defendant will plead guilty to a felony charge and that's not a slap on the wrist, a walk in the park," said Sarpy County Attorney Lee Polikov.

The crash at 204th and Giles left 36-year-old Shad Nicks dead.

Last week, the Sarpy County Attorney's office reached a DUI plea deal with Henning's DUI criminal defense attorney.

Now Nicks' family is outraged and accusing the prosecution of giving up.

"I would rather take a chance and lose than just give in," Buyas said.

"I understand what they're saying. I'm sympathetic to it. But it's not the factual case," Polikov said.

Then there's the question of a second vial of Henning's blood, taken at the hospital. Prosecutors say it's been thrown away, but details about the sample itself may have been allowed at trial.

"We have concerns about the admissibility of the medically-drawn blood and our choice was to take the assured felony conviction and allow the court to sentence, knowing that quite frankly everything we know will be available to the judge on sentencing," Polikov said.

Nicks' friends and family don't see it that way.

"By rolling over you're telling the public that it's ok if you go out there and hurt somebody. And if there's a screw-up here, we'll slap you on the hand and let you go," Buyas said.

The drunk driving plea agreement could be finalized as early as Wednesday. The county attorney says Henning won't be sentenced until after the first of the year.

San Diego DUI criminal defense lawyers search for mislabeled evidence in drunk driving cases in San Diego California.

Drunk Driving Police Officer Caught Arresting Sober Motorists for DUI

An award-winning police officer quits after investigation looks into his arrest of sober motorist for DUI.

A sober man wants justice after he was arrested for DUI / drunk driving / driving under the influence of alcohol by one of the most productive Corvallis, Oregon police officers. David E. Picray notified the city on August 30 that he was considering filing suit for false arrest.

On May 11, Picray had gone to a bar to pick up his wife and friends. While parked, his wife sent him a text message that they had moved to a bar a block away, so Picray drove a bit closer to the second bar, stopping his car in a store parking lot. When Picray left the car, Officer Dave Cox, who had been staking out area bars, confronted him. Cox suggested that Picray's driving such a short distance was suspicious.

Cox wrote in his report that the motorist had "bloodshot and glassy" eyes and that his tongue had a "light green coating." The motorist had a cold and was chewing gum. The motorist blew 0.0 on a breathalyzer test and a drug test confirmed that his system was clean, aside from a trace amount of codeine from cold medicine taken the previous day. Although Picray was not charged with a DUI offense, the arrest will stay on his record.

"An arrest for traffic is not expungeable," Corvallis criminal defense attorney Jennifer Nash says. "So when innocent people are arrested there is actual damage."

Picray was not the only sober motorist arrested by Cox in May. At least six of 27 motorists arrested by Cox for DUI that month passed drug testing and registered blood alcohol levels below the legal limit. Nonetheless, twenty-two of the arrest reports contained passages essentially identical to those in Picray's report describing "bloodshot and glassy" eyes and other alleged indicators of intoxication.

California DUI criminal defense attorneys suggest this copy-from-template creation of arrest reports is common.

The carbon or xeroxed drunk driving report tells the DUI cop what he should have seen but not necessarily what he actually saw. Question any honest DUI cop will say, DUI cases rarely follow such a neat, pre-described script. It's convenient and avoids messy complications such as the true and accurate facts.

Corvallis police put Cox on paid leave on September 14 and he resigned November 1. Sergeant Jim Crain was put on leave October 18. Cox made 27 of the 35 DUI arrests for Corvallis in May and was named DUI Enforcement Officer of the Year in 2003.

"I believe this is part of a larger problem with the Corvallis police," Dr Adam Schultz, a resident, wrote in a letter to the mayor. "Is it not true that the police officers attempt to maximize their performance-related pay reviews, and that the number of citations is a key metric? Isn't this the perfect condition for a conflict-of-interest, i.e. rather than measuring performance through improvement in road safety, instead doesn't this encourage spurious citations?"

San Diego drunk driving out of state conviction - criminal defense lawyers case

Isaac v DMV DCA1

California is party to the interstate Driver License Compact (Veh. Code, § 15000 et seq.)(the Compact), which provides that, with respect to specified motor vehicle offenses, including the one at issue in this case, conduct leading to an out-of-state (Ohio) conviction may be treated as if the conduct had occurred in the driver¢s home state. (§§ 15023, subd. (a)(2), 23626.)

Application of the Compact requires sufficient evidence of conviction of a covered offense under a substantially similar statute. This appeal requires us to clarify the nature of the evidence sufficient to prove that the out-of-state conviction was based on conduct that would also violate a provision of our Vehicle Code.

The trial court found that evidence relied upon by the Department of Motor Vehicles (DMV) to prove an out-of-state conviction of driving under the influence of an of alcoholic beverage (DUI) was insufficient to prove that the violation from which the conviction arose would have constituted a violation of section 23152. We disagree and shall therefore reverse the judgment.

San Diego criminal defense lawyers - California DUI criminal defense attorney news

Defendant convicted of DUI / drunk driving and felony intimidation of a police officer appeals, saying a juror should not have been blogging during the trial.

Ohio Court of Appeals, Sixth District, rules on November 2.

Conviction upheld and request for new trial denied.

Ohio police found Jeffrey Goehring one evening in September 2005 on the side of the road trying to drive a truck out of a ditch, with little luck. The rear tires were spinning.

Goehring's girlfriend said she was the driver, and she was promptly arrested after police claimed she shows signs of being intoxicated. Goehring became confrontational, was squirted with pepper spray in his eyes, and then tossed into the back of a police car.

During the ride to the Ottawa County jail, Goehring allegedly was yelling at Patrolman Eric Parker, saying: "When I get out of jail, I'm coming for you. You're a dead man. I'm coming to your house to get you." Similar threats were allegedly captured on videotape at the police station.

Prosecutors charged Goehring with a litany of offenses: driving with a suspended license, driving under the influence of alcohol, intimidation of a public servant, intimidation of a witness, and criminal damage for kicking at the police car's door. The intimidation counts are felonies. A jury convicted him in April 2006 on all counts, and he was sentenced to eight years and nine months in prison.

After the jury's verdict, Goehring's defense counsel discovered that one of the jurors was blogging about the case--both before and after the guilty verdict was announced. Alleging juror misconduct, Goehring asked for a new trial, which the judge denied.

Blogging jurors have become both a window into how the court system works and a headache for judges. A Law.com article noted one case in New Hampshire about a blogging juror who called criminal defendants "riff-raff."

Legal blogs have puzzled over the question of what kind of court-blogging is permissible. There's a roundup of juror-bloggers and even live-blogging taken from Wi-Fi-equipped courtrooms.

In Goehring's case, the appeal didn't work. An Ohio appeals court ruled that the trial judge did not abuse his discretion, and it upheld the guilty verdict.

Excerpts from appeals court's opinion:
In appellant's motion for a new trial, based upon newly discovered evidence, and trial counsel's affidavit in support of the motion, counsel indicated that, on July 2, 2006, he was searching for newspaper accounts concerning appellant's sentencing hearing when he inadvertently discovered the "blog" of one of the jurors in appellant's trial.

On April 4, 2006, the first day of appellant's trial, this juror wrote: "Serving on this case just goes to show how opinionated I am. Perhaps I'm more of a leader than I'm willing to give myself credit for. But, I dare anyone to cross me on this verdict." Later in the blog, however, the juror stated: "Well...I can't talk about the case dammit, and that's so highly frustrating."

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On April 6, 2006, after the jury had returned its guilty verdict, the juror wrote: "Well, it figures. Had a horrible time not being able to talk about the case. But now after finally having deliberations, it's like bleh, I don't want to talk about (it) anymore...Basically, I feel like I was the only (person) playing devil's advocate and presuming this guy was innocent...." The blog then goes on to discuss the evidence in the case and how the evidence adduced on the second day of trial convinced the juror/blogger that appellant was guilty.

Appellant claimed that the April 4, 2006, blog improperly discussed the case on the first day of trial and showed that the juror had "pre-decided the verdict." Appellant also asserted that this blog contained an implied threat to any jurors that might disagree with him. Appellant urged that the test for juror misconduct was met because the juror in this case "not only composed an online journal regarding the case while the case was still pending, but did so in an area where jurors once acquainted with the 'blogger' from meeting him during jury service could immediately become exposed to public commentary about the case and implied threats against anyone who 'crossed' him in regards to the verdict. Additionally, the existence of the blog and its copies are independent, verifiable evidence that misconduct occurred during the course of the trial."

After holding a hearing, the trial court determined that the comments made on April 4, 2006, did not express any bias as to a guilty or not guilty verdict. The court below further determined that the juror's April 6, 2006, comments were post-verdict; therefore, he could speak freely.

In order to find an abuse of that discretion, we must determine the common pleas court's decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment.

We can find no such abuse. While the profanity used by the juror on his blog on April 4, 2006, may be offensive, that juror makes clear the fact that he cannot discuss the case while it is pending. Further, while the juror states that he is opinionated, there is no indication in the message as to the gist of his opinion. Moreover, there is no evidence in the record of this cause establishing that any of the other 11 jurors saw the blog either during or after appellant's trial. Thus, we find that the trial court did not abuse its discretion in finding that no juror misconduct existed as a result of the April 4, 2006, blog...

The judgment of the Ottawa County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal....

DUI / DWI / drunk driving news - defense lawyer info

A police officer was charged with DUI in Warner Robins early Saturday morning, according to the Warner Robins police.

Sgt. Wayne Fisher said David Shirley, 31, was spotted by an officer while driving westbound on Watson Boulevard at about 2:15 a.m.

He said Shirley was having difficulty keeping his vehicle inside his lane.

The officer pulled Shirley over in front Bert's Blades, located at 2327 Watson Boulevard, and charged him with DUI, Fisher said.

He said an intoxilizer test showed Shirley's blood alcohol levels were over the legal limit, but exact numbers were not available today.

Warner Robins Police Chief Brett Evans said the exact levels will be listed on a citation that was not available because the records office was closed for Veterans Day.

Fisher said Shirley was taken to the police department where he posted bond and was released.

Macon Police spokeswoman Sgt. Melanie Hofmann said she could only confirm that an off-duty Macon officer was charged with DUI in Middle Georgia.

"It's being investigated by internal affairs," Hofmann said.

She said the officer was driving an unmarked city-owned vehicle at the time of his arrest.

He had not returned to work by this afternoon, Hofmann said.

Evans said Shirley wasn't shown any preferential treatment because of his being an officer.

"It's not an easy thing to do," Evans said of arresting a fellow officer. "It's a bad situation."

Dui lawyers san diego criminal defense attorneys california news

Bogus DUI Report Used to Seize $3.3 Million

A Wyoming Highway Patrol officer is fired for calling in a fake DUI report in order to stop and search a pickup truck.

A Wyoming State Trooper called in a false tip to an anonymous driving under the influence (DUI) hotline so that he would have an excuse to pull over and search a vehicle known to be carrying a large amount of cash. The April 7 bogus report has sparked controversy and led to the highway patrol firing Trooper Ben Peech, 36, last week. Federal officials told the Casper Star-Tribune newspaper that the fraud will have no impact on their efforts to keep $3.3 million in seized cash during the traffic stop.

The call, and a second fake DUI report from a Drug Enforcement Agency (DEA) agent, gave Peech an excuse to be out on Interstate 80 at 3am. He was on the hunt for a silver Dodge pickup truck carrying a driver and a DEA informant who let it be known that the vehicle carried eight suitcases stuffed with cash. Peech found the truck, performed the search and found the suitcases. No charges were filed against the driver or passenger, but the money was taken. A federal appeals court ruled last year that merely driving with large sums of cash was sufficient evidence that a crime had taken place (read decision).

According to the Highway Patrol, Peech's tactics "jeopardized the integrity of the Wyoming Highway Patrol, and the REDDI (DUI hotline) program." Peech disagreed.

"There was no policy or memorandum in place prohibiting the use of the REDDI program, using subterfuge or making false reports to assist in legitimate investigations," Peech wrote in response to the department's charges. "If 'dishonesty' were grounds for dismissal, then any and all undercover agents in the state of Wyoming should be fired for the dishonest legal law enforcement tactics they are required to use."

Peech's supporters say highway patrol officials are using the false report as a pretext to fire a nine-year veteran officer who had become a thorn in their side over union issues.

"This reeks of a smokescreen to cover the administration's efforts to coerce Ben and his association to cease their attempts to pursue organizing," National Troopers Coalition Chairman Dennis Hallion said in a statement.

The Highway Patrol countered this by releasing the history of disciplinary actions against Peech which included an incident where he accidentally blasted the floorboard of his patrol car with a shotgun.

DUI lawyer San Diego California drunk driving criminal defense attorney news

Police have hired a fourth traffic officer, ordered a fourth BMW motorcycle and are buying a fourth laser-powered, speed-measuring device with a $301,000 state grant to help catch San Diego DUI & San Diego California drunk drivers.

The grant from the California Office of Traffic Safety also will help fund a dui / drunk driving kickoff event at 2 p.m. Tuesday.

The dui and drunk driving / dwi event is planned at police headquarters, at National City Boulevard and Civic Center Drive, to highlight the department's Driving Under the Influence Enforcement and Awareness Program.

SAN DIEGO California DUI criminal defense attorney news

To get drunken drivers off the roads during the holiday season, San Diego police will step up DUI enforcement.

“We'll be sending out three saturation patrols to Pacific Beach, downtown and Mid-City areas,” said Officer Mark McCullough. “We want to get the word out that we'll be out and about this holiday season.”

Each patrol of five or six officers and a sergeant will patrol from about 8 p.m. to 3 a.m. Saturday.

“We want to let people know we are serious about DUI and alcohol enforcement,” McCullough said. “Our primary way of getting (the word) out is through education and enforcement.”

The San Diego Police Department has two grants that fund anti-DUI efforts – “Avoid the 14” and “Arrive Alive.”

Avoid the 14 is a county-wide grant, and Arrive Alive money comes from the California Highway Patrol.

Both grants are paying overtime for the officers involved in tonight's patrols.

DWI / drunk driving criminal attorney news

Former Clifton Park Congressman John Sweeney back in the spotlight tonight -- but not for a reason he'd like to be. State Police say they stopped him for a DWI - drunk driving. Sweeney and a female passenger were stopped on the Northway in Clifton Park around 1:30 Sunday morning.

Sweeney's blood alcohol test allegedly registered .18 -- more than twice the legal limit - grounds for a charge of aggravated DWI.

San Diego California DUI criminal defense attorney update

San Diego California Highway Patrol arrested a Carlsbad woman Saturday in connection with a fatal hit-and-run involving a stranded driver.

William Hansen was killed Friday night while stranded on the side of the road. CHP officials said he was hit while filling up his gas tank and was dragged to his death.

San Diego California CHP said Jessica Lynn Hawk was arrested after residents in an Oceanside neighborhood recognized her vehicle and called police. During the time of the accident, she was allegedly San Diego DUI / drunk driving /under the influence of alcohol and had her 3-year-old son in the car, CHP claim.

Hawk was charged with San Diego California felony DUI / drunk driving, felony hit-and-run, gross vehicular manslaughter and child endangerment.

When it comes to a DUI suspect, one's eyes may lie.

The principle behind horizontal gaze nystagmus testing, which has long been considered a reliable way, short of a blood or breath test, for a police officer to determine whether a driver has been drinking, is under attack.

The Illinois Supreme Court has dealt a potentially serious blow to HGN testing with a recent decision stating that such tests are not presumed scientifically valid in Illinois.

"This could mean that there will be a change in the law when it comes to prosecuting DUI cases," said Lee County State's Attorney Paul Whitcombe.

Sgt. Dan Langloss of the Dixon Police Department said the test is simple if performed the right way. The officer will use a pen and place it approximately 6 inches away from the person's face and have the person track the movement from side to side.

The officer checks for three things: whether the person's eyes are unable to follow the pen smoothly without visible jerking; when moving each eye as far to the sides as possible and holding for five seconds, the eye jerks more noticeably; and the eye begins to jerk before moving 45 degrees to the side.

Langloss said if the officer observes these and other clues in both eyes during the test, it is likely that the person's blood alcohol level is at 0.10 or higher, above the legal limit of 0.08.

Langloss said there are cases where the tests can be inconclusive.

"There are people with natural nystagmus that is pretty distinctive," Langloss said. "For that reason, we don't just rely on one test."

Other field tests used during DUI stops are the one-leg stand, walk and turn, and having the person touch their finger to their nose. Two other tests, counting and reciting the alphabet, are also used in the field, though they are not standardized.

"If the person can't do a simple thing like saying the alphabet from A to Z, it's a pretty good indication that something is wrong," he said.

The National Highway Traffic Safety Administration says HGN tests have a 77 percent accuracy rate in identifying drunken drivers, making such tests the most reliable roadside test for drunkenness.

"Based on my training and experience, the test is very reliable," Langloss said. "Yes, the test does have its flaws and drawbacks, but it is only one factor that we look at during a DUI stop. You have to look at the totality of circumstances."

Many critics across the country, including defense attorneys, argue it is difficult to determine the accuracy of HGN testing and that there are many factors that can cause the eyes to visibly jerk aside from alcohol consumption.

"There are over 25 different types of nystagmus," said Bob Thompson, Lee County public defender. "Officers are not taught about the other types, which they should know about. Fear, anxiety and viral infections, to name a few, can all have an affect on the eyes."

Thompson added there are other factors that can affect the results of an HGN test, such as exposure to the lights on the squad car and the difficulty that an officer may have when determining an exact 45-degree angle when conducting the test.

"Officers are not trained in scientific methods or medicine," Thompson said. "During cross examination, it's difficult to ask them to draw us a 45-degree angle or test their geometry skills. That's where we're starting to see the trial courts become more strict when admitting the test."

The court ruling came in the wake of a Peoria County case involving Joanne McKown, who was convicted of multiple counts of DUI and reckless driving after she hit three motorcyclists in June 2002. Having suffered a broken toe, she could not perform other sobriety tests, such as standing on one leg or walking heel-to-toe. A sheriff's deputy who administered an HGN test 90 minutes after the accident said she failed. After McKown refused to give blood voluntarily, police got a search warrant and drew blood 6 1/2 hours after the accident. Tests showed no alcohol in her bloodstream.

Writing that "HGN testing appears to have as many critics as it does champions," the state Supreme Court sent the Peoria case back to the trial court in September.

The decision places Illinois on a small list of states where the admissibility of HGN tests in DUI prosecutions has not been decided. According to a 2002 federal court decision that lists the status of the law in 43 states, HGN tests are not admissible in at least three - Kansas, Mississippi and Pennsylvania. In most others, courts have decided that juries can hear the results of HGN tests.

Whiteside County State's Attorney Gary Spencer said the admissibility of HGN testing is determined during a Frye hearing, held in front of a judge prior to the trial. During the hearing, expert testimony is heard to determine whether or not the test is generally accepted in the scientific community. Spencer said he believes the test is reliable, but it is only one piece of the puzzle.

"HGN testing is one thing under a whole umbrella of things that officers, the state's attorney's office and the court look at in DUI cases," Spencer said. "There are other things the arresting officer can use to determine if someone is drunk, such as observing erratic driving and other physical symptoms, such as staggering and slurred speech."

Whitcombe said the Frye hearings place the burden on the state when determining the admissibility of the test, which can both help and hinder the prosecution.

"It really depends on the case," Whitcombe said. "In the weaker cases, it will make a big difference. In cases where there is a lot of evidence, it's not going to make that much of a difference. It's just one piece of the puzzle."

San Diego criminal attorneys are attacking this unreliable test in DUI case.

San Diego California Criminal Defense Attorney - drunk driving / DUI case

Filed 11/9/07 P. v. Banegas CA2/2

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.

CARLOS MANUEL BANEGAS,

Defendant and Appellant.
B193283
(Los Angeles County

Super. Ct. No. VA084675)


APPEAL from a judgment of the Superior Court of Los Angeles County. Larry S. Knupp, Judge. Affirmed.

Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

______________

Carlos Manuel Banegas1 appeals from the judgment entered upon his convictions by jury of second-degree murder (Pen. Code, § 187, subd. (a), count 1), felony hit-and-run (Veh. Code, § 20001, subd. (a) count 2),2 driving under the influence causing injury (§ 23153, subd. (a), count 3), driving under the influence of more than 0.08 percent alcohol (§ 23153, subd. (b), count 4), and gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a), count 5). In connection with counts 3 through 5, appellant admitted suffering two prior drunk driving convictions within the meaning of section 23566, subdivisions (b) and (c) and Penal Code section 191.5, subdivision (d). The trial court sentenced him to the upper term of four years on his conviction in count 2 plus a consecutive term of 15 years to life on his conviction in count 1. Imposition of sentence on counts 3 through 5 was stayed pursuant to section 654. Appellant contends that (1) there is insufficient evidence to support his convictions of second degree murder, hit-and-run and gross vehicular manslaughter, (2) the trial court gave erroneous causation instructions to the jury, thereby depriving him of due process and a fair trial, and (3) the upper term sentence on his felony hit-and-run conviction violates the Sixth and Fourteenth Amendments to the United States Constitution as set forth in Cunningham v. California (2007) 549 U.S.__ [127 S.Ct. 856] (Cunningham), compelling reduction of the sentence to the midterm.

The judgment is affirmed.

FACTUAL BACKGROUND

We review the evidence in accordance with the usual rules on appeal. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) On July 12, 2004, at approximately 11:00 p.m., Sean Tackett was driving south in the number one (fast) lane of the 710 freeway, near Firestone Boulevard, at 70 to 75 miles per hour. He saw a white Chevy Camaro in the number four (slow) lane pass him, with its lights on, traveling 90 to 95 miles per hour. A Honda Civic traveling 70 miles per hour, four car lengths ahead of the Camaro, placed its turn signal on and merged in front of the Camaro. The Camaro did not slow down. When it was a foot or two behind the Civic, it swerved to the left to avoid hitting it, nearly hit two other cars and crashed into the center divider. It came to rest 80 percent in the fast lane and 20 percent on the shoulder. Tackett pulled over and stopped. The Camaro’s headlights were then off and its hazard lights did not come on.

Twenty to 30 seconds later, Tackett saw a motorcycle in the fast lane strike the driver’s side, rear panel of the Camaro and the rider, wearing a helmet, “fly[] through the air and hit the pavement.” Five to 10 minutes later, Tackett saw appellant exit the Camaro and walk past the motorcyclist toward the freeway exit. Tackett detected a strong smell of alcohol as appellant walked by him.

Appellant walked south on the freeway toward Gregory Boagni, an off-duty Los Angeles County sheriff’s deputy, who saw appellant hit the center divider, stopped his car and called 911. Boagni testified that he saw appellant walk south, past the downed motorcyclist, without stopping. Appellant approached Boagni a minute or so after the Camaro had hit the divider. Boagni smelled alcohol on his breadth. Appellant walked past him and, when asked, said he did not need medical attention and was going home. Boagni showed appellant his badge and told him to stay. Appellant complied and was handcuffed. He did not offer his license number, registration or assistance. Boagni turned him over to California Highway Patrol (CHP) officers when they arrived.

CHP Officer Horacio McComb responded to the scene. He observed the Camaro with its front end “smashed,” in the number one lane, parallel to the center median, facing north. A motorcycle was in the number two lane. The motorcyclist, Jack Bush, was being attended to by others, so Officer McComb attended to appellant, who identified himself as Carlos Banegas. While it was apparent that English was not appellant’s native language, Officer McComb spoke to him in English, and appellant appeared to understand. Appellant was unsteady on his feet, his breadth smelled of alcohol, his eyes were red and watery, and his speech was slow and slurred. He told Officer McComb that he had consumed six Bud Lights, between 5:00 p.m. and 10:00 p.m., and showed him a photocopy of his driver’s license.

Officer McComb administered several field sobriety tests to appellant, who failed two of them and could not perform two others, claiming he had been shot in the ankle years earlier. Officer McComb also administered two preliminary alcohol screening tests (PAS) which revealed that appellant had a blood alcohol level of .106 and .105 percent. Approximately an hour and 20 minutes after the initial radio call, appellant underwent a blood alcohol test which reflected a blood alcohol level of 0.08 percent. The officer concluded appellant was driving under the influence and arrested him. Unaware that the motorcycle had hit the Camaro, the officer cited appellant for driving under the influence and driving with a blood-alcohol level above 0.08 percent, but not for driving under the influence causing injury. His report stated that the cause of the accident was “other than driver.”

Officer McComb spoke with Bush the night of the accident. Bush was coherent, and the officer did not expect him to die. But the parties stipulated that “four days after the accident on July 16 . . . [he] died as a result of death from severe head injuries.” This was the only evidence of Bush’s physical condition.

Officer Levi Miller investigated the case. He found the Camaro’s shifter in the reverse position and, while the hazard lights on the Camaro were operative, the emergency activation button was in the off position. He concluded that the front tire of the motorcycle struck the driver’s side of the Camaro. There was no evidence the Camaro was hit by any other vehicle. Officer Miller did not try to start the Camaro, although he knew appellant claimed he tried to move it but could not. He found that Bush’s helmet was cracked down the middle. Officer Miller testified that speeding, failing to turn on one’s hazard lights after an accident, tailgating and making an unsafe lane change are Vehicle Code violations.

A criminalist from the Sheriff’s Department testified that a person of appellant’s size with a blood alcohol level of 0.08 percent is impaired to safely operate a car.

On August 17, 2004, appellant was arrested for another incident of driving under the influence. On that occasion, he identified himself as Oscar Espinosa. After this arrest, Officer Miller, who had been unable to locate appellant, did so and conducted an audio-recorded interview with him, where appellant again identified himself as Oscar Espinosa. Appellant said that he never had a driver’s license. He acknowledged having a drinking problem and knowing that drunk driving is dangerous and kills people. He could not recall how many prior drunk driving arrests he had had.

Appellant described the collision, stating that he had consumed a 12-pack of beer between 7:00 p.m. and 11:00 p.m. He was driving in the number three lane when a trailer cut him off, and he lost control of his vehicle. As other cars were hitting each other, he turned left and hit the wall. He tried to move the car to the side, but it would not start. He did not turn on the emergency lights because a motorcycle crashed into the side of his car, and he was scared for the person lying there. Appellant said that he believed the accident would not have occurred if he had not been drinking. He said he tried to get help for the motorcyclist, but an African-American police officer on the scene told him that the motorcyclist was fine, did not want to help, and arrested him.

Appellant also said that his real name was Lorenzo or Loreto Lopez or Lorenzo German, but that he used Carlos Banegas and Banegas’s driver’s license in the accident “to avoid problems.” He used the name Oscar Espinosa when arrested on August 17 because the name Carlos Banegas was “burned by the accident.” Appellant was recently arrested in Ventura for failing to attend court-ordered alcohol abuse classes. He claimed he did not have enough money for the classes, but that he had completed such a class in 1996. He was also ordered to, but apparently did not, attend alcohol abuse classes after arrests in 2000, 2002, and 2004.

DISCUSSION

I

Sufficiency of Evidence

Appellant contends that there is insufficient evidence to support his convictions of murder, hit-and-run and gross vehicular manslaughter. He argues that there was inadequate evidence of causation, implied malice and failure to perform statutory duties. This contention is meritless.

“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry, supra, 37 Cal.App.4th at p. 358.) Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, at p. 331.)

A. Causation

Appellant argues that there were no medical records or medical testimony presented regarding Bush’s physical condition at the scene of the accident, at the hospital or regarding any autopsy, to establish that the accident caused his death. The stipulation that, “Bush died following severe head injuries suffered in the accident,” did not establish that those head injuries were incurred in the crash. We find the evidence to be sufficient.

To establish criminal culpability for murder, the prosecution must prove that a defendant’s actions proximately caused the death. (See People v. Roberts (1992) 2 Cal.4th 271, 315; People v. Harrison (1959) 176 Cal.App.2d 330, 345, disapproved on other grounds in People v. Whitehorn (1963) 60 Cal.2d 256, 264.) To constitute the proximate cause of a death, “the cause of the harm not only must be direct, but also not so remote as to fail to constitute the natural and probable consequence of the defendant’s act.” (People v. Roberts, supra, at p. 319, italics added.)

While medical evidence would have more clearly tied Bush’s severe head injuries to the accident, we cannot say that the evidence presented was insufficient to allow the jury to draw that causal connection. Appellant’s car was stopped in the fast lane of the freeway. Bush’s motorcycle struck it while traveling 70 miles per hour. He was thrown through the air and hit the pavement. Paramedics treated him at the scene and brought him to the hospital, where he died four days later of “severe head injuries.” The helmet he wore at the time of the accident was cracked down the middle. It can be reasonably inferred from this evidence that Bush suffered the “severe head injuries” in the accident that the parties stipulated caused his death. There was no evidence or argument at trial that Bush had preexisting head injuries or that something happened after the accident to cause his death. The significance of this evidence was for the jury to evaluate.

B. Malice

Appellant argues that there was insufficient evidence of implied malice to support his conviction of second degree murder because there was no evidence that his acts were intentional and done with conscious disregard for human life. He tried to start the car in order to move it out of the fast lane, showing his concern. He asserts that the prosecution is bound by its presentation of his statement as to how the killing occurred in the “‘absence of proof to the contrary.’”

Second degree murder is the unlawful killing of a human being with malice aforethought, but without the additional element that it be willful, deliberate and premeditated, which is required for first degree murder. (Pen. Code, §§ 187, subd. (a), 189; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) Malice may be express or implied. (Pen. Code, § 188; People v. Nieto Benitez, supra, at p. 102.) Express malice is manifested when there is a “deliberate intention unlawfully to take away the life of a fellow creature.” (Pen. Code, § 188.) Implied malice exists when an intentional act naturally dangerous to human life is committed “‘by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’” (People v. Lasko (2000) 23 Cal.4th 101, 107; People v. Martinez (2003) 31 Cal.4th 673, 684; Pen. Code, § 188.) It is determined by examining the defendant’s subjective mental state to see if the defendant actually appreciated the risk of his actions. (People v. Dellinger (1989) 49 Cal.3d 1212, 1217; People v. Watson (1981) 30 Cal.3d 290, 296-297.) Implied malice may be proven by circumstantial evidence. (People v. James (1998) 62 Cal.App.4th 244, 277.)

Vehicular homicide committed while intoxicated may be found to be second degree murder rather than vehicular manslaughter. The applicable law is set forth in People v. Watson (1981) 30 Cal.3d 290 (Watson). There, the defendant drove to a bar and consumed large quantities of beer. Thereafter, he drove through a red light, avoided a collision only by skidding to a halt, drove up to a speed of 84 miles per hour, and slowed only to 70 miles per hour at an intersection where he struck a car, killing two people. The defendant’s blood alcohol level one-half hour after the collision was 0.23 percent. The trial court dismissed two counts of second degree murder. The California Supreme Court reversed the dismissal order, holding that there was sufficient evidence of second degree murder. (Id. at pp. 292-294.) It explained that a vehicular homicide committed while intoxicated involves implied malice, and is thus second degree murder, if “a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life.” (Id. at p. 296.) “‘One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.’” (Id. at pp. 300-301.)

Here, appellant consumed a 12-pack of beer before driving home. His PAS tests measured .106 and .105 percent, exceeding the legal limit, and a blood alcohol test taken approximately an hour and a quarter later still showed a 0.08 percent blood-alcohol reading. While unquestionably impaired, he entered his car and, not only drove 90 to 95 miles per hour on the freeway dangerously tailgating, but did so in the slow lane. These intentional acts were unquestionably dangerous to human life.

The evidence was also sufficient to support a finding that appellant acted in conscious disregard for life. He had several prior drunk driving convictions which alone should have made him aware of its dangers. (See People v. Autry, supra, 37 Cal.App.4th at p. 359.) He had attended alcohol abuse classes, which even more emphatically would have driven home the life-threatening dangers of drunk driving. In his interview by police, he said he knew he had an alcohol problem and that drunk driving can kill. He had recently been arrested in Ventura County for failing to attend court ordered alcohol abuse classes which, as the trial court noted, had he attended might have averted the charged collision. After his vehicle was hit by Bush’s motorcycle, he further reflected his conscious disregard for life, walking right by his victim with little concern for his condition. It was for the jury to decide under these circumstances whether he acted with implied malice. (People v. Ricardi (1990) 221 Cal.App.3d 249, 259-260.)

Appellant argues that after the accident he remained in his car and tried to move it out of the traffic lane, reflecting his lack of malice. Even if we accept that appellant tried to move his car out of traffic lanes, that does not mitigate the conscious disregard he showed by drinking and driving, thereby placing himself in that precarious position in the first place.

C. Required duties

The Vehicle Code imposes numerous duties on drivers of vehicles involved in accidents resulting in death or injury. As pertinent here, those include the duty to (1) immediately stop the vehicle at the accident scene, (2) give his and the vehicle owner’s name, current residence address, and the registration number of the vehicle he or she is driving to the person struck, to the driver or occupants of any vehicle collided with and to any traffic or police officer at the scene, and (3) ascertain what assistance any injured person required and render reasonable assistance to that person. (§§ 20001, subd. (a); 20003; People v. Scheer (1998) 68 Cal.App.4th 1009, 1028.)

Appellant argues that there was insufficient evidence that he willfully failed to perform his statutory duties to support his hit and run conviction. He argues that he stopped at the scene and did not give the required information to the victim only because he sought help from Boagni and Tackett, but gave the information to the CHP officer when requested.

While appellant self-servingly selects the facts he presents in support of this claim, he ignores those facts which support the jury’s verdict. Appellant stopped his car only because it had become disabled after crashing into the center divider. There was evidence that he had no intention of performing his statutory duties. He walked past the downed motorcyclist, past Tackett, and past Boagni without providing or attempting to provide assistance or information, telling Boagni, he was going home. He only remained at the scene when Boagni ordered him to do so and showed him his badge. The only time appellant provided information was when he showed a copy of a driver’s license to Officer McComb. But appellant stated in his interview that this was not his driver’s license, and he was not Carlos Banegas. Thus, even if providing information after attempting to leave the scene could be viewed as compliance with the statutes, appellant did not provide true information.

II

Erroneous Jury Instructions

The trial court instructed the jury in accordance with CALJIC No. 3.40, as follows: “To constitute the crime of second degree murder and gross vehicular manslaughter while intoxicated there must be in addition to the death an unlawful act which was a cause of that death. The criminal law has its own particular way of defining cause. A cause of the death is an act that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act the death and without which the death would not [have] occur[red].”

It also instructed in accordance with CALJIC No. 3.41 as follows: “There may be more than one cause of the death. When the conduct of two or more persons contributes concurrently as a cause of the death, the conduct of each is a cause of the death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of the collision and acted with another cause to produce the death. If you find that the defendant’s conduct was a cause of death, to another person, then it is no defense that the conduct of some other person contributed to the death.” (Italics added.)

Appellant contends that the trial court erred in giving these instructions. He argues that the second paragraph of CALJIC No. 3.40 is erroneous because it “misleads the jury into adopting a strict liability analysis of causation. That is, the jury was instructed that, if it found a direct, chain of events between appellant’s act and Mr. Bush’s death, it was required to find that appellant’s act was the proximate cause of Mr. Bush’s death,” even though not all factors in causing death are proximate causes. Appellant also argues that the second sentence of the first paragraph of CALJIC No. 3.41 “is erroneous because it defined a cause as concurrent ‘if it was operative at the moment of the collision and acted with another cause to produce the death.’ This is an incorrect statement of law which lightened the prosecution’s burden of proof. This incorrect statement of law allowed the jury to find appellant strictly culpable based on his collision with the center divider.” Additionally, he asserts, there was no evidence of concurrent causes, and therefore CALJIC No. 3.41 should not have been given. We conclude that giving these instructions resulted in no prejudicial error.

A. CALJIC No. 3.40

Contrary to appellant’s assertion, CALJIC No. 3.40 does not provide strict liability analysis of causation. Rather, it provides that an act is a proximate cause of death only when it sets in motion a chain of events that operates directly to cause the death which is a natural and probable consequence of the act. Only acts without which the death would not occur can be a proximate cause. This definition of proximate cause is derived from our Supreme Court’s decision in People v. Roberts (1992) 2 Cal.4th 271, 319, which states: “The criminal law thus is clear that for liability to be found, the cause of the harm not only must be direct, but also not so remote as to fail to constitute the natural and probable consequence of the defendant’s act.” (Italics added.) Relying upon this language, our Supreme Court and some appellate courts have approved CALJIC No. 3.40. (People v. Cervantes (2001) 26 Cal.4th 860, 866 [citing with approval and quoting CALJIC No. 3.40]; see also People v. Temple (1993) 19 Cal.App.4th 1750, 1756 [explicitly holding that CALJIC 3.40 correctly states proximate cause definition, and cited with approval in People v. Bland (2002) 28 Cal.4th 313, 335].) “Ordinarily the question [of proximate cause] will be for the jury . . . .” (People v. Roberts, supra, at p. 320, fn. 11.) Given these compelling authorities, we see no reason to revisit this question.

B. CALJIC No. 3.41

We agree with appellant that there was no evidence to support this instruction. The evidence only indicated that appellant’s drunk and erratic driving led directly to the collision with the center divider and the natural and probable consequence that the Camaro would be hit by fast moving traffic, including Bush’s motorcycle. A trial court must “‘refrain from instructing on principles of law which . . . are irrelevant to the issues raised by the evidence.’” (People v. Saddler (1979) 24 Cal.3d 671, 681.) It is error to give an instruction that correctly states a principle of law that is inapplicable to the facts of the case. (People v. Eggers (1947) 30 Cal.2d 676, 687; People v. Anderson (1965) 63 Cal.2d 351, 360.) We also agree that CALJIC No. 3.41, as given, should have defined concurrent causes as those operating at the time of death, not at the time of the collision. (People v. Sanchez (2001) 26 Cal.4th 834, 847 [“‘“A cause is concurrent if it was operative at the time of death and acted with another cause to produce the death”’”].)

We nonetheless find that the error in giving CALJIC No. 3.41 was harmless, as it was not reasonably probable that if it were not given, or if it were corrected, a verdict more favorable to appellant would have resulted. (People v. Palmer (2005) 133 Cal.App.4th 1141, 1157 [misdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error, are reviewed under People v. Watson (1956) 46 Cal.2d 818, 836].) There is little chance that giving CALJIC No. 3.41 would have misled the jury, as there was no evidence of any cause operating at the time of Bush’s death that was not operating at the time of the collision. Furthermore, CALJIC No. 3.41 correctly instructed the jury that appellant was not absolved of responsibility for Bush’s death if the conduct of another was also a substantial or contributing factor to the death. We fail to see how an instruction suggesting that there might be a concurrent cause of death would prejudice appellant as, by its terms, it would not affect his liability for the death. Additionally, the evidence of appellant’s guilt is strong. It was undisputed that he was intoxicated, that he drove recklessly as a result, that he hit the center divider and that the motorcycle hit him because he came to a stop in the fast lane.

III

Cunningham Error

On August 14, 2006, the trial court sentenced appellant to the upper term of four years on his conviction in count 2 of felony hit-and-run and to 15 years to life on count 1 for second degree murder. It stayed imposition of sentence on the remaining counts. The trial court found as aggravating factors that appellant (1) was on probation at the time of the offense, (2) had pending arrest warrants for failure to attend alcohol classes, (3) drove his vehicle knowing he was intoxicated, (4) committed a serious crime, and (5) his prior performance on probation or parole was unsatisfactory. It found no mitigating factors.

Appellant contends that, under the dictates of Cunningham, the upper term sentence on count 2 violated the Sixth Amendment right to a jury trial and the Fourteenth Amendment right to proof beyond a reasonable doubt of aggravating factors used to support that sentence. He requests that his sentence be reduced to the middle term. Respondent contends that appellant’s Cunningham claim was forfeited by his failure to raise it in the trial court. We conclude that appellant has not forfeited the claim, but that it is without merit.

A. Forfeiture

In the recent case of People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), our Supreme Court resolved the forfeiture question now before us. In that case, as here, the trial and sentencing proceedings took place after the United States Supreme Court’s decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), but before Cunningham. Sandoval concluded that the claim was not forfeited because the decision in Black I, in which our Supreme Court held that the California determinate sentencing law (DSL) did not implicate the Sixth Amendment right to a jury, was binding on the lower courts until it was overruled by the United States Supreme Court in Cunningham. “Had defendant requested a jury trial on aggravating circumstances, that request clearly would have been futile, because the trial court would have been required [pursuant to Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 228, 237-238] to follow our decision in Black I and deny the request.” (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.) An objection in the trial court is not required if it would have been futile. (Ibid.)

B. Right to Jury

For the reasons set forth in People v. Black (2007) 41 Cal.4th 799 (Black II), we find no constitutional violation in the trial court’s imposition of the upper term.

In Blakely, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum, that is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,” must be determined by a jury and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 303.) The high court recently made clear that “[i]n accord with Blakely . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, 549 U.S.__ [127 S.Ct. at p. 868].) In Cunningham, contrary to the California Supreme Court’s conclusion in Black I, the United States Supreme Court held that California’s DSL was unconstitutional to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court rather than by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p.__ [127 S.Ct. at p. 871].)

In Black II, the California Supreme Court reasoned that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi[3] and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, 41 Cal.4th at p. 812.) “[I]f one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black II, supra, at p. 813.)

The United States Supreme Court has consistently stated that the right to a jury trial does not apply to the fact of a prior conviction. (Blakely, supra, 542 U.S. at p. 301; see also Black II, supra, 41 Cal.4th at p. 818.) This exception is not to be read too narrowly. (Black II, supra, at p. 819.) The fact of a prior conviction includes “other related issues that may be determined by examining the records of the prior convictions.” (Ibid.) It has also been concluded that this exception relates more broadly to the issue of “recidivism.” (People v. Thomas (2001) 91 Cal.App.4th 212, 221-222, cited with approval in People v. McGee (2006) 38 Cal.4th 682, 700-703.) Factors such as being on probation at the time of the offense and previously being unsuccessful on probation come within the recidivism exception. Both may be ascertained simply by examining the records of prior convictions. (Black II, supra, at p. 819.)4 Citing federal circuit decisions stating that the prior conviction exception may be found using the preponderance of the evidence standard, Black II also concluded that “[t]he high court never has suggested that the requirement of proof beyond a reasonable doubt could be severed from the right to jury trial for purposes of applying the [prior convictions exception].” (Black II, supra, at p. 820, fn. 9.)

Applying Black II here, we conclude that defendant was not deprived of due process or his constitutional right to a jury trial by imposition of the upper term. That sentence was based on at least one aggravating factor that satisfied the Sixth Amendment and made him eligible for the upper term sentence. (Black II, supra, 41Cal.4th at p. 813.) The trial court finding that appellant was on probation at the time of the charged offense was the type of finding relating to a defendant’s recidivism “that may be determined by examining the records of the prior convictions” and is “‘typically and appropriately undertaken by a court.’” (Black II, supra, at pp. 818-820; accord, People v. Yim (2007)

152 Cal.App.4th 366, 370-371.) This single factor made defendant eligible for an upper term sentence, and the trial court was free to consider other factors in imposing an upper term sentence.

DISPOSITION

The judgment is affirmed.



________________, P. J.

BOREN

We concur:

_____________________, J.

ASHMANN-GERST

_____________________, J.

CHAVEZ



1 Appellant is also known as Oscar Espinosa, Lorenzo German, Loreto German Lopez, Lorento German Lopez, Compa Lopez, German Lopez, Oscar Jerman Pompa, and German Compa.



2 All further statutory references are to the Vehicle Code unless otherwise indicated.



3 Apprendi v. New Jersey (2000) 530 U.S. 466.



4 The issue of whether a trial court can constitutionally impose an upper term based on the fact that the defendant was on parole when the crime was committed, without a jury determination, is currently before the California Supreme Court in People v. Towne, review granted July 14, 2004, S125677.

dwi drunk driving criminal defense lawyer - dui criminal defense attorney news

The New Jersey Supreme Court on Wednesday reprimanded veteran municipal court Judge Henry Broome Jr. for multiple ethics violations but decided against discipline for a particular quirk of his jurisprudence: imposing DWI fines not authorized by statute.

The court agreed with its Advisory Committee on Attorney Ethics that at the time Broome assessed fines on underage drivers under the so-called "Baby DWI" law, there was genuine uncertainty about municipal court judges' power to do so, since the statute and its legislative history could be construed as ambiguous.

However, the court did impose fines upon Broome for other foibles, such as:

failing to follow a state-court prohibition against dismissal of charges of refusal to take a Breathalyzer test;
participating in plea negotiations while sitting as a judge in a case;
negotiating and approving a plea agreement in the prosecutor's absence;
accepting plea agreements without first ascertaining the factual bases;
warning a defendant who testified in his own behalf that the judge would have him "indicted" if he lied under oath;
advising litigants at the start of court sessions of his "$100 policy," namely that fines of that amount or less were due and payable on the day imposed.
The ACJC, though finding multiple violations of the Code of Judicial Conduct, recommended the relatively mild sanction of reprimand, taking into account Broome's long service as a judge in several Atlantic County towns: Absecon, Brigantine, Egg Harbor City, Linwood, Longport, Mullica Township, Northfield and Somers Point.

"Judge Broome has 31 years of distinguished service to the judiciary and he looks forward to another 31 years," says his lawyer, Robert Ramsey, of Trenton, N.J.'s Donini & Ramsey, adding that the judge is "grateful" for the decision.

The court, in sparing Broome discipline for the "Baby DWI" fines, accepted his rationale, raised at a July 10 ACJC hearing, that he was just trying to interpret a vague statute and help defendants understand the consequences of their actions while he enforced the law.

Though the statute, N.J.S.A. 39:4-50.14, has no fine provision, Broome assessed fines and surcharges ranging from $250 to $780 in 11 cases between February 2004 and May 2005. He did this despite memoranda from his presiding judge and the Administrative Office of the Courts that no monetary penalties were to be imposed.

He ceased imposing fines once the 11 cases were reported to the assignment judge for Atlantic and Cape May counties, who reopened them for resentencing.

At the ACJC hearing, Broome testified that it was inconceivable to him that the Legislature intended that there was to be no fine for underage drinking and driving, that his own review of the statute led him to conclude he was allowed to assess penalties and that he did not believe the memoranda from court officials precluded that ability.

"I was looking for legislative intent," he told the ACJC. In the absence of appellate or trial court interpretations of the statute, "I had to interpret it myself," he added. "I believed I could impose fines in addition to other penalties."

The ACJC agreed that there was ambiguity, noting that in one of the memos, Atlantic/Cape May Municipal Court Presiding Judge Louis Belasco Jr. stated that other municipal court judges were interpreting the statute the same way as Broome.

In view of the confusion, Broome did not, by imposing the fines, violate Canon 3A(1), which requires judges remain faithful to the law, nor any other canon of conduct or court rule, the ACJC said in a presentment dated Sept. 25. And on Wednesday, the court agreed.

But the ACJC and the court were less forgiving with regard to other charged transgressions, most of which showed Broome applying his own procedures and methods despite AOC directives and court rules to the contrary.

His dismissal of Breathalyzer-refusal charges was particularly irksome, since a memorandum by Acting Administrative Director of the Courts Philip Carchman -- issued prior to dismissals in three cases -- stated unequivocally that the practice was no longer permitted. Further, the memo stated, the prohibition was to be applied to cases in the pipeline. "In the face of such clarity, the Committee can conceive of no reasonable basis for [Broome] to conclude that it was appropriate for him to dismiss the Refusal Charges in the three pertinent matters," the ACJC wrote.

As for other unorthodox behavior on the bench, the ACJC presentment cited cases of Broome being actively involved in plea negotiations -- sometimes without a prosecutor present and at times even coaxing a defendant to accept a deal.

Broome said he was motivated by a desire to help defendants understand the consequences of their actions. The ACJC said it did not question that motivation but said his participation was nonetheless not permitted by court rules.

In one case, that of a man charged with vandalizing his ex-girlfriend's new boyfriend's car, Broome failed to advise the man of his right to counsel and to remain silent, the ACJC found. When he chose to testify, Broome said, "Before you testify if I think you're lying under oath, I'm telling you, I'll have you indicted. Do you understand me?" After convicting the man, Broome told him he was going to have the police talk to the victims about bringing a separate complaint for stalking. The conviction was set aside by a Superior Court judge, who ordered a new trial before a different judge in view of Broome's expressed bias.

As for Broome's "$100 policy" on fines, announced in a videotape shown at the start of court sessions, the ACJC said Broome disregarded the holding of State v. DeBonis, 58 N.J. 182 (1971), in which the court mandated that indigent defendants be given the opportunity to pay fines in installments. Broome's policy created no exceptions for inability to pay.

drunk driving criminal defense lawyer news

Evidence suppressed in DUI case

DUI cops responded to a 911 call that a man had flipped his truck.

It turned out no accident occurred. The man's passenger had prank-called an ex-girlfriend, whose friend dialed 911 to report a crash.

Later that night, after law enforcement learned about the prank, they found the man, Robert Dionian, 19, of Palmetto, in his parked truck. They smelled alcohol on his breath, and charged him with DUI because the keys were in the ignition, according to reports.

However, a judge ruled Friday officers had no right to detain Dionian, forcing the state to drop the case due to a lack of evidence.

On the night of the incident, Dionian's passenger, Kyle Vickers, had made a prank call to his ex-girlfriend and lied about them getting in an accident.

When the girl's friend dialed 911, Florida Highway Patrol sent up a helicopter and scoured the county to find the truck. They did not find it.

Later that evening, authorities learned it was a hoax.

A few hours later, officers from FHP and the Manatee County Sheriff's Office, found the truck parked in East Manatee, according to reports.

The truck was not running.

Officers activated their lights and pulled up to the truck.

Dionian, sitting in the driver's seat, and Vickers, sitting in the passenger's seat, got out. Dionian alerted officers that a rifle was in the front seat of the car.

Officers smelled alcohol on Dionian's breath, conducted a DUI investigation, and then arrested him for DUI, being under age 21 and possessing alcohol and possession of a rifle according to reports.

On Friday, Dionian's lawyer, Colleen Glenn, argued in court that the officers had no right to detain the men.

"In order to detain somebody, the police have to have reasonable suspicion that a crime has occurred and that obviously wasn't the case here," Glenn said.

Glenn cited Florida law, which explains that when an officer activates his emergency lights, the act initiates a stop for investigation, not a consensual encounter.

"My client was illegally seized," Glenn said.

Prosecutor Pam Bula argued that the encounter between law enforcement and Dionian was consensual, meaning Dionian was not obligated to produce the evidence the led to his arrest.

But County Judge Mark Singer ruled it was not consensual and suppressed all evidence obtained after the encounter began, including Dionian's blood alcohol content and officers' observations of impairment.

Because the evidence was suppressed, the state will not pursue the case, said Erica Arend, a spokeswoman with the misdemeanor division of the state attorney's office.

Prank leads officers to investigate fake wreck; after finding car, teen ruled illegally detained.

DWI lawyer news drunk driving attorney information

Prosecutors won't charge toxicology lab manager over DUI testing

SEATTLE -- The King County prosecutor's office has declined to file perjury charges against Ann Marie Gordon, a state toxicology lab manager who falsely certified quality-assurance samples used in drunk driving breath tests.

The prosecutor's office found that Gordon did sign forms stating she had "examined and tested" solutions when in fact the work was done by a subordinate, but that she did not knowingly swear a false statement. She argued that she believed signing the forms was simply a function of her oversight of the testing. Gordon resigned.

A 10-page legal analysis released by the prosecutor's office noted that verifying the accuracy of the solutions could have been done by as few as three people in the lab; Gordon was one of a dozen who signed off on solution certificates.

"Gordon's participation in the testing of the simulator solution was not required," the document said. "But in this case she signed, knowing full well that the solution had been tested to the full requirements of the law and well beyond. This supports a finding that her act of signing the form may well have been sloppy, or an honest mistake, but not an act done with criminal intent."

"There is no evidence that Gordon's conduct in any way compromised the accuracy of the testing," the analysis concluded.

Gordon's behavior figured prominently in arguments from DWI / DUI defense lawyers who have said that problems in the state lab were reason to throw out drunk driving charges.

Two Skagit County judges ruled last month following a three-day hearing that there was misconduct at the State Patrol's toxicology lab. But, the judges said, results of breath tests can still be used against dozens of DWI / DUI / drunk driving defendants in that county because there was no evidence that the misconduct affected the results of breath tests given to the defendants.

dui LAWYER drunk driving attorney news

The attorney for the sole survivor of a head-on drunken driving collision that killed six people is alleging in a suit that the convenience store that sold beer to the drunken driver has destroyed its records of the sale.

Dana Papst had flown into Albuquerque almost a year ago before getting behind the wheel and heading toward his Santa Fe area home.

During the trip he somehow managed to overshoot his exit and headed back south on Interstate 25 in the wrong lane. He struck an oncoming van killing five members of a family and himself.

Blood tests revealed that Papst’s blood-alcohol level was four times the legal level. Passengers on Papst’s flight say that he appeared intoxicated before the plane touched down.

Yet Papst bought more alcohol at a Bernalillo convenience during his drive north.

The attorney for the sole survivor of the accident contends that the convenience store chain, Ever Ready Oil Company, destroyed security camera tapes that would have shown that Papst was already drunk when he was served.

He also says the store’s cash register receipts for that hour were destroyed when other receipts were printed on top of them.

“We can’t identify purchases that occurred right after Mr. Papst and right after,” says Will Ferguson. ‘If we had that information, we could go to the credit car receipts and get witnesses other than the store people.”

The owners of the convenience store say they can’t comment on the allegations because they’re in litigation.

The store in question did lose its liquor license and was sold to another company which eliminated alcohol sales.

California San Diego DUI criminal attorney & drunk driving lawyer news via MADD:

Perhaps someday drinking and driving will be a thing of the past. With an award of $2.5 million, the National Advanced Driving Simulator (NADS) recently announced that they are undertaking an exploratory study to see whether or not it would be realistic to have vehicle-based sensors that would be able to detect whether or not a driver was impaired by alcohol.

Alcohol has been, and continues to be, a problem for all drivers. Whether you drink and drive, or just drive a car on the road, your chances of encountering others who have been drinking is significant. According to Mothers Against Drunk Driving, three out of every 10 people will be involved in an accident, where alcohol was involved, at some point in their life.

The National Advanced Driving Simulator uses a simulator and conducts different types of research and testing to see how people react in different situations. All the while, people are not put in harms way and no one is injured or any property damaged.

Their goal will be to try to find a way that they can detect when someone is impaired, and take appropriate countermeasures.

"We are extremely excited to have been asked by the National Highway Traffic Safety Administration to perform this important, cutting-edge research. As the alcohol-related fatality rate has been stagnant over the past decade and a half, our expectation is that this research will reveal measures that can be used to monitor impaired driving in real time using appropriate vehicle-based sensors and processors. Understanding driving impairment is one of the research questions best-suited to be answered using the high-fidelity NADS 1 simulation platform," said Karim Malek, the director of NADS.

Alcohol is involved in nearly half, 41 percent, of all U.S. traffic deaths. Every year, more than 12,000 deaths are attributed to car accidents where people are legally drunk and yet they are still driving an automobile. Even with a blood alcohol level of .08 or more, people get behind the wheel and drive motor vehicles.

California San Diego drunk driving defense attorney news

Actor Mickey Rourke was arrested on DUI charges in Miami Beach early Thursday morning on his Vespa.

"Mickey Rourke was arrested for DUI at 4 a.m. this morning while riding a green Vespa," Sgt. Bobby Hernandez of the Miami Beach police department tells PEOPLE. "He made a U-turn on a red light. We stopped him and gave him a classic road sobriety test. He failed so we brought him in. He blew a .081, which was over the limit, and was locked up for 24 hours at the Miami Dade County jail."

According to the DUI arrest report, Rourke allegedly said a four-letter expletive at the time he was stopped by police, who described the face of the Angel Heart star as flushed, his eyes bloodshot and watery and his speech slurred.

"I'm not drunk, I didn't even drink that much," the actor, 51, allegedly said.

San Diego DUI criminal lawyer - drunk driving California defense news

An off duty Tohono O'odham police officer finds himself it hot water.

The 24 year old was off duty, but he was busted driving a marked patrol car.

Pima County Sheriff's deputies say he was DUI - driving under the influence.

Brandon Ramon is currently on paid administrative leave.

Police reports say during the early morning hours of November 4, citizens saw a marked Tohono O'Odham patrol car in the middle of the intersection at River and Oracle.

Witnesses found Ramon slumped over the steering wheel of his patrol car.

Lt. Karl Woolridge with PCSO says "[Witnesses] could see the officer was in the seat passed out. Possibly they were concerned there was a medical issue."

Witnesses started banging on the window, saw a weapon in the vehicle, became concerned and called 911. The officer - who was off-duty and not in uniform - woke up, and started driving south.

Just over a mile away at Roger and Oracle is where sheriff's deputies spotted the marked patrol car. They say Ramon was swerving from left to center and pulled him over.

"He was unsteady on his feet [with] a strong odor of intoxicants from his mouth," says Lt. Woolridge.

The report says Ramon "admitted to having been drinking and he admitted to not being able to drive, being lost and not know how to get back to his home."

DUI officers were called and field sobriety tests conducted.

"My understanding," says Lt. Woolridge, "he did quite poorly on the test"

The police report quotes an on-scene investigator as saying, "I noted the physical characteristics that his eyes were red, watery, and bloodshot, his speech was slightly slurred."

He consented to a preliminary breath test.

"It showed a 0.145 which is well over the legal limit; very close to extreme."

Ultimately, Tohono O'Odham's assistant police chief picked up Ramon in Tucson and another officer drove the patrol car back to Sells.

Brandon Ramon has been with the department for two years. He joined the SWAT team six months ago. There is no disciplinary action recorded in Ramon's file.

While Pima County conducts a criminal investigation, Ramon's department is conducting an internal investigation.

Lt. Mike Ford of the Tohono O'Odham Police Department says "Obviously we're very concerned and we take this incident very serious, and the circumstances. We also take our commitment to public safety very seriously."

DUI lawyer news & Drunk Driving defense attorney information

Snohomish County District Court judges will decide whether drunk driving breath-test results can be used in 30 cases being challenged by defense attorneys because of mistakes in adjusting machines used to detect DWI / drunk drivers.

The judges will need time to review hundreds of pages of evidence, testimony and transcripts that have been submitted in an attempt to discredit handling of the breath-testing machines.

DWI Prosecutors maintain that the machines operated by the Washington State Patrol are fine, the readings are accurate and the results should be allowed in court.

The controversy stems from allegations that a former State Patrol toxicology lab manager, Ann Marie Gordon, falsely claimed to have verified ­solutions used for breath tests in drunk driving cases.

Gordon resigned in July after someone reported that she had falsely signed affidavits under oath saying she had tested the quality-assurance samples, when in reality those tests had been performed by someone else.

Bellevue attorney Theodore Vosk told the judges Wednesday that defendants have been prejudiced because the breath-test evidence is "tainted with perjury." He also maintained that defendants would have to hire an expert to counter breath-test operators in order to get a fair trial.

At issue is certification of control solutions used in state breath-testing machines.

Deputy prosecutor Andrew Alsdorf told the judges the machines are fine, their results are accurate and that the toxicology lab followed its rules in certifying the machines.

The Snohomish County case is one of a series of defense assaults.

Skagit County judges last month blasted the toxicology lab for its mistakes, but said that the breath-test results could still be legally admissible in their courts.

A similar argument is scheduled later this month in King County. Other courts are not obliged to follow the Skagit ruling.

San Diego drunk driving attorney - California dui criminal lawyer news

San Diego State junior point guard Richie Williams, 20, was arrested last month on suspicion of San Diego California DUI - drunk driving, the second underage drinking incident on the Aztecs men's basketball team since September 2006.

Williams, whose indefinite suspension was announced by SDSU on Monday, was arrested at 1:50 a.m. on Oct. 11 on Montezuma Road. He was cited for San Diego California DUI - drunk driving violations, including what some call underage San Diego California DUI - drunk driving with a blood-alcohol content over .05.

SDSU's student-athlete handbook for 2007-08 indicates he may be facing at least a three-game suspension during the regular season.

A student-athlete cited for underage drinking will be referred for a mandatory alcohol intervention program, must meet with the team physician, the athletic director or designee, plus serve eight hours of community service and be subject to selective testing, according to the handbook.

Additionally, a student-athlete who is convicted of a California DUI - driving under the influence of alcohol or drugs, or convicted of another drug-or alcohol-related offense other than underage drinking, will face those same measures plus be treated as having recorded a positive drug test. For SDSU basketball, that means a three-game suspension during the official playing season, according to the handbook.

Last year, SDSU basketball player Brett Hoerner, then 19, was cited for California drunk driving. He was suspended by coach Steve Fisher at the beginning of last season and then left the team in January.

Fisher did not give reasons for the suspension of Williams other than to say, “Richie has been suspended for conduct detrimental to the team. He remains a member of our team and will continue to participate in practice.”

Such San Diego California DUI disciplinary measures have become a regular part of the program.

11/5/07

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BAKERSFIELD California

A parent was charged in March with giving underage kids booze at a high school party. The same father presently finds himself on the flip side with his underage son critically injured in a California DUI - drunk driving crash.

The Highway Patrol said it will be looking into how the driver and his best friends obtained the alcohol.

Officers said all three teens in the Honda Civic had been drinking, possibly at a party. All three were critically injured.

The crash was so bad, one of the teens was still on fire when some local Good Samaritans arrived.

Even after the flames were extinguished, the teen caught fire again.

Wreckage still littered the steep hillside near the Oswell Street Exit of westbound Highway 178.

Sprayed across the hillside, magazines and class notes are a glimpse into the lives of the three teens.

"Passenger Martin Lopez was trapped inside the vehicle when it burst into flames," said CHP Capt. Brian Smith.

Witnesses said 19-year-old Billy Atchley blew through a red light at Fairfax Road driving about 100 mph.

They also said Billy is an underage teen who was drunk behind the wheel.

"This is a warning to parents and adults that they need to realize that supplying alcohol or allowing minors to drink alcohol at the house or residence is a serious crime," Smith said.

Billy's best friend, 19-year-old Zach Drakos, suffered critical injuries when he was ejected from the car.

Zach's second cousin, Thomas Gonzales, answered the door Monday at the family home.

"It's bad. I don't like it all," Thomas said. "I feel what happened, it's just not good."

Earlier this year, Zach's father, Christopher Drakos, became the first person to receive a "Cool Parent" citation for giving underage kids alcohol during a party at his home in northeast Bakersfield.

Six teens were stabbed when a fight broke out there.

Now the CHP wants to know how something similar may have happend again with potentially deadly results.

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Booze Banned from Beaches for One Year

Nov. 6, 2007

The City Council approved Monday a one-year prohibition of alcohol at San Diego's beaches, a compromise measure that stopped short of the permanent ban sought by those hoping to combat the disorder of drunken beachgoers.

Under the compromise, the council will consider whether to reauthorize or make permanent the ban in January 2009, when the trial period would likely expire.

An ordinance passed Monday bans booze on San Diego's beaches for at least a year.

In the meantime, the council's decision to curb beach drinking will enjoy the praise of residents and business owners who cited the safety of San Diego's coastal neighborhoods in advocating a ban.

"I strongly believe everyone has the right to come down and enjoy our beaches in a safe environment," Councilman Kevin Faulconer said.

Faulconer, who represents beaches and bays that would be impacted by the ban, opposed such stringent rules while on the campaign trail and after commissioning a nine-month task force study. But he reversed course after a melee broke out in the waning hours of Labor Day in Pacific Beach, where 17 people were arrested and police blockaded streets.

The council's 5-2 vote for the trial came after Faulconer's proposed permanent ban fell one vote short of approval. Councilman Ben Hueso agreed to support the rule's one-year audition after saying earlier that the ban wouldn't stop people from getting drunk at the beach.

"I'm just not content with saying a ban is going to solve our problems," said Hueso, likening the ban to laws against drunk driving or smoking marijuana, in which those illicit acts occur despite the government's regulations against them.

Along with Faulconer and Hueso, council members Scott Peters, Toni Atkins and Donna Frye supported the test ban. Council members Tony Young and Jim Madaffer voted against it. Council member Brian Maienschein was absent from the hearing.

Mayor Jerry Sanders, who said he would veto a round-the-clock ban in favor of prohibiting alcohol on major summertime holidays, will not veto the temporary ban, spokesman Fred Sainz said.

The vote came after hours of emotional testimony that pitted residents who enjoy a longstanding privilege that is virtually unique to San Diego against community members incensed by the footage of the Labor Day skirmish and the rowdiness they perceive to be a regular symptom of beach partying.


City Councilman Kevin Faulconer proposed banning drinking outright on San Diego's beaches, but could only muster the votes for a one-year trial ordinance.

Opponents of the ban said the debate became too emotional after the Labor Day melee, stressing that the overwhelming amount of the hundreds of thousands of people who enjoyed alcohol on San Diego's beachfront that day did so without police confrontation.

"These incidents do not happen because of alcohol," said Jacob Pyle, a Pacific Beach resident and director of FreePB.org. "These incidents happen because of jerks, and removing alcohol will not turn them into model citizens."

Others pointed out that the 17 arrests from the Labor Day melee pale in comparison to the hundreds of arrests that are made during a typical Chargers game at Qualcomm Stadium, where significantly fewer people flock than the numbers that tread the sand of San Diego's beaches on a holiday weekend.

But supporters of the ban said the culture of beach drinking has gotten progressively worse over the years. They argued the city should follow the lead of Orange County, Los Angeles County, and most other beach cities in San Diego County. San Diego has garnered a negative reputation in the Southwest for its booze-soaked beaches, they said.

Many speakers said they admired the ban that was put in place at the La Jolla Shores and Marine Street beaches in previous years.

Randy Strunk, a surf school instructor, noted that his sales in his Pacific Beach are declining while business has picked up in La Jolla. He said it's because parents are wary about allowing their children to hang around Pacific Beach.

"I've never had a mom ask, 'Is it safe?' while booking a camp at La Jolla Shores," he said.

Michael Katz, a hotelier and shopping center operator in Pacific Beach, said the security guards he hired to patrol his properties confront an average of four problems every day as a result of drunken beachgoers.

"It's gotten to the point where I'm definitely opposed to alcohol on the beach," he said.

Although it's only temporary, the decision for a test ban paves the way for a potential showdown at the ballot box, where voters have shunned previous laws that threaten to meddle into their seaside swigging habits.

Monday's vote marks the third time in two decades the council has restricted drinking on the beach, however the earlier two council decisions never stuck. The council abandoned a 1991 ban once opponents gathered enough signatures to place the issue in front of voters.

A 2001 law, which prohibited drinking from certain beachfront stretches, was narrowly overturned in a voter referendum, known as Proposition G, a year later. While the liquor industry contributed thousands of dollars to the 2002 campaign, financial disclosures show that beach-area merchants and eateries as well as residents chipped in small amounts as well to defeat the ban.

Robert Glaser, a political consultant who fought against beach alcohol bans before, said he has been contacted by individuals who would likely want to put the question to voters, although he would not name who. The talks are still preliminary, he said.

"They're all talking to each other and occasionally talking to me," Glaser said. "It depends on how draconian the new legislation is."

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Police troopers are among 38 police officers across the state who will be honored this week for the efforts to take impaired drivers off the roadways.
Troopers Christopher Robbins and Ronald Vetovich, of the East Franklin station, will receive the 2007 DUI Top Gun Award from the Pennsylvania DUI - Driving Under The Influence Association during the organization's annual meeting at Seven Springs Resort on Thursday.

The troopers are among 24 state police troopers and 14 municipal police officers who will receive the award.

"We expect a great deal from our law enforcement officers," said C. Stephen Erni, executive director of the association. " We expect them to be counselors, teachers, medical technicians, social workers and mentors, all while expecting them to enforce the laws. Law enforcement officers deserve a thank you for their work in reducing the threat of impaired drivers on our roadways."


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"These officers make it a priority to keep our roadways safer by removing the impaired drivers," Erni said. "Their efforts to remove impaired drivers have helped make Pennsylvania a healthier and safer place to live."
Each officer will receive portable Intoximeter breath test equipment to aid them in their efforts to enforce the drunk driving laws.

The Pennsylvania DUI Association was established in 1979 to take action in support of the initiatives being undertaken to encourage and facilitate the growth of safety programs in Pennsylvania. The Association is a nonprofit, professional association which provides technical assistance and support to alcohol-highway safety professionals and other safety professionals representing the fields of highway safety.

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Jurors in Judge Carlos Cortez’ 44th District Court in Dallas have awarded $911,000 to a Dallas man who was severely injured in a December 2004 auto collision caused by another driver who was DUI / DWI / under the influence of alcohol and narcotics.

Attorney Jeff Rasansky of Dallas’ Rasansky Law Firm and firm attorney Robert Wolf represented James P. Bar in the lawsuit against defendant Brandon Robert Botts.

Mr. Bar suffered life-threatening neck and facial trauma and remained in a coma for four weeks after his car was struck by a vehicle driven by Mr. Botts in the early morning hours of Dec. 2, 2004.

The collision sent Mr. Bar’s vehicle 160 feet across three medians from the intersection of Preston Road and Legacy Drive in Plano. Tests administered by police later revealed that Mr. Botts had a blood alcohol level three times the legal limit as well as measurable cocaine and marijuana in his bloodstream. At the time of the accident, he was on probation for a DWI conviction in 2002, and is facing charges from a third DWI arrest in May of 2007.

“We hope that this verdict, and other verdicts like this one, will send a message of the dangers and damages inherent in drunk driving,” says Mr. Rasansky, lead counsel for Mr. Bar. “While he is fortunate to be alive, Mr. Bar has suffered significant physical and mental injuries and will likely have to deal with these conditions for the rest of his life.”

Mr. Bar, formerly a vice president for FedEx Kinkos, was hospitalized for more than six weeks following the accident and underwent extensive physical rehabilitation and facial surgery.

The eight-man, four-woman jury deliberated for two hours before finding Mr. Botts fully negligent in causing the collision and returned a damages award of $911,000 in favor of Mr. Bar. The Oct. 27 verdict includes $336,000 for medical expenses, loss of earning and disfigurement, $300,000 for past and future pain and suffering, and $275,000 for past and future physical impairment.

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Trial tactic works for criminal defense attorney - aware he could face disciplinary action, premier DWI / drunk driving criminal defense attorney Christopher Hoover says he did not participate in his client's 2004 trial for misdemeanor DWI - drunk driving in the hope that an appellate court would rule the client received ineffective assistance of counsel and order a new trial.

A new trial was ordered. In a 5-4 decision on Oct. 17, the Texas Court of Criminal Appeals held in Cannon v. State that Hoover's failure to participate in the trial denied Darrell Cannon's constitutional right to effective assistance of counsel.

"Defense counsel, although physically present in the courtroom at all the requisite times, effectively boycotted the trial proceedings and entirely failed to subject the prosecution's case to meaningful adversarial testing," CCA Judge Charles Holcomb wrote for the majority.

Hoover, principal in Plano, Texas' Christopher N. Hoover P.C., contends that Collin County Court-at-Law No. 3 Judge John O. Barry forced him to go to trial when he was not prepared to render effective counsel.

"The judge handcuffed me, and I really had no other choice," Hoover says of his decision not to participate in Cannon's trial.

Cannon knew Hoover intended not to take an active part in the trial proceedings. "I told Mr. Cannon that it was in his best interests not to participate in the trial, because we couldn't present a defense," Hoover says. "Mr. Cannon told me to do what I felt was in his best interests."

Hoover says he announced he was not ready for trial on the date the trial was scheduled. One of his chief concerns, Hoover says, was that an expert witness who was important to Cannon's defense was unavailable to testify at that time. According to the CCA's opinion, Hoover orally moved for a continuance, but the trial judge denied the motion.

Hoover says he had not alerted the trial court that a defense witness was unavailable, because seven cases were scheduled ahead of his case on that trial date and he had not expected to go to trial on the scheduled date. The eighth case typically is not reached, he says.

"I was not prepared to give Mr. Cannon the representation he hired me to do," Hoover says. A jury found Cannon guilty on Sept. 21, 2004.

Barry did not return three telephone calls seeking comment before press time.

Hoover says he was concerned that if he had done anything in the trial, an appellate court would not find Cannon received ineffective assistance. "If a gentleman can sleep through a trial, and that's called trial strategy, I was afraid to do anything at all," he says.

However, Hoover says he was fully aware that by refusing to provide Cannon a defense at trial the State Bar of Texas could discipline him.

"If I have to be thrown under the bus -- the bus of the Court of Criminal Appeals or the Texas State Bar disciplinary committee -- I have a duty to do that to protect my client," Hoover says.

Richardson solo John G. Tatum, Cannon's appellate attorney at the CCA, says Hoover "threw himself on his sword" to protect Cannon. "I know he ultimately was looking out for his client's interests," Tatum says. "He actually referred the case to me to do the appeal."

But John Roach, Collin County's criminal district attorney, says he's concerned that the CCA's finding of ineffective assistance of counsel in Cannon could encourage other defense attorneys to engage in the same kind of behavior.

"I think that could happen unless and until somebody is really slammed down hard for that kind of tactic," Roach says.

The CCA's opinion provided the following background on the case: Collin County prosecutors charged Cannon with misdemeanor DWI in December 2003 after he was involved in a one-vehicle accident. After several prior settings, the state brought Cannon to trial on Sept. 20, 2004.

Shortly before jury selection was to begin, Hoover presented an oral motion for continuance and a written motion to recuse Barry. Hoover alleged in the recusal motion that Barry "was not fair and impartial" in an earlier trial in State v. Dixon in which Hoover served as defense counsel for Jason Dixon. Hoover further alleged in the recusal motion that Barry "appeared to personally attack" him during the Dixon trial.

The trial court, without hearing argument, denied the motion to recuse and Hoover's subsequent motion requesting that the recusal motion "be heard by a neutral judge." Hoover then announced that he would "be unable to effectively represent" Cannon and the trial court denied the oral motion for continuance. Jury selection began but Hoover declined to participate.

According to the CCA opinion, Hoover declined to enter a plea for Cannon, announcing instead that the defense was "not ready for trial" and could "not enter a plea at [that] particular time." The trial court entered a not guilty plea on Cannon's behalf, and the prosecution made its opening statement. Hoover declined to make an opening statement and declined to cross-examine any of the prosecution's witnesses or make any objections. After the prosecution rested, Hoover declined to offer a defense, and the trial court announced, on Cannon's behalf, that the "defendant rests."

The following day, Hoover presented the trial court with a written motion for continuance. The motion alleged the need for an expert in forensic breath testing, who was unavailable at that time, to testify as to whether the deployment of the air bag in Cannon's vehicle during the accident had affected his breath-test results.

"Defense counsel did not ask for a ruling on the written motion for continuance, however, and, so far as the record shows, the trial court did not make one," Holcomb noted in the CCA's opinion.

As noted in the CCA's opinion, Hoover also made an oral motion for an instructed verdict of "not guilty" on the ground that the prosecution's evidence was insufficient to prove that Cannon drove or operated the van involved in the accident or that he was intoxicated at that time.

The trial court denied that motion but gave Hoover an opportunity to reopen the case and recall witnesses who had testified previously. Hoover again stated that he was inadequately prepared to render effective legal assistance and repeated his announcement that he was not ready for trial, Holcomb wrote.

After the prosecution made its closing argument, Hoover declined to make an argument. The jury deliberated for 15 minutes before finding Cannon guilty. The trial court assessed Cannon's punishment at 90 days of confinement, probated for 18 months, and a fine of $1,000.

Represented by Plano solo Pamela J. Lakatos, Cannon appealed to the 5th Court of Appeals in Dallas, arguing for the first time that he was denied his Sixth Amendment right to effective assistance of counsel under the U.S. Constitution, because his trial counsel refused to participate in the trial. Lakatos says she knew when she took Cannon's case on appeal that Hoover had purposely sat out the trial.

"I saw Mr. Hoover do that," Lakatos says. "He was placed in a box."

Lakatos says Cannon's case was the eighth on the docket on the date it was scheduled for trial. The lawyers in the other cases announced they were ready for trial, she says.

"The judge decided Mr. Hoover's case would go," Lakatos says.

She notes she did not continue representing Cannon after the 5th Court ruled in the case because she did not have time to do a petition for discretionary review at the CCA.

Holcomb noted in the CCA's opinion that Cannon based his allegation of ineffective assistance in his appeals on the U.S. Supreme Court's 1984 decision in United States v. Cronic, a case in which the defendant's attorney withdrew shortly before trial and the trial court appointed a young attorney who had only 25 days to prepare for trial. In Cronic, the high court held that the right to effective assistance of counsel requires meaningful adversarial testing of the prosecution's case.

Cannon also based his appeals on 1984's Strickland v. Washington, in which the U.S. Supreme Court held that an appellant claiming ineffective assistance of counsel must show that the trial attorney's performance was so deficient that an unfair verdict was returned.

In an unpublished opinion, the 5th Court affirmed the trial court in 2005, holding that Cannon did not meet the requirement under Cronic to show that his defense did not test the prosecution's case in any meaningful way. The Dallas appeals court also found that Cannon did not provide a record sufficient under Strickland to show that specific errors by Hoover hurt his defense.

"Although defense counsel at various times stated he was 'not ready,' 'unprepared' and 'could not effectively represent his client,' Appellant [Cannon] points to no specific errors of counsel that prejudiced appellant, except for the lack of cross-examination. Often the decision to not cross-examine is the result of wisdom acquired by experience in the combat of trial," retired Justice Sue Lagarde, sitting by assignment, wrote for the 5th Court. Justices Kerry FitzGerald and Molly Francis joined in the decision.

Cannon, represented by Tatum, filed a petition for discretionary review with the CCA in July 2005. In the usual case in which an ineffective-assistance claim is made, the record on appeal is not sufficient to show that a trial lawyer was so deficient and lacking in tactical or strategic decision-making to overcome the presumption that counsel's conduct was reasonable and professional, according to the CCA's opinion.

"This is one of those rare cases," Holcomb wrote.

The CCA held that Hoover's behavior, considered as a whole, denied Cannon his right to effective assistance.

"By his refusal to participate, defense counsel abandoned his role for the defense and caused the trial to lose its character as a confrontation between adversaries. Prejudice to the defense is legally presumed," Holcomb wrote in the opinion.

CCA Presiding Judge Sharon Keller and Judges Lawrence Meyers, Mike Keasler and Barbara Hervey dissented without writing an opinion.

Tatum says the CCA's decision in Cannon is notable, because courts rarely find on direct appeal that a defendant has been denied his right to effective assistance of counsel. An ineffective assistance claim generally is not developed well enough on direct appeal for a court to make that finding, he says. Defendants typically have more luck arguing ineffective-assistance claims when they file applications for writs of habeas corpus and trial courts hold hearings on the claims.

The CCA reversed the 5th Court's decision and remanded the case to the trial court for further proceedings.

Roach, the Collin County DWI criminal district attorney, says that if the facts will support a drunk driving conviction, prosecutors will retry Cannon.

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Charges have been dismissed against an Illinois State Police trooper arrested on suspicion of drunken driving after crashing his squad car .

Jasen Woo of Chicago, who was in Springfield to work at the Illinois State Fair, was arrested after driving his car into a utility pole and pay phone on the 1600 block of Peoria Road at 4:30 a.m. on Aug. 11. He refused to perform field sobriety tests and also refused to take a breath test.

However, about 90 minutes after the accident, his superiors ordered him to take a breath test as a condition of his employment, according to Woo's lawyer, Tim Timoney.

That test showed Woo had a blood-alcohol content of .04 percent, well below the .08-percent threshold at which drivers are presumed drunk.

With such a low blood-alcohol content, the burden shifted to prosecutors and police to prove Woo was drunk and that officers had sufficient evidence to require the trooper to take a breath test. Under state law, Timoney said, drivers are presumed fit to drive with blood-alcohol contents below .05 percent.

"The evidence was that he had con-_sumed alcohol, he had bloodshot eyes, and he was involved in the accident," Timoney said.

Police who have reasonable suspicion that a driver is intoxicated can require them to take a breath test, and the driver automatically lose their license for six months if he or she refuses. But in a September hearing, Associate Circuit Judge Robert Hall ruled that the evidence against Woo didn't amount to reasonable suspicion.

The trooper had worked until 1:30 a.m., which explained his bloodshot eyes, Timoney said. As for the accident, Woo told officers he had been distracted by a cell phone conversation.

Hall also quashed Woo's arrest, meaning prosecutors could not use any evidence obtained as a result of arresting the trooper.

In essence, Timoney used the results of a breath test ordered by Woo's commanders to show he shouldn't have to take a breath test in the criminal investigation.

Steve Weinhoeft, first state's attorney, called the case ironic.

"Had he taken the breath test on the front end, he never would have gotten a DUI (charge) to begin with," Weinhoeft said. "He wouldn't have gotten the summary (license) suspension, we would have all gone on our way and he would have saved himself some attorney's fees."

On Oct. 15, prosecutors moved to dismiss the case for lack of evidence. Woo was found guilty of failing to reduce speed to prevent an accident and was fined $155 and given 30 days of court supervision.

State police can require employees to take breath tests if they are suspected of drinking on the job or driving a state-owned vehicle after drinking. Timoney said he did not know the status of Woo's employment.

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Medication blamed for drink-drive breath test

03.11.2007


Mr. Harith hadn't had a drop of alcohol for several months so he was shocked to find his blood-alcohol level was 0.115% when he was random breath tested.

The only possible explanation was that he was on special medication for epilepsy.

Six days after his drink-driving arrest he went to a doctor for a blood test and his reading was still 0.093%.

And another 11 days later his reading fell to 0.010%.

"He had not consumed any alcohol at all for a number of months," solicitor Peter McLachlan, of Becky, Knight and Elliott said.

"We don't know how the alcohol came to be in his system.
"This is a first for me. I've never heard of it."
Harith, 45, a Sydney-based food and beverage manager for a cruise ship, pleaded guilty yesterday to drink-driving on Mackay-Bucasia Road at Rural View on October 6. The court heard that Harith was a British citizen but held an American driver's licence, from the state of Florida, and was planning to apply for Australian citizenship.

An American doctor prescribed medication but did not warn him that it might affect the blood-alcohol levels in his system.

Magistrate Ross Risson said Harith's case was not usual and was rare.

"Clearly science doesn't know everything," Mr Risson said. Harith was fined $300 and was disqualified from driving for three months.

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Two men arrested for speeding, DUI in same Ferrari

Drunk Driving cops arrested two men for speeding and DUI in the same rare Ferrari, thanks to the help of a State Patrol airplane.

A State Patrol airplane allegedly saw a 2005 Ferrari F430 with a clear engine hood speeding on Highway 520 near the interchange with Highway 405. The vehicle was allegedly weaving through traffic and increased its speed as it drove onto the Evergreen Point Floating Bridge.

Troopers on the ground pulled the vehicle over in Seattle and arrested the driver, a 35-year-old Monroe man, on suspicion of reckless driving and DUI / drunk driving.

The vehicle's owner, a 31-year-old Woodinville man who was also allegedly intoxicated, was a passenger in the car when it was pulled over. The owner waited until a tow truck arrived and troopers left with the original driver. He then sent the truck away and got into the driver's seat.

The State Patrol airplane was still overhead. The Woodinville man was pulled over a short distance away, arrested and cited on suspicion of DUI and obstructing a police officer. The Ferrari was impounded but may be a source of future DUI criminal defense lawyers.

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A married couple — first the husband, then his wife — were arrested within hours, each on suspicion of DUI or drunk driving.

Ypsilanti police say they stopped the man and gave him a preliminary breath test after watching him allegedly run a red light the other night.

Police said it registered above the 0.08 percent blood-alcohol limit. He had his 12-year-old son in the car with him.

Police told the boy to call his mother to pick him up.

After she arrived, with her 9-year-old daughter in the car, the woman was tested and found to be above the legal limit, police say.

Both children were turned over to a relative until the parents were determined to be sober or not DUI & not drunk.

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Prohibition Returns!
Teetotaling do-gooders attack your right to drink

On a May night in 2005, Debra Bolton, a lawyer and single mom from the Washington suburb of Alexandria, Virginia, was leaving the Café Milano in Georgetown after socializing with some friends. She had driven her SUV only a few hundred yards before she was pulled over by D.C. police for driving with the headlights off. She told the officer the parking attendant at Café Milano probably had turned off her vehicle's automatic light feature.

Not mollified, the officer asked Bolton to step out of the car, walk in a straight line, recite the alphabet, stand on one foot, and count to 30. He checked her eyes for suspicious jerkiness and insisted on a breath test for alcohol.

The breath test revealed that Bolton's blood alcohol content (BAC) was 0.03 percent, a level a 120-pound woman could expect after drinking one glass of wine. It was well below the 0.08 percent limit that marks a driver as legally intoxicated in D.C. It was not low enough for the arresting officer, however. This middle-aged mother of two, who hadn't drunk to excess, who hadn't run a red light or run a stop, was arrested, handcuffed, and fingerprinted for an innocent mistake. She sat in a jail cell for hours and was finally released at 4:30 a.m. Bolton spent four court appearances and over $2,000 fighting a $400 ticket. She then spent a month fighting to get her license back after refusing to submit to the 12-week alcohol counseling program.

The arresting officer, inaptly named Dennis Fair, insists: "If you get behind the wheel of a car with any measurable amount of alcohol, you will be dealt with in D.C. We have zero tolerance... .Anything above 0.01, we can arrest." Fair recognized that nearly everyone in D.C. was unaware of this zero tolerance policy. Still, he told The Washington Post, if "you don't know about it, then you're a victim of your own ignorance."

Bolton's arrest was not the result of a single cop's overzealousness. In 2004 D.C. police arrested 321 people with BACs below the legal limit of 0.08 percent for driving under the influence. The year before, the number was 409.

After the Bolton incident, James Klaunig, a toxicology expert at the Indiana University School of Medicine, told The Washington Post, "There's no way possible she failed a [sobriety] test from impairment with a .03 blood alcohol level." Fair had claimed that Bolton swayed and lost her balance when taking the sobriety test, triggering the breath test.

A BAC test, one of the main tools used by law enforcement to catch drunk drivers, determines how much alcohol is present in the bloodstream. A BAC of 0.08 percent, for instance, means 0.0008 of your blood is alcohol. At that level, though, you're hardly slurring your words or staggering.

In 2000 President Clinton signed a federal law aimed at pressuring states to lower their BAC limits from 0.1 percent to 0.08 percent. States that didn't go along were threatened with the loss of federal highway funds. Karolyn Nunnallee, president of Mothers Against Drunk Driving (MADD), predicted that a nationwide 0.08 percent standard "will save nearly 600 lives every year."

It hasn't worked out that way. In the July 2007 issue of Contemporary Economic Policy, Sam Houston State University economist Donald Freeman examines the most recent data available and concludes "there's no evidence that lowering the BAC limits...reduced fatality rates, either in total or in crashes likely to be alcohol related." This is true, he found, both in states that adopted a 0.08 percent BAC standard on their own and in states that did so under federal pressure.

During the last decade, according to the National Highway Traffic Safety Administration (NHTSA), alcohol contributed to between 16,000 and 17,000 traffic-related fatalities a year, about two-fifths of the total such deaths. It used to be a good deal worse. Back in 1982, three-fifths of all traffic related fatalities were attributed to alcohol. Since then, ad campaigns and education have raised public awareness about the dangers of driving smashed. States have instituted stricter punishment for drunk driving, and law enforcement officials are also better prepared to ferret out drunk drivers. A lot of the credit must be given to the hard work MADD did in educating the public about the menace of drinking and driving.

But the decline in alcohol-related deaths persisted only until 1997. Since then the vehicular death toll attributed to alcohol has remained stable at around 40 percent. This stagnation in drunk driving deaths has caused considerable consternation among activists and law enforcement officials. Lately, the fight against drunk driving has shifted from serious alcohol abusers with no regard for the law toward responsible drinkers.

Neoprohibitionists aim to muddle the distinction between drunk diving and driving after drinking any amount of alcohol. Sen. Barbara Boxer (D-Calif.) endorsed the idea at a Senate Environment and Public Committee hearing way back in 1997, contending that we "may wind up in this country going to zero tolerance, period." Former MADD President Katherine Prescott concurred, in a letter to the Chicago Tribune, where she stated "there is no safe blood alcohol, and for that reason responsible drinking means no drinking and driving."

Technically she's correct. Driving is never completely safe, and many things drivers commonly do-including speaking on a cell phone, talking to passengers, applying lipstick, eating a sandwich, drinking coffee, adjusting the radio, reprimanding the kids in the back seat, and daydreaming about weekend plans-can make it riskier. As states and cities have begun focusing on zero tolerance (or "driving while distracted" laws, which target the diversions laid out above) they are losing focus on the real threat, namely habitually drunk drivers.

Drinking is under attack these days in ways we haven't seen since the failed experiment with national alcohol prohibition in the 1920s. Indeed, for many neoprohibitionists, that experiment wasn't a failure at all, since it did cut alcohol consumption, which is all that matters. We can see that mentality today in policies that go beyond preventing drunk driving or punishing drunk drivers and aim to discourage drinking per se.

Founder's Remorse
Although alcohol nannies generally support zero tolerance, one dissenting voice doesn't. "I thought the emphasis on .08 laws was not where the emphasis should have been placed," Candace Lightner told the Los Angeles Times in 2002. "The majority of crashes occur with high blood-alcohol levels, the .15, .18 and .25 drinkers. Lowering the blood-alcohol concentration was not a solution to the alcohol problem."

Lightner's views can't be easily dismissed by anti-alcohol activists. In 1980 her 12-year-old daughter, Cari, was killed by a hit-and-run driver on a suburban street in Southern California. When the perpetrator was apprehended, he was drunk. It turned out he had been convicted of driving while intoxicated four previous times-once just days before he killed Lightner's daughter. Even after his fifth, fatal offense, he received just a two-year sentence and avoided prison by serving time in a work camp and a halfway house.

The light sentence her daughter's killer received spurred Lightner to "fight to make this needless homicide count for something positive in the years ahead." She did that by founding MADD in 1980. She changed the world for the better by raising public awareness about the serious nature of drunk driving and promoting tough legislation against the crime. Due to Lightner's potent grassroots work, aggressive campaigning, and popularization of the concept of designated drivers, MADD grew rapidly in its first five years. By 1985 it boasted 364 chapters, 600,000 members, and a $12.5 million budget.

Lightner has moved on from MADD, and since then has protested the shift from attacking drunk driving to attacking drinking in general. "I worry that the movement I helped create has lost direction," she told The Cleveland Plain Dealer in 1992. BAC legislation, she said, "ignores the real core of the problem....If we really want to save lives, let's go after the most dangerous drivers on the road." Lightner said MADD has become an organization far more "neoprohibitionist" than she had envisioned. "I didn't start MADD to deal with alcohol," she said. "I started MADD to deal with the issue of drunk driving."

While it seems safe to assume that nearly every parent in the United States opposes drunk driving, the same cannot be said for MADD's efforts to stop drinking. Neither is every politician on board. In October 2005, responding to noisy complaints from local residents and negative national publicity, the D.C. Council decided, by a 9-3 vote, to abandon the zero tolerance policy that snared Debra Bolton. "D.C. is once again open for business," said council member Carol Schwartz. She said visitors "can come in and have a glass of wine and not be harassed or intimidated. "
That's good news. Sadly, it's not the case everywhere.

Ignition Failure
More than 40 states require convicted drunk drivers to install ignition interlock devices: The driver breathes into a tube attached to the device, and if his blood alcohol concentration is measurable the vehicle won't start. Considering the high recidivism rate among drunk drivers, the interlock system may be a reasonable preventive measure for those who have proven they pose a danger to others. But what about people who have never been arrested, perhaps never even had a ticket, or who never drink under any circumstances? Can they be trusted to start their cars without taking a breath test?

In 2004 New Mexico state Rep. Ken Martinez (D-Grants) introduced a bill that would have forced every driver in his state to install an ignition interlock device. In addition to the indignity and inconvenience of breathing into a tube every time they start their cars, this requirement would cost drivers about $1,000 each to install the device, according to estimates by the states that require them. Incredibly, the bill breezed through the state's House of Representatives by a 45-to-22 vote. "Honestly, I put forward this bill to start some dialogue," Martinez told Wired.com. "And it became a very thought-provoking process....We want New Mexico to be a leader at using technology to curb some societal ills."

The New Mexico Senate, thankfully, let the bill die. But soon legislators in New York and Oklahoma were making noise about a universal interlock requirement. "If the public wants it and the data support it, it is literally possible that the epidemic of drunk driving could be solved where cars simply could not be operated by drunk drivers," Chuck Hurley, MADD's executive director, told USA Today in 2006. "What a great day that would be."

Pre-emptive War on Drunk Driving
Unfortunately, there is considerable precedent for such pre-emptive measures. In 2005 a Pennsylvania court rejected an appeal from a man whose driver's license was revoked by the state after he told doctors he knocked back more than a six-pack of beer a day. State law requires doctors to report any of a patient's physical or mental impairments if the doctors think it could compromise his ability to drive safely. Keith Emerich hadn't gotten in any legal trouble, related to drinking, driving, or anything else, and his job attendance was as exemplary. Yet a three-judge Commonwealth Court panel said the Pennsylvania Department of Transportation was justified in taking away Emerich's license-not because he had driven while intoxicated but because he might.

Numerous anti-DUI law enforcement tactics now taken for granted are not only unduly invasive but ineffective. Consider roadblocks, a well-intentioned preventive measure that does little more than waste time and create pollution. This form of anticipatory law enforcement intimidates social drinkers and fails to address hardcore drunks, who often simply avoid roadblocks, turning on side streets when they see the flashing sideshow ahead. It targets those who aren't driving recklessly, haven't had a single drink, and have places to go.

According to numerous studies and reports dating back to 1987, the chance of getting picked up at a roadblock for being intoxicated is minuscule. MADD is nonetheless an enthusiastic supporter of sobriety checkpoints. It claims roadblocks reduce fatal alcohol-related crashes by as much as 20 percent. Yet recent fluctuations in such crashes have no correlation with states that do or don't use checkpoints.

During the Christmas season of 2003 in Fairfax County, Virginia, a suburb of Washington not far from the site of Debra Bolton's arrest, local police took pre-emptive law enforcement to an absurd extreme, launching a sting operation that targeted 20 local bars and restaurants. The mission: apprehend "drunk" patrons before they try to drive. These drinkers were far from their cars and in some cases did not even own cars. What type of evidence did the police use to measure intoxication? According to one law enforcement official involved in the sting, the determination could be made based on unflicked cigarette ashes, an excessive number of restroom visits, noisy cursing, or a wobbly walk.

The raids involved 10 cops in SWAT-like outfits. In an interview with The Reston Times, the general manager of one targeted establishment said "they tapped one lady on the shoulder-who was on her first drink and had just eaten dinner-to take her out on the sidewalk and give her a sobriety test. They told her she fit the description of a woman they had complaints about, and that they heard she was dancing topless."

In one raid, of the 18 drinkers tested for sobriety, nine were hauled to jail for public intoxication. When asked to explain the rationale for the raids, then-Fairfax County Police Chief J. Thomas Mange declared that you "can't be drunk in a bar." Where can you be drunk? "At home. Or at someone else's home. And stay there until you're not drunk."

Following the logic of such operations, watching television under the influence in your own home may soon be grounds for paramilitary raids. A Super Bowl party, a wedding shower, or a bachelor party can attract dozens of guests, many of whom will be drinking. Why not target those people as well? They have cars.

It's true that "public intoxication" is illegal. So is jaywalking. Police should use common sense, allocating their resources to protect citizens as efficiently as possible. It's hard to believe the most pressing problem in all of Northern Virginia that night was an inebriated and allegedly topless woman.
The immediate effect of hauling a few boozy bar patrons down to jail is insignificant. But the alcohol nannies are counting on the long-term impact: Once word gets out, people will be less inclined to get sloshed anywhere, anytime.

Such policies sometimes backfire. After the Fairfax County raids, the entire city council of Herndon, Virginia, criticized the practice of targeting law-abiding businesses and drinkers. "It is the unanimous opinion of the council that police overstepped their bounds and overreacted, " one member said.

Yet numerous states and municipalities are experimenting with Fairfax-style intimidation. In 2005 the Texas Alcoholic Beverage Commission warned that it would be conducting "Sales to Intoxicated Person Stings" in various parts of the Lone Star State. "We believe responsible adults should drink responsibly, " said Heather Hodges, a MADD victims advocate involved in planning the operation, in a MADD press release. "A bar is not intended to be a place to get fall-down drunk." In March 2006, one of the first sting operations was conducted in a Dallas suburb where agents infiltrated 36 bars and arrested 30 people for public intoxication.

"It's killed our business," one Dallas bar owner told a local TV station. "People are scared to come out. I don't even drink, and I'm scared to go out, and it's not right. We don't want to put drunks on the road, but we don't want people to be afraid to do something that's legal. If they don't want people drinking, they should outlaw alcohol."

Bar None
MADD officials say they "strongly support" the right of alcohol-related crash victims to seek "financial recovery from establishments and servers who have irresponsibly provided alcohol to those who are intoxicated or to underage persons, or who serve past the point of intoxication individuals who then cause fatal or injurious crashes."

I'm not sure if any MADD leaders have been to a saloon lately, but the local Cheers-style tavern where everyone knows your name is all but dead. In large cities, working at a bar can mean serving alcohol to hundreds, if not thousands, of patrons each night. Once we train servers to double as psychics, MADD's liability principle will make sense. Until then, we can have mandatory breath tests for patrons. Once again, the neoprohibitionists stand for seemingly sensible policies that in practice make the sale and consumption of alcohol nearly impossible.

Most states have dram shop liability laws, which generally allow lawsuits to be brought by those injured by an inebriated person against the establishment which contributed to that person's intoxication. In Texas minors can sue a drinking establishment for their own injuries should they get their hands on enough alcohol to be intoxicated and hurt themselves. Under Illinois law, plaintiffs don't even have to prove a bartender was aware of the consumer's inebriation. In other states, dram shop liability extends to serving the "habitually intoxicated, " who will be a cinch to identify for all those clairvoyant bartenders.

If getting drunk in a bar is to be forbidden, it makes sense to ban happy hour. Back in 1984, the Massachusetts legislature banned the practice of offering cheaper drinks during the traditional "happy hours" of 4 p.m. and 7 p.m.-or any other time. That law kicked off a wave of happy hour restrictions around the country. From Ohio, where bars were compelled to end two-for-the- price-of- one premiums at 9 p.m., to West Virginia, where bars must have food available during happy hours, to Mississippi and Oregon, where happy hours are still allowed but cannot be advertised, happiness is being snatched from law-abiding Americans across the land.

Such laws often have unintended consequences. When a 1990 Illinois law banning "happy hours" took effect, bars came up with a creative solution, changing "happy hours" to the even better "happy days." A "happy day" means reduced prices on drinks for the entire day, since the price of drinks cannot be legally changed during any one business day.

On its website, MADD condemns "Practices Which Encourage Excessive Alcohol Consumption, " including happy hours, ladies' nights, and any fluctuations in prices that bring in consumers during what are usually slow hours. The group calls upon the "hospitality industry to voluntarily end all practices associated with excessive alcohol consumption. " As a backup, MADD also supports the legal prohibition of such practices in all 50 states.

Sometimes bars want the state to help stop practices consumers love. Bar crawling is common in cities like New York, Chicago, and Los Angeles. Friends, typically in their 20s and 30s, get together and go from bar to bar. To attract such groups, some bars offer unlimited drinks for a fixed price. In 1999 New York Gov. George Pataki signed into law a ban of the practice, asserting that it encourages "irresponsible binge-drinking. "

Even if that's true, adult binge drinking is none of Pataki's business, since adults have the right to get smashed as long as they don't hurt anyone else. But bar and nightclub owners didn't mind when Albany prevented them from engaging in this sort of expensive price war. The pubs' chief trade group lobbied strenuously to get the state to stop the practice.

Alcohol nannies also have targeted sporting arenas, blaming alcohol for every brawl or other instance of misconduct by fans. George Hacker, director of alcohol studies at the Center for Science in the Public Interest, suggests several solutions, including a ban on selling beer in the stands, a reduction in the size of a beer serving from 16 to 10 ounces, a 3.2 percent limit on beer alcohol content, the elimination of beer signs, and aggressive police identification of "people who are obviously intoxicated. " Although brawls occur at a tiny percentage of sporting events, alcohol nannies latch onto them as an excuse to interfere with the enjoyment of millions of fans.

Drinking may not be a prerequisite for a happy life, but it's a ritual most Americans have enjoyed as long as the nation has existed, and harmlessly so in the overwhelming majority of cases. Although I'm not an exceptionally heavy drinker, I can't, and don't want to, imagine a life without alcohol. As long as I'm not endangering anyone else, I shouldn't have to.

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Breaking Up the Forensics Monopoly
Eight ways to fix a broken system

Roger Koppl | November 2007

America’s forensics system, the part of our criminal justice system responsible for scientific examinations of crime-scene evidence like fingerprints and DNA, is rife with errors. Some mistakes, like botched tests or erroneously interpreted results, are inevitable. But current error rates are needlessly high. The most recent comprehensive study of crime lab proficiency, published by the Journal of Forensic Sciences in 1995, analyzed the tests administered by the Forensic Sciences Foundation and Collaborative Testing Services as a part of the accreditation process. For many forensic disciplines, including the analysis of fibers, paints, glass, and body fluid mixtures, the rate of incorrect matches between recovered evidence and a reference sample exceeded 10 percent.

The best-performing group of disciplines, which included “finger and palm prints, metals, firearms, and footwear,” had error rates at or above 2 percent. The first item on that list is especially important: False fingerprint identification usually leads to a false conviction, because of the prestige of fingerprint evidence and its undeserved reputation for infallibility. With 238,135 requests for latent fingerprint comparisons in 2002 alone, a false positive error rate of 2 percent implies up to 4,800 false convictions or guilty pleas made in hopes of a lighter sentence each year in the U.S., 1,700 of them in felony cases. (The number of improperly matched fingerprints is not completely clear. A 2005 study of fingerprint analysis suggests that the false positive rate may now be as low as 0.8 percent. But another recent study suggests it could exceed 4 percent.)

Confronted with such statistics, policy makers usually call for greater oversight—that is, finding a governmental body to watch over forensics and make sure everyone does his or her job right. In the current climate, that certainly would help. But the core problem with modern forensics isn’t an absence of oversight. It’s monopoly. Once evidence goes to a given lab or facility, it is unlikely to be examined by any other lab or facility. That increases the chances that a mistake will slip through undetected.

With the right reforms, we can break down that monopoly and create a working system of checks and balances. Here are eight steps to a better system:

1. Rivalrous redundancy. A jurisdiction should contain several competing forensic labs. To the extent that it’s feasible, some evidence should be chosen at random for multiple testing at other labs. The same DNA evidence, for example, might be sent to three labs for analysis. The forensic scientist would not know when a given piece of evidence was being examined by another lab.

For fingerprints, multiple examinations should be routine. If the rate of false positive fingerprint error is 2 percent, triplicate examinations would eliminate 96 percent of false felony convictions due to misidentified fingerprints.

2. Independence. Coroners and forensic scientists often have a pro-police bias, thinking of themselves as a part of the prosecution team. To establish their independence from police and prosecutors, crime labs should be organized by the courts, not the cops.

3. Statistical review. Statistical review would lead to improved quality control. For example, if a given lab produces an unusually large number of inconclusive findings, its procedures and practices should be examined by an officer of the court.

4. Masking. When conducting forensic analyses, coroners and forensic scientists should be shielded from what psychologists call “domain-irrelevant information.” Knowing whether the case at hand is, for example, a murder or a burglary exposes a fingerprint examiner to a powerful unconscious bias: The emotional nature of a murder case tends to make the scientist eager to get a killer off the streets and more likely to declare a match. In a 2006 study by researchers at the University of Southampton, domain-irrelevant information doubled the error rate of experienced fingerprint examiners.

5. Forensic counsel for the indigent. Although forensic science decides many criminal cases, we do not have a right to forensic counsel similar to our right to legal counsel. Just as an indigent defendant has a right to the help of a qualified attorney, an indigent defendant should have the right to the help of a scientist qualified to interpret forensic analyses.

6. Forensic vouchers. An indigent suspect on trial should also have the right to select his own forensic counsel and use a government-issued voucher to pay for it. The forensic scientist who accepts the case would later redeem the voucher at the courthouse, receiving his paycheck from an officer of the court. Such a system would give forensic counselors to the poor an incentive to provide high-quality services.

7. Division of labor between forensic analysis and interpretation. A forensic scientist who conducts a blood test, for example, should not say whether the test excludes the suspect. The interpretation of the test should be made by other forensic scientists. When a lab report comes back, it should be transmitted to two forensic scientists—one representing the prosecution and one representing the defense—for interpretation. Combined with public funding of forensic experts for defendants who cannot afford them, this will make it less likely that errors of interpretation will go unchallenged.

8. Privatization. Private labs are subject to civil liability and administrative fines for poor performance. They therefore have stronger financial incentives than publicly owned enterprises to provide good and reliable work.

While those eight reforms would establish a system of competitive self-regulation, they are not an exhaustive description of good forensic practice. For example, labs should be accredited by groups such as the American Society of Crime Laboratory Directors’ Laboratory Accreditation Board, and they should have routine procedures to measure variables related to quality and a planned system of review to allow those procedures to be updated regularly.

These eight steps would also reduce the costs of the criminal justice system. The extra cost of multiple forensic tests is dwarfed by the savings associated with reduced jail time for the wrongly convicted. For example, the $100 cost of a fingerprint examination is one one-thousandth of the cost of incarcerating a wrongly convicted felon who has been given the average sentence of almost five years.

In Federalist No. 51, James Madison endorsed a “policy of supplying, by opposite and rival interests, the defect of better motives,” in order “to divide and arrange the several offices in such a manner as that each may be a check on the other; that the private interest of every individual may be a sentinel over the public rights.” It is time to make the private interest of every coroner, every medical examiner, and every forensic scientist a sentinel over the public rights.


Excellent source: Roger Koppl, a professor of economics and finance at Fairleigh Dickinson University, is the founder and director of the university’s Institute for Forensic Science Administration (IFSA) and author of “CSI for Real: How to Improve Forensic Science,” a forthcoming study from the Reason Foundation. IFSA’s website, http://www.alpha.fdu.edu/~koppl/ifsa.html, contains more information on competitive self-regulation. Explore his information today.