San Diego DUI attorney news


LA MESA – The City Council voted Thursday to investigate the actions of its police department when officers took an apparently intoxicated Mayor Art Madrid home after he was found lying on a sidewalk near his SUV.

The 3-1 vote, with Madrid abstaining, came during a raucous, 3½-hour special meeting during which both the mayor's supporters and critics frequently made their stances known through loud applause and shouts.

Councilwoman Ruth Sterling cast the lone dissenting vote, saying she was concerned about spending city money on an investigation.

Police Chief Alan Lanning presented a detailed report of the facts surrounding the Feb. 20 incident, which also involved city finance department employee Trisha Turner, who was found in the driver's seat of Madrid's parked Ford Explorer. The vehicle was running and Turner's feet were outside the door. Neither was cited by police, who arrived at the scene after being alerted by a 911 caller.

Lanning said Madrid could have been arrested on suspicion of public intoxication and Turner on suspicion of driving under the influence, both misdemeanors. The chief reiterated that it was the officers' discretion whether or not to make an arrest.

“Absent a domestic violence case, the department has no rule or policy mandating arrest,” Lanning said. “We feel that an independent investigation will very much serve the public interest.”
Councilman Dave Allan called for an investigation at the beginning of the meeting, saying he hoped it would clear the reputation of the police department, which he said has been unduly criticized on allegations that the mayor was shown favoritism because he was not arrested.

Allan said he would personally contact the San Diego County District Attorney's Office and the county grand jury to request an inquiry.

“The city has been in total turmoil all week,” Allan said. “We gotta get back on track.”

Further, City Manager Sandy Kerl was instructed to hire a private investigator to look into the incident.

Madrid let Vice Mayor Ernie Ewin chair the meeting and sat quietly throughout it, at times wiping tears. At the start, he again apologized for his “embarrassing” behavior and noted the reaction in the community, which he compared to the volcanic eruption of Mount St. Helens. He said city employees, the police department and the city's reputation have all been damaged.

“Nothing in its path was unscathed,” Madrid said. “In this case, the police department is one of the injured.”

About 100 people attended the meeting, and about 40 of them addressed the council. Many in the overflow crowd listened outside the council chamber via a loudspeaker. The majority supported the mayor and said the incident was blown out of proportion.

“I've never felt embarrassed by the mayor,” said Tim Gustafson, a 15-year resident. “I accept your apology, mayor, and I consider this matter closed.”

Critics continued to press that Madrid was given preferential treatment and called for his resignation. If he does not, a recall campaign to oust him from office will begin, they said.

“I have inferred that the La Mesa Police Department has a chauffeur policy,” said Keith Barnett, talking about the fact that officers took the mayor home. “I believe our (police) are better used patrolling the streets fending off criminals rather than driving irresponsible individuals home.”

A 911 call to La Mesa police on Feb. 20 directed officers to Chicago Drive, near Denver Drive, in the Eastridge neighborhood around 10:30 p.m. Madrid and Turner appeared intoxicated, the officers told Lanning. They had vomited around the SUV, which was legally parked on the road. Neither was given a San Diego DUI / sobriety test.

The officers then drove the pair to Madrid's home, which was about a block away, unlocked the mayor's front door with his keys and left.

Lanning repeated that his officers have driven other intoxicated individuals home under similar circumstances.

The police chief also confirmed a criminal investigation is ongoing into whether Turner will be charged with San Diego DUI / drunk driving.

DUI / drunk driving criminal defense attorney news

More than two decades after the United States established a uniform legal drinking age of 21, some states are looking at lowering the age as low as 18 in certain circumstances.

Vermont is the latest state to formally explore the issue. The state Senate has approved a bill to have a task force weigh the pros and cons of rolling back the drinking age.

Proponents of the measure say the current law doesn't work and forces young people to binge drink outside of the public eye.

Mothers Against Drunk Driving and others claim a lower drinking age would be foolish to consider. They say the 21-year-old age limit has saved thousands of lives since it was enacted in 1984.

The law requires states to set the drinking age at 21 or lose federal transportation funding.

In South Dakota, a bill has been drafted to allow 19-and 20-year-olds to legally buy beer no stronger than 3.2 per cent alcohol.

In Missouri, a group is using the Internet social networking sites Facebook and Meetup to try to collect more than 100,000 signatures to get a measure on the ballot to lower the drinking age to 18.

In South Carolina and Wisconsin, lawmakers have proposed allowing active duty military personnel younger than 21 to buy alcohol. A similar proposal was rejected last year in New Hampshire.

San Diego DUI lawyer news


Notre Dame tight end Will Yeatman has pleaded guilty to misdemeanor charges of DUI and reckless driving stemming from a Jan. 28 arrest on campus.

Yeatman's plea is part of a deferred DUI sentencing agreement filed Monday in St. Joseph County (Ind.) Superior Court. According to court documents, Yeatman pleaded guilty to a Class C misdemeanor for DUI -- operating a motor vehicle with a blood alcohol level of at least .08 but less than .15 -- as well as a Class B misdemeanor for reckless driving.

As part of the DUI agreement, a third charge, misdemeanor criminal recklessness, was dismissed.

Notre Dame police arrested Yeatman at 2:49 a.m. on Jan. 28 after he allegedly drove his car on a campus sidewalk. The sophomore, who also plays lacrosse for the Fighting Irish, was indefinitely suspended from both the football and lacrosse teams.

The DUI plea agreement requires Yeatman to complete court-recommended counseling or treatment, pay all supervisory costs of the program and submit urine tests to the After the Crime program. He must pay for and install a Breathalyzer in his car for 180 days and would violate the agreement if he has a reading of more than .02 percent or attempts to start the car with a reading of more than .04 percent.

Yeatman also must attend a victim impact panel called "Bryan's Legacy," where victims of DUI / drunk driving or the survivors of victims discuss their stories.

The terms are standard for misdemeanor DUI cases, said Catherine Wilson, a spokeswoman for the DUI attorney prosecutor's office.

If Yeatman fulfills the terms and doesn't commit a crime during the one-year agreement, the state will dismiss the DUI charge and enter a conviction for misdemeanor reckless driving, which can carry a jail sentence of up to 180 days. He's scheduled to appear in court Feb. 25, 2009, for a DUI status hearing.

When asked about Yeatman on Feb. 8, Weis said, "I hope he's back with us this season." Yeatman is a San Diego native, graduate of Rancho Bernardo H.S.

San Diego California DUI news

Filed 2/27/08 P. v. Gonzalez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.

ALBERTO GONZALEZ,

Defendant and Appellant.
E042128
(Super.Ct.Nos. FVI023053 &

CRA4222)

OPINION


APPEAL from the Superior Court of San Bernardino County. Stephen H. Ashworth, Judge. Dismissed.

Frederick A. Hurst, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Landendorf, Supervising Deputy Attorney General, and Kristen Kinnaird Chenelia, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Alberto Gonzalez appeals from a plea of guilty to resisting an officer and driving under the influence of alcohol. He claims he received ineffective assistance of counsel (1) in negotiating the plea agreement; (2) in pursuing a motion to withdraw his guilty plea; and (3) in perfecting his appeal to the trial court’s denial of his motion to withdraw.

FACTUAL AND PROCEDURAL HISTORY

On November 30, 2005, defendant was charged in a felony complaint with resisting an officer in violation of Penal Code section 69,1 a felony (count 1); driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (a), a misdemeanor (count 2); and driving with a blood alcohol level greater than 0.08 percent in violation of Vehicle Code section 23152, subdivision (b), a misdemeanor (count 3). In connection with counts 2 and 3, it was also alleged defendant had a prior conviction for driving under the influence of alcohol within the meaning of Vehicle Code sections 23540 and 23546.

At the preliminary hearing on January 11, 2006, the People presented convincing evidence of defendant’s guilt of the matters charged. One of the arresting officers testified he was on patrol November 28, 2005, about 8:30 p.m., and observed a pickup truck drive off the road approximately three times. A couple of times the pickup truck returned to the road but crossed into the lane for oncoming traffic before returning to the correct lane. As a result, the officer made a routine traffic stop, and defendant yielded to the right side of the road. When the officer approached, defendant identified himself and provided the officer with a California driver’s license. The officer detected a strong odor of alcohol, bloodshot and watery eyes, and slurred speech. When the officer asked defendant if he had been drinking, defendant admitted he had consumed approximately six beers. Because the officer believed defendant was intoxicated, he asked him to step out of the pickup truck so he could conduct a field sobriety test. When defendant stepped out of the vehicle, the officer attempted to check his pupils for signs of intoxication but was unsuccessful because defendant was unable to follow the instructions.

Fearing they were standing too close to the middle of the road, the officer asked defendant to move to the side, but he refused to do so despite multiple requests by the officer. The officer then attempted to move defendant to the side of the road by grabbing his arm, but defendant pulled away and attempted to get back in the pickup truck. As a result, the officer decided to place defendant under arrest for driving under the influence. He told defendant to put his hands down behind his back. Defendant refused and twice attempted to get back into the pickup truck, but the officer pulled him away. The officer called for backup and then gave defendant several more commands to put his hands behind his back. Thereafter, the officer took defendant down to the ground and attempted to gain enough leverage to pull defendant’s hands behind his back and get him handcuffed. Defendant continued to resist, and at one point had the officer’s legs immobilized. When a second officer arrived, defendant was given several more verbal commands to put his hands behind his back but he refused. Both officers working together were finally able to place the handcuffs on defendant. Defendant continued to resist by kicking his legs at the officers. The officers wrapped defendant’s legs in a hobble to immobilize him and transported him to the jail.

Call history records indicate a nurse drew a blood sample at the jail approximately 56 minutes later, and the officer booked the labeled container of blood into an evidence locker. For purposes of the preliminary hearing only, the parties stipulated defendant’s blood alcohol level was 0.18 percent.

An information was filed on January 17, 2006, and defendant pled not guilty to all counts. On March 3, 2006, defendant entered into a plea agreement. As a result of the plea agreement, which was accepted by the court, count 1, resisting an officer, was reduced from a felony to a misdemeanor. Defendant pled guilty to that charge, as well as count 2, misdemeanor driving under the influence of alcohol, and count 3 was dismissed.

At the time of sentencing, defendant filed a motion to withdraw his guilty plea, arguing there was good cause for withdrawal because he was innocent of resisting arrest (count 1). To support his motion, defendant submitted a declaration recounting his version of the events the night he was arrested. In his declaration, defendant contends he did nothing to resist the officers, but they beat him up and told him no one would believe him because he had been drinking. Defendant was represented by new counsel at the hearing on his motion to withdraw. During the hearing, defendant’s new counsel reported to the trial court that defendant’s prior counsel told defendant, “I’m tired of dealing with you. Here, take this deal or not. I don’t care.” Counsel argued this was enough to show defendant’s will “was overcome.” The trial court disagreed, stating the real issue was whether “someone read the form with him or did he go over this form.” Counsel confirmed someone had read the change of plea form with defendant, and defendant confirmed this by initialing the boxes on the form. The trial court denied the motion and sentenced defendant to 36 months of revocable probation.

On May 9, 2006, shortly after he was sentenced, defendant filed a notice of appeal. Although the circumstances are somewhat unclear from the record, the appeal originally proceeded in the appellate division of the superior court, and was later transferred to this court. A notice of transfer dated January 11, 2007, advised defendant that the Court of Appeal has jurisdiction pursuant to section 1235 and rule 8.304 of the California Rules of Court, because defendant was originally charged with a felony.

DISCUSSION

Defendant’s first claim of ineffective assistance of counsel is that he pled guilty because of undue coercion by his original trial attorney. Defendant’s second claim of ineffective assistance of counsel is that his second trial attorney, who was appointed to represent him to pursue a motion to withdraw his guilty plea, failed to offer admissible evidence in support of the motion. Defendant’s third claim of ineffective assistance of counsel is that one or more of his attorneys failed to comply with section 1237.5 by obtaining a certificate of probable cause for appeal. He argues we should overlook this failure and consider the merits of his claims because other courts have done so under similar circumstances. Alternatively, defendant urges us to consider the merits of his claims because there are exceptional circumstances.

“When a defendant has pleaded guilty . . . to a criminal charge, the defendant may not appeal the judgment of conviction on issues ‘going to the legality of the proceedings’ unless, within 60 days of rendition of the judgment, he or she files with the trial court a written statement executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds for appeal and, within 20 days after that filing, the trial court executes and files a certificate of probable cause for appeal.” (In re Chavez (2003) 30 Cal.4th 643, 646, quoting § 1237.5.) “[I]ssues going to the validity of a plea require compliance with section 1237.5.” (People v. Panizzon (1996) 13 Cal.4th 68, 76.) For example, a certificate must be obtained if a defendant claims he was induced to enter a plea based on misrepresentations of a fundamental nature. (Ibid.) A defendant seeking review of issues going to the legality of the proceedings, including the validity of a guilty plea, must comply with section 1237.5 “fully, and, specifically, in a timely fashion.” (People v. Mendez (1999) 19 Cal.4th 1084, 1089, original italics.)

Here, strict compliance with section 1237.5 was required with respect to defendant’s first and second ineffective assistance of counsel claims. These claims (i.e., that he received ineffective assistance during plea negotiations and while pursuing his motion to withdraw) both attack the validity of his guilty plea.2 Defendant has not demonstrated compliance. Although he filed a timely notice of appeal, he did not represent his appeal was based on the validity of his plea, and he did not file a statement under penalty of perjury seeking a certificate of probable cause.

In his third and final claim of ineffective assistance of counsel, defendant argues we should consider the substance of his first two claims even though he did not comply with section 1237.5, because his failure to comply was also the result of ineffective assistance of counsel. He claims his trial counsel did not assist him in filing the notice of appeal, and he did not know a certificate of probable cause was required. Defendant further claims his appeal “was originally filed in the wrong court under the incorrect assumption that it was a misdemeanor . . . because the trial court reduced Count I from a felony to a misdemeanor.” He also represents the matter “was deemed an appeal to the [a]ppellate [d]ivision” and was “initiated as an appeal to the appellate division of the superior court where such certificates are not required.” 3

Defendant argues we should overlook his failure to comply with section 1237.5 because other courts have done so under analogous circumstances. To support his argument, defendant cites cases such as People v. Ivester (1991) 235 Cal.App.3d 328 (Ivester) and People v. Chavez (1981) 124 Cal.App.3d 215, disagreed with by Mendez, supra, 19 Cal.4th at p. 1098. Our Supreme Court in Mendez held this approach should be abandoned because it defeats the purposes of section 1237.5. The Supreme Court in Mendez specifically criticized the approach taken by the Court of Appeal in People v. Chavez, supra, 124 Cal.App.3d 215, which considered the substance of the appellant’s claims based on the existence of extraordinary circumstances even though there was a failure to comply with section 1237.5. (Mendez, supra, 19 Cal.4th at pp. 1097-1098, fn. 7.) In Mendez, the Supreme Court instructed us to apply section 1237.5 “in a strict manner” and to abandon the practice of considering “the peculiar facts of the individual appeal” in the interests of “judicial economy” or to avoid an inevitable collateral attack on the merits. (Mendez, supra, 19 Cal.4th at pp. 1097-1099.)

Although it is true the Supreme Court in Mendez did not specifically criticize the approach taken in Ivester, the facts and circumstances presented in Ivester are distinguishable from those presented in the record before us. The defendant in Ivester pled guilty and then challenged the validity of his plea collaterally and on direct appeal. Although the defendant challenged the validity of his plea, his counsel did not file a statement to comply with section 1237.5. The defendant argued the Court of Appeal “must nonetheless consider the substance of his appellate contentions to determine whether his counsel was ineffective in failing to prepare and file the requisite statement.” (Ivester, supra, 235 Cal.App.3d at p. 335.) The Court of Appeal concluded deficient performance by counsel in obtaining a certificate of probable cause was readily apparent based on the appellate record. As a result, the Court of Appeal considered whether counsel’s deficient performance was prejudicial. (Id. at pp. 337-338.) Defendant’s appeal was then dismissed because the court concluded the arguments raised by counsel on appeal would not have resulted in a reversal, so there was no prejudice to the defendant as a result of counsel’s ineffectiveness. (Id. at p. 340.) Here, the circumstances are distinguishable from those at issue in Ivester, because we cannot conclude deficient performance by counsel is readily apparent based on the appellate record.

The Sixth Amendment right to effective assistance of counsel can be violated by counsel’s failure to perfect an appeal. (Roe v. Flores-Ortega (2000) 528 U.S. 470, 476-477.) Under some circumstances, trial attorneys have a duty to consult with the defendant about the possibility of an appeal and/or to file a notice of appeal. (§1240.1; People v. Scott (1998) 64 Cal.App.4th 550, 563-564.) Appellate counsel appointed to represent a criminal defendant on appeal also has a duty to “act as a competent advocate.” (People v. Scott, at p. 564.) A defendant may comply with section 1237.5 through counsel or on his own, but if counsel does not do so on his behalf, a defendant who is acting on his own must still comply with section 1237.5. (Mendez, supra, 19 Cal.4th at p. 1100, fn. 10.)

In a habeas corpus proceeding, our Supreme Court acknowledged “certain negligence of trial counsel,” which results in the filing of an untimely notice of appeal and/or statement of reasonable grounds for appeal may justify application of the principle of constructive filing. (Chavez, supra, 30 Cal.4th at pp. 657-658, fn. 7.) However, “[i]neffective assistance of counsel claims are rarely cognizable on appeal.” (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329.) This is because it is generally “ ‘inappropriate for an appellate court to speculate as to the existence or nonexistence of a tactical basis for a defense attorney’s course of conduct when the record on appeal does not illuminate the basis for the attorney’s challenged acts or omissions.’ ” (Ibid.) “ ‘[A] claim of ineffective assistance is more appropriately made in a habeas corpus proceeding, in which the attorney has the opportunity to explain the reasons for his or her conduct.’ ” (Ibid.) On direct appeal, we must reject a claim of ineffective assistance of counsel unless the record affirmatively shows deficient performance and no possible tactical purpose for an act or omission. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

In this case, the record before us does not affirmatively show deficient performance by counsel in perfecting the appeal. The record indicates defendant filed the notice of appeal “in propria persona.” In his brief, he represents he did so without the assistance of counsel. What the record does not show is the circumstances surrounding the filing of the notice of appeal by defendant “in propria persona,” apparently without the assistance of counsel. The notice of appeal form shown in the record instructed defendant to check one or more boxes indicating the reasons for the appeal. Defendant checked the box stating he only intended to challenge his sentence or other issues arising after the plea. As a result, it appeared it was not necessary for defendant to comply with section 1237.5 by requesting a certificate of probable cause. If defendant checked the box stating the appeal “challenges the validity of the plea,” he would have been warned by a notation on the form of the necessity to attach a request for certificate of probable cause.4 Since the record is silent as to what occurred, we cannot conclude there was any deficient performance by trial counsel in filing or preparing the notice of appeal.

The record indicates defendant was appointed counsel to assist him on appeal. On June 5, 2005, shortly after defendant filed his notice of appeal, defendant’s appellate attorney filed a proposed statement on appeal. The appellate attorney’s proposed statement on appeal contradicts the representation made in the notice of appeal form previously filed by defendant, which stated defendant only intended to challenge his sentence or other issues arising after the plea. The proposed statement on appeal represents that the issues to be raised on appeal include the validity of the plea based on ineffective assistance of counsel. Despite this change in the grounds for appeal, which appears to have been made well within the 60-day filing deadline, the record indicates there was no request for a certificate of probable cause to comply with section 1237.5.

The record further indicates the proposed statement on appeal was filed in the appellate division of the superior court, which only has jurisdiction over appeals in misdemeanor cases. (§ 1466; Cal. Rules of Court, rules 8.780(b), 8.782.) On January 11, 2007, the appellate division issued an “order transferring appeal erroneously filed in appellate division.” Citing section 1235 and rule 8.304 of the California Rules of Court, the appellate division’s order advised defendant that a transfer was necessary because the Court of Appeal has jurisdiction over the case.

Section 1235, subdivision (b), provides that: “An appeal from the judgment or appealable order in a felony case is to the court of appeal for the district in which the court from which the appeal is taken is located.” California Rules of Court, rule 8.304(a)(1), states as follows: “To appeal from a judgment or an appealable order of the superior court in a felony case . . . the defendant or the People must file a notice of appeal in that superior court.” “Felony case” is defined in California Rules of court, rule 8.304(a)(2), as “any criminal action in which a felony is charged, regardless of the outcome. A felony is ‘charged’ when an information or indictment accusing the defendant of a felony is filed . . . .” As the appellate division explained in the transfer order, “an information was filed charging [defendant] with one felony—a wobbler, Penal Code section 69—and with two misdemeanors. . . . [¶] In light of the foregoing, we find the instant appeal is from a judgment in a ‘felony case’ and the Court of Appeal—not this appellate division—has jurisdiction over it. [¶] However, the appeal was erroneously sent to us.” There is nothing in the record to show how or why the case was filed in the appellate division rather than the appropriate Court of Appeal. In other words, the record lacks affirmative proof of what actually occurred, so we cannot conclude there was deficient performance by counsel.

Even if defendant could show deficient performance by counsel in perfecting the appeal, there is nothing in the record to suggest defendant could establish prejudice based on any failure by counsel to obtain a certificate of probable cause. To prevail on a claim of ineffective assistance of counsel, the defendant also has the burden to show prejudice caused by counsel’s deficient performance. (Roe v. Flores-Ortega, supra, 528 U.S. at p. 477.) “A guilty plea admits every element of the crime and constitutes a conviction.” (People v. Hoffard (1995) 10 Cal.4th 1170, 1177.) “For that reason, and without regard to section 1237.5, issues going to the determination of guilt or innocence are not cognizable on appeal.” (Id. at p. 1178.) For example, a defendant “may not enter into a negotiated disposition for an offense, . . . enjoy the fruits thereof, and then challenge the factual basis for the plea on appeal.” (People v. Borland (1996) 50 Cal.App.4th 124, 127.) Rather, a guilty plea “concedes that the prosecution possesses legally admissible evidence sufficient to prove defendant’s guilt beyond a reasonable doubt. Accordingly, a plea of guilty waives any right to raise questions regarding the evidence, including its sufficiency or admissibility . . . .” (People v. Turner (1985) 171 Cal.App.3d 116, 125.)

Although defendant’s issues on appeal are framed as claims of ineffective assistance of counsel, the record suggests defendant in substance only seeks to challenge the factual basis of the plea and the sufficiency of the prosecution’s evidence to support the charge of resisting arrest. In his first ineffective assistance of counsel claim, defendant argues, without support, that he was coerced or pressured by his original trial attorney to accept the plea bargain. However, as outlined above, the prosecution presented strong evidence of guilt during the preliminary hearing, and, by accepting the plea, a felony charge of resisting arrest was reduced to a misdemeanor, one misdemeanor count was dismissed, and defendant was granted probation. There is nothing in the record to suggest counsel’s advice was unsound and was not in defendant’s best interests. Nor does the record show any of counsel’s advice was false or fraudulent. The record also indicates defendant did, in fact, receive the benefit of his bargain. “A plea may not be withdrawn simply because the defendant has changed his mind.” (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)

In his second ineffective assistance of counsel claim, defendant contends the attorney who represented him in pursuing his motion to withdraw failed to submit any evidence to support the motion. He argues this attorney “was under a duty to at least call [defendant] to testify concerning the facts and how he was coerced to make the plea, or to call trial counsel to establish the basis for his advice to [defendant] that he change his plea.” As outlined more fully ante, the record shows the motion to withdraw was submitted along with evidence in the form of a declaration by defendant disputing the factual basis for the charge of resisting arrest. Defendant does not state what other evidence, if any, should or could have been presented to justify withdrawal of his guilty plea. Without more, it appears defendant appealed simply because he wants another opportunity to attack the sufficiency of the evidence and the factual basis for the plea. Under these circumstances, defendant could not establish prejudice, because there is nothing to indicate the issues he wanted to raise on appeal would have even been cognizable if a certificate of probable cause was obtained.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORT

RAMIREZ

P. J.

We concur:

McKINSTER

J.

RICHLI

J.



1 All further statutory references are to the Penal Code unless otherwise indicated.



2 The People contend defendant’s claim of ineffective assistance of counsel while pursuing his motion to withdraw his plea is reviewable without a certificate of probable cause because it challenges conduct by counsel which occurred after the entry of the plea. However, because the motion was in substance an attack on the validity of the plea, a certificate of probable cause was required. (In re Chavez, supra, 30 Cal.4th at p. 651, citing People v. Ribero (1971) 4 Cal.3d 55, 63-64 [“[i]f a defendant challenges the validity of his plea by way of a motion to withdraw the plea, he cannot avoid the requirements of section 1237.5 by labelling the denial of the motion as an error in a proceeding subsequent to the plea” and “[i]n determining the applicability of section 1237.5, the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made”].)



3 Rule 8.782(a) of the California Rules of Court, which applies to appeals in the appellate division of the superior court, provides only for the filing of a notice of appeal signed by the appellant or his attorney specifying the judgment or order from which the appeal is taken.



4 During oral argument, defendant blamed the superior court clerk for allegedly failing to take the ministerial steps outlined in rule 8.304(b)(3) of the California Rules of Court, which he claims should have served to prevent his failure to request or obtain a certificate of probable cause. In pertinent part, rule 8.304(b)(3) states as follows: “If the defendant does not file the statement required by [section 1237.5] . . . the superior court clerk must mark the notice of appeal ‘Inoperative,’ notify the defendant, and send a copy of the marked notice of appeal to the district appellate project.” However, because defendant did not check the box on the notice of appeal form indicating he intended to challenge the validity of his plea on appeal, there was nothing to trigger the clerk’s duty to mark the notice of appeal “inoperative” for failure to attach the required statement.

San Diego DUI lawyer news

A DUI trial date has been set for a 19-year-old charged with murder in a fatal DUI crash.

Police said Jared Steen was driving on Crittenden Drive near the airport last May when he lost control and crashed into a fence.

His passenger, Robert Lyle, died. DUIPolice said Steen was drunk.

Steen's DUI trial is scheduled to start in July.

DUI / Drunk Driving lawyers update

A proposed change in West Virginia’s drunken driving laws that would enhance safety measures while also alleviating jail costs for counties appears to be a win-win situation for all.

The revision would toughen penalties on motorists with a blood alcohol content of .15 or higher by making the crime “aggravated DUI” and requiring Interlocks on their vehicles. An Interlock system prevents ignitions from starting if the driver has ingested any alcohol. The crime would also carry a mandatory jail term of two days to six months.

Another element in the new legislation would eliminate the mandatory 24-hour term, which could provide relief to counties and cities struggling with high regional jail costs. The proposed bill would also allow first-time DUI offenders to choose to install Interlocks to trim the current 30-day license suspension to 15 days.

Donna Hawkins, state director of Mothers Against Drunk Driving, called the bill “a historical, landmark piece of legislation for West Virginia.”

“This is going to save lives. It’s going to get offenders back on the road quicker. It’s going to save on regional jail costs. It has a lot of great elements in it,” Hawkins said.

Last year, drunk drivers killed 129 people in West Virginia and were responsible for 2,600 non-fatal injuries.

Although MADD wanted the state to require the use of Interlocks for first-time DUI offenders with a blood alcohol content of .08 to .149, the group acknowledged the proposed legislation offers “a great incentive” for those with low BAC levels.

At a Senate Finance Committee Hearing Tuesday, Hawkins said as many as 7,000 first-time DUI offenders are jailed each year.

The use of Interlocks — which will prevent a vehicle from starting if the driver has ingested any alcohol, regardless of his or her BAC level — would keep motorists who have been drinking off the road, and could save municipalities money by decreasing the mandatory jail time for first-time DUI offenders.

At the same time, strengthening penalties for more serious DUI offenders would also keep highways safer.

“Those are the offenders that are true problem drinkers and cause the majority of fatalities in West Virginia,” Hawkins told the Senate committee.

The use of technology, such as Interlocks, to keep our highways safer is an important tool that lawmakers must consider as they update legislation to reflect societal changes.

If we can harness this technology to prevent future tragedies, while also saving taxpayers’ dollars, then it is a beneficial measure for all West Virginians.

Lawmakers, because of MADD pressure, may move swiftly on this legislation so that the law may be revised before time runs out on the 2008 legislative session, according to DUI lawyers.

DUI / Drunk Driving / DWI Officials may decide whether to toss evidence in DUI cases because of problems at state lab

Drivers charged with drunken driving in Franklin County may see crucial evidence against them tossed out if a judge decides to follow a pattern of court rulings around the state.

A hearing is scheduled for Friday to consider whether breath test results can be presented during trials in light of problems discovered at the state toxicology lab.

Judges in King, Snohomish and Clark counties have ruled they won't allow the breath tests processed before the former lab manager left in July 2007.

Ann Marie Gordon resigned after officials began investigating allegations that she violated lab policy by signing off on tests she hadn't actually checked.

A panel of three King County District Court judges issued their harsh ruling last month saying the tests can't be used because the toxicology lab's work was "so compromised by ethical lapses, systemic inaccuracy, negligence and violations of scientific principles."

Prosecutors in Thurston and Kitsap counties have since decided not to use the breath tests in their DUI cases. Just last week, Douglas County prosecutors opted not to present breath-test evidence in 11 cases.

Franklin County Prosecutor Steve Lowe didn't want to go into the merits of the issue while the court hearing is pending, but he did say that each case is different.

The notion that "it's a broad brush that applies to every one is too simplistic," he said. "While many defense counsels think King County is the law of the land, I think judges in Franklin County can make their own decisions."

Benton County followed Skagit County's lead and gave the OK to use the breath test results in court.

District Court Commissioner Joe Burrowes said the solution in question was certified by 15 other people so Gordon's misconduct didn't affect any of the breath tests in Benton County.

Benton County Prosecutor Andy Miller said the case argued before Burrowes was essentially the test case for the county. Burrowes' decision isn't binding on the other judges, but Miller said he's not aware of any other pending challenges.

"No one is concerned that any of the breath tests done on any Benton County case were inaccurate," he said. "Defendants only get breath tests if there's already independent reason for the trooper to believe the defendants were drinking. To me that's the thrust of why our courts have not followed the King County example.

"If the evidence shows that someone is driving while intoxicated, they need to be held accountable," he added. "This isn't a game."

Defense attorney Brian Roach argued that the breath test for his client, Royden Rosalez, should be suppressed because of the systemic problems at the toxicology lab. Rosalez was arrested for DUI by the Washington State Patrol in December 2006.

Roach said he presented more than 1,700 pages of exhibits and testimony from the Skagit County hearing to make his case.

"Everyone's called this the Ann Marie Gordon issue ... but her alleged perjury is just a small part of the big picture," said Roach, who's been a DUI defense attorney since he started practicing law about six years ago.

"The big picture deals with state agents having protocols establish for them in terms of how they're supposed to test and certify certain components of this testing process and either not knowing or not following those protocols," he said.

"It's really a larger governmental mismanagement on one side of it and the perjury aspect is part of that issue."

Last week, Barry Logan, director of the crime labs for the state patrol, including the toxicology lab, announced that he would resign effective March 14.

Officials have also said that problems at the toxicology lab have been fixed and 23 of the 39 recommendations by auditors have been implemented.

Because of the number of potential inaccuracies in the breath tests, the correct course of action is to make deals or try cases without relying on the test results, said defense attorney Jim Egan.

"I think law enforcement is embarrassed, and I think prosecutors are put into a very difficult position," he said. "It's not the job of the prosecutors to get convictions. It's the job of the prosecutors to see justice. Obtaining convictions with the information that comes out of the toxicology lab, at least for me, is very problematic."

With the different rulings around the state, both defense attorneys say the issue will likely have to be decided by the state Supreme Court. Roach said he anticipates Benton County's ruling to be overturned once the high court hears the issue.

"When a jury hears the (breath test) number, even when we go through a lengthy attack of the number, the bell's already been rung. It creates an unbearable hurdle for the defendant to go through to prove it's wrong," Roach said.

"It's pretty hard to accept the idea that our court system would allow obviously tainted evidence and mismanaged evidence to become a smoking gun in a criminal trial where a defendant is presumed innocent." DUI lawyers are watching this.

DUI news

Beam Global Spirits & Wine, Inc. and the National Center for DWI Courts Support Nevada DUI Courts

Nevada Legislation Authorizes DUI Courts to Convict and Treat Drunk Driving Offenders

Beam Global Spirits & Wine, Inc. [Fortune Brands, Inc. (NYSE:FO)], a global leader in premium spirits and wine, and the National Center for DWI Courts (NCDC) joined forces today to raise awareness about the effectiveness of DUI Courts in Nevada, where state legislators recently passed a law to establish additional DUI Courts. With more than 17,000 people killed by drunk drivers every year, Beam Global and NCDC have partnered together since 2007 to bring national attention to the effectiveness of DUI Courts in reducing the recidivism rate of offenders. DUI Courts deal with hardcore and repeat drunk driving offenders by providing long-term, ongoing accountability and rehabilitation, in addition to conviction.

DUI Court judges, prosecutors and law enforcement officials assembled to support the expansion of DUI Courts in Nevada. NASCAR® driver and team owner Robby Gordon joined Beam Global CEO Tom Flocco in thanking Nevada state legislators for their support and to acknowledge the life-saving efforts of DUI Courts.

“Beam Global Spirits & Wine is committed to eliminating drunk driving,” said Tom Flocco, president and CEO, Beam Global Spirits & Wine, Inc. “We support programs that reduce drunk driving and are committed to working with any state willing to help save lives by establishing more DUI Courts. Nevada’s pilot DUI Court illustrates the effectiveness of this program. We encourage others join us in support of NCDC and the fight to eliminate hardcore drunk driving.”

“We are pleased that Nevada has had great success with DUI Courts and applaud state legislators for passing Senate Bill 277,” stated West Huddleston, executive director of the National Center for DWI Courts and the chief executive officer of the National Association of Drug Court Professionals. “The Nevada DUI Court pilot program has proven that blending long-term treatment with the accountability, immediacy and certainty of court response works more effectively than punishment alone. We hope to build on that success by raising awareness for DUI Courts in Nevada and throughout the country.”

Clark County, Nevada established a pilot program with one DUI Court in its jurisdiction eight years ago. Nearly 400 offenders have successfully completed the program. Of those who successfully graduated, only 12 percent had a repeat drunk driving offense within three years of their graduation.

“Nevadans have seen first hand that DUI courts are an effective way to punish those who break the law and to deter drunk drivers by targeting repeat offenders and individuals with high BAC levels. Expanding this effort, along with programs to teach drivers about the dangers of impairment, are two ways that we can make America’s roads and highways safer. As co-chair of the Congressional STOP DUI caucus, I applaud the men and women of law enforcement and our courts for protecting the public and for their support of efforts to prevent drunk driving,” said Congresswoman Shelley Berkley (D-NV).

“I am very pleased that Nevada has been so committed to the expansion of DUI Courts in the state,” said Jon Porter (D-NV), co-chair of the STOP DUI caucus. “Individuals who have driven under the influence of alcohol, or driven while impaired, have taken thousands of lives and shattered so many families. As public officials, it is our responsibility to reduce drunk driving incidents and this is a huge step in the right direction.”

“We need to keep our roads safe from drunk drivers,” commented Nevada State Senator Valerie Wiener (D-NV). “Hardcore drunk drivers are causing the vast majority of alcohol related traffic fatalities and we need to address this severe form of drunk driving head on. I am proud to have been the sponsor of legislation supporting Nevada’s DUI courts and their efforts to protect our community.”

“DUI Courts are saving lives,” stated Chief Judge Kathy A. Hardcastle, Eighth Judicial District Court. “Nevada is a powerful example of how effective DUI Courts can be. On behalf of other DUI Court judges, we would like to thank Nevada legislators for supporting this program. We encourage other states to follow Nevada’s lead in establishing more DUI Courts.”

“I am truly impressed with the results of DUI Courts to reduce drunk driving,” commented Robby Gordon. “I would like to offer my appreciation to Beam Global for supporting the National Center for DUI Courts and for including me in their efforts to help raise awareness for this life-saving program. I thank Nevada legislators for their efforts in expanding DUI Courts throughout the state and encourage other states to follow Nevada’s lead.”

Beam Global and the National Association of Drug Court Professionals (NADCP) partnered in May 2007 to launch the National Center for DWI Courts, which focuses solely on hardcore and repeat drunk driving offenders. Beam Global is in its second year working with NCDC to help raise awareness about the effectiveness of DUI Courts. In 2007, 25 states established 29 DUI Courts to address hardcore drunk driving.

Beam Global is also a primary contributor to The Century Council, a not-for-profit organization that is funded by leading distillers and dedicated to fighting drunk driving and underage drinking. The Century Council promotes responsible decision making regarding beverage alcohol and discourages all forms of irresponsible consumption through education, communication, research, law enforcement and other programs. More information about The Century Council can be found at www.centurycouncil.org.

San Diego DUI / Drunk Driving news

American Idol finalist Amanda Overmyer pleaded guilty to DUI / Drunk Driving back in October 2006 near her hometown of Mulberry, In.

She received a suspended sentence of 60 days and was placed on 180 days DUI / Drunk Driving probation, which ended in August 2007.

According to the National Enquirer, on the night of her arrest Overmyer had a DUI / Drunk Driving blood alcohol level of 0.108 and spent six hours in the Montgomery County Jail before her fiancé posted her DUI / Drunk Driving bail.

San Diego DUI attorney news

The Seattle Times reports that a DUI bill has been introduced in Washington state that would require convicted DUI / D.U.I. offenders to use fluorescent-yellow license plates for a year after their DUI driving privileges are restored. The DUI bill’s sponsors see the license plates as a means of informing DUI law enforcement that the driver has a history of DUI / D.U.I.s, and a signal to other drivers to “give a wider berth” to the potentially dangerous DUI driver — not to mention providing an added disincentive for would-be DUI / drunk driving. Though whether the threat of public embarrassment serves as a good enough incentive to change DUI behavior remains to be seen.

San Diego DUI lawyer news

As to some drunk citizens, it appears San Diego / DUI officers in San Diego County have leeway with San Diego's Public Intoxication &/or DUI laws.

More than a week after La Mesa Mayor Art Madrid's embarrassing encounter with local police, questions persist on whether he got special San Diego drunk treatment.

After finding the five-term mayor lying on a public sidewalk a block from his house, La Mesa police gave him and his apparently equally lubricated companion a ride home.

Would anyone else get the same treatment?

San Diego DUI law enforcement officials across the county yesterday said the Feb. 20 incident may sound unusual, but noted that San Diego / DUI officers have broad leeway in what to do.

“We allow our deputies discretion. That's what they get paid for, is to make decisions,” said Lt. Phil Brust, a spokesman with the San Diego County Sheriff's Department.

San Diego DUI police authorities said sheriff's deputies frequently release people who are drunk in public rather than drive them to a detox center in downtown San Diego or book them into San Diego DUI jail.

“It depends on the level of intoxication, where the person is, if it's possible to call someone to pick them up, if it's possible to put them in a cab,” Brust said. “To book someone into jail for drunk in public takes a lot of time and takes the officer off the street for hours sometimes.

“If a deputy can find someone who hasn't been drinking or a responsible adult to release them to, they often will . . . Each situation has to be handled on its own merit.”

Public intoxication is a misdemeanor offense under California law.

It is defined in the penal code as when a person “is found in any public place under the influence of intoxicating liquor, any drug, controlled substance . . . (and) in a condition that he or she is unable to exercise care for his or her own safety or the safety of others . . . ”

David Ramirez, an assistant chief with the San Diego Police Department, said that while many of those intoxicated are hauled to detox or jail, it would not be out of the ordinary for an officer to give someone who lives nearby a ride home.

El Cajon police Lt. Mark Coit called it highly unusual for his agency.

“If the drunk person decided to get into a car and then killed somebody, people would come after the department. So, it would be extremely rare,” Coit said. “An officer would most likely call his supervisor to get advice about what to do.”

La Mesa Police Chief Alan Lanning has defended his department's handling of the matter.

Madrid, 73, resisted calls for his resignation yesterday and said he planned on running for re-election in 2010.

“I enjoy what I'm doing, my health is outstanding, we've made some major contributions to the community,” he said.

Police found Madrid and city finance department employee Trisha Turner, 35, in the mayor's Eastridge neighborhood about 10:30 p.m. on Feb. 20. Vomit was spotted near where the mayor lay on the sidewalk.

Channel 10 News has reported that Madrid admitted to drinking with friends at a bar before the incident, in grief over the 19-year anniversary of his son's death from cancer.

Police found Turner in the driver's seat of Madrid's Ford Explorer with her feet pointed out the open door. San Diego DUI attorney authorities say the vehicle was legally parked, with the engine running.

Oceanside police Lt. Fred Armijo said that while officers can use some discretion, there is case law that supports that a DUI charge can be applicable if someone is sitting in a parked car and is in control of the vehicle.

Being in control of the vehicle would include sitting in the front seat with the keys in the ignition.

Local San Diego DUI defense lawyers, none of whom have any direct connection to the incident, were split over how well the police handled the matter.

Because Madrid was not behind the wheel of his car, some San Diego DUI attorneys said, it appears the San Diego DUI officers made a reasonable decision.

His position as the city's mayor may not necessarily have been a factor.

“Let's assume he's John Q. Public. Nothing would have happened to him anyway,” said one San Diego DUI lawyer who has handled numerous San Diego DUI cases. “Nothing happens to the passenger.”

However, that special treatment may have come into play with Turner.

There's many cases in which authorities arrested a person for San Diego DUI in similar condition. But because the police apparently didn't conduct San Diego DUI field sobriety tests on Turner or take her in for a San Diego DUI blood draw, it would be difficult to prove in court that she was intoxicated.

San Diego DUI defense lawyers suggest any claim that the officers didn't know they were dealing with the city's mayor is ludicrous and that he and the city employee did receive preferential treatment.

They could have thought or stated: Come on boss, we will take you home, some San Diego DUI attorneys believe. Unfortunately, they got caught by the media.

「飲酒運転」で逮捕されたからといって、人生が終わってしまう訳ではありません。免許停止や免許取り上げ、飲酒運転での逮捕などが原因で、職を失い、自動車保険の掛け金を上げられたり又はキャンセルされたり、刑務所に入れられたり、名声を失ってしまうことにもなりかねませんが、ほとんどのカリフォルニアでの飲酒運転は、経験豊富な弁護士ならうまく弁護できます。
　当方は、経験豊かで行動派の弁護士です。飲酒運転で告訴された方の弁護に力を注いでいます。 １９８5年以来、私は医者・弁護士・プロスポーツ選手・ビジネスマンなど、飲酒運転で告訴された多くの人々を弁護してまいりました。私どもは、飲酒運転の無罪放免や減刑、および免許停止や取り上げの撤回などに成功しております。罪状認否で有罪を認める以外にも、方法はあるのです。




【成功例・弁護のポイント】


　最近の成功例には、飲酒運転で逮捕され、0.28のアルコールが検出された方がいます。 他にも、飲酒運転で３度も逮捕され0.16のアルコールを検出された人、事故を起こした後飲酒運転で捕まり0.16のアルコールを検出された人、飲酒運転で人身事故を起こして捕まり0.11のアルコールを検出された人、２度目の飲酒運転で0.10のアルコールを検出された人、２度目の飲酒運転で0.12のアルコールを検出された人がいます。この６人のうち５人は免許停止・取り上げを免れています。

San Diego DUI attorney news

State’s Attorney Joel J. Todd announced today his intention to have Thomas M. Degonia II, of Venable LLP in Rockville, as special prosecutor for the DUI case of Davis R. Ruark, state’s attorney for Wicomico County.

Degonia was formerly an assistant state’s attorney in Montgomery County.

A special prosecutor will be used due to the longstanding professional relationship between Todd and Ruark. Both the state Prosecutor’s Office and the Maryland Attorney General’s Office declined to provide a special prosecutor – the former because this is not an alleged case of public corruption and the latter because of a conflict of interest of their own.

Ruark faces DUI / drunk driving and a weapons charge stemming from a Friday traffic stop in Ocean City

SAN DIEGO DUI NEWS-- A 24-year-old man who drove into a tree in Pacific Beach was recovering on Tuesday but facing SAN DIEGO DUI drunk driving charges, SAN DIEGO DUI police said.

The SAN DIEGO DUI crash in the 3900 block of Lamont Street was reported at around 10 p.m. on Monday, according to SAN DIEGO DUI police.

The man was driving alone north on Lamont when he lost control on a curve and struck a tree, SAN DIEGO DUI POLICE claim.

He suffered serious facial injuries and was rushed to a local hospital but is expected to survive, SAN DIEGO DUI attorneys believe adding that the man will face charges of SAN DIEGO DUI - driving under the influence.

San Diego DUI attorney info

La Mesa City Council members are calling for a public discussion after police found Mayor Art Madrid lying on the sidewalk near his SUV and a city employee in the driver's seat – both apparently intoxicated – about a block from Madrid's home.
Neither was cited for San Diego DUI . Instead police gave the pair a ride to Madrid's house.

La Mesa police went to Madrid's Eastridge neighborhood about 10:30 p.m. Wednesday after receiving a 911 call. The officers found the mayor near the passenger side of his white Ford Explorer. Finance department employee Trisha Turner was in the driver's seat, her feet pointed out the open door.

Madrid and Turner appeared intoxicated, the responding officers told Police Chief Alan Lanning. They had vomited around the SUV, which was legally parked on Chicago Drive near Denver Drive.

Neither was given a San Diego DUI sobriety test. Officers Dan Herrin and Jacob Whisler drove them to Madrid's Eastridge Drive home, unlocked his front door with his keys and left.

Monday, Madrid defended himself and San Diego DUI police.

“I've done what I am supposed to as far as I'm concerned,” Madrid said. “I went ahead and made the appropriate apologies.”

Lanning indicated the San Diego area DUI officers used their discretion and followed San Diego DUI law.

Still, three of the city's five council members – Ernie Ewin, Dave Allan and Ruth Sterling – called for a public discussion of the events.

“The unfortunate thing is it's put the integrity of the Police Department in question,” Ewin said.

Councilman Mark Arapostathis said the issue is a personal matter.

“Police said the mayor was not treated differently than any other citizen,” Arapostathis said. “I trust our chief of police.”

Madrid said “people don't know the circumstances,” but declined to elaborate. When asked about perceptions of special treatment, Madrid said DUI police “were extremely professional and they were extremely above board.”

A Channel 10 News story said Madrid had admitted to drinking with friends Wednesday night while commiserating the 19-year anniversary of his son's death from cancer.

Madrid said on video: “I sat on the curb and I got sick and I was humiliated and embarrassed.”

Lanning said the officers involved didn't know they were dealing with the mayor until they saw his identification. They realized then they were about a block from his home.

“The mayor didn't answer questions directly, apparently because he was intoxicated,” Lanning said. “He said several times he was very sorry and he was very embarrassed.”

The officers drove “the two parties home and said they've done that in similar circumstances,” Lanning said. “In the same situation, had it been anyone else, they said they would have done the same thing.”

Lanning called City Manager Sandy Kerl Wednesday night. She talked to Madrid and the other council members Thursday.

“Based on what I've been told, the appropriate police procedures have been followed,” she said.

Pat Hodgkin, executive director of MADD San Diego County, said police are generally tough on drunken driving.

“Did this guy get special treatment? I certainly can't say,” she said. “But, if somebody is intoxicated and (police) didn't see them driving, they don't have any proof, so they can't cite them for DUI.”

Madrid won a council seat in 1981 and was elected mayor in 1990. He was re-elected in 2006, when he was challenged by downtown bookstore owner Craig Maxwell and former city treasurer Jim Stieringer.

Maxwell, one of Madrid's critics, told The San Diego Union-Tribune about the incident but declined to say where he got the information.

The council will meet at 6 p.m. today at City Hall, 8130 Allison Ave. Although the matter can't be formally discussed because it is not on the agenda, it is expected to come up in the public comment portion.

Sterling, a longtime foe of Madrid, said she wonders whether the incident would have been handled the same if the mayor weren't involved.

“Why should he be treated any differently than anybody else?” Sterling asked.

Allan said it's important to have an open discussion. “I don't want to draw any conclusions until I hear the whole story”.

The Mayor won't need a San Diego DUI defense attorney in this case.

San Diego DUI criminal defense attorney news

DUI Intoxilyzer inaccurate when used by women, blacks

A genius Connecticut defense attorney said he has found further evidence of problems with a device used by police to measure DUI blood alcohol levels.

Hearings before the state Department of Motor Vehicles have revealed that the Intoxilyzer 5000 can give inaccurate results when used by women and African-Americans, said Jay Ruane of Shelton, whose practice focuses on DUI defense.

Ruane hopes that the evidence will eventually cause the state to cease using the Intoxilyzer because, he said, the accuracy issues mean that the device violates the equal protection clause to the state Constitution. He said the state should not use a machine that is "inherently biased towards a percentage of the population."

"This is something of national significance I would think," said Ruane. "It could be the start of a national trend."

There are about 170 Intoxilyzers in use in Connecticut, with each one costing about $5,000. The manufacturer, CMI, a Kentucky-based corporation, acknowledges an overall margin of error of up to 10 percent, but does not concede that the variations can be explained by the gender or race of the user. Connecticut State Police have repeatedly defended the accuracy of the device.

New Britain Superior Court Judge George Levine ordered the DMV hearings in 2006 while presiding over a drunken driving case involving two men, represented by Ruane, who failed Intoxilyzer tests.

Most the hearings took place in the fall. In covering one of them, the Law Tribune reported on testimony that the device was less accurate when used by shorter people and people with asthma and other lung disorders. An expert also testified that the way a person breathes into the machine could affect the reading.

Attorneys for both sides had until Feb. 15 to submit final briefs. In doing so, Ruane emphasized evidence that he said showed the machines have accuracy issues when used by women and blacks.

Dr. Michael Hlastala, of the University of Washington, who does forensic consulting in physiology of breath testing and alcohol in the body, testified at one hearing that a woman who ingests the exact same amount of alcohol as a man will produce a breath reading that exceeds the man's by 5.6 percent.

"Thus, a 5.6 percent margin of error is implicit in every case where a woman is the arrestee giving the breath sample," argues Ruane.

Further, Hlastala testified that the lung capacity of an African-American male is approximately 3 percent smaller than a Caucasian. "Because of the smaller capacity, an arrestee must expel a greater fraction of his lung capacity, the Intoxilyzer 5000 results are inflated by a factor of 3 percent," Hlastala concluded.

Dr. Robert Powers, the state's chief toxicologist, did not rebut any of the newfound evidence during the hearings, Ruane said. Attorneys handling the matter for the DMV could not be reached for comment as of press time Thursday.

The DMV hearing officer, attorney William Grady, will take all of the evidence submitted by both sides and submit the findings to Levine. Ruane estimates that it will be two or three months before any further action is taken.

He said the losing side would likely appeal the decision in the state Appellate Court. He said the dispute is, at this point, "one-third to halfway through a very long process." •




INTRODUCTION

Galileo Galilei has something to say about this case.

In 1632, Galileo published his scientific research confirming the scientific fact that the Earth revolved around the sun. This work supported the prior work of Nicolaus Copernicus, but directly contradicted the scientific belief originally developed by Aristotle (383-322 BC) that the sun revolved around the Earth. The Catholic Church, and especially the Pope and Vatican authorities, summoned Galileo to the Inquisition (1231-1820) to confront him and demand a retraction of his “heresy”. Galileo eventually succumbed to the threat of death and pleaded guilty to “vain glorious ambition and pure ignorance and inadvertence”. He died in Arceti in 1642, but not before inscribing the following in the margin of his copy of the Dialogue:

“When people of whatsoever competence are made judges over experts and are granted authority to treat them as they please…these are the novelties that are apt to bring about the ruin of commonwealth and the subversion of the State.”

Santillana, G. de, The Crime of Galileo (1961)

In 1992, 350 years later, Pope John Paul II acknowledged that Galileo was correct. In the course of these proceedings, Michael Hlastala, Ph. D. testified for the Petitioners and expressed the same idea as Galileo:

Cross Examination by Attorney Parker-Bair

Q Okay. And in keeping with that line of questioning if I may, Doctor Hlastala – strike that. Let me restate the question. Doctor Hlastala, have you engaged in any discussions with the forensic community with regards to these beliefs with respect to your positions and views?

A You bet. And I have expressed that to the forensic people and in our state, and I’ve also indicated that here in Connecticut. I have testified in individual trials related to that. I mean this is a paradigm shift; it takes time for that to be learned. You know when we talked about the Sun rotating and going around the Earth it took years and years, if not hundreds of years for that finally to be accepted.

(T 2B, p 61)

The instant cases expose the scientific weaknesses and biases of the Intoxilyzer 5000 EN, and demonstrate how and why the test results do not establish the true blood alcohol content of the suspect. The evidence from Dr. Hlastala stands unchallenged and unrebutted by the Department of Motor Vehicles, and fully answers many of the Court’s questions on remand.

QUESTION 1

WHAT DOES THE INTOXILYZER 5000 MEASURE? SPECIFICALLY WHAT DO THE TEST STRIPS PRODUCED BY THE INTOXILYZER 5000 MEAN IN TERMS OF THE RATIO OF ALCOHOL IN A PERSON’S BLOOD?

The Intoxilyzer 5000 measures the amount of organic material in an air sample (T2, p 45). The test strips produced by the Intoxilyzer 5000 indicate, according to Dr. Powers, an amount of alcohol stated in grams (weight) in a volume of 210 liters of breath which is equivalent to the volume of 100 milliliters of blood (T2, p 42, 46).2 These results are not 100% accurate in every case (T2a, p 29). The Department contends that this reading, if accurate, is equal to the amount of alcohol in the arrestee’s blood because there is a “general expectation of equivalency” (T2, p 46). The Petitioners claim that for multiple reasons, the Intoxilyzer 5000 does not measure the alcohol in the arrestee’s blood. The paradigm upon which the Intoxilyzer 5000 is based relies on a number of assumptions:

That the machine measures only alveolar air.
That any alcohol in the mucosa of the trachea and bronchi does not affect the alveolar air as it leaves the body.
That the mathematical ratio (Partition ratio) used to calculate the blood alcohol content is the same for all people.
ALVEOLAR AIR

The old paradigm believes that in the deepest part of the human lung, a thin membrane separates the inspired air from the blood flow. It is at this point that the alcohol in the blood flows through the membrane and into the air in the alveolar sacs. If the alcohol in the alveolar sacs is measured by a factor called the partition ratio, the amount of alcohol in the blood can be quantified (T2 p 50). Thus, in order to make the measurement, it is required that the machine measure the breath from the alveolar sacs, and Regulation 14-227a (10)(b)(1)(a) requires that the air sample be alveolar in nature (T2 p 51). This alveolar air quickly overwhelms the air in the trachea and the bronchi, and because it has the highest value, is the most practical basis for a determination of breath alcohol content (T2 p 54).

Yet despite this theoretical foundation for the operation of the Intoxilyzer 5000, Dr. Powers could not guarantee definitively that the machine actually does measure alveolar air (T3 p 58) which is required by the Regulation (T2 p 58). Similarly, despite Power’s testimony that on expiration alveolar air would “quickly overwhelm” tracheal and bronchial air, (T2 p 54) he conceded that upon expiration the tracheal and bronchial air would be the first to leave the airway (T2 p 56). Thus, how the tracheal air can be overwhelmed if it leaves the expiration track first remains a mystery.

The onward march of science has created a new paradigm as explained by Dr. Hlastala, an expert in lung physiology (T2B p 6, 8). The old paradigm believed that upon expiration the breath alcohol content would eventually level off, and this leveling would indicate that it was alveolar air that was being sampled ( T2B, p15,17. Exhibits 5 and 6). However, later studies have shown that the breath alcohol content does not level off, but continues to rise (T2b, p 18). This finding contradicted the old paradigm, and called for further study. Such study revealed that the alcohol measured by the Intoxilyzer 500 EN was alcohol from the mucous in the trachea (T2B, p 21). Because the alcohol from the mucous already saturated the breath, it is impossible to pick up any alcohol from the alveolar air (T2B p 22). The old paradigm relies on a belief that the amount of alcohol does not change because it is from the alveoli. However, because breathing pattern can affect the amount of alcohol in the breath, the old paradigm simply is not scientifically sound (T2B p 22, 23, 24, 25). In addition, while the old paradigm is premised upon an analysis of alveolar air, the new paradigm demonstrates that you can never reach alveolar air (T2B, p 27) without it interacting with the mucous (T2B, p 34).

PARTITION RATIO

A crucial factor in the assessment of breath alcohol content is the blood/breath ratio – also known as the partition ratio. Both Dr. Powers and Dr. Hlastala agree that:

1. The Intoxilyzer 5000 EN does not determine the partition ratio of the arrestee.

2. The machine is programmed at a partition ratio of 1: 2100.

3. Scientific studies have shown that the partition ratio in the human being can range from 1:900 to 1:3700 (T2B, p 59).

Exhibit 15 offered through the testimony of Dr. Hlastala demonstrates the scientifically acceptable partition ratio for breath alcohol, based upon the work of A W Jones in 1982 ( T2B, p 38-39). The number 1 represents one molecule of alcohol in the gas per 1756 molecules of alcohol in the blood, at a constant temperature. ( T2B, p 40)

Dr. Power’s credibility is strained, if not demolished, on this very point. He could not even properly define what the partition ratio was. When asked to explain the ratio he said:

“So it would be twenty four hundred liters of air or one liter of blood”

(T2, p 60)

“Volume of blood to volume of air each containing the same amount of alcohol. So we’re saying that the amount of alcohol that one would find in one liter of blood, we would expect to find that same amount of alcohol in twenty one hundreds of air. (T2, p 61).

This testimony clearly demonstrates that Dr. Power’s has the definition of partition ratio completely reversed. Such a glaring ignorance of a basic principle of breath testing impeaches anything he says about the science of breath testing. Combined with the undisputed evidence that he is neither a certified operator of an Intoxilyzer 5000 (T2a, p 28, 29) nor has attempted to obtain same (T2a, p 28 29); has no idea who wrote the first scientific paper on the old paradigm; cannot name any article as to the amount of time necessary to obtain an alveolar air sample (T2, p 58); cannot name any scientific article on breath testing (T2, p 58); has never read any article on the effect of ranitidine on breath testing ( T2a , p8), there remains no credible evidence that the old paradigm should retain any validity or that his testimony should be valued over the testimony of Dr. Hlastala.

WHAT DO THE TEST STRIPS MEAN IN TERMS OF THE RATIO OF ALCOHOL IN A PERSONS BLOOD?

Based upon the testimony of Dr. Hlastala, the simple answer is that the readings on the test strips do not indicate the true blood alcohol content of the arrestee. At best, they measure the breath alcohol that originates in the tracheal and bronchial mucous, and is deposited and re-deposited during the dynamic process of breathing (T2B, p 21-22). That is why the amount of breath alcohol continues to rise, and also why the reading can be substantially affected by the manner of breathing ( T2B p, 22-23). In short, the test strip readings do not accurately reflect any blood alcohol content of the arrestee, and in this – at least- Dr. Powers concurs. ( T2a, p 27,29).

QUESTION 2

IF THE INTOXILYZER 5000 MEASURES THE PERCENTAGE OF ALCOHOL IN TERMS OF A WEIGHT BY VOLUME RATIO OF ALCOHOL TO THE BLOOD, DOES THE INTOXILYZER 5000 HAVE THE CAPACITY TO CONVERT THAT WEIGHT BY VOLUME MEASUREMENT INTO A WEIGHT BY WEIGHT MEASUREMENT? IF YES, IS THERE A MARGIN OF ERROR IN THE CONVERSION BY AN INTOXILYZER 5000 FROM A WEIGHT BY VOLUME TO A WEIGHT BY WEIGHT MEASUREMENT?

CAPACITY OF INTOXILYZER 5000 TO CONVERT

Dr. Powers testified that the Intoxilyzer 5000 EN does not, as presently programmed, have the capacity to convert its weight by volume measurement of the grams of alcohol found to a grams of alcohol per grams of blood reading. (T 2a, p20-48; 25.) This is the fact despite the certification in Exhibit F that alleges that the machine is capable of a result consistent with Section 14-227a in its definition of elevated blood alcohol content (T 2, p 38). Powers acknowledged that the statutory definition has never been changed (T2, p 42) and remains grams of alcohol per 100 grams of blood. Thus, a measurement of grams of alcohol per 210 liters of breath still must undergo a conversion to satisfy the statutory definition. Thus, the simple answer to the Court’s question is “No”, as it is presently configured.

MARGIN OF ERROR

The second part of the Court’s question arguably encompasses two issues. The first is the mathematical conversion of a blood volume reading to a blood-weight reading. The second is the range of error inherent in the machine readings. The plaintiff’s will discuss these issues seriatim.

While the Intoxilyzer 5000 does not make a conversion to a weight to weight reading, it is beyond dispute that an expert can do so by subtracting five percent (5%) from the breath alcohol reading (T2, p 69; T2a, p 9, 15, 22; T2 p9.) This assumes that the machine reading is one hundred percent accurate. Dr. Powers, however, cannot even swear that the machine is so accurate at all times. (T 2a, p 27, 29). In addition, the Intoxilyzer 5000 publication itself concedes that it operates at a 3% margin of error. (Exhibit 2). Thus, to be minimally reliable under perfect conditions with a sample from a Caucasian male, the result would be reduced by 3%, based on the inherent margin of error of the machine and an additional 5% based on the conversion factor from breath to blood. At its very best, the machine is at least 8% too high when analyzing a breath alcohol sample for the perfect arrestee.

ADDITIONAL MARGINS OF ERROR ESTABLISHED BY THE EVIDENCE

An explained heretofore in Question 1, the Intoxilyzer 5000 is based on a scientific theory at odds with the present scientific understanding of the dynamics of breath alcohol. Even putting to one side the petitioner’s claim that the machine does not accurately measure a breath alcohol sample that is equal to a blood alcohol content, the machine functions in a way that is biased on grounds of gender, race, temperature and weight. Each of these said categories has been shown to affect the breath alcohol readings by a scientifically recognized factor, or a margin of error. (Exhibits 11,12,13,14,17,19,20) These grounds must be considered as additional factors that impact the reliability of the Intoxilyzer results:

GENDER MARGIN OF ERROR (FACTOR OF 5.6%)

Dr. Hlastala testified that the Intoxilyzer 5000 is biased against women by a factor of 5.6%. This is based upon the scientific studies compiled by AW Jones and I. Anderson in its 2002 study in Forensic Science International and reflected in Petitioner Exhibit 17 which is based on a lower partition ratio for females than males. It is quite apparent that, based on the old paradigm which underlies the Intoxilyzer 5000, a woman who ingests the exact same amount of alcohol as a man will produce a breath reading that exceeds the man’s by 5.6% (T2B, p. 43). Thus, a 5.6% margin of error is implicit in a every case where a woman is the arrestee giving the breath sample.

It is important to note that the scientific research has been peer reviewed, and is thereby accepted in the scientific community (T2B, p. 43). Yet, despite the presence of this research in the public domain, Dr. Powers, the defender of the Intoxilyzer 5000, has never heard of such a bias, (T2C, 27) and offers no rebuttal to this information(T2C, 28). He can point to no study that contradicts the bias inherent in the different partition ratios.

RACE MARGIN OF ERROR (Factor of 3%)

Dr. Hlastala further testified that the Intoxilyzer 5000 is biased against African Americans in that the lung capacity of the African American male is approximately 3% smaller than the Caucasian(T2B p. 37). Because of the smaller capacity an arrestee must expel a greater fraction of his lung capacity, the Intoxilyzer 5000 results are inflated by a factor of 3%. With the racial bias of 3%, and the factor in the 5% conversion from breath to blood, it appears that the African American’s loses any adjustment based on the breath-blood conversion while the Caucasian male does not. Again, Dr. Powers offers no rebuttal.

The constitutionally of biases based on gender and race will be addressed infra.

TEMPERATURE MARGIN OF ERROR

Above and beyond the issues of gender and racial bias, the temperature of the person giving the breath sample also injects a percentage of error in breath alcohol analysis. As explained by Dr. Hlastala, the pioneering work of Fox and Hayward on both hyperthermia and hypothermia demonstrate that temperature can play a pivotal role in the accuracy of a breath alcohol analysis. It is also important to note that the Intoxilyzer 5000 manual (Exhibit 2 , p24) contains a “temp check”, but that temperature check is only intended to prevent condensation of sample vapor in the machine – and not to adjust for a higher temperature of the breath sample due to the elevated body temperature of the arrestee. Moreover, in the display messages and commands (pp2-25 et seg) there is no message to alert the operator that the arrestee is producing a breath sample with an elevated temperature.

The conclusion of the Fox and Hayward study demonstrates that:

“… mild hyperthermia in humans does not alter the standard decay curve of BAC…but does significantly distort the BAC decay curve to an extent which would cause serious inaccuracy for prediction of BAC. The magnitude of the distorting effect of core temperature is too large (up to 23% with mild hyperthermia) to be ignored in breath-testing procedures.”

(Exhibit, p8 39)

As a result, Drs. Fox and Hayward counsel at least an 8.6% correction factor for every one degree centigrade (1°C) that exceeds normal body temperature. It is important to note that this work has been extant in the scientific community since at least 1988, well before the State certified the Intoxilyzer 5000 for use in evidence.

Despite the testimony of Dr. Hlastala on the effects of temperature on breath alcohol testing, and the scientific research in support of this testimony, State’s expert Powers denied that temperature could affect a breath sample (T2, p 70). He further opined that an increased temperature would be equilibrated in the intake tube and has no impact on the measurement of alcohol (T2 71). This testimony is wholly suspect because: first, he had never even read the research by Fox and Hayward; second, he was recalled as a witness after Dr. Hlastala testified as to the subject and refused – or was unable – to contradict anything said on the issue (T2a, p7; T2c p 27,28); third, by its very makeup in its manual, the “temperature check” is designed only to “prevent condensation of sample vapor” (Exhibit 2, p24) and NOT to measure the temperature of the breath sample. Dr. Powers’ ignorance of the mechanics of the Intoxilyzer 5000 is understandable given that he has never been certified as an operator thereof, and has never received training on the machine (T2a p28, 29). To repose trust based upon such ignorance would be akin to believing that the sun revolves around the Earth because the State announces it to be so.

QUESTION 3

DOES ONE TAKING A BAC TEST ON AN INTOXILYZER 5000 EXHALE 210 LITERS OF BREATH?

The direct answer to the question is No. The chamber containing the breath sample on the Intoxilyzer 5000 EN cannot accept 210 liters of breath (T2B, p 23) and Dr. Powers argued that a human being cannot exhale 210 liters of breath (T2a, p 23, T2B p 3).

QUESTION 4

UNDER WHAT AUTHORITY DID THE COMMISSIONER OF PUBLIC SAFETY AND MOTOR VEHICLES DETERMINE THAT EIGHT-HUNDRETHS OF ONE PERCENT ALCOHOL IN ONE’S BLOOD IS EQUAL TO THE NUMBER OF GRAMS OF ALCOHOL IN 210 LITERS OF BREATH?

A) Commissioner of Motor Vehicles

On November 28, 2007 John Yacavone, Chief of Motor Vehicles testified as to the Department’s position on this question (T3 p8). The Commissioner of Motor Vehicles did not make the determination set forth in the Court’s question (T3 p9). He believed that the Commissioner of Motor Vehicles did not have the authority to make such a determination (T3 p9). No regulation record as contemplated by Section 4-168b exists (T3, p10, 11).

Most telling of all, for the purposes of the case, was Yacavone’s assertion that the hearing officer is not required to know how the Intoxilyzer determines blood alcohol of an individual (T3 p 34) or to make that determination in each hearing (T3 p34-35). That is precisely the point of this appeal. If the hearing officer is not required to make a determination of blood alcohol content, then no finding of elevated blood alcohol content under Section 14-227b can even be made, and the Petitioners in these cases deserve the reinstatement of their driving privileges.

B) Commissioner of Public Safety.

Attorney Janet Ainsworth testified on behalf of the Commissioner of Public Safety. She was a staff attorney of the Department and assisted in the change in regulations in 2005 (T4, p. 4-5). As to the Court’s question, she testified that her department had the authority to adopt the regulations, and implicit in that authority was the “ability to create definitions” (T4 p16). However, she had no scientific knowledge at all (T4 p18). As a result, it was Dr. Powers who proposed the change in the regulation defining blood alcohol content (Regulation 14-227a 1-b(3)) as grams per volume (T4, p.17-18). Such a definition contradicts the statutory definition of elevated blood alcohol content found in Section 14-227a. Ainsworth agreed that the Commissioner’s authority to adopt regulations was settled as long as the regulations are not in conflict with the statutory law (T4, p.15-16) and she did not see any conflict (T4 p21), only a “clarification” (T4, p14). How a change from a weight/weight regulation to a weight/volume regulation amounts only to a “limited, technical” (T4 p13) revision defies the imagination.

Moreover, it was Ainsworth’s function to merely “plug in language into the draft and take it through the adoption process” (T4 p19). From this testimony it becomes clear that the sole movement for the equivalence between breath alcohol measurements was Dr. Powers.

He provided the language (T4 p 5, 7). He called it a “clarification” (T4 p 13-14). He provided no scientific articles in support of the change (T4, p7). The Commissioner received no other input from the manufacturer or other scientists (T4, p8). Indeed, the only persons consulted were two toxicologists (Dr. Powers and Dr. Pinder) a policeman and an assistant State’s Attorney (T4 p10).

In short, Dr. Powers applied the old paradigm of breath alcohol testing and had the Commissioner of Public Safety amend the regulations under Section 14-227a to fit this paradigm. The Commissioner accepted this change wholesale, and neither sought nor received any scholarly comment on the change. Nevertheless, the statutory definition of elevated blood alcohol content remains as the General Assembly drafted it, and there is absolutely no evidence in writing that the Commissioner of Public Safety even considered the statutory definition in this change (T4 p25).

QUESTION 5

HAS THE COMISSIONER OF PUBLIC SAFETY CERTIFIED THE INTOXILYZER 5000 AS “SUITABLE FOR USE IN TESTING AND ANALYSIS” OF BREATH IN ACCORDANCE WITH BOTH GENERAL STATUES 14-1227A (D) AND 14-227A-10B OF THE PUBLIC SAFETY REGULATIONS? IF YES, INCLUDE THE SUPPLEMENTAL ADMINISTRATIVE RECORD A COPY OF THAT CERTIFICATION.

The Department offered into evidence as Exhibit 7 a letter dated

by Commissioner of Public Safety Arthur Spada. This certified the Intoxilyzer 5000 as suitable for use in testing and analysis of breath for the presence of alcohol.

THE DEPARTMENT’S AMENDMENT OF REGULATION 14-227a (1b) DOES NOT SATISFY THE STATUTORY DEFINITION OF ELEVATED BLOOD ALCOHOL CONTENT.

For the reasons articulated heretofore, the petitioners submit that the amendment of Regulation 14-227a-(1b) clouded rather than clarified the way blood alcohol content is to be calculated under Sec. 14-227a. The Petitioners will demonstrate why Dr. Power’s interpretation is erroneous.

Dr. Power’s claims that in scientific circles, all assessments of breath alcohol content are reported on a weight-volume basis (T2, p 42). No doubt that is true. However, our Legislature has defined elevated blood alcohol content on a weight-weight basis in Section 14-227a, and thus hearings under Section 14-227b are bound by this definition. In order to avoid the clear language of this statute, Dr. Powers states that elevated blood alcohol content is measured on a weight-volume basis, and the amendment of Regulation 14-227-(1b) satisfies the statutory language because it measures, in part only, a weight of alcohol.

Thus, to overcome the statutory definition, Dr. Powers would use the weight of alcohol as the numerator, and the volume (210 liters of air or 100 milliliters of blood) as the denominator. This construction makes no sense because the use of the term “percent” demonstrates that there cannot be different numerators and denominators. It must be all volume or all weight. You cannot determine a percentage if you use 2 different factors because a “percent” implies that there is a uniform factor based on 100 of the same type. For example, how can .08 grams of anything be a percentage of a volume? You would have to convert the weight to a volume, and then determine what percentage that volume occupied based on 210 liters of breath as the “100”. Dr. Power’s testimony never addressed the “percent” issue inherent in the statutory definition, but it is a consideration which cannot be ignored since it totally undermines the logic of Powers’ testimony.

There is, however, a way to resolve the statutory terminology. If we utilize 100 grams of blood as the baseline (as Dr. Powers originally testified (T2 42)) then one percent (1%) of 100 grams is 1 gram. Eight-Hundredths of that one gram equals .08 grams.3 This interpretation is faithful to the statutory language and makes eminent sense. It avoids the thorny issue of trying to figure out how a weight can be a percentage of a volume, and is faithful to the common understanding of being “over .08”.

Petitioners submit that the convoluted description by Dr. Powers of the weight/volume results defy logic and produces bad scientific results. The change of the regulation on this basis hinders rather than clarifies the way that blood alcohol content should be assessed. Moreover, this strained reading of the statute demonstrates that the Department of Public Safety exceeded its regulation-making authority in adopting such a strained interpretation to buttress a breath testing method that fails to satisfy our statutory framework. These sound reasons of science, logic and policy sustain the Petitioner’s position that the regulatory change did not solve a problem inherent in the Intoxilyzer 500 – it only exacerbated it.

THE USE OF THE INTOXILYZER 5000 EN VIOLATES THE CONNECTICUT CONSTITUTION IN THAT IT IS BIASED AGAINST THE ARRESTEE BASED ON RACE AND GENDER. DUE TO THE INHERENT CONSTITUTIONAL VIOLATION, THE INTOXILUYZER 5000 EN SHOULD NOT BE USED IN THE STATE.

Article I, Section 20 of the Connecticut Constitution states unequivocally:

“No person shall be denied the equal protection of the law no be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability. “

Thus, any discrimination based on gender or race violates the constitutional provision, and must be disfavored by the judiciary, the executive and the legislative branches of our State government.

It is important to note that the prohibition of discrimination bans both private and public action. While the contours of the effort on private action have not fully been delineated, the restriction on State action is clearly settled. If the Department of Motor Vehicles – as a state agency - employs a scientific method that discriminates based gender, or race, or both, such action is clearly banned by the State constitution. The testimony in this case clearly demonstrates that the Intoxilyzer 5000 EN does fall within this constitutional proscription.

To be sure, instances of state action that discriminate based on gender and race are few and far between. The judiciary has encountered this issue most often in the context of jury selection in criminal trials. In such a forum, the State, represented by the State’s Attorney, is precluded from using a peremptory challenge on gender and racial grounds. Such action violates not only the Federal Constitution, Batson v Kentucky, 476 U.S. 79, 106 S. Ct 1712, 90 L Ed 2cd 69(1986) J.E.B. v Alabama, ex rel T.B, 511 U.S. 127, 114 S. Ct 1419, 128 L Ed 2d 89 (1994) but the State Constitution as well.

This constitutional prohibition is grounded on the guarantee of equal protection of the laws for the venireman. It also implicates the spectre of State discriminatory action which is clearly prohibited since” the perceived fairness of the judicial system as a whole”. State v. Gonzalez 206 Conn. 391, 394 (1988) is of paramount importance. Where the State employs such discriminatory tactics, not only is the venire man the victim of discrimination, but also the judicial system as a whole is compromised. In order to forestall any State discriminatory action, a discriminatory claim can be raised not only by the venireman directly afflicted, but also by a party to the action even if that party does not fit the profile that invokes the discrimination. Powers v Ohio 499 U.S. 400, 111 S. Ct 1364, 113 L. Ed 2d 411 (1991)(White jurors can claim Batson error even though black jurors were the ones improperly excluded.) In light of this holding, Petitioners Pcolka, Stash, and Makela can assert a constitutional claim that would strictly apply to Co-Plaintiff Carole Peck as a female.

The record in this case clearly demonstrates the gender and racial bias inherent in Intoxilyzer 5000 EN. Gender bias arises from the uncontroverted fact that females have a smaller partition ratio than males (Exhibit 17). A smaller partition ratio causes a higher breath alcohol reading (Exhibit 17). A higher breath alcohol concentration is guaranteed by a factor of at least 5.6 % (T2 p 43).

In addition, pre-menstrual or menstrual increases in body temperature also have a distorting effect on a true breath reading by a factor of 8.6% for every 1.8 degrees Fahrenheit of elevated temperature. (Exhibit 19) Such percentage arbitrarily increases the breath alcohol reading to the prejudice of the female arrestee.

Moreover, the issue of racial bias rises to the fore in the use of the Intoxilyzer 5000. Dr. Hlastala opined that the distorting effect based on race was 3%. (T2B, p37) While at first sight this might appear to be de minimis, State should not countenance racial discrimination in any degree whatsoever. If the margin of error of the machine is 3%, one can readily see that the African American’s inflation factor of 3% can be offset by that same margin of error of 3%. As a result, the Caucasion arrestee maintains a claim of 3% margin of error while the African American arrestee loses that claim entirely. Such is the direct effect of the racial bias of the Intoxilyzer 500 EN.

While these proceedings do not address the specific question of gender or racial bias, the evidence demonstrates that these biases are scientifically well founded. As a result, they are pertinent to the Court’s arguing and should be considered.

San Diego DUI criminal defense attorney news

The number of DUI motorists driving under the influence on Arizona's roads is on the rise, and uncovered Valley DUI drunken driving hotspots.

"It's out of control. There's no doubt about it, DUI impaired driving is out of control," said Officer Mike McGillis of the Phoenix Police DUI Task Force.

5 Investigates accompanied McGillis to the scene of a five-car pileup, believed to be the result of DUI drunken driving. McGillis found beer on the floor of one of the vehicles and learned that three of the DUI drivers had fled the scene.

McGillis said it's common for drivers involved in crashes on Friday and Saturday nights to take off. He said intoxication may be why they flee.

Doryce Norwood understands the severity of the consequences of DUI driving impaired -- she lost her daughter and granddaughter to a DUI drunken driver.

"My daughter was proceeding through a green light at 34 mph when he hit them at 57 mph," Norwood said.

Data on places where police said DUIdrunken drivers are usually found and uncovered so-called "DUI Hot Zones."

The zones include the area of Seventh Avenue to Seventh Street and Indian School to Camelback roads, in Phoenix. Farther north, the intersection of 32nd Street and Greenway Road sees high numbers of DUI arrests on Friday and Saturday nights, as does the intersection of Cave Creek and Bell roads. In the east Valley, the area from Country Club Drive to Dobson Road and Main Street between Country Club Drive and the Tempe border sees frequent numbers of drivers under the influence.

Fatal DUI crashes DUIfound patterns of when, where and how victims are likely to be killed by a DUI drunken driver.

While instances of DUI drunken driving crashes are higher on weekend nights, DUI drunken drivers can strike any day, at anytime.

Norwood's daugther, Wendy, and granddaughter, Haley, 10, were killed on a Wednesday night at 8 p.m.

DUI Police said there are so many DUI drunken drivers on Arizona roads that drivers should stay aware of who's driving near them at all times.

San Diego DUI attorney news

Two people were injured early Sunday morning, including one who was arrested, in a suspected San Diego DUI drunk driving crash in San Marcos, San Diego DUI authorities said.

The single-vehicle San Diego DUI collision was reported at 12:38 a.m. in the 900 block of East Mission Road, when the driver reportedly misjudged a curve in the roadway, causing him to crash his Nissan Sentra head-on into a tree, San Diego DUI police said.

The San Diego DUI collision trapped the car's passenger inside, Bennetts said. He had to be freed from the vehicle by firefighters, and was taken to Palomar Medical Center in Escondido for treatment of a broken leg and cuts to his lower lip, the San Diego DUI deputies said. San Diego DUI defense attorneys will be available.

The car's driver, Rafeal Zarate of San Marcos, was also taken to Palomar, Bennetts said. He was subsequently released and booked into the Vista jail on suspicion of felony San Diego DUI - driving under the influence.

San Diego California DUI lawyer case - filing / dismissal issue manslaughter case

Filed 9/25/07; pub. order 10/23/07 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Nevada)

THE PEOPLE,
Plaintiff and Appellant,

v.

DALE TRAYLOR,

Defendant and Respondent.
C053172
(Super. Ct. No. A423 (M05-569))


This case comes before us upon transfer from the Appellate Department of the Nevada County Superior Court. (Cal. Rules of Court, rule 8.1000 et seq.) The Appellate Department affirmed the trial court’s order dismissing a complaint accusing defendant Dale Traylor of misdemeanor vehicular manslaughter. (Pen. Code, § 192, subd. (c)(2); further undesignated statutory references are to the Penal Code.) The trial court determined that the charge had previously been dismissed, as a felony, pursuant to section 871, and thus was barred by section 1387 as construed in Burris v. Superior Court (2005) 34 Cal.4th 1012 (hereafter Burris). We certified two issues for transfer.

The dispositive issue concerns the dismissal of a felony charge and the refiling of a misdemeanor charge for the same offense. The Supreme Court has construed section 871 to provide that “[m]isdemeanor prosecutions are subject to a one-dismissal rule; one previous dismissal of a charge for the same offense will bar a new misdemeanor charge.” (Burris, supra, 34 Cal.4th at p. 1019.) “Thus, either a misdemeanor or a felony dismissal will bar a subsequent misdemeanor charge,” whether the previous dismissal was of a felony or a misdemeanor charge. (Id. at p. 1020.)

Because neither issue reveals error by the courts that have considered this case, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

From 1977 through April 2004, Larry Lason lived on Creek View Drive in Grass Valley. Lason’s nine-year-old son, Tyler, had several motorcycles. He had been riding motorcycles since he was about six years old and had ridden many times on Creek View Drive.

On an afternoon in April 2004, Tyler left his home and rode his motorcycle westbound on Creek View Drive. He was wearing a motorcycle helmet. The weather was clear and cool, and the pavement was dry and in good condition.

In the vicinity of the accident, Creek View Drive is narrow, winding and undulating, and the paved portion is about 14 feet wide. Less than one-quarter mile from his home, Tyler’s motorcycle was struck by a 1993 Chevrolet Blazer that defendant was driving eastbound. Tyler died very soon after the collision.

The impact occurred near the top of a grade. A driver in either direction would not see a vehicle coming from the other direction until the driver was close to the top of the crest. Defendant told an investigating officer that he had been traveling at about 15 miles per hour immediately prior to the impact.

Two skid marks led to the resting place of the Blazer. One skid mark was 24 feet long and the other was 26.5 feet long. Following the collision, two brake tests were performed at the CHP office. Full brake applications while the Blazer was being driven at 20 miles per hour produced skid marks of 16 feet, four inches; and 17 feet, 11 inches. Nothing in the record suggests the Blazer was descending the crown of a hill at the time of these tests.

At its point of rest following the accident, the Blazer was entirely to the left of the middle of the road. When asked, defendant had no explanation for why he was driving on the wrong side of the road.

The investigating officer had extensive training and experience in the investigation of traffic collisions. He opined that the collision was caused by the Blazer being driven on the wrong side of the road. The Blazer’s speed was not a contributing cause.

The collision occurred between 5:00 and 5:30 p.m., and the officer arrived on the scene at 5:53 p.m. He noticed a faint odor of alcoholic beverage on defendant’s breath. Defendant told the officer that he had consumed one light beer at about 4:45 p.m.

The officer gave defendant “a couple of balance and coordination type field sobriety tests,” which defendant completed as demonstrated. The officer also gave defendant two preliminary alcohol screening tests, which measured 0.054 percent and 0.053 percent. The officer formed the opinion that defendant was not over the 0.08 percent level at the time he was driving.

In July 2004, a complaint was filed accusing defendant of felony vehicular manslaughter. (Case No. F04-335; §§ 192, subd. (c)(1), 193, subd. (c)(1).) Following a preliminary hearing, the magistrate (Judge Tamietti) found that there was insufficient evidence of the felony offense, which requires driving with gross negligence; but there was sufficient evidence of misdemeanor vehicular manslaughter, which requires driving with ordinary negligence and “without gross negligence.”

(§ 192, subd. (c)(2); In re Dennis B. (1976) 18 Cal.3d 687, 696.)

In his statement of decision, the magistrate found:

(1) Speed: Based on testimony of long-time residents of the area, defendant’s speed was within the reasonable range for prudent drivers. The investigating officer testified that speed was not a cause of the collision. Thus, defendant’s speed did not raise a strong suspicion of negligence, either gross or ordinary.

(2) Alcohol: No evidence was presented of the potential for impairment at the 0.054 percent BAC level shown by the evidence. There was no testimony from the investigating officer that the alcohol in defendant’s system contributed to the collision. “In the absence of such evidence, the court is not permitted to impose a supposition that alcohol may have contributed to or caused the collision. Therefore, the court must conclude that the evidence presented about alcohol does not create a strong suspicion of negligence, either gross or ordinary, on the part of the defendant.”

(3) ABS Brakes: A dash warning light indicated the ABS system was inoperable. However, a CHP technician determined the inoperable system did not alter appreciably the vehicle’s stopping capability. Thus, the condition of the ABS system did not create a strong suspicion of negligence, either gross or ordinary.

(4) Left side of road: The accident scene is the crown of a hill where opposing traffic cannot see each other until the last moment. From defendant’s direction of travel, an optical illusion creates an impression that a tree is in the center of the road surface. A longtime resident testified that most people driving that road favor the left side of the road when approaching from that direction, in part because of the optical illusion.

Based upon these findings, the magistrate concluded that the court “has before it evidence that creates a strong suspicion of negligence in driving on the left side of the road approaching a crown that obscures oncoming traffic. However, the testimony of [long time residents] indicate that any such negligence is neither aggravated, nor reckless. Instead, it is apparently customary for those persons who frequent this particular private road. Therefore, the court concludes that it has before it only evidence to support a suspicion of ordinary, not gross negligence.”

The magistrate (Judge Tamietti) ordered the prosecutor to file an amended complaint charging defendant with the misdemeanor offense and continued the matter to January 2005 for defendant to enter a plea to that charge. When no amended complaint was filed, the magistrate (Judge Darlington) dismissed the case pursuant to section 871.1

Following the dismissal, the People consulted with the California Highway Patrol Multidisciplinary Accident Investigation Team (CHP) regarding whether the matter was more appropriately pursued as a case of gross negligence vehicular manslaughter or as a case of ordinary negligence vehicular manslaughter. In April 2005, CHP advised that the case was more appropriately pursued as the latter.

Thus in May 2005, the present complaint was filed charging defendant with a misdemeanor violation of section 192, subdivision (c)(2). (Case No. M05-0569.)

In October 2005, defendant filed a motion to dismiss the present case based upon section 1387 and Burris, supra, 34 Cal.4th 1012. Following a hearing, the trial court (Judge Tamietti) granted the motion.2 The People appealed to the Appellate Department of the Nevada County Superior Court, which unanimously affirmed.

In granting the People’s petition for transfer, we certified two issues: “1. The application, if any, of ‘a misdemeanor charged together with a felony’ as used in Penal Code section 1387,” and “2. The application of the reasoning of [Burris] to these facts.”

DISCUSSION

We begin with the second issue certified in our order for transfer. For reasons we shall explain, the first issue requires only brief consideration.

The appeal turns upon the provisions of section 1387, subdivision (a). It provides in relevant part: “An order terminating an action pursuant to . . . Section . . . 871 . . . is a bar to any other prosecution for the same offense if it is a felony or if it is a misdemeanor charged together with a felony and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995, or if it is a misdemeanor not charged together with a felony, except in those felony cases, or those cases where a misdemeanor is charged with a felony, where subsequent to the dismissal of the felony or misdemeanor the judge or magistrate finds any of the following: [circumstances not relevant here] . . . .”

Section 1387 was recently construed in Burris v. Superior Court, supra, 34 Cal.4th 1012. The defendant was first charged with misdemeanor driving under the influence of alcohol (DUI) with two prior convictions; when the prosecutor discovered a third DUI prior, he dismissed the misdemeanor complaint and filed a felony complaint. (Id. at pp. 1015-1016.) Burris’ motion to dismiss the felony complaint was denied, the Court of Appeal denied his petition for writ of mandate, and the Supreme Court affirmed the Court of Appeal. (Id. at pp. 1016, 1024.)

Burris considered the converse of the present issue: whether dismissal of a misdemeanor complaint bars a new felony charge, not whether dismissal of a felony complaint bars a new misdemeanor charge.

Burris found that the parties’ competing “grammatical arguments” as to the meaning of section 1387 were not “dispositive.” (34 Cal.4th at p. 1017.) Burris then turned to the “human problems the Legislature sought to address in adopting section 1387 -- ‘“the ostensible objects to be achieved [and] the evils to be remedied.”’ [Citation.]” (Id. at p. 1018.)

Burris explained: “Section 1387 implements a series of related public policies. It curtails prosecutorial harassment by placing limits on the number of times charges may be refiled. [Citations.] The statute also reduces the possibility that prosecutors might use the power to dismiss and refile to forum shop. [Citations.] Finally, the statute prevents the evasion of speedy trial rights through the repeated dismissal and refiling of the same charges. [Citations.]” (34 Cal.4th at p. 1018.)

Burris continued: “The statute’s differential treatment of misdemeanors and felonies reflects a different set of public policies. On the one hand, society has an interest in the expeditious resolution of lesser charges. Section 1387 reflects a judgment that scarce prosecutorial resources should not be expended in multiple attempts to punish misdemeanor conduct and mere misdemeanants should not be subjected to serial prosecutions. [Citations.] [¶] On the other hand, there is a heightened societal interest in the prosecution of more serious crimes. Compared to a misdemeanor violation, ‘[i]f the offense is potentially a felony, society has a much greater interest in its punishment . . . .’ [Citation.] As we once colorfully explained, the Legislature’s differential treatment of misdemeanors and felonies in section 1387 is justified by the fact that felonies include crimes ‘so heinous in character that to [their] frequent and unchecked commission might be attributed the origin of a possible statewide disaster, or eventually, the downfall of organized society,’ while many misdemeanors ‘may be insignificant as far as [their] effect upon the body politic is concerned.’ [Citations.] Indeed, until 1975, the interest in prosecuting felonies was considered so much greater that, while a one-dismissal rule applied to misdemeanors, felony charges could be refiled ad infinitum. [Citations.]” (34 Cal.4th at pp. 1018-1019.)

Burris next explained: “Section 1387 reflects a legislative judgment that because of the heightened threat to society posed by serious crimes, more filings should be permitted for serious crimes than minor ones. In turn, the best measure of the seriousness of a crime -- and the corresponding societal interest in its prosecution and punishment -- is not how the crime was originally charged, based on possibly limited evidence, but how the prosecution currently seeks to charge it, based on the most current and best available evidence. It follows that, for purposes of categorizing a crime as subject to a one-dismissal or two-dismissal rule, what matters is the current charge, not the one previously dismissed. The interpretation of section 1387 that most closely comports with these underlying legislative goals is this: Misdemeanor prosecutions are subject to a one-dismissal rule; one previous dismissal of a charge for the same offense will bar a new misdemeanor charge. Felony prosecutions, in contrast, are subject to a two-dismissal rule; two previous dismissals of charges for the same offense will bar a new felony charge.”

(34 Cal.4th at p. 1019, fn. omitted.)

Burris summarized its conclusion: “We note that because what matters is the nature of the current charge, the nature of any prior charges is immaterial to application of these dismissal rules. Thus, either a misdemeanor or a felony dismissal will bar a subsequent misdemeanor charge, while either two felony dismissals or one misdemeanor and one felony dismissal will bar a subsequent felony charge.” (34 Cal.4th at p. 1020, fn. omitted.)3

The People contend that Burris’ “one-dismissal rule” for misdemeanors is dictum because the charge there at issue was a felony. But Burris’ formulation of the “one-dismissal” and “two-dismissal” rules was the court’s response to Burris’ argument that one prior dismissal of a misdemeanor bars a subsequent felony. (Burris, supra, 34 Cal.4th at p. 1017.) Thus, the one- and two- dismissal rules are the ratio decidendi, or “principle or rule that constitutes the ground of the decision.” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,

§ 945, p. 986.) Alternatively, assuming the rules are dicta,

we have observed that “[d]icta of the Supreme Court should not be disregarded by an intermediate appellate court without a compelling reason.” (Lawler v. City of Redding (1992) 7 Cal.App.4th 778, 784.) No such reason appears.4

The next question is whether the present misdemeanor was previously dismissed. We conclude it was.

Burris explained that “[w]hen two crimes have the same elements, they are the same offense for purposes of Penal Code section 1387.” (34 Cal.4th at pp. 1016-1017, fn. 3.) Burris’ only cited authority is Dunn v. Superior Court (1984) 159 Cal.App.3d 1110, at page 1118 (hereafter Dunn), which, according to Burris, applied the “same elements test to determine whether new charge is same offense as previously dismissed one for purposes of § 1387.” (Burris, supra, at p. 1017, fn. 3.)

Dunn explained that “[k]kidnapping for the purpose of robbery cannot be committed without committing the lesser offense of kidnapping. Two dismissals of kidnapping should bar a prosecution for kidnapping for the purpose of committing robbery on the theory that to charge the greater would be also to charge the lesser an additional and prohibited third time. [¶] So too with the offenses of auto theft and robbery. Although every robbery does not include an auto theft, the concept of necessarily included offenses permits reference to the facts in the accusatory pleading. (People v. Marshall (1957) 48 Cal.2d 394, 398 [309 P.2d 456].) Thus, in Marshall auto theft was held to be a necessarily included offense in robbery where the property taken in the robbery was alleged in the information to be the automobile involved in the auto theft.” (Dunn, supra, 159 Cal.App.3d at p. 1118, italics added.) Dunn thus stands for the proposition that for purposes of section 1387, the “same elements” may be located not only in successive charges of the same offense but also in successive charges of greater and lesser included offenses.

Dunn cited Wallace v. Municipal Court (1983) 140 Cal.App.3d 100 for the proposition that, “‘when the essence of the offense charged in a second action is the same as the essence of the offense in a previously dismissed action the second action will be barred.’” (159 Cal.App.3d at p. 1118, italics added.) The People criticize this “same essence” test as impermissibly vague. It suffices for present purposes to confine Dunn to the “same elements test” approved in Burris. (Burris, supra, 34 Cal.4th at p. 1017, fn. 3.)

“[V]ehicular manslaughter without gross negligence” is “a lesser included offense of vehicular manslaughter with gross negligence.” (People v. Piceno (1987) 195 Cal.App.3d 1353, 1355.) Thus, the dismissed charge of felony vehicular manslaughter with gross negligence (Case No. F04-335) accused defendant of all the elements (plus gross negligence) that he was later accused of in the new charge of misdemeanor vehicular manslaughter (case No. M05-569). The previous charge of the greater was also a previous charge of the lesser; to again charge the lesser is to do so an “an additional and prohibited [second] time.” (Dunn, supra, 159 Cal.App.3d at p. 1118.)5

Burris’s application to this case is straightforward. Because “[m]isdemeanor prosecutions are subject to a one-dismissal rule,” under which “one previous dismissal of a charge for the same offense will bar a new misdemeanor charge,” the prior dismissal of case No. F04-335 now bars the misdemeanor charge in case No. M05-569. (Burris, supra, 34 Cal.4th at p. 1019.)

The People contend that allowing them to refile the misdemeanor charge would “serve the policy of curtailing prosecutorial harassment,” because “the People could have refiled the original charge of section 192(c)(1), but chose not to do so.” The contention fails because its premise is incorrect.

Following the referral to CHP and its determination that the case was more appropriately pursued as a misdemeanor, the prosecution could not have refiled the now-inconsistent felony charge in good faith without some reasonable basis for rejecting CHP’s assessment. (Cf. In re Sakarias (2005) 35 Cal.4th 140, 159-160.) The People do not suggest any such basis, and none appears.

DISPOSITION

The judgment is affirmed.

BLEASE , Acting P. J.

We concur:

RAYE , J.

CANTIL-SAKAUYE , J.





CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Nevada)

THE PEOPLE,
Plaintiff and Appellant,

v.

DALE TRAYLOR,

Defendant and Respondent.
C053172
(Super. Ct. No. A423 (M05-569))

ORDER OF PUBLICATION


APPEAL from a judgment of the Superior Court of Nevada County, Robert L. Tamietti, Judge. Affirmed.

Michael W. Ferguson, District Attorney, David M. Walters, Deputy District Attorney, for Plaintiff.

Thomas M. Anderson, Public Defender, Daniel M. Geffner, Deputy Public Defender, for Respondent.

BY THE COURT:

The opinion in the above entitled matter filed September 25, 2007, was not certified for publication in the advance sheets and official reports.

For good cause it now appears that the opinion should be published and accordingly, it is ordered that the opinion

be published in the advance sheets and official reports.

FOR THE COURT:

BLEASE , Acting P. J.

RAYE , J.

CANTIL-SAKAUYE , J.



1 Section 871 provides: “If, after hearing the proofs, it appears either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate shall order the complaint dismissed and the defendant to be discharged, by an endorsement on the depositions and statement, signed by the magistrate, to the following effect: ‘There being no sufficient cause to believe the within named A. B. guilty of the offense within mentioned, I order that the complaint be dismissed and that he or she shall be discharged.’”
Judge Tamietti’s order may be considered a dismissal pursuant to section 871. “Where the order precludes the prosecutor from proceeding to trial on the felony offense[] originally charged, it must be construed as a dismissal within the meaning of section 871. . . . [T]he effect of the magistrate’s order . . . was to preclude the prosecution of defendant on [a] felony charge[] because the evidence of the felon[y] was insufficient. We are satisfied that this order constitutes a dismissal within the meaning of section 871.” (People v. Superior Court (Feinstein) (1994) 29 Cal.App.4th 323, 332.) The prosecution conceded that the effect of Judge Tamietti’s order was a dismissal. In any event, Judge Darlington’s order was an explicit dismissal pursuant to section 871.



2 At the hearing and in his written ruling granting the dismissal, Judge Tamietti asserted that he had previously erred in ordering the prosecutor to file an amended complaint. Instead, he reasoned, he (as magistrate) should have reduced the felony charge (a “wobbler”) to a misdemeanor pursuant to section 17, subdivision (b)(5).
However, a section 17, subdivision (b)(5) reduction would not have relieved the prosecution of its burden to prove all the elements of the section 192, subdivision (c)(1) offense, including gross, rather than ordinary, negligence. (People v. Superior Court (Feinstein), supra, 29 Cal.App.4th at p. 329 [§ 17 confers no power to reduce a charge to a different crime].) A section 17, subdivision (b)(5) reduction would not have adequately addressed Judge Tamietti’s finding of insufficient evidence of gross negligence.



3 The present case illustrates the wisdom of Burris’ observation that “the best measure of the seriousness of a crime” is “not how the crime was originally charged, based on possibly limited evidence, but how the prosecution currently seeks to charge it, based on the most current and best available evidence.” (Burris, supra, 34 Cal.4th at p. 1019.) Following dismissal of the felony complaint (§ 192, subd. (c)(1)), the prosecution consulted with the CHP, which advised that the matter was more appropriately pursued as a case involving ordinary negligence, which is to say, a misdemeanor (§ 192, subd. (c)(2)). Thus, the “most current and best available evidence” compels the conclusion that this case is a misdemeanor, notwithstanding its prior filing as a felony. (Ibid.)



4 The felony complaint in case No. F04-335, and the misdemeanor complaint in case No. M05-569, each charged a single count of violation of a single statutory provision. Thus, neither case involved “a misdemeanor charged together with a felony,” within the meaning of section 1387. Our certification of an issue with respect to that phrase appears on reflection to have been improvident.
In any event, the evident purpose for treating “a misdemeanor charged together with a felony” the same as “a felony” is suggested by Burris’ comment that section 1387 “curtails prosecutorial harassment by placing limits on the number of times charges may be refiled.” (Burris, supra, 34 Cal.4th at p. 1018.) The addition of a misdemeanor charge does not inconvenience or “harass” a defendant who is properly in court on a felony charge to the same extent that the misdemeanor charge would inconvenience a defendant who would otherwise be out of court.



5 We thus reject the People’s argument that “the misdemeanor charge dismissed by the trial court was not a charge which had ever been previously dismissed, and therefore, this charge is not a charge which is described in the second portion of section 1387(a), which sets forth a one dismissal rule barring further prosecution for the same misdemeanor offense which has been previously dismissed.”

DUI / DMV / DWI / Drunk Driving criminal defense attorney news

Three Franklin County deputies were honored Thursday for their efforts to put the brakes on impaired driving.

Deputies Robert Beggs, Wes Harbison and Kevin Roye received recognition from the Illinois Department of Transportation for their dedication to DUI enforcement.

Roye topped the department in DUI arrests with 45 in 2007 and 154 since 2001; Beggs made 25 DUI arrests last year to total 93 since 2001. Harbison, who recently marked his one-year anniversary with the department, made 26 DUI arrests.

In addition to the IDOT recognition, the deputies had letters of commendation placed in their files, said Capt. Don Jones.

"Traffic crashes that are alcohol and drug related kill and injure thousands of people across the United States each year," Jones said. "It is recognized that driving under the influence is a crime that very often impacts our community in a particularly heinous way," Jones read from the letters.

Driving under the influence is without a doubt, Jones said, the crime responsible for more heartache from personal injuries and deaths than any other crime.

"It's a big deal, one of the biggest, and people don't always recognize that," Jones said. "One of the things about law enforcement is you never know how much good you really do. But statistically, these guys have saved at least one life each with their efforts."

Sheriff Bill Wilson said deputies make a concerted effort to rid the roads of impaired drivers and have been honored for their achievements before by organizations like Mothers Against Drunk Driving.

"I'm proud of them. We've got a good crew," Wilson said.

California San Diego DUI Tipster defense attorney case

DUI Police charged Violet Hernandez with DUI, refusal to submit to testing, possession of a controlled substance and child abuse after they pulled over her car on Busch Boulevard near Brooks street.

Tampa PD were tipped by another person who told them they were concerned the driver was impaired. By the time Police arrived they saw for themselves what concerned the DUI tipster. It took a while but police managed to pull over Hernandez before she nearly hit a gas pump at a gas station.

Police found her 12-year-old daughter in the car as they conducted their drunk driving / DUI investigation. Medication was found as well but Hernandez was unable to show proof of a prescription.

DUI / Drunk Driving / DWI criminal defense news

A state's attorney who once prosecuted Olympic swimming star Michael Phelps for drunken driving has been arrested for the same infraction.

Wicomico County State's Attorney Davis R. Ruark was pulled over Friday night after officers observed him speeding and crossing the center line, Ocean City police said.

Ruark failed a field sobriety test, and a breath test later showed he had a blood-alcohol content greater than 0.08 percent, Maryland's legal limit, police said. He was charged with driving under the influence, speeding and failure to keep right of center.

"This, by far, is the saddest day of my professional career," Ruark said Saturday. "I made a tremendous error in judgment."

He said he would try to get his case heard as soon as possible. In the meantime, he said he would not handle any alcohol- or drug-related cases that involve vehicles.

It was Ruark's first drunken-driving arrest, and court records show no other run-ins with the law.

Ruark, a Democrat, has been state's attorney in Wicomico since 1989. He is a member of the county's Drug and Alcohol Abuse Council, and he prosecuted Phelps in 2004. The athlete pleaded guilty to driving while impaired and received 18 months' probation.

Ocean City police said that at about 9:40 p.m., dispatchers received a 911 phone call advising them that a car was driving erratically and speeding east on Route 90 heading toward Ocean City. The caller provided a description and the tag number of the car, police said.

Shortly thereafter, officers reported that they observed the car at the base of the Route 90 bridge. They followed the vehicle north on Coastal Highway.

Officers said in their report that they observed the vehicle traveling approximately 50 mph in a 40 mph zone. The car turned west on 94th Street, police said, traveled several more blocks and was seen crossing the center yellow line of the road.

Police stopped in the car in area of the 8900 block of Chesapeake Drive. Officers identified the driver as Davis Ruark, state’s attorney for Wicomico County.

After being administered several field sobriety tests, police said, Ruark was taken into custody for driving under the influence of alcohol.

The vehicle Ruark was driving, a 2000 Nissan, was registered to the Wicomico County government, according to police.

Ruark was transported to Ocean City Police Department headquarters, where he was administered a breath test. The test results exceeded the legal blood alcohol concentration of .08, police said.

Contacted early today, Ruark said he would have a statement for the public later in the day.

A Democrat, Ruark has been a lawyer since 1981 and has been state's attorney for Wicomico County since 1989. He was named to the county's Drug and Alcohol Abuse Council in 2004.

Ruark's arrest came just hours after his office lost a high-profile case against a Salisbury doctor accused of sexually assaulting a patient. Dr. Mahmaud Shirazi was acquitted by a Wicomico County Circuit Court jury on Friday following a three-day trial.

Ruark was charged with:

-- Driving under the influence of alcohol.

-- Speeding.

--Failure to keep right of center.

--Ruark was processed and released to a responsible party after signing citations.

A trial date has not yet been set by the District Court of Maryland.

MOTION TO SUPPRESS

STATEMENT OF FACTS

A State Patrol officer was dispatched to the scene of a one-vehicle accident in rural County. When he arrived, there were no occupants of the vehicle on the scene. He spoke with a witness who had talked to the driver and seen him walking towards a nearby apartment complex. Shortly thereafter the Petitioner’s father arrived on the scene, spoke with the officer, and advised him that he was uncertain of his son’s whereabouts. There is no evidence that any property was damaged except for the Petitioner’s automobile.

The Petitioner thereafter contacted his father by cellular telephone, at which time the officer took the telephone from the father and told the Petitioner to remain at his residence. The trooper then followed the father to the residence, where a videotape showed that the father knocked on the door. When the Petitioner answered, the officer ordered him to come outside where he handcuffed him. It is undisputed that the officer told the Petitioner and his father that he was not yet under arrest.

The officer then transported the Petitioner back to the accident scene where he performed field sobriety tests. The trooper then placed the Petitioner under arrest and read the Implied Consent Warning to him. He consented to a state administered blood test, but the reliability and validity of those results, as opposed to the admissibility of same, are not challenged in this appeal.

2.
"The poorest man may in this cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter - all his force dares not cross the threshold of the ruined tenement." Miller v. United States, 357 U.S. 301, 307 (1958). As a consequence of our adoption of this English common law protection as a constitutional right, the warrantless entry into an individual’s home to make an arrest is prohibited absent exigent circumstances or lawfully obtained consent. Payton v. New York, 445 U.S. 445, 587-88 (1980). As will be seen, this Constitutional protection will be rendered meaningless for this Petitioner unless this Application is granted.

This Petitioner was arrested by the officer without probable cause, based on legally

obtained evidence, to believe that he was driving under the influence. A person has been seized within the meaning of the Fourth Amendment if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. United States v.Mendenhall, 446 U.S. 544, 554 (1980). That seizure rises to the level of an arrest if a reasonable person in the suspect's position would have thought the detention would not be temporary. State v.Tibbs, 207 Ga. App. 273 (1993)

The officer ordered the Defendant to leave his residence in order to handcuff him, take him back to the accident scene, and conduct field sobriety tests, which constitute a search. However, this seizure and subsequent search were conducted in the absence of exigent circumstances. "A private home is an unquestionable zone of privacy under the Fourth Amendment, and a warrantless search must be justified by exigent circumstances." State v. Shephard, 248 Ga. App. 433 (2001). If the officer had merely requested the Defendant

3.

to step outside, the result would be different. Threatt v. State, 240 Ga. App. 592 (1999). However, the encounter was totally non-consensual once the officer ordered the Defendant to leave his residence. In an analagous situation our Court of Appeals refused to apply the "hot pursuit" doctrine when there was not an immediate and continuous pursuit. Hamrick v. State, 198 Ga. App. 124 (1990). In other words, the officer lacked exigent circumstances which would justify a warrantless seizure of the Defendant in his residence, and in view of the lack of such exigent circumstances the fruits of that search should be suppressed.

The Court is asked to take special note of Threatt. When the Court held that the encounter was consensual, it relied on the fact that the Appellant was requested, not ordered, to step outside. Since the Court’s holding is premised on that distinction, it only stands to reason that the result should be different in a case like this where the officer ordered the Petitioner to come outside. This Court has not been squarely confronted with the issue, but the Supreme Court of Oregon, while relying on State Constitutional grounds, found that ordering a person to come out of his home without exigent circumstances violated his right to be free of unreasonable searches and seizures. State v. Dahl, 323 Or. 199, 915 P.2d 979 (1996).

In this case the trial court ruled from the bench that ordering the Petitioner to leave the protection of his home was the functional equivalent of ordering him to get out of his car. However, this Court has recently reaffirmed the principle that the right to be free of unreasonable searches and seizures has been construed, practically since the founding of the Republic, as recognizing a necessary difference between a search of a dwelling house, store, or other building and a search of a wagon, boat, or automobile. Somesso v. State, 288 Ga. App. 291 (2007). Therefore, the trial court overlooked this fundamental principle

4.

of Fourth Amendment jurisprudence and erred when it denied the motion.

The fruits of the seizure of the Petitioner include the performance of the field sobriety tests, which were not voluntary but the result of the arresting officer’s unlawful seizure. Although consent searches are valid, the burden is upon the State to show that the "consent" was not the result of duress or coercion. Cuevas v. State, 151 Ga. App. 605, 609 (1980). Here, the search was tainted by the initial unlawful seizure. Consequently, all evidence obtained as a result of the initial unlawful search must be suppressed.

CONCLUSION

WHEREAS, the Petitioner enjoyed a reasonable expectation of privacy in his residence; and

WHEREAS, the arresting officer lacked exigent circumstances coupled with probable cause to justify a warrantless entry into the Petitioner’s home; and

WHEREAS, the order to leave his home constituted an unreasonable seizure;

THEREFORE, the Petitioner requests that this Court grant his Application for an Interlocutory Appeal.

San Diego DUI lawyer

- There can be few more sobering experiences for drunken drivers than being stopped by Officer Scott Mounger.

At 3 a.m. Dec. 31, when Mounger stopped a speeding driver in southeast Newport News and determined the driver was intoxicated, it was a cause for a personal celebration for the officer.

It was his 60th DUI arrest in 2007, the highest annual total for an officer in Newport News Police Department last year.


Testing volunteers for alcohol
Mounger's expertise in spotting drivers under the influence of alcohol and drugs meant he was drafted into the classroom Thursday to train new recruits who were asked to look for signs of intoxication in civilian volunteers.

He received an outstanding police performance award at this month's semi-annual departmental awards ceremony.

Mounger, 44, became determined to tackle DUIs three years ago when he was assigned to the south precinct.

"In 2005, the highest amount of DUIs by an officer in this precinct was about 13," he said.

"I started looking around at south precinct and where I was patrolling. In my own mind I felt that DUI enforcement was an ignored problem. I thought I'd take it on myself to see if I could get more DUIs on the precinct," Mounger said.

He became concerned about the extent of the problem on Jefferson Avenue, a highly traveled thoroughfare.

"It's what people in this profession refer to as a target-rich environment."

In 2006, Mounger made 27 DUI arrests, the highest for any officer in the south precinct.

"Last year I set out to crush that record of mine and the department record which was 45. I got aggressive and I kept thinking about something a previous officer when I was a young rookie told me, that I should identify a problem, go after it and try to be the best at it. I decided to make it DUIs. Before I knew it, I had 60."

But Mounger wasn't confident he would make the 60 mark. "I got to 50 and I thought it would come crashing to an end, but December was a really busy month for me."

Patrol officers looking for drivers under the influence of alcohol or drugs can't randomly stop drivers. They need to determine "probable cause" to stop the vehicle.

"The things that I look for the most are drifting, weaving and swerving," Mounger said. "It can be other things like speeding. It can be as simple as running a traffic light. I've been looking for the vehicles that appear to me to be driving erratically."

Mounger believes DUI enforcement in the south precinct may have taken a back seat in previous years because of the scale of the area's other crime problems such as homicides, drugs and gangs.

"The thing that I found out very quickly as I got DUIs was that I wasn't just getting more DUIs. I was getting wanted persons. I was finding guns in the vehicles and began getting a lot of drugs," he said.

Mounger said he was helped by working weekends starting at midnight, for most of the year. He said the four-hour window from midnight to 4 a.m., is the time most drunken drivers hit the roads.

As part of the training Mounger conducted this week for 28 new recruits, civilian volunteers were given varying amounts of alcohol and the recruits were asked to judge which ones were intoxicated through a series of tests.

"We also throw in some people who haven't been drinking," Mounger said.

The members of the public were assigned "babysitters" to drive them home.

Mounger thinks he's unlikely to beat his record this year.

"I don't know if I could do it. It wasn't so much going after the arrests but the repercussions of the arrests. Throughout that entire year last year I was in high demand in DUI court. It really tapped into my personal time and it wasn't uncommon to be in DUI court every day of my off time," he said.



The steps to DUI detection after a driver is stopped.

•Pre-exit tests. These include a finger dexterity test where police will test if drivers can manipulate their fingers and count at the same time. Police use an alphabet test and a number test that entails counting.

• If officers suspect impairment, the suspect will be asked to get out of the vehicle and do a stand and turn test and a test that involves standing on one leg and counting.

• Suspects who fail these tests will be offered a preliminary breath test with a field testing device. A decision on arrest is made based on the test.

• Suspects who submit to a breath test are taken to one of two Breathalyzer facilities in the city for a chemical testing analysis. A positive result comprises evidence against the driver who is then taken before a magistrate.

• Drivers who refuse to take any of the detection tests face an additional penalty.

San Diego DUi lawyer news

Paul L. Yahne, one of the first people charged in Pierce County with felony DUI, has been found not guilty by a jury.
The Superior Court jury reached its verdict Feb. 14, according to court records.

A sheriff’s deputy stopped Yahne on Aug. 21, 2007, after spotting him driving after dark without his headlights on. The deputy suspected Yahne had been drinking and arrested him on suspicion of driving under the influence.

Pierce County prosecutors charged Yahne under a new law that makes a person’s fifth DUI conviction over a 10-year period a felony. Yahne, 45, has four DUI convictions since 2000, according to court records.

Under previous law, all DUI convictions were treated as gross misdemeanors punishable by up to a year in jail. A felony DUI conviction requires state prison time and mandatory alcohol and drug testing.

Although acquitted of DUI, Yahne pleaded guilty to second-degree driving with a suspended license in the case and was sentenced to 330 days in jail.

He was given credit for 177 days time served and should be out of jail in April.

California DUI defense lawyer case

Filed 2/21/08 P. v. Logsdon CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.

BRIAN EUGENE LOGSDON,

Defendant and Appellant.
G038366
(Super. Ct. No. 06NF3390)

O P I N I O N


Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Andrew E. Rubin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Brian Eugene Logsdon appeals from the judgment following his guilty plea to driving under the influence of alcohol and drugs as a felony after three previous convictions for the same offense.1 (See Veh. Code, §§ 23152, subd. (a), 23550.) He received the bargained-for low term of 16 months in prison.2 On appeal, he contends the court erred when it denied his motion to suppress evidence, after which he changed his plea. We affirm.

FACTS

The facts presented at the suppression motion hearing were limited to those supporting the initial detention, as follows:

Anaheim Police Officer Daniel Lambaren was on duty about 1:20 a.m. when he observed Logsdon driving a Mustang. Although there was very little, if any, traffic on the street, Lambaren noticed the Mustang because it emerged from a gas station, crossed all but one lane of a seven-lane boulevard and proceeded to drive forward in the middle lane. Lambaren was in his patrol car, following the Mustang in the same lane. After about 100 feet, the Mustang moved from the middle lane to the far right lane without signaling. Lambaren ordered the car to stop due to the violation of Vehicle Code section 22107.3

After the suppression motion was denied, Logsdon changed his plea to guilty, stating on his change of plea form that he “unlawfully drove a vehicle while under the influence of alcohol/drugs,” that he had three prior convictions for the same offense, and that he “refused to complete a chemical request to determine my BAC [blood alcohol concentration].”

DISCUSSION

Lawful Detention

Logsdon contends Lambaren unlawfully stopped and detained him. He characterizes the lane change as one not requiring a signal because there was no other traffic which would have been affected by the lane maneuver. Thus, no signal was needed to change lanes in a safe manner, and no violation of the Vehicle Code was committed.

The standard to review the denial of a suppression motion is well settled. We must defer to the trial court on all its factual findings if they are supported by substantial evidence. Once the facts are determined, we then decide de novo whether the search or seizure was reasonable under established constitutional principles. (See People v. Ayala (2000) 24 Cal.4th 243, 279.) The constitutional principle in this case is that a “detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.)

Logsdon characterizes the situation in which Lambaren stopped him as a safe lane change because there were no other cars that could possibly have been affected by it. As a signal is only a prerequisite to a lane change if another motorist could be affected—see Stephens v. Hatfield (1963) 214 Cal.App.2d 140, 144—Logsdon argues that Lambaren improperly stopped him. Although the axiom may be correct, it does not avail him in the overall argument because Lambaren was affected by the lane change. He was directly behind Logsdon, in the same lane and within 100 feet of him. As established in People v. Miranda (1993) 17 Cal.App.4th 917, a signal is primarily aimed at vehicles behind the car making the lane change. That even applies to a patrol car, irrespective of the lack of any other traffic.4 (Id. at p. 930.)

Logsdon argues that the holding of Miranda did not involve the issue of the detention due to the lane change. Instead, he characterizes the case as a rejection of an officer’s use of a traffic stop as a pretext to search for evidence of some crime, i.e., a fishing expedition. However, the Miranda court analyzed the justification for the traffic stop under Vehicle Code section 22107 first to insure the officer was acting properly in making a stop at all. “[T]he inquiry focuses on whether the officer was legally authorized to make an arrest and conduct a search. If, in the abstract, the officer does no more than he or she is legally permitted to do, regardless of the subjective intent with which it was done, the arrest and search are objectively reasonable . . . .” (People v. Miranda, supra, 17 Cal.App.4th at pp. 922-924.)

Once this issue was addressed, Miranda responded that the officer “did not testify that [the driver’s] unsignaled left turn was actually unsafe or that there was any other traffic around.” (People v. Miranda, supra, 17 Cal.App.4th at p. 926.) These points were deemed irrelevant. The court noted that the driver “might not have been driving in an obviously dangerous manner[,]” but the stop for the unsignaled lane change was proper nonetheless because “the failure to properly signal where another ‘may be affected by the movement’ is prima facie unsafe, for it creates the possible danger the statute was designed to prevent. Moreover, defendant is mistaken that there was no other traffic around. [The] Officer [] was behind [the driver], and the primary benefit of the signal requirement is for the vehicles to the rear of the signaling vehicle. [Citation.]” (Id. at p. 930, italics added.) Thus, Miranda’s argument was rejected.

Logsdon counters with the allegation that Lambaren’s car was too far away to be affected by the lane change at all. He extrapolates that the distance was commensurate with the distance between “home and first base” or “seven full car lengths behind.” He emphasizes that Lambaren was not affected by the change as evidenced by his not braking or swerving. Thus, there was no necessity for Logsdon to signal before moving into the adjacent lane.

Actual impact is not required by the statute; potential effect triggers the signal requirement. (See Veh. Code, § 22107 [“in the event any other vehicle may be affected . . . .” Italics added.].) The trial court found that a vehicle within 100 feet of Logdon’s car, traveling in the same lane and at the same speed, was affected by the lane change. Moreover, the Legislature has declared its opinion that vehicle signals are needed within 100 feet of any turn. (See Veh. Code, § 22108.) Whether this finding is a discretionary finding or a finding of fact, we must accept this one. Factual findings are to be accepted if substantial evidence can be found in the record to support them (see People v. Ayala, supra, 24 Cal.4th at p. 279), and discretionary rulings must be upheld unless an abuse of that discretion is shown. (See People v. Bishop (1993) 14 Cal.App.4th 203, 212-213 [abuse-of-discretion standard appropriate when lower court “is in the best position to determine the genuineness and effectiveness of the showing . . . .”].) Under either standard, we must accept this finding.

In this case, changing from the middle lane to the far right lane without signaling could have affected the sole driver traveling behind Logsdon. The lack of a signal could have been due to the driver’s drifting into the lane without intending to do so, with the possible result of a very sudden over-correction upon the error’s discovery. Or, the driver could have unknowingly changed lanes due to a sudden illness or sleepiness. The failure to signal would have left any driver proceeding behind him in bewilderment as to what to expect because it was impossible to discern the initial driver’s intent in changing lanes. The purpose of the signaling requirement is to inform other drivers what the initial driver intends and thus, provide them with an indication as to his or her future course. Without such an indication, a driver is bereft of necessary information by which preparations can be made to drive safely.

Moreover, the question is not whether Logsdon actually violated the statute. Rather, the issue was if some “objective manifestation” that the person may have committed such an error was present. (See People v. Souza, supra, 9 Cal.4th at 231.)

Logsdon replies that language in In re Jaime P. (2006) 40 Cal.4th 128 intimates that there must be at least one vehicle actually affected by the lane change to trigger application of the statute: “The officer first observed the driver of the car turn corners without signaling and then pull over to the curb, again without signaling. (The People conceded these violations standing alone would not have justified a vehicle stop, as no other vehicles were affected . . . .)” (Id. at p. 131.) We disagree with this characterization of the two sentences.

First and foremost, the actual language in Vehicle Code section 22107 is clear and unambiguous. Its provisions apply to any vehicle which “may be affected . . .” not only to vehicles actually affected. (Veh. Code, § 22107, italics added.)

Second, the language excerpted from Jaime P. was not at all relevant to the holding of its opinion. The holding was whether the prosecution could rely on a juvenile’s probationary search condition when the officers conducting the search were personally unaware of it. (See In re Jaime P., supra, 40 Cal.4th at p. 130.) Moreover, the specific language was conclusory and not factual: The phrase was a mere summary of certain facts not relevant to the holding but of general interest to the reader. Such dictum fails to prove that no vehicles were affected or that the statute had been judicially altered to require actual effect. It reflects only that the parties agreed to a summary of the facts which the Court then paraphrased in that fashion.




In our independent assessment, the motion was properly denied. We

therefore affirm the judgment.

SILLS, P. J.

WE CONCUR:

RYLAARSDAM, J.

BEDSWORTH, J.



1 Originally, Logsdon faced charges of possessing less than an ounce of marijuana (Health & Saf. Code, § 11357, subd. (b)), but this additional charge was dismissed when he changed his plea to the main charge.



2 As Logsdon has informed us in his brief, he has completed his incarceration and is presently on parole.



3 Vehicle Code section 22107 provides that no one “shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement.” (Italics added.)



4 In Miranda, the distance between Miranda’s car and the officer’s car was never established. (People v. Miranda, supra, 17 Cal.App.4th at p. 921.) However, by failing to signal before turning, the lane change was “prima facie unsafe . . . .” (Id. at p. 930.)

san diego dui attorney news

No Prosecution continuances without good cause!

The prosecutors believe that the law guarantees their “right” to trail a case during a trailing period even though they cannot show good cause to so trail. Really. I think it’s the 3.1 Amendment: “prosecutors have a right to trail on demand. So there.” The prosecutors now claim that an amended COMMENT to a court rule is illegal because it conflicts with this “right.”

This has manifested itself in a truly bizarre sequence of events still unfolding. Before I get too far, I need to address what “trailing period” means. If you go outside the initial statutory period in a felony or a misdemeanor, the case must be dismissed if it is continued more than ten days after the last date consented to by the defendant. This ten-day period is called the “grace period” or “trailing period.” Of course, sometimes the case trails from day 50 to day 60, or day 20 to day 30, or day 35 to day 45. And cases trail for a preliminary hearing as well, though the prosecution can trail within the initial ten-day period without showing good cause.

The Rules of Court were amended effective January 1, 2008. Rule 4.115(b) says, “Any request for a continuance, including a request to trail the trial date, must comply with rule 4.113 and the requirement in section 1050 to show good cause to continue a hearing in a criminal proceeding.” In turn, Rule 4.113 says, and has said since 1985, “Motions to continue the trial of a criminal case are disfavored and will be denied unless the moving party, under Penal Code section 1050, presents affirmative proof in open court that the ends of justice require a continuance.”

Now here’s the big change. The Comment to Rule 4.115 was amended, also effective January 1, 2008. Here’s the Comment. I know it’s long, but read it all, slowly, please:

Subdivision (b) clarifies that the “good cause” showing for a continuance under section 1050 applies in all criminal cases, whether or not the case is in the 10-day grace period provided for in section 1382. The Trial Court Presiding Judges Advisory Committee and Criminal Law Advisory Committee observe that the “good cause” requirement for a continuance is separate and distinct from the “good cause” requirement to avoid dismissals under section 1382. There is case law stating that the prosecution is not required to show good cause to avoid a dismissal under section 1382 during the 10-day grace period because a case may not be dismissed for delay during that 10-day period. (See, e.g., Bryant v. Superior Court (1986) 186 Cal.App.3d 483, 488.) Yet, both the plain language of section 1050 and case law show that there must be good cause for a continuance under section 1050 during the 10-day grace period. (See, e.g., section 1050 and People v. Henderson (2004) 115 Cal.App.4th 922, 939-940.) Thus, a court may not dismiss a case during the 10-day grace period under section 1382, but the committees believe that the court must deny a request for a continuance during the 10-day grace period that does not comply with the good cause requirement under section 1050.

The decision in Henderson states that when the prosecutor seeks a continuance but fails to show good cause under section 1050, the trial court “must nevertheless postpone the hearing to another date within the statutory period.” (115 Cal.App.4th at p. 940.) That conclusion, however, may be contrary to the plain language of section 1050, which requires a court to deny a continuance if the moving party fails to show good cause. The conclusion also appears to be dicta, as it was not a contested issue on appeal. Given this uncertainty, the rule is silent as to the remedy for failure to show good cause for a requested continuance during the 10-day grace period. The committees note that the remedies under section 1050.5 are available and, but for the Henderson dicta, a court would appear to be allowed to deny the continuance request and commence the trial on the scheduled trial date.

If you didn’t quite get that, let me try to explain. You need to understand that there are two different points here. During a trailing period, a court can’t dismiss a case because the prosecution isn’t ready. But that is a completely different point than the rules governing continuances. As the Comment makes clear, NEITHER SIDE gets to continue cases without showing good cause, even during the trailing period.

How does this actually work? The prosecutor seeks to “trail” within the trailing period. Unless the prosecutor is seeking to trail the case until later the same day, this IS a motion to continue. You object (if you don’t object, you consent to the delay, which may start a NEW trailing period). Maybe the prosecutor has good cause. But if not, DON’T MOVE TO DISMISS! Got that? Instead, object to delay, cite the Court Rule and the Comment, and ask the judge to deny the prosecutor’s motion to continue. If the judge does so, the prosecutor could proceed with whatever he or she has, or could move to dismiss. Don’t ask the court to dismiss under PC 1385. Ask the judge to inquire of the prosecutor: are you moving to dismiss? If not, proceed. They then do whatever they can; you then ask the court to find insufficient evidence under PC 1118.1 or, if it’s a preliminary hearing, PC 871.

The right way to think about this is to envision a true last day. The prosecutor moves for a continuance and that’s denied. Then what? Well, the prosecutor could move to dismiss. If they do that, they surely can’t appeal. Otherwise, if the prosecutor refuses to move to dismiss, what should happen? The judge should tell the prosecutor to proceed. The prosecution can present anything it has. If they don’t have enough or don’t have anything, the right thing for the judge to do isn’t a dismissal under PC 1385 or PC 1382. It’s a finding of insufficient evidence under PC 1118.1.

OK, now for the fun part. Steve Cooley, LA DA, has sent a letter (ex parte, naughty, naughty) to the LA presiding judge. He complains about the Comment to the Court Rule and asks that any sanction be imposed on him personally. Incidentally, we don’t want any monetary sanction; we want the case to proceed, right? Anyway, Cooley attaches a letter from his appellate unit, a letter sent to the Judicial Council in opposition to the then-proposed Comment. Remember, it appears that after considering that letter, the Judicial Counsel ADOPTED the Comment.

Of course, not surprisingly, the letter doesn’t cite any provision giving the prosecution the “right” to trail without good cause. They simply cite all the law, which we concede, that courts can’t dismiss cases when the prosecutor can’t show good cause during the trailing period. Again, we don’t want dismissal; we want the continuance denied and the prosecutor forced to proceed or move to dismiss.

It isn’t clear how all this is going to play out. But the big point is that we’ve been making this distinction between dismissal and denial of the continuance for years. Apart from the Comment, here’s a case making this precise distinction: People v. Alvarez (1989) 208 Cal.App.3d 567. At the risk of beating a dead horse, let me review what you should do when the prosecutor wants to “trail” within the trailing period. Object. If the prosecutor doesn’t have good cause, cite the Comment to your judge and urge your judge to deny the prosecutor’s motion to continue. Don’t move to dismiss. If the judge denies the motion to continue, the prosecutor has to either proceed with what he or she has to present, or move to dismiss. Don’t ask the court to dismiss under PC 1385. Ask the court to find insufficient evidence under PC 1118.1 or, if it’s a preliminary hearing, PC 871.

san diego dui attorney news

The executive director of a program that supervises misdemeanor and DUI probationers was suspended without pay Wednesday following a Monday arrest on charges of DUI driving under the influence, leaving the scene of an accident, resisting deputies and disorderly intoxication.

Margot "Peggy" Cioffi, 59, of Palm City was released from the Martin County jail on $2,000 bond, according to DUI arrest records.

Cioffi has been the guiding force behind the Comprehensive Offender Rehabilitation and Education Program, known as CORE, since it began nearly 30 years ago. She took the lead in expanding it to an organization that handles misdemeanor and DUI probation in St. Lucie, Indian River and Okeechobee counties and DUI probation in Martin County.

Deputies found her in her car in her garage after a motorist reported she rammed the back of his car on Martin Downs Boulevard and left the scene around 5:30 p.m. Monday, records showed.

She resisted deputies when they tried to handcuff her and place her in a DUI patrol car, DUI reports said.

Martin sheriff's deputies reported her DUI breath test showed a blood-alcohol level of 0.34 percent, which is more than four times the 0.08 percent level at which Florida law presumes a driver is DUI impaired.

The level was so high she had to be cleared by a doctor at Martin Memorial Medical Center before the jail would accept her.

Treasure Coast State Attorney Bruce Colton serves as chairman of the nonprofit's board and has known Cioffi for many years. He said the board held a conference call Wednesday and made the decision to order the suspension until Cioffi's DUI case is resolved.

He joined other agency officials in saying there were no prior DUI problems with Cioffi or any hint of an alcohol DUI problem.

"I didn't see this coming," Colton said. "I had no indication there was anything like this going on."

Because Cioffi has worked with DUI prosecutors in all four offices in the 19th district so a special dui prosecutor is likely.

San Diego DUI lawyer news

Opinion
Missouri Court of Appeals Southern District


Case Style: Vince R. Martin, Respondent, v. Director of Revenue, State of Missouri, Appellant.

Case Number: 25761

Handdown Date: 07/09/2004

Appeal From: Circuit Court of Howell County, Hon. David P. Evans

Counsel for Appellant: Lisa J. Berry

Counsel for Respondent: Daniel T. Moore

Opinion Summary: None

Citation:

Opinion Author: John E. Parrish, Judge

Opinion Vote: AFFIRMED. Shrum and Bates, JJ., concur.

Opinion:

The Director of Revenue (the director) appeals a judgment setting aside the suspension or revocation of Vince R. Martin's (petitioner) driving privileges.(FN1) Following his arrest for driving while intoxicated, Petitioner's driving privileges were suspended or revoked pursuant to section 302.505. (FN2) Petitioner requested an administrative hearing as permitted by section 302.530.1, at which the suspension was upheld. He thereafter sought trial de novo in the Circuit Court of Howell County as permitted by section 302.535.1. The circuit court entered judgment setting aside the director's actions and ordering the director to reinstate petitioner's driving privileges. This court affirms.
This case is reviewed pursuant to Rule 84.13(d). "This Court will affirm the trial court's judgment unless there is no substantial evidence to support it, unless the decision is contrary to the weight of the evidence, or unless the trial court erroneously declares or applies the law." (Footnote omitted.) Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003).
Section 302.505.1 permits the department of revenue to suspend or revoke the driver's license of any person arrested upon probable cause of driving while intoxicated. An aggrieved driver can seek a trial de novo. At the trial the court must determine whether the suspension or revocation is supported by evidence that: (1) the driver was arrested upon probable cause for violating an alcohol-related offense; and (2) the driver's blood alcohol concentration exceeded the legal limit of [the amount specified by section 302.505].[ (FN3) ] Section 302.535.1 The "burden of proof" is on the director of revenue to establish grounds for the suspension or revocation by a preponderance of the evidence.[ (FN4) ] Section 302.535.1

Id.
Petitioner's vehicle was stopped at a sobriety checkpoint in the early morning hours of November 2, 2002. West Plains Police reserve officer James Berkshire spoke with petitioner. Officer Berkshire asked petitioner if he had been drinking. Petitioner replied that he had. Petitioner was asked to step out of his vehicle, after which petitioner was administered field sobriety tests by West Plains Police reserve officer Christopher L. Sterner.
Officer Sterner administered four field sobriety tests. Officer Sterner smelled intoxicants on the breath of petitioner and observed that petitioner's eyes were watery and bloodshot. Following petitioner's poor performance on the field sobriety tests, Officer Sterner arrested him for driving while intoxicated.
Petitioner was transported to the West Plains Police Department where Officer Sterner administered a breath test. Officer Sterner observed petitioner for fifteen minutes before administering the test, during which time petitioner did not consume anything, smoke, place items in or remove items from his mouth, or vomit. Petitioner was instructed how to blow into the DataMaster machine that was being used for the breath test. The operational checklist prescribed by the Missouri Department of Health for the machine's use was completed. Petitioner blew into the machine. The machine reported an invalid "subject sample." The time recorded on the report of the invalid sample was "01:25."
Officer Sterner was asked what he did after the reported invalid sample. He answered, "I set the machine up and asked him, you know, to do another test, but that would be his final chance." Officer Sterner said he instructed petitioner "that he needed to blow into the machine instead of just blowing and stopping and blowing and stopping. That it took eight to ten seconds of not a real strong breath, just a steady breath."
Officer Sterner was asked the following questions and gave the following answers about what occurred while he was setting up the machine for the second test:
Q. Where was the Petitioner as you were setting up the machine again?
A. Sitting in a chair to my left.
Q. Approximately, how far away from you was he?
A. A foot and a half estimated.
Q. You -- I'm sorry. Did you observe him the entire time that you were setting up the machine again?
A. I couldn't actually visually observe him the whole time, as I was punching the information into the machine, but, I mean --
. . .
Q. Did you periodically, you know, throughout that, observe the Petitioner?
A. Yes, sir.
. . .
Q. Okay. So you did observe him, though, for -- for -- in between the time that you administered the first test and the time that you administered the second test, correct?
A. Yes, sir.
Q. Did you, during that time that you observed him between the two tests, did he - - did he consume anything at that time?
A. No, sir.
Q. Did he smoke any cigarettes?
A. No, sir.
Q. Did he place anything into his mouth?
A. No, sir.
Q. What about remove anything out of his mouth?
A. No, sir.
Q. Did he -- Did he vomit?
A. No, sir.
Q. Did you notice him burp or belch?
A. He did some belching.

Officer Sterner did not perform the Missouri Department of Health's operational checklist for the machine's use in administering the second test. He did not wait an additional fifteen minutes before performing the second test. The report on the first test showed the time of "01:25." The report on the second test showed the time of "01:29." The second test report stated a "subject sample" result of .166.
The trial court's findings included that petitioner voluntarily submitted to a breath test; that:
The officer completed the initial checklist. The police officer testified he observed [petitioner] belching during the waiting period. [Petitioner] then submitted a breath sample into the machine. The BAC DataMaster registered "invalid sample" on the first test, and the police officer requested a second test. The officer admits he did not complete a second checklist. The attorneys disagree about the exact time period between the tests, but agree the period was from three to six minutes. Over vigorous objections by defense counsel, the results of the second test were introduced into evidence. After the second breath sample was given, the BAC DataMaster registered an alcohol concentration over eight-hundredths of one percent or more by weight.

The trial court further found:
The regulations promulgated by the Director are silent as to what procedure should be followed when an "invalid sample" reading is obtained. [The Trial] Court could end its inquiry by acknowledging that the checklist from the first breath was administered in accordance with the Department of Health regulations; however, under the unique facts of this case, [the Trial] Court believes that a deeper examination of the evidence is required. As strongly argued by [petitioner] and [petitioner's] expert, and as grudgingly admitted by the Director's own expert, a ten to fifteen minute waiting period was necessary after the "invalid test" result to allow the mouth alcohol to dissipate and assure an accurate and reliable second test result.

The trial court included a footnote at the end of the first sentence of the paragraph last quoted above stating:
Pursuant to 19 CSR 25-30 Form 7 (DATAMASTER), a second fifteen minute observation period is required if the subject is observed to vomit during the initial observation period. The term "vomiting" is apparently not defined in the regulations, and neither party offered evidence of a medical, scientific or other expert definition of that term. Although a common description of "vomit" found in Webster's New Collegiate Dictionary (1977) is "to disgorge (the contents of the stomach) through the mouth," a medical definition of "vomit" includes, "Matter from the stomach that has come up into and may be ejected beyond the mouth, due to the act of vomiting." See Daniels [ v. Director of Revenue , 48 S.W.3d 42 (Mo.App. 2001)], at 45; Medicine Net.com, (defining " vomit"), Nov. 21, 2000, available at
http://www.medterms.com/script/main/art.asp?l=MNI&ArticleKey=6005 . Irrespective of the definition of "vomiting," the key issue is whether mouth alcohol is present during the testing. If mouth alcohol is present, the breath test results are compromised and unreliable, and arguably, the test results should not be admitted into evidence.

The trial court concluded the results of the second test were not reliable; that the DataMaster machine indicated possible mouth alcohol present, and the mouth alcohol would not have dissipated within three to six minutes. The judgment announced that "[t]he second test results are excluded from evidence"; that "[t]he Director has failed to meet the statutory required elements of proof." The judgment directed the director to forthwith reinstate petitioner's driving privileges.
The director raises one point on appeal. She contends the trial court erred in setting aside the revocation of petitioner's license; that the trial court's ruling was against the weight of the evidence and was unsupported by substantial evidence. The director argues that she "established a prima facie case showing that the arresting officer had probable cause to arrest [petitioner] for DWI and [petitioner's] breath test result was 0.166 percent." She contends petitioner failed to rebut the prima facie case in that he failed to show the second breath analysis was unreliable.
Petitioner presented testimony of Terry Martinez. Dr. Martinez's education includes a doctorate degree in pharmacology, master's degrees in pharmacology and hospital pharmacy, and a bachelor of science degree in pharmacy. He teaches at the St. Louis College of Pharmacy. His teaching responsibilities include teaching all of that school's toxicology courses. Dr. Martinez explained that toxicology is "the amount of a chemical or substance that is known to cause harm." He was asked what area of toxicology petitioner's case involved. He answered that it involved the measurement of alcohol breath samples.
Dr. Martinez noted the type of machine that had been used to test petitioner's blood alcohol content, a "BAC DataMaster breathalyzer machine." He described how the machine worked; how it calculated an approximation of how much alcohol is present in a person's blood. He stated that the device was generally accepted as a test for blood alcohol levels; that "assuming that it's used properly, it [would] give you reasonably accurate results." Dr. Martinez acknowledged that the Missouri Department of Health provided regulations on how to use the device. He explained that if the machine were not properly used, the result would not be reliable.
Dr. Martinez was asked if he was personally familiar with the BAC DataMaster device. He answered that he was; that he had used the machine many times. He stated he had attended the factory of the National Patent, the company that makes the BAC DataMaster; that he attended a three-day course there. When at the factory, he received the guidelines the manufacturer published for use of the machine.
Dr. Martinez was shown the test result forms the DataMaster produced following both tests administered to petitioner. He was asked what "subject sample invalid" meant that appeared on the form produced from the first test. He explained, "This is generally accepted to mean that it detected a negative movement of the absorption curve. That is interpreted by the machine to mean that it had mouth alcohol present."
Dr. Martinez looked at a publication provided by the DataMaster machine's manufacturer. He reviewed a part of the publication that referred to a test result of "invalid sample." Dr. Martinez stated:
It says, "This message is seen only during a subject or simulated test if conducted during the subject test mode. The instrument has detected a negative going value during the test and the assumption is that there is mouth alcohol present.

This can be caused by a subject blowing too hard as saliva droplets can be forced through the mouthpiece and into the sample chamber causing a somewhat unstable reading. And it is more commonly seen if a subject has a very high alcohol level.

It is very rarely caused by a maintenance difficulty such as dirt in the sample chamber. See section entitled 'DataMaster Sampling System.'

Usually a retest of the subject after a short waiting period, 5 to 10 minutes, will result in a valid test."

Dr. Martinez was asked about the reference in the publication to "mouth alcohol." He stated:
Mouth alcohol would be simply the presence of alcohol in the mouth for any reason, such as recent consumption. That would be one reason. Another would be regurgitation from the stomach. And that could be as a result of a person's straining too hard trying to deliver alcohol from their stomach -- or air from their lungs, and they also deliver alcohol from their stomach up to the glottis. There are specific precautions against having a subject blow too hard.

Dr. Martinez stated that in his experience, based on hundreds of tests on human subjects, it takes a minimum of six or seven minutes to dissipate blood alcohol. He said most mouth alcohol will dissipate in about eight to ten minutes, but a few would go longer. He added, "All mouth alcohol, in my experience, dissipates in about 15 minutes, unless the subject has false teeth or some other foreign object in the mouth that causes retention of mouth alcohol."
Dr. Martinez was asked if he formed an opinion as to whether the second test performed on petitioner was a valid test result. He stated that he had; that his opinion was that it was not a reliable or valid test result.
The director presented rebuttal evidence directed to the validity of the second test. The rebuttal evidence was testimony of Christine Sylva, an employee of the Department of Health and Senior Services. Ms. Sylva works in the State Public Health Laboratory as a public health laboratory scientist. She holds a bachelor of science degree in biology with chemistry. She is trained in the use and functionality of the DataMaster. She stated that she participated in a yearly manufacturer's update on the machine.
Ms. Sylva testified that a fifteen-minute observation period was part of the protocol for administering a breath test. She stated that ten minutes would be sufficient, so fifteen was more than adequate. She was asked if there were any rules or regulations that speak to a second observation of fifteen minutes if a second test is administered. She stated there was no rule or regulation on the subject.
In assessing if there is substantial evidence, we must defer to the trial court on factual issues and cannot substitute our judgment for that of the trial judge. Thurmond v. Director of Revenue, 759 S.W.2d 898, 899 (Mo.App. 1988). Such deference is not limited to the issue of credibility of witnesses, but also to the conclusions of the trial court. Kitchens v. Missouri Pacific Railroad Co., 737 S.W.2d 219, 222 (Mo.App. 1987).

Appellate courts view the evidence in the light most favorable to the trial court's judgment, Thurmond , 759 S.W.2d at 899, and we deem all facts to have been found in accordance with the result reached by the trial court. Askins v. James, 642 S.W.2d 383, 386[2] (Mo.App. 1982). A trial court is accorded wide discretion even if there is evidence that would support a different result. Thurmond, 759 S.W.2d at 899. In a driver's license revocation case, a trial court has the prerogative when weighing witness credibility, to accept or reject all, part, or none of the testimony of any witness. Id.

Hawk v. Director of Revenue, 943 S.W.2d 18, 20 (Mo.App. 1997).
The trial court's judgment was not against the weight of the evidence. It was supported by substantial evidence. The director made a prima facie case in support of its action suspending or revoking petitioner's driver's license; however, the evidence presented by petitioner was sufficient to raise a genuine issue of fact regarding the validity of the blood test results. Although the director presented rebuttal evidence, the trial court obviously found that evidence less credible than the evidence adduced by petitioner. The trial court's determinations were within the prerogative afforded it as the trier of fact. The director's point on appeal is denied. The judgment is affirmed.
Footnotes:
FN1. The record on appeal does not include a copy of petitioner's driving record. The administrative hearing officer's findings of fact and conclusions of law that is part of the record on appeal appears to be a preprinted document that does not identify whether the administrative action was a suspension or revocation of petitioner's driver license, but refers to the administrative action as the giving of a "Notice of Suspension/Revocation." The judgment that is the subject of this appeal refers to the action that is the subject of the trial de novo as "suspending or revoking the license." This court does not encourage the use of forms that fail to identify the action that is the subject of an appeal with particularity. The director's point on appeal, however, refers to the action set aside as "the revocation of [petitioner's] license."

FN2. References to statutes are to RSMo 2000.
FN3. Petitioner was arrested November 2, 2002. The version of section 302.505 then in effect established the applicable blood alcohol content for revocation or suspension as "eight-hundredths of one percent or more by weight."

FN4. Once the director makes a prima facie showing of probable cause of driving while intoxicated, the driver is entitled to present rebuttal evidence to raise a genuine issue of fact regarding the validity of the blood alcohol test results. If the driver chooses to do so, his or her burden is one of production, not persuasion. Verdoorn, supra at 546. The burden of proof remains that of the director. Id.

Letter: DUI victims' panel drives the crime home

Editor, Leader:

This past weekend, I had the opportunity to listen to the Jefferson County DUI victims' panel, and their stories hit me harder than I expected.

Last month, I was convicted of a drinking-and-driving crime that stemmed from a night of partying to celebrate the weekend. I was pulled over and arrested, then put in jail for nearly 12 hours. That was the worst night of my life. Sitting on the rigid jail cell bed, I did a lot of thinking, and finally realized just how quickly life can throw you a curveball and topple you over.

I need to say thank you to the two mothers who bravely shared their stories with us that day, each having lost a child to a drunk driver. It is because of them that I have the courage to even write these words. If these stories of tragedy and obstacles that seem almost impossible to get through could reach more people convicted of DUI, or those who haven't, I believe that would make a huge difference in the community.

It does not pay to drink and drive, no matter what. I may have gotten the "best" deal out of my situation: negligent driving in the first degree, almost $1,000 in fines, losing my license for three months, an AA class, four court dates and the victims' panel. Does that sound like a good deal? No, but I am thankful for it, because the outcome could have been much, much worse. And not to mention how I feel inside about what I did, and the fact that my seat at the victims' panel could have been empty instead.

I thank the coordinator of this event and the panel of inspiring women. I can only hope and pray that they will continue talking with people and sharing their stories, because they desperately need to be heard.

ANONYMOUS 24-YEAR-OLD

Port Townsend

San Diego California DUI criminal lawyer news

An Aussie man will face DUIcourt after he was detected by police allegedly DUI - driving under the influence - twice in six hours.

When first stopped by DUI police, the 41-year-old man was reported for driving with an alleged DUI blood alcohol level of .20. His driver's licence was disqualified for a 12 months.

Six hours later the same DUI man was again detected by DUI police - with an alleged blood alcohol reading of .20.

He was arrested for DUI and also charged with allegedly driving a car while his licence was disqualified.

His vehicle was impounded for seven days and he was bailed to appear in DUI court at a later date.

San Diego California DUI lawyers wonder what happened to his BAC during that 6 hours as it essentially remained constant. What Aussie would drink again and then go out again?

San Diego California DUI criminal defense attorney news

After getting pulled over for driving under the influence of alcohol in early November, kinesiology major Tyler Harrison paced the drunk tank, a white-padded jail cell with only a four-by-three window, feeling a burning sensation as if ants were crawling in his veins.

"I just knew I had to fix what I did," Harrison said.

Barely 21 years old, Harrison was driving back to his apartment on Nov. 3 after having a few drinks with friends at the home football game between Sacramento State and University of California, Davis -- also known as the Classic Causeway -- when he was pulled over. Just after he left the parking lot at Hornet Stadium, a friend driving next to him waved him down to ask for directions to an after-party. That's when Elk Grove Police Sgt. Dan Davis pulled him over for "obstructing traffic."

Little did they both know, there was going to be an arrest that night that would be broadcast for all of Sacramento to see. With a .11 percent blood alcohol concentration, Harrison said he knew he had made the dumbest mistake of his life.

The legal limit for drinking and driving is a .08 percent BAC in California, according to the Department of Motor Vehicles website.

Less than three weeks after his DUI arrest, Harrison took on the extra responsibility to educate others on the effects of drinking and driving.

"By driving (under the influence), I affected not only myself but other people. I knew I had a responsibility to help others so they won't do what I did," Harrison said.

A forum held Nov. 15 by Phi Beta Sigma, a fraternity Harrison is in, entitled DUI Will Make You Cry allowed students to hear Harrison's experience and learn from his mistake.

"You can take the bad things in life and create worse things out of it or you can take it and turn it into something positive," he said.

Putting more hours into ensuring the forum would help teach others not to follow in his footsteps, Harrison was able to have Davis, a representative from Sacramento County District Attorney Jan Scully's office, representatives from the Elk Grove and Sacramento Police Departments and Sacramento city officials there to share their experiences with DUI cases.

This time, Harrison personally invited Fox 40 News - the same news station that showed him getting arrested - to televise his forum to help expose the need to stop people from driving drunk.

With about 40 people in attendance, Harrison was finally feeling the irritation wearing off.

"If I could just get one person to hear about what I had to say, to not drink and drive, then I would have done something," he said.

At first, Davis, who is in charge of motor and traffic enforcement, was a little surprised and skeptical when Harrison called him, but deep down he knew Harrison was someone who could change lives.

Davis said Harrison did a genuine job with the forum, which allowed tens of thousands of people to see the trauma, embarrassment and money associated with a DUI.

He said, however, that those people are the lucky ones because the consequences of drinking and driving can be very catastrophic.

"Elk Grove alone made over 300 DUI arrests last year," Davis said. "I'm sure Sacramento made thousands and thousands of DUI arrests just last year."

However, Davis knew something was different about the person in his backseat that night.

"We had a long conversation that night, which I hardly do with people I arrest," Davis said. "He was willing to listen to what I had to say and I was willing to hear what he had to say because he handled the situation like an adult - asking for no special treatments."

Understanding how wrong things could have turned out, Harrison would like to have another forum before spring break.

After Harrison was released from the Sacramento County Main Jail about 12 hours after being arrested, many of his loved ones wanted to hear what he had to say.

After being approached several times wanting an explanation about the incident, Harrison realized that many of those who surrounded him were in fact disappointed in his actions.

"What affected me the most was how many people were let down because they saw me on television getting arrested," Harrison said.

Going to church, making prayers before any meeting, letting people know that education is the way to a better life and doing good things for God are just a few things Harrison does on a daily basis.

The shock of him getting arrested for a DUI really made the people he cared about question his authenticity, he said.

Phi Beta Sigma brothers supported him and knew that he would showcase his crime for others to see in order to keep someone from making the same mistake he made.

"After seeing just a clip of Tyler on the news that night, we all tried calling him but he didn't pick up," said Sac State business major and fraternity brother Pernell Sulivan.

Sulivan knew that Harrison felt humiliated, yet at the same time, wasn't too surprised that he would sacrifice his image to put on a forum to help better the world.

With the help of Phi Beta Sigma, Harrison was able to book the University Union Redwood Room and used his fraternity as a stepping stone for the DUI forum.

Aside from his brothers, his family back home in Hayward also helped him emotionally, spiritually and physically.

After the initial shock of having their son arrested for a DUI, his parents asked him if he needed anything and if he would be all right, Harrison said.

Upon hearing that Harrison was in full gear of putting this forum together, Debi Harrison, Tyler Harrison's artistic mother, helped put together the flier that would be passed out throughout campus.

"I talked to my brother, who just turned 18, about my mistake and my 13-year-old sister says that if it happens again and the police don't kill me, then she will," Harrison said.

Nonetheless, he said he doesn't regret getting a DUI because it was his responsibility and no one else's.

Although his DUI fines have cost him more than a few thousand dollars and attending mandatory DUI school will continue to take up more than three months, it doesn't bother Harrison.

"In this process, I met so many people I wouldn't have met," he said.

Getting a natural high from meeting different people, Harrison is delighted that he is enlightened by these people. From his optimistic, friendly and willing approach, those same people are more than enlightened by his presence.

"My counselor at DUI school...almost cried when we were talking about our experiences," he said

san diego drunk driving attorney news

SACRAMENTO – Continuing his fight against drunk driving, Assemblyman John J. Benoit (R-Bermuda Dunes) today introduced Assembly Bill 2073, his public safety measure that increases penalties for DUI manslaughter and closes five loopholes that create inconsistent penalties for driving under the influence.

"With eight years of experience in DUI enforcement, making over 1,000 arrests, I have seen how taking the wheel while under the influence of alcohol or drugs creates daily tragedies in our communities," said Assemblyman Benoit. "The worst anguish is the loss of a loved one because of someone´s drunk driving. My bill creates stiffer penalties for DUI manslaughter, which is actually less severely punishable than causing great bodily injury. My bill is a significant public safety measure that will better protect drivers on California streets, highways, and harbors."

Benoit´s bill targets five areas in existing law that create inconsistent penalties:

Manslaughter: Under current law, an individual who drives a vehicle under the influence of alcohol or drugs and who causes a victim to suffer great bodily injury can receive a maximum sentence of 6 years in state prison. However, a person who drives a vehicle under the influence of alcohol or drugs and who causes a victim to be killed can receive a maximum sentence of only 4 years in state prison. AB 2073 resolves that disparity by increasing the maximum sentence to 6 years.

Repeat Offenders: AB 2073 makes any defendant with a prior felony DUI conviction ineligible for probation and adds a mandatory three years onto subsequent DUI convictions. This addresses the issue of repeat offenders, who – despite alcohol abuse education, fines, loss of driving privilege, and auto insurance penalties – continue to engage in criminally reckless behavior.


Boating: When someone is charged with boating under the influence (BUI), their prior DUI convictions can be used to enhance the penalty for the BUI charge; i.e. they are treated as a 2nd or 3rd offense. However, the converse is not true when dealing with someone that is charged with a DUI and has a prior BUI. AB 2073 makes a necessary amendment to allow prosecutors to enhance DUI charges if they have prior BUI convictions.

Blood Tests: Under current law, if a person is arrested for driving under the influence, the person has the choice of submitting to their choice of a blood, breath, or urine test. However, the quantifiable amount of drugs can not be determined in a urine sample. Removing a urine test as an option will assist the prosecution of drugged drivers.

Conforming BUI and DUI Statutes of Limitations: In 2004, the Legislature passed a bill that changed the statute of limitations for qualifying DUI priors from 7 years to 10 years. AB XXXX amends the Harbors and Navigation Code so that the statute of limitations for BUIs is similarly expanded to 10 years, reflecting the seriousness of DUI offenses and ensuring that repeat offenders receive the appropriate treatment and punishment.

Assemblyman Benoit has continued to make public safety his top legislative priority. Benoit introduced ten pieces of public safety legislation in 2007, with three: a bill that streamlines the process of taking criminal drivers off the road, a bill strengthening provisions of Benoit´s felony creation for street racing, and a new fine targeting illegal dumpers, being signed into law. Recently, his efforts in protecting public safety were recognized by the California State Sheriff´s Association, who named him an Outstanding Assemblymember of 2007.

San Diego DUI attorney news

A judge Tuesday sentenced a man convicted of his 19th DUI/drunk driving offense to eight years in prison.

Stephen W. Wolf, 51, ranks as one of the six leading repeat drunken drivers statewide. Ohio records show that among the state’s 1 million convicted DUIdrunken drivers, three motorists have as many DUIconvictions as Wolf, and two have 20.

He was sentenced by Judge Noah Powers of Butler County Common Pleas Court.
Wolf’s DUI defense lawyer, Robert Qucsai, said his client does not have a valid driver license.

Plenty of people drive despite having a suspended or revoked license, DUIauthorities say, and locking them up is the only way to keep them off the roads.

Wolf pleaded guilty last week to the charge of operating a vehicle DUI / under the influence of alcohol. The Butler County Prosecutor’s Office said Wolf received his first DUIdrunk driving conviction in 1978.

Qucsai said earlier that Wolf shouldn’t be judged by his DUI driving record alone and is very personable.

“He’s not nearly as bad as his record would reflect,” DUI attorney Qucsai said.

San Diego DUI attorney news

DUI Police arrested a city man after an alleged prostitute told DUI officers he was driving drunk.

While on DUIpatrol in the New Street area at about 10 p.m. Monday, a DUI officer spotted a red Mustang parked on Stevens Street. The DUIdriver was arguing with a known prostitute, DUIpolice said.

The car drove off and the woman flagged down the DUIofficer. She said the DUIman was driving drunk, DUIpolice said, and directed the officer's attention to a beer container that allegedly came from the Mustang.

DUI Police caught up to the Mustang on White Street and charged the DUIdriver, Jose Bazquez, 23, with DUI and driving without a license.

He was being held on a $500 bond pending a court appearance.

san diego dui lawyer

VISTA, Calif. -- A San Diego firefighter, who served as the part-time chief of the Rincon Indian Reservation department, pleaded guilty Tuesday to misdemeanor san diego dui drunken driving stemming from his Dec. 17 san diego dui arrest in a tribal-owned sport utility vehicle in which his children were riding.

Gerad Rodriguez, 47, will have to spend 48 hours in san diego dui jail because of an allegation that he had children younger than 14 in the vehicle, Deputy District Attorney Fanny Yu said.

Judge Richard Mills also gave Rodriguez three years san diego dui probation and three days of san diego dui public service.

San diego dui attorney

John Clapp, director of the Center for Alcohol and Drug Studies at San Diego State University, recalls a moment two years ago that put the importance of his work in real-world perspective.

Driving through the College Area one weekend, he spotted a young woman stumbling alone down a dimly lit, otherwise deserted street. The woman—young enough to be the 43-year-old academician’s daughter—was scantily dressed, bruised and bleeding at the knees, and so visibly intoxicated that she seemed oblivious to her predicament.

Clapp watched her shuffle past a darkened alley. He wondered: Was she a student? Had her friends abandoned her at a party? Did she wander off alone? Did she frequently find herself in this type of situation? And the scariest and most relevant question of all: Would she make it home safely?

The fact that Clapp—an expert on alcohol and drug addiction and a graduate of Ohio State with a doctorate in social work—could only guess at the answers to these questions is a big part of what drives his research.

“The college drinking problem is real, and it’s been in the research arena for some time,” he says. “Sill, a lot of work needs to be done to find solutions to some of these problems.”

It was in the spirit of this belief—that more needed to be known about problem-drinking among college students before the problem could be adequately addressed—that Clapp and his crew of young researchers recently released the first fruits of a groundbreaking study of college parties. During a two-year period, teams of researchers—all in their 20s, with most between 22 and 26—fanned out into the neighborhoods around the San Diego State campus and scrupulously studied the behavior of revelers at more than 200 private parties. Party-goers—more often than not students loaded to the gills and just as often dressed in what their observers described as “basically nothing”—were asked to take time out from their fun to fill out surveys and blow into breathalyzers.

The result: a landmark paper titled “Person and Environment Predictors of Blood Alcohol Concentrations: A Multi-level Study of College Parties.” The paper found that attendees of college parties that included drinking games tended to consume more alcohol than at parties that did not—a finding to which at least one blogger (at the University of Pennsylvania’s student newspaper) aptly responded with “Duh.”

More significantly, the study showed that female guests of college parties with sexual themes—examples included “Anything but clothes” and “Roman senators and slaves”—tended to show higher blood-alcohol levels when tested than male guests. That surprised everyone. Previous studies had concluded that women, on average, almost never drink more than men in a given setting.

The findings made national headlines and were published in the January issue of the academic journal Alcoholism: Clinical & Experimental Research.

“The significant themed party by gender interaction in our study showed that women had higher BrACs (breath-tested blood-alcohol concentrations) than men at themed parties and no difference in level of intoxication between men and women at non-themed parties,” the paper said. “This finding is very surprising considering the large number of studies demonstrating greater alcohol consumption among men compared to women.”

The paper caught the attention of Clapp’s colleagues in the field of alcohol studies, and not just because of its startling conclusions. The very method by which the San Diego State researchers went about gathering information was itself a groundbreaking effort. Most previous studies on college drinking were based almost entirely on information obtained after the fact—through interviews and questionnaires given to subjects days, sometimes even weeks, after the drinking had occurred.

Clapp had a problem with the notion of drawing conclusions from the memories of people who in all likelihood were intoxicated when the memories were made. Even an earlier study in which researchers from Virginia Tech actually attended college parties was, in Clapp’s view, potentially problematic.

“Their entrances into the parties were arranged through the fraternities,” he says. “I thought it was really cool they were getting in, but I also thought that, by getting in that way, they might have been changing the behavior of the party-goers.”

For Clapp, obtaining real-time, unadulterated data is critical—indeed, he views his work as literally a matter of life and death. When interviewed, he peppers his conversation with statistics that bear out that belief. Every year, he says, more than 1,700 U.S. college students die as a result of drinking. Every year, 12 percent of people leaving college parties get in their cars and drive drunk. His research has found that many college students are heavy “episodic drinkers”—binging on weekends, going back to classes on Monday, and then binging again when Friday comes. “A lot of them develop into alcoholics,” he says.

Women, he notes, are particularly susceptible to the damages of alcohol, both in how their bodies process the drug and what Clapp calls “the unintended consequences.”

“Women metabolize alcohol slower than men; whether they develop a dependency earlier is not clear,” he says. “One of the big risks for women in being drunk is sexual assault. We’re trying to get another study going to look into that.”
According to a report published five years ago by the National Advisory Council on Alcohol Abuse and Alcoholism, about 70,000 U.S. students between 18 and 24 are victims of alcohol-related sexual assault every year. The San Diego State University Police Department reported 45 “forcible sex offenses” in and around campus between 2004 and 2006. How much a role alcohol played in those offenses wasn’t disclosed. University police made 656 arrests for liquor-law violations during that same time period.

SDSU has long had a reputation as an epicenter of bacchanalian revelry: Playboy included it in its list of top 10 “party schools” in 1987, 2002 and 2006. The perception galls faculty members and administrators, who say the school has worked hard to fight its Animal House image, and that the image was never really deserved in the first place.

“There’s reputations, and then there’s realities,” says James Lange, coordinator of alcohol and other drug initiatives for the school’s Health Promotions Department. Lange works with different university departments to develop and implement alcohol and drug prevention programs. “Do we have a reputation? I believe we do, for being a party school. But when we look at actual data of student drinking, we actually see that we’re way below the national norm. That said, there’s definitely a subset of our student population for whom excessive drinking is occurring and causing problems, and we’re working every day to come up with creative solutions.”

One of those creative solutions was the Center for Alcohol and Drug Studies, which opened in 1985 and narrowed its focus to research and evaluation in 2003. Located on the second floor of an office building just off campus, the venue resembles more a bare-bones insurance office than a research facility. But since its inception, the center, on Sky Park Court, has produced numerous important studies—one provided statistical evidence of the previously anecdotal link between drinking and smoking—and developed a national standing as an innovator in its field. Its reputation is so solid that the state contracts it to operate the Central District Driving Under the Influence Program (otherwise known as drunk-driving school for court-referred offenders) and to evaluate state drug and alcohol prevention grants.

The center also developed and operates a program in which employees rush to emergency rooms and trauma centers to evaluate patients being treated for injuries in which drugs or alcohol may have been involved. If the patient is found to be a heavy substance abuser, he or she is referred by the center for treatment, and the information is placed in the patient’s file. The program, amounting to professional intervention at a time when the intervened are most susceptible to reason, highlights a key mission of Clapp’s center: innovative applications of lessons gleaned through painstaking academic research.

The center has 60 employees at its main office and 40 running the Driving Under the Influence program.

Clapp launched the “College Bar and Party Project” in the spring of 2005, with funding from a National Institute for Alcoholism and Alcohol Studies grant. The study was billed as a three-semester effort to study the relationship between blood-alcohol levels and “environmental and individual factors.” The bar portion of the project, in which researchers entered “college-oriented” local watering holes to study drinkers’ habits and surroundings, is still ongoing.

For the party portion of the study, Clapp and his team spent the first six months just determining how to best go about their mission.

“I spent a lot of time at night driving around and just looking for parties,” he says. “I’d leave the office at 9 p.m. on a Friday and Saturday night and just drive through the neighborhoods, counting the number of parties and writing them down.”

Ground rules were established. Parties were defined as “five or more students gathered together where alcohol consumption was present.” Everyone contacted for the study—the party host, guests, bouncers, everyone—had to be informed they were being observed. The researchers also had to try as much as possible not to interfere with the natural behavior of the partiers: no stepping in should a fight break out, no calling the cops should illegal drug use be observed.

Clapp and a team of 30 young researchers—undergrads, grad students and interns—mapped out a 6.2-mile driving route running through the residential areas around the SDSU campus. Then, the real work began. Every Thursday, Friday and Saturday night beginning in January 2006, “spotters” would start the show by cruising the target route, counting the parties they saw and writing down their locations. The number averaged seven to eight a night, though on particularly wild evenings as many as 22 were found raging at once.

The team randomly selected about four parties an evening, and crews of seven researchers—including a “security” person, typically the biggest member of the team—tried to enter them. They contacted the hosts and, after explaining the nature of the study, offered each an incentive of a $20 gift certificate if they would let the crew observe the evening’s festivities. Fewer than 8 percent refused entry—a remarkable participation rate for any scientific survey.

Once in, the crews immediately began documenting everything they observed, to the point of even sketching maps of the layout of the party. Were beer kegs present? Were drinking games played? Were the partiers dancing? Was any drug paraphernalia out in the open? Every aspect of the event was meticulously noted and filed away.

To distinguish themselves from the guests, crewmembers each wore red or black jackets and sweatshirts with the words “College Drinking Survey” emblazoned on the backs. More than the presence of all those notebooks and sketchpads, it was the jackets that seemed to captivate the revelers’ attention.

“People were always asking if they could buy one,” Clapp says.

Party guests were asked to fill out surveys and take breathalyzer tests both as they entered the party and as they left. They were each given $5 gift certificates to Rubio’s for participating (“Our study,” Clapp says, “paid for a lot of fish tacos”).

The wildest parties were almost always the ones with themes—“White Trash” parties, “Ugly Christmas Sweater” parties, “Pirate” parties.

“It was always obvious when a theme party was going on,” says Julie Ketchie Croff, a 27-year-old project manager for the study and a co-author of the ensuing paper, “because they were the parties where you’d see large crowds of people.”

Perhaps driving the popularity of the theme parties was the presence of so much bare skin. The researchers immediately noticed a strong sexual component to many of the theme parties: They appeared aimed at separating the guests from as much of their clothing as possible.

“We saw one party themed ‘Anything But Clothing’ where the guests showed up wearing pillow cases, car mats, crime tape,” Ketchie Croff says. “People were basically nude, except they’d be wrapped in this crime tape. We also saw that ‘Ho’ was a common theme—‘Golf Ho,’ ‘CEO and Secretary Ho,’ ‘G.I. Ho.’”

The researchers also couldn’t help but notice an apparent gender-based disparity in costumes—the themes tended to allow male guests to wear more clothing than the female guests. At the “Pirate Party,” for example, a male student could show up wearing an eye patch and be considered appropriately costumed. More—or, more accurately, less—was expected of the women.

“The sexual component all seemed to be for the female,” says Audrey Shillington, associate director of the center.

That component shocked some researchers more than others. Megan Holmes, who coordinated the field portion of the study, says she was aware of the nature of the theme parties going in—as an undergrad at SDSU at the time, she’d been to a few. Still, she said she couldn’t help but be disturbed by what she saw.

“To a certain point, I found it offensive,” says Holmes, 26, who today is a social-welfare doctoral student at UCLA. “I think going to a themed party, in general, is something fun to do. When you get to the point where the theme is for women not to wear anything, that is offensive. I don’t really see the logic for women to do that, except maybe to get attention.”

Marian Novak, who works primarily on the bar portion of the project but who observed several of the theme parties, sees the increasing popularity of such gatherings as a sign of societal mores trending downward.

“When I saw these girls standing in the road, with their boobs hanging out and everything showing—can’t you get arrested for that?” says Novak, 53. “Being sexually promiscuous, getting drunk and puking all over—that was not considered socially acceptable behavior before.”

But Ketchie Croff isn’t so sure today’s party scene is any worse than what previous generations experienced.

“I don’t know if we can say that there is more drinking or sexual promiscuity going on today than previously,” she says. “The pendulum swings. Didn’t people in the ’70s drink a lot? Wasn’t that what Animal House was all about?”
There is also some disagreement among the researchers interviewed about the forces behind the party study’s most significant finding—that women tended to show higher blood-alcohol levels at theme parties than their male counterparts. Holmes believes this may be the result of women drinking before the party in order to “get the courage to go out wearing almost nothing.”

“For a female to go out in the outfits that they’re going out in, they’d have to drink quite a bit more to do that,” she says.

Shillington, 53, agrees with Holmes that the female partygoers tend to drink prior to attending theme parties. But, she says, that may have nothing to do with them trying to steel their nerves.

“When you talk to the women, they don’t say they drink to get their nerves up,” she says. “It’s part of the pre-party ritual. For the women, it’s an event—they’re so invested in it time-wise. They want to go out and have a good time, and the pre-party drinking is part of that.”

According to the president of one SDSU fraternity, the seven to eight theme parties his house throws every year are definitely male-oriented.

“But that’s not just our choice,” says the student, who asked that his name and that of the fraternity not be identified. “Girls won’t come to the parties unless they have the opportunity to dress provocatively. That’s just how the scene is here—girls love it, and so do the guys.”

The volatile combination of drinking and overcharged hormones at times led to some scary moments for the researchers. Fights erupted, and on a few occasions, guests sexually harassed female team members. Clapp and the crew he was with were egged one evening. On another evening, one partygoer vomited all over a male researcher’s shoes.

“We would place ourselves in the parties so that, if we needed to put ourselves out of the way of a ruckus, we could,” says Ketchie Coff.

But for the most part, Clapp says, the researchers were well received at the parties. Guests were generally friendly toward their observers and, at times, even folded their presence into the evening’s festivities.

“We attended one party around Halloween where guests showed up dressed like us,” he says.

The field portion of the party study wrapped up in spring 2006. Clapp and his team then began the months-long task of analyzing the data gleaned from 224 separate college parties and 1,304 separate interviews. The resultant paper has since been cited in dozens of media outlets and medical magazines across the country, including the ABC and Fox news networks, the Washington Post and HealthDay magazine. Unfortunately, Clapp says, two particular elements of his findings—college women and sex—frequently led to some less-than-delicate inquiries from the press.

“I had someone from one of the national outlets—I won’t identify which, but it was a big one—actually ask if we had pictures in the lab of college girls in their underwear,” he says. “One of the things that gets lost in that is how many students die every year from drinking.”

The paper received a more on-point response from the world of academia.

“It’s helped a lot of the students who conducted it get into grad school,” Clapp says.

Much more importantly, Clapp says, the findings will aid both his center and researchers elsewhere in their efforts to realistically address the problem of student drinking. “From this,” he says, “we can design effective programs to help with intervention.”

Such is the hope of Megan Holmes. Any endeavor, she says, that took two years out of her life and permanently changed her perspective on drinking had better come to something.

“Any time I’m in a social situation now where people are drinking, I’m definitely more aware of my surroundings, what people are drinking and how much,” she says. “The experience has definitely given me a lot of information to work with. If I’m at a party with friends and they’re trying to decide whether or not to drive after drinking, I’ve learned and seen enough to be able to convince them not to drive.”

San Diego California DUI lawyer news

Filed 2/19/08 P. v. Farmer CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
Plaintiff and Respondent,

v.

TWANYO MJUMBUTO FARMER,

Defendant and Appellant.
F051474
(Super. Ct. Nos. 1100282, 1081756, & 1101620)

O P I N I O N


THE COURT*

APPEAL from a judgment of the Superior Court of Stanislaus County. Marie Sovey Silveira, Judge.

John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

On September 23, 2004, at approximately 1:51 p.m. appellant, Twanyo Mjumbuto Farmer, was driving a car traveling west on Hatch Road in Ceres at a speed of 60 to 70 miles per hour. A car driven by Stephanie Nilsson was traveling south out of a parking lot and attempted to make an unsafe turn eastbound onto Hatch Road. The vehicles collided, killing Nilsson and injuring her two daughters who were passengers in her car. Farmer had a .03 percent blood alcohol content when he was tested sometime after the accident (case No. 1081756).

On September 27, 2004, the district attorney filed a complaint charging Farmer with two counts of driving with a blood alcohol count of .08 or greater causing injury (counts III & V/Veh. Code, § 23153, subd. (b)), driving under the influence of alcohol causing injury (counts II & IV/Veh. Code, § 23153, subd. (a)), and one count each of vehicular manslaughter (count I/Pen. Code, § 191.5),2 driving while addicted to drugs (count VI/Veh. Code, § 23152, subd. (c)), and driving with a suspended license (count VII/Veh. Code, § 14601.1, subd. (a)). Count I also included a multiple victim enhancement (Veh. Code, § 23558).

On October 19, 2004, the prosecutor amended count I to manslaughter with simple negligence (§ 192, subd. (c)(3)). Farmer pled no contest to the amended manslaughter charge and admitted the multiple victim enhancement attached to that count in exchange for a promise of no initial state prison time and up to one year in county jail. After Farmer entered his plea, the prosecutor dismissed counts II through V and count VII pursuant to the plea agreement and dismissed count VI for insufficient evidence. The court also released Farmer from custody with a Cruz 3 waiver pending Farmer’s sentencing hearing.

On November 22, 2004, the court sentenced Farmer to an aggregate term of two years four months, the mitigated term of 16 months on Farmer’s manslaughter conviction and a one-year multiple victim enhancement. It then suspended execution of sentence and placed Farmer on probation for five years on condition he serve 365 days in local custody.

On June 19, 2005, Farmer was released from custody.

On November 4, 2005, the Stanislaus County Auto Theft Task Force left a “bait” car equipped with a video camera parked and running in a convenience store parking lot in Ceres. At approximately 10:42 p.m. Farmer got in the car and drove off. He was stopped and arrested later that night in Modesto (case No. 1100282).

On November 12, 2005, Farmer was released from custody.

On November 18, 2005, someone took Moses Castellano’s Mitsubishi Lancer from where it was parked outside his house.

On November 30, 2005, a highway patrol officer arrested Farmer and a woman after finding them sleeping in Castellano’s Lancer at a rest stop in Turlock (case No. 1101620).

On January 25, 2006, in case No. 1100282 the district attorney filed an information charging Farmer with vehicle theft and alleging he had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)). In case No. 1101620 the district attorney filed an information charging Farmer with vehicle theft, receiving a stolen vehicle (§ 496, subd. (d)), and an on-bail enhancement. The information also alleged that Farmer had a prior conviction within the meaning of the three strikes law.

On March 21, 2006, in case No. 1100282 Farmer pled no contest to vehicle theft. In case No. 1101620 Farmer pled no contest to vehicle theft and receiving a stolen vehicle and admitted an on-bail enhancement (§ 12022.1). In both cases Farmer admitted allegations that he had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)). In case No. 1081756 the court found Farmer violated his probation by committing new offenses. Farmer was guaranteed a lid of six years on all three cases.

At a hearing on June 1, 2006, the following colloquy occurred:

“MR ORENSTIEN [DEFENSE COUNSEL]: Judge, Mr. Farmer requests appointment of counsel to attempt to withdraw his formerly entered plea.

“THE COURT: Is that your request, Mr. Farmer?

“DEFENDANT FARMER: Yes, ma’am.

“THE COURT: I’ll appoint Conflict [Counsel] Two to advise you about that I will -- I don’t have Mr. Perry here now so we’ll have to get the information to him. I’ll put it over for a week.”

On August 4, 2006, substitute counsel filed a motion to withdraw plea. In a supporting declaration, Farmer alleged that he entered a plea in case Nos. 1100282 and 1101620 because he felt defense counsel was not ready for trial.

On August 23, 2006, the court denied the motion, relieved substitute counsel, and reappointed Attorney Orenstein to represent Farmer during sentencing. It then sentenced Farmer to an aggregate term of six years: the mitigated term of 16 months on his auto theft conviction in case No. 1100282, doubled to 32 months because of Farmer’s strike conviction, a consecutive term of eight months for his vehicle theft conviction in case No. 1101620, doubled to 16 months because of Farmer’s strike conviction, a stayed term on his possession of stolen property conviction in that case and a two-year on-bail enhancement. The court also terminated Farmer’s probation in case No. 1081756. However, it did not impose sentence in that case. In case No. 1100282 the court awarded Farmer 399 presentence credits consisting of 267 days’ actual custody credit and 132 days of conduct credit. It did not award Farmer any presentence credit in case No. 1101620.

Following a review of the record in this matter, on November 19, 2007, this court sent a letter to the parties directing them to brief several issues that are discussed below.

The Trial Court Erred by its Failure to Impose

Sentence in Case No. 1081756

The failure to pronounce sentence on all counts and enhancements results in an unauthorized sentence. (People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6.) Thus, the court imposed an unauthorized sentence on August 23, 2006, when it failed to impose sentence on Farmer’s voluntary manslaughter conviction and multiple victim enhancement in case No. 1081756.

Further, California Rules of Court , rule 4.435(b), in pertinent part, provides:

“On revocation and termination of probation under section 1203.2, when the sentencing judge determines that the defendant will be committed to prison: …

(2) If the execution of sentence was previously suspended, the judge must order that the judgment previously pronounced be in full force and effect and that the defendant be committed to the custody of the Secretary of the Department of Corrections and Rehabilitation for the term prescribed in that judgment.” (Accord, People v. Howard (1997) 16 Cal.4th 1081, 1088.)

Since the court suspended execution of sentence when it initially sentenced Farmer in case No. 1081756, it was required to lift the stay and impose that sentence when it revoked Farmer’s probation in that case. Moreover, since Farmer’s plea bargain provided for a lid of six years and he was sentenced to an aggregate six-year term in the two other cases, the suspended sentence in case No. 1081756 should have been imposed concurrent to the sentence he received in the two other cases in order to comply with the terms of Farmer’s plea bargain.

The Trial Court Erred in its Award of Presentence Custody

Credit in Case No. 1081756

“[W]here an accused person is held in custody on a number of charges and upon conviction he is ordered to serve concurrent sentences, the time to be credited pursuant to section 2900.5 must be credited to each of them. [Citation.]” (People v. Schuler (1977) 76 Cal.App.3d 324, 330, fn. omitted.)

Farmer was in custody in case No. 1081756 for 27 days from September 24, 2004, through October 19, 2004, and 210 days from November 22, 2004, through June 19, 2005. He was also in custody in this case and on one or more of the other cases 276 days (9 days from November 4, 2005, through November 12, 2005, and 267 days from November 30, 2005, through August 23, 2006). If the court had imposed the aggregate two-year four-month sentence in case No. 1081756 concurrent to the aggregate term it imposed in the other two cases, Schuler would have required the court to award Farmer an additional 276 days of actual custody credit in that case. Thus, in case No. 1081756 the court should have awarded Farmer a total of 513 days of actual custody days (267 days + 9 days + 210 days + 27 days = 513 days) and 256 days of conduct credit (513 days/4 = 128.25 days; 128 days x 2 = 256 days) for a total of 769 days of presentence custody credit (513 days + 256 days = 769 days).

Respondent contends that in case No. 1081756 Farmer should not get credit for November 30, 2005, the date of Farmer’s arrest in case No. 1101620, through December 8, 2005, because according to the probation report he was not booked in case No. 1081756 until December 9, 2005. We disagree.

Farmer’s plea to the vehicle theft offense for which he was arrested on November 30, 2005, also constituted a violation of the probation granted in the earlier case and was relied on as a reason for revoking that probation. Accordingly, we conclude that Farmer was entitled to credit in case No. 1081756 for his days in custody between November 30, 2005, through December 8, 2005, because his arrest and conviction in case No. 1101620 had some connection to both cases. (Cf. People v. Galloway (1980) 107 Cal.App.3d 709, 712.)

Farmer’s Request for Appointment of Substitute Counsel to File a Motion to Withdraw Plea Did Not Trigger the Court’s Duty to Conduct a Marsden Hearing

Respondent contends defense counsel’s statement to the court that Farmer wanted to move to withdraw his plea did not trigger the court’s duty to conduct a Marsden4 hearing. We agree.

“[A] trial court’s duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises when the defendant in some manner moves to discharge his current counsel.” (People v. Lucky (1988) 45 Cal.3d 259, 281.) Since Farmer did not request that his attorney be relieved, or otherwise inform the court of his dissatisfaction with his attorney, the court did not err by its failure to conduct a Marsden hearing. Farmer asked for “appointment of counsel to attempt to withdraw his formerly entered plea,” and that is what he was given.

In People v. Smith (1993) 6 Cal.4th 684, however, the court held that “substitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].” (Id. at p. 696, italics added.) Thus, we conclude the court erred when it appointed substitute counsel to represent Farmer in a motion to withdraw plea because Farmer did not show or even allege at that time that his counsel was providing ineffective representation. (Cf. People v. Eastman (2007) 146 Cal.App.4th 688, 695-698 [where defendant did allege incompetence of counsel as basis of motion to withdraw plea, trial court erred in appointing substitute counsel rather that conducting Marsden motion].)

The court may also have erred when it reappointed Attorney Orenstein after denying Farmer’s motion to withdraw his plea. In People v. Smith, supra, 6 Cal.4th 684, the court disapproved of a procedure whereby “a series of attorneys [is] appointed at public expense” in order to accuse their predecessors of incompetence. (Id. at p. 695.) The court criticized “the appointment of simultaneous and independent, but potentially rival, attorneys to represent [a] defendant.” (Ibid.) In Eastman, this court agreed. (People v. Eastman, supra, 146 Cal.App.4th at p. 698.)

Because appointment of substitute counsel here resulted in Farmer receiving a second attorney who did assist him in filing a motion to withdraw his plea and thus made a record of his complaints, however, we conclude that the court’s error in appointing second counsel did not prejudice Farmer. (See People v. Eastman, supra, 146 Cal.App.4th at p. 696 [reversal required where no record made of defendant’s complaints about attorney or of basis for desire to withdraw plea]; cf. People v. Dickey (2005) 35 Cal.4th 884, 920-921 [court stated with respect to defendant for whom substitute counsel was erroneously appointed, “[a]s his expressed wishes were honored, he has no grounds for complaint”].) Further, it appears that any error in reappointing Attorney Orenstein to represent Farmer for sentencing was harmless beyond a reasonable doubt since Farmer was sentenced to a six-year term in accord with his negotiated plea.

DISPOSITION

The judgment is modified to lift the stay of execution imposed on the aggregate sentence of two years four months imposed in case No. 1081756 and that term is to run concurrent to the aggregate term of six years imposed in the two other cases. The judgment in case No. 1081756 is also modified to award Farmer 769 days of presentence custody credit as calculated above. The trial court is directed to issue an amended abstract of judgment that incorporates these changes and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgments in all three cases are affirmed.



* Before Vartabedian, Acting P.J., Harris, J., and Dawson, J.



2 Unless otherwise indicated, all further statutory references are to the Penal Code.



3 People v. Cruz (1988) 44 Cal.3d 1247.



4 People v. Marsden (1970) 2 Cal.3d 118

San Diego DUI lawyer

San Diego DUI

A new campaign aiming to cut down DUI / drunk driving in Nashville is being specifically aimed at young Hispanic men.

The campaign tag line is "Manejar Borracho? No Seas Tonto Muchacho!," or in English, "Drive drunk? Don't be crazy, man!"

It's funded by a $60,000 grant from the Governor's Highway Safety Office, which has also paid for the "Booze It and Lose It" campaign.

Officials say they want to target all populations and make them aware of the risks of DUI / drunk driving, although they must be careful about playing to racial and ethnic stereotypes.

San Diego DUI attorney news

A patrol car driven by a California Highway Patrol officer was rammed late Monday night by a suspected San Diego DUI - intoxicated driver after a pursuit from La Mesa to Spring Valley, San Diego DUI authorities said.

The San Diego DUI officer first tried to pull the driver over on eastbound Interstate 8 at Jackson Drive shortly before midnight, but he exited the freeway and took off on surface streets. A passenger got out of the vehicle at one point and the driver ran through numerous stop signs and traffic signals and went the wrong way on surface streets, San Diego DUI police suggested.

The San Diego DUI officer used his patrol car to force the vehicle to stop as it was heading west on Broadway near Lemon Grove. The man's vehicle ended up behind the patrol car and he accelerated and rammed into the back of it, damaging both vehicles extensively, San Diego DUI cops said.

The San Diego DUI driver, a 55-year-old man from San Diego, was arrested for San Diego DUI after he tried to run away. The San Diego DUI man was believed to be under the influence of controlled substances and was booked into jail on felony and misdemeanor San Diego DUI charges, San Diego DUI lawyers believe.

The San Diego DUI officer complained of neck pain after the San Diego DUI accident, San Diego DUI attorneys believe.

The passenger was picked up by La Mesa DUI police. He was allegedly a parolee at large and had outstanding felony warrants.

San Diego DUI attorney news

A talking San Diego DUI prevention device in the last bar in English-speaking America

A scavenger hunt for the most southwesterly bar in San Diego leads to the corner of Seacoast Drive and Imperial Beach Boulevard, the final intersection in this corner of the Red, White and Blue. No one but the birds of the Tijuana Estuary and Border Field State Park reside south of here.

Ask some member of the wait staff if this is really the most southwesterly bar in the USA, as the sign out front says. "I guess so".

IB Forum might be some dusty Minutemen outpost veiled in tattered and faded Old Glories, with rust-bucket pickups lined up out front, peanut casings littering the floor, rifles leaned up against the bar, wanted posters papering the walls, mold and Marlboro in the air and nothing but American hops on tap. Rather, little leaguers woof down cheese sticks, dads cook their own steaks and moms nurse half carafes of white zin. As far as the bar's concerned, five booths, a jukebox, a talking San Diego DUI prevention device and no more than 10 stools occupy the space.

Since it is technically the last pit stop before leaving Angloland behind, happy hour prices would be a full-blown invitation to pig out. They'll cut a dollar off drafts (Heineken, Red Trolley, Hefeweizen, Sierra Nevada, Harp, Guinness, Fat Tire), wells and appetizers (ceviche, calamari strips, chicken tenders and other standard bar fare) weekdays from 4 to 7 p.m. But the buck stops there.


IB FORUM
1079 SEACOAST DR.
IMPERIAL BEACH

An effort to toughen a DUI / drunk-driving law two years ago has created a legal snafu that could affect the future of dozens of Breathalyzer-refusal cases, an issue that is expected to be addressed by the R.I. Supreme Court in the coming months.

Depending on the ruling from the state’s highest court, the decision could lead to the dismissal of some cases dating back to 2006 in which suspected drunken drivers refused to submit to the chemical test.

The decision is much anticipated among some defense lawyers because it might have an effect on countless other driving-under-the-influence (DUI) cases, too.

At the heart of the issue is the interpretation of two conflicting bills passed by the R.I. General Assembly and signed into law by Gov. Donald L. Carcieri in the waning days of the 2006 legislative session.

One amendment doubled the amount of time a driver’s license could be suspended if a drunken-driving suspect refused to take a breath test – and added criminal charges for multiple offenses.

The other amendment, signed two days later as part of the budget bill, added a provision for a $200 assessment for each offense that would go to the R.I. Department of Health. But, in what might have been an oversight, the text of what was signed into law contained the old, less-severe penalties of a three- to six-month license suspension for refusing to take the test, not the six-months-to-a-year penalty that had become law a few days earlier.

The question: Is the first amendment in effect, or the second one? Or can it be a combination of the two?

The R.I. Attorney General’s Office has said there should be no question at all. The amendment to add the $200 assessment only made reference to the old penalties because that was what was on the books when it was drafted, according to Neil F.X. Kelly, the assistant attorney general who is overseeing the case before the Supreme Court. The reference to the penalties was only intended to provide “context,” Kelly said last week.

“They were adding the assessment,” he said. “It wasn’t like [the General Assembly] was going back to rework the other sections. There’s no outward indication they wanted to repeal the legislation they had already passed.”

In fact, Kelly said, the reconciling of two separate bills on the same subject happens frequently in the legislative process.

Police departments statewide, following a rights form distributed by the office of the attorney general, have assumed a combination of the two amendments. When drunken-driving suspects are read their rights at a police station, they are told of the more stringent penalties for refusing to take a breath test, including the $200 assessment.

Still, some defense attorneys argued that their clients were being incorrectly warned before deciding whether to take a Breathalyzer. The second amendment to the law, with its lesser penalties, is the one that should be in effect, those attorneys argue.

“Our clients were being misinformed,” said Robert Humphrey, a Tiverton lawyer who handles numerous DUI cases. “It’s creating a lot of confusion.”

At first, some judges were in agreement.

When lawyer John Harwood raised the issue and requested that a case be dismissed in 2006 at the R.I. Traffic Tribunal – where these types of cases are initially heard – Judge William Noonan agreed.

Other tribunal judges, however, refused to dismiss similar cases on the same grounds, and eventually the tribunal’s three-judge appeal panel ruled that none of these cases would be dismissed.

“Judges were taking different points of view, but now it’s done on a uniform basis,” Judge Edward Parker, interim chief magistrate at the R.I. Traffic Tribunal, explained last week. “We’re now working on the premise that it’s the first one that passed – that’s the valid one.”

“We’re interpreting the law the way I thought it should be interpreted,” Parker continued. “Using common sense.”

Before 2006, there had been numerous legislative attempts to toughen the penalties for breath-test refusals. Groups such as Mothers Against Drunk Driving saw the lesser punishments as a “loophole” used by DUI drivers to get out of criminal charges.

Didn’t state legislators intend in 2006 to stiffen the punishment for refusal?

Maybe, said Harwood, but he added that no one can interpret the intent of legislators who approved these bills. “Who am I to question what they do?” said Harwood, a former state representative and House speaker who was out of office when the amendments were passed. “I’m not going to speculate.”

When Harwood appealed to the R.I. Superior Court on behalf of his client, Theodore Such, Judge Stephen Fortunato ruled in Such’s favor. Fortunato’s order, which came in January 2007, said the second amendment signed into law on June 30, 2006, effectively repealed the amendment signed just two days earlier that had increased the punishment.

The attorney general’s office appealed Fortunato’s ruling to the state Supreme Court. Although no hearing has yet been scheduled in the case, both sides are already filing briefs.

Meanwhile, there’s no shortage of cases that could be affected by the Supreme Court’s decision. In 2007 alone, 2,470 cases came before the Traffic Tribunal, according to Judge Parker.

“If it goes against us, I’m sure we’ll have a rash of people trying to vacate what’s been done,” Parker said. “How many people will be affected, I can’t tell you. But we’ll take that up when it comes.” •

San Diego DUI defense attorney news

A firefighter was charged with DUI / DWI / drunk driving after he crashed a fire truck into a utility pole on Long Island.

Robert Block, a Riverhead Volunteer Fire Department captain, faces criminal DUI charges and disciplinary action in the wake of the DUI accident, which occurred Saturday as he drove back to the firehouse from a parade on the north fork of Long Island.

"We do not tolerate this and we will be enforcing this vigorously," Bill Kelly, a local official. "There's no reason for this at all and we will be pursuing this."

San Diego California DUI lawyer news

Some radio talk show host apparently came up with the idea to a form a group DAMM, Drivers Against Madd Mothers. Recently events have occurred on a very local level that gave me pause to think about this. These events are tragic in their own way, and yet it seems to me that we as a society like to take such events and compound them. Sometimes when trying to make sense of the senseless groups of people can compound the issues that individuals should be dealing with on their own terms. Groups can certainly help a person deal with personal tragedy when done on a voluntary basis and when help is requested, but groups can also throw wrenches into already muddled situations and make things painful for all of us until even the most innocent in society are paying a price for a situation they had absolutely nothing to do with.

There was a story about a young man, seventeen or so, who got drunk one night, got in a car, got in a DUI accident and killed someone. It was in all the papers. It was a very sad DUI story. It´s a story that has been repeated too many times. The boy had never been in trouble before. He was a good student. He had a loving family. He was by all accounts a nice person on his way to a productive life. Then he made a couple of bad decisions one night and something terrible happened. The DUI was tragic.

A DUI judge sat in his courtroom and listened to this story. It took about a year before things would be settled. The DUI judge had considered all sides of the story and rendered his DUI decision. He took all kinds of DUI factors into consideration, factors that maybe some of us might not think about. That´s what good DUI judges do. He sentenced the boy to six months in jail and five years intense DUI probation. The papers had a field day reaming this DUI judge. They claimed the sentence was too lenient. It was a DUI accident, regardless of the circumstances or the consequences or the stupidity involved, and it was not done with forethought or malice. Some people would rather do jail time than do intense DUI probation which puts a lot of pressure upon the DUI recipient. This young man´s DUI sentence and this sad story is not what this DUI blurb is about.

A boy was involved in an accident was coming home from high school. It was a pretty bad accident. He and the other driver involved, a woman with a son his age at the same high school, were both hurt. Her injuries were pretty serious, but nothing life threatening or life changing. His son was not drunk, was not high, but he had a marijuana pipe in his car at the time of the accident. The police found it and tested him at the hospital. They found trace amounts of marijuana in his system, but he admitted to having smoked it three days earlier, which would mean there would still be traces in his system. He hadn´t been high at the time of the DUI accident. There were even questions about whether he actually caused the DUI accident or not, though the DUI evidence did point to it being his fault. But none of that would matter. He was charged with felony DUI.

During the year this was dragged through the court system, the woman involved with the DUI accident would show up for each and every hearing this young man had to go to. Every time she would have with her someone from Mothers Against Drunk Driving. She wanted to make sure this young man paid dearly for what had happened to her. And yet, did anyone from her family come to the courthouse to support her? Did any of her old friends come with her for support? No. It was always someone from Mothers Against Drunk Driving, someone who hadn´t met her until after the accident and someone with a political agenda to attend to. MADD may have felt they found a willing and productive poster child to hang their hats upon with this woman, and they were ready to use her to the best of their ability to further their agenda to get draconian zero tolerance laws passed in every state of the union. My guess is that they couldn´t have cared less about this woman, they only cared that she had been involved in an accident where a hint of marijuana use had been found.

When crunch time came in this case, a deal was struck, as happens so often in this country. We no longer have a system where one is innocent until proven guilty, we have a system where once arrested your DUI lawyer will only go to trial if he is certain he can prove you innocent. Juries are no longer fully informed. People that should be sitting on them, people with principles and who know their responsibility, instead try to find ways to wiggle their way out of jury duty. Often times if a person with principles who knows what a fully informed juror knows, that the law itself can be judged, if found in the jury pool that person will be rejected by the prosecutor who does not want his precious law to be subjected to scrutiny by ordinary citizens. But that´s tangential. What happened is this DUI case was that, due to the other case mentioned above, the DUI judges in this county were now under pressure and giving out sentences that far exceeded minimum standards. They didn´t want to be seen as soft on crime by the papers and the vengeful masses who know little about the details of each individual DUI case and are quick to judge those sitting in judgment without taking the time to find out the specifics.

The lady from MADD had made her presence felt. They have done this all along by waving pictures of dead babies in our faces and making us all feel guilty. They have taken the pain from personal tragedy and spread it throughout the public until even the most tea toddling senior citizen might feel its sting one day when forced to stop at a random, unconstitutional roadblock while trying to get to the drugstore before it closes to pick up much needed meds. Their loud screams and fascist demands have reverberated in legislative chambers across this land and it seems they will not stop until prohibition is reinstated and we as a society get to relive the nightmare of the roaring twenties gang wars. It seems as if the cowardly lawmakers are easily swayed by their persistence and will not take a stand against them for fear of being labeled a criminal sympathizer rather than a constitutionalist. Certainly, those who are driving dangerously should be taken off our roads, but just because someone´s blood alcohol level is .08 or some other random number does not automatically mean he is a danger on the road. Just because a kid has a marijuana pipe in his car and trace amounts in his system does not necessarily mean he was smoking recently or that his driving was impaired by it. We need to start dealing with people as individuals, not as statistics. And a very important thing I personally think we as a society have forgotten is that forgiveness is good for the soul. We should remember to forgive others as we would want to be forgiven under similar circumstances.

The boy was sentenced to sixty days in jail, two years intense DUI probation, and he will have to pay restitution. Jail time was not necessary for the kid. It does no one any good, not him, not his parents, not the woman who was injured, not her family, not society in general, not even the woman from MADD, except maybe to satiate her vindictiveness. I hope he is strong enough to survive the two years intense probation without permanent psychological damage. I believe that paying restitution was the fairest part of the sentence, for he did cause harm to another and should make every effort to repair what has been broken.

The woman read a statement to the DUI court in which she blamed the DUI accident for everything that had gone wrong with her life recently. She blamed it for her husband leaving her. She blamed it for her kids abandoning her. She never considered that her own actions may have brought these things about. She never considered that maybe she was driving them away. By some accounts these things had been manifesting before the accident. But that accident gave her the opportunity for attention. It gave her the opportunity to make a new friend with the MADD woman who wants to stick her nose in everyone else's business and make sure anyone who may have even thought about driving under the influence of any illicit substance is cast out of society and thrown into a prison cell for as long as possible. It gave her the opportunity to try to make someone else´s life as miserable as her own. She took that opportunity and lapped it up. How empty her life must feel now.

San Diego DUI attorney news

Escondido police arrested five people and impounded 25 vehicles during a weekend San Diego DUI traffic checkpoint, San Diego DUI authorities said.

The San Diego DUI checkpoint, which targeted drunk and unlicensed drivers, was held in the 3300 block of Bear Valley Parkway from 6:30 p.m. on Friday to 12:15 a.m. on Saturday, Escondido San Diego DUI police said.

A total of 2,712 vehicles passed through the San Diego DUI checkpoint, San Diego DUI officials said. Of those, police arrested one driver on an outstanding warrant for San Diego DUI - driving under the influence, two people for various misdemeanor charges and two motorists for San Diego DUI / driving under the influence of alcohol.

One of the San Diego DUI - Drunk Driving suspects had his driving privileges suspended six times previously because of San Diego DUI / drunk driving, San Diego DUI authorities said. San Diego DUI Police also impounded 25 vehicles whose drivers had either been arrested or lacked a valid driver's license, San Diego DUI police said.

Officers issued a total of 28 traffic citations and conducted nine San Diego DUI San Diego DUI field sobriety tests, San Diego DUI police said.

The San Diego DUI checkpoint was held in conjunction with Mothers Against Drunk Driving and the North County Law Enforcement Traffic Safety Council. The San Diego DUI / Drunk Driving checkpoint was funded through a grant from the state Office of Traffic Safety.

San Diego DUI lawyers are available to help.

San Diego California dui attorney news

DWI 'NOT GUILTY' WORTH $5 MILLION?

The Wall Township police captain found not guilty of drunken driving by Red Bank Municipal Court Judge William Himelman in May plans to sue his employer for $5 million, according to news reports today.

The arresting officer in the case, which was moved to Red Bank as a neutral venue, called the verdict "the most disgusting and disturbing possible outcome," and Red Bank Prosecutor James N. Butler said it "set the criminal justice system a long way back."

The notice was filed against the township, Police Department, Township Committee and the arresting officers, Patrolman J. Todd Verrecchia and Sgt. Frank Lancellotti.
[Capt. Bernard] Sullivan's claims include false arrest, false imprisonment, rescission of appointment to chief of police and defamation of character, according to the notice.

Himelman found Sullivan not guilty on all counts May 14. Himelman said Sullivan's attorney for the trial, James Fagen of Freehold, had created sufficient reasonable doubt as to whether or not Sullivan was drunk at the time of the arrest.
Himelman said it was the first time in five years he had found a defendant not guilty in a drunken driving case.

San Diego California DUI news from around:

Richard Sanders, who has headed a Mecklenburg County Sheriff's Office unit that investigated employee misdeeds for about five years, was arrested early Saturday on a DWI / Drunk Driving charge, according to jail records.

Sanders, 56, was pulled over on Albemarle Road, said Sheriff's Office spokeswoman Julia Rush, who said she didn't know his Drunk Driving blood-alcohol level. The legal limit for driving in North Carolina is 0.08. Sanders was released on $1,000 bail and is scheduled to appear in dwi / Drunk Driving court next week.

Sanders, a retired homicide detective with the Charlotte-Mecklenburg Police Department, was recruited by then Mecklenburg Sheriff Jim Pendergraph to head the Office of Professional Compliance, which is similar to many law enforcement organizations internal affairs departments.

Sanders has been suspended with pay pending the outcome of an internal investigation. He could not be reached for comment.

"If the internal investigation finds out something egregious," Rush said, "we may take action prior to any (DWI / Drunk Driving ) conviction.

san diego dui DWI lawyer news

A former County municipal judge, who gave up his seat after pleading guilty to drunken driving and threatening a public servant last year, is facing new charges for driving while intoxicated / DWI.

George R. Korpita was arrested for DWI Friday night in Sparta after a traffic stop on Route 181 near the Jefferson border, Sparta Police Chief Ernie Reigstad said. Police noticed Korpita allegedly driving erratically on Green Road and pulled him over shortly after 11 p.m.

He was arrested and issued four traffic summonses -- DWI driving while intoxicated, careless driving, failing to keep right and refusing to take a breath test, Reigstad said.

Korpita, who could not be reached for comment, was later released on his own recognizance pending a DWI hearing in Sparta Municipal Court.

Korpita had presided over the Morris County courts in Dover, Rockaway Borough and Victory Gardens until an incident early on the morning of Nov. 6. In that case, police pulled over Korpita's vehicle on Route 46 after a motorist noticed his black Chrysler sedan not moving at an intersection after the light turned green.

He later admitted that he had been drinking at a Roxbury go-go bar and that he had flashed his municipal judge identification to police and mentioned several times he was a municipal court judge.

Under the DWI plea deal in that case, Korpita cannot hold public office again and cannot seek to have the DWI conviction expunged.
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san diego dui attorney news

he Sigma Alpha Epsilon Fraternity stepping up to present an innovative seminar on the hazards of alcohol use including drunken driving.

Co-sponsored by UWF, the seminar is open to all university students.

It's the kind of community leadership we need.

The police can't catch all the drunken drivers. Sadly, we often discover them only after they have killed someone.

As we have to know all too sadly in this community, the threat of DUI is a message that can't be shouted from the rooftops too often.

Especially for younger people.

We're also proud to hear that the local seminar was inspired by the News Journal's series on DUI published in December.

That series detailed the 1,719 DUI arrests made in Escambia and Santa Rosa counties in 2006, and examined the carnage and lost lives that resulted.

We have far too many otherwise good citizens serving long jail sentences because they made the bad decision to drink and drive.

The cases come with too great a regularity.

On March 25, Escambia School Superintendent Jim Paul faces arraignment on a drunken-driving charge in Pinellas County.

Last week, a Texas man pleaded guilty in a drunken-driving crash that killed a Navarre High School student last summer. He faces up to 46 years in prison.

In late January, 19-year-old Joshua Harris of Pace was sentenced to 30 years in state prison in the drunken-driving deaths of two women.

In mid-January, Jimmy Coleson was found guilty of DUI manslaughter and faces 16 years in prison for causing a crash on Gulf Beach Highway that killed his 22-year-old passenger.

In early January, Gary White, 41, pleaded guilty to DUI-manslaughter for the death on the night of June 23 of 7-month-old Chloe Collar of Birmingham, Ala., when White slammed his truck into the back of a sport utility vehicle on U.S. 29 carrying Chloe and her parents.

We have far too many of victims of DUI now lying in eternal graves; six people lost their lives in the two counties in 2006 due to wrecks involving drivers who were drunk.

What it says is that you face the risks of DUI every time you take the wheel � whether you have had a drink or not. Because every time you drive, some of the drivers sharing the road with you have had too much to drink.

Do the math: 1,719 DUI arrests over 365 days is an average of almost five arrests per day.

The scariest statistic, of course, is the one we don't know: How many drunken drivers are not caught?

We congratulate Sigma Alpha Epsilon Fraternity for doing its part to get the word out.

San Diego DUI attorney news

The case of a Royal Newfoundland Constabulary officer charged with impaired driving came before the courts today.
Insp. Sean D. Roche, 48, was charged with operation of a vehicle while impaired and failing or refusing the breathalyzer.
The case is expected to be handled by the Clarenville office of the Crown.
The charges stem from an incident on Jan. 12, when Roche was pulled over by police in the west end of St. John’s.
He didn’t appear in court Friday, but was represented by his lawyer Jim Walsh, who had no comment on the matter following proceedings.
He is scheduled to return to court March 5.

San Diego DUI lawyer news

In a written statement Tuesday, South Carolina Gov. Mark Sanford reacted to the Senate Judiciary Committee's refusal to strip harmful amendments from the DUI bill:

"We knew going in that some on this Senate subcommittee wanted a weaker DUI, but we were hopeful that a majority of the full Judiciary Committee was as serious as the House was about creating a tougher law - and unfortunately, that didn't appear to be the case today," Sanford said. "Before taking up this bill in the full Senate, I'd again urge Senators to talk to those in their districts who have lost loved ones to a drunk driver to help make real what is almost a daily tragedy in our state. The DUI death rate in our state is deplorable, and the Senate has a real chance to step up and do something about it by taking out this weakening language."

Trey Gowdy 7th Circuit Solicitor said, "With these weakening amendments, the side of the roadway in South Carolina continues to be the most constitutionally protected area in the state. One can only hope that the roadways themselves will someday be as safe for the motoring public as the side of the roadway is for suspected drunken drivers. I'm disappointed that political compromise even infects issues as serious as public safety."

A bill to strengthen the state's DUI laws, H.3496, passed Senate Judiciary after a subcommittee added amendments to:

• Strip a new tiered system of punishment for first offenders, and weaken proposed penalties for refusal to take sobriety tests

• Require additional roadside warnings above and beyond Miranda warnings, making the DUI law the only law in South Carolina where such additional warnings are required.

Source: Office of the Governor of South Carolina

DUI / DWI / Drunk Driving Attorney news

DUI bill dies, no doubt from embarrassment

Finally, common sense prevails in dealing with the state's laws on driving under the influence of liquor and drugs.

A bill steeped in election-year, get-tough-on-crime grandstanding has quietly gone to the burial ground for bad bills in the state Legislature. It failed to make it out of the Senate Transportation Committee before Tuesday's deadline.

Senate Bill 6402 would have required people convicted of a DUI infraction to put fluorescent-yellow license plates on their cars for one year after having their driving privileges restored.

Who knows why overreaching bills even get a hearing in Olympia, as this one did last week before the Senate Judiciary Committee. Maybe it's in the spirit of Shylock's demands for debt repayment of a pound of flesh in Shakespeare's "Merchant of Venice."

(Actually, some opponents preferred a "Scarlet Letter" analogy, a reference to another literary classic -- Nathaniel Hawthorne's 1850 novel in which the heroine must wear the letter "A" as punishment for adultery.)

The gaudy plates would theoretically warn the motoring public and law enforcement that someone convicted of DUI is on the road, even though that person already has jumped through the hoops demanded by tough state laws and has had driving privileges restored.

That embarrassment factor seems like piling on when DUI offenders can already face jail time, even if for a day, higher insurance rates, mandatory counseling and suspended or restricted driving privileges.

And once those privileges are restored, the state Department of Licensing requires a person to drive only a motor vehicle equipped with an ignition interlock device. That certainly would seem a more effective approach in dealing with post-DUI driving considerations than a license plate that glows in the dark.

You know this legislation overreached when even Mothers Against Drunk Driving declined to support it. They also prefer measures such as interlocks and sobriety checkpoints.

If lawmakers want to ratchet up DUI enforcement, they should have approved the checkpoints that were requested of them by Gov. Chris Gregoire.

This short 60-day session in Olympia has too many pressing issues to waste valuable time on feel-good legislation.

There's a joke in Olympia during sessions that no bill is really dead until the Legislature has adjourned for good. Even then, it's a good idea to allow 24 hours to make sure they don't come back.

This is one bad example of government excess that should stay buried.

Mike Carrell loves his "Eureka!" idea.

The Republican state senator from Lakewood just sponsored a bill aimed at people who get DUIs.

Here's how it would work: If you are convicted of driving under the influence, then for a year or so you would have to put a fluorescent-yellow license plate on your car -- for the whole world to see.

Great. But really, why stop there?

Plenty of drivers are impaired by poor judgment -- and not always as a result of booze.

POLL
What do you think about yellow license plates for drivers with DUI convictions?

A smart legislative bill
A serious waste of time
It could work
Don't care


Speeders deserve flaming-red plates for burning up the road.

Folks cited for text messaging behind the wheel or putting on makeup while steering deserve periwinkle plates.

Elderly drivers who slam into buildings because they shift forward instead of backward get lavender-blush plates with sparkly polka dots.

And you know what's so great about these colorful options?

The perfect drivers out there could single out the bad ones and take the law into their own hands.

See a yellow plate? Key the drunk's car for kicks.

Spot Grandma with polka dots? Call 911, even if the old lady's driving just fine.

Spy a job candidate pull up with red plates? Nix his job prospects.

The possibilities for a rush to judgment and vigilante justice are endless.

Also, imagine others swerving unsafely when they near someone "Driving While Yellow."

Who cares if the person at the wheel is only borrowing the car and not responsible for the offense signified by the plate?

But here's why Carrell's idea rises to genius: It saves lawmakers the time and sweat of doing the real hard work to make laws to curb DUIs -- and leaves them more time to hit the links.

In all seriousness, I'm for appropriate punishment when it comes to drunken driving, one of the biggest, most dangerous and persistent public problems.

Ignition-lock devices, even for first-time offenders, are a step in the right direction. Such contraptions -- which a few years ago became mandatory for people convicted of DUI -- prevent impaired people from starting their car, though politicians also could push much harder for sobriety checkpoints.

Stiffer fines for bars that overserve also sound good.

But, Carrell's yellow license plates are, to him, a perfect solution -- yeah, perfectly feeble and overly simplistic.

It is shallow shame legislation that does nothing -- no solid data show that special plates deter DUIs in other states -- while trying to convince the public that it does something.

The color-coded kookiness trivializes the disease of alcoholism, which can be lethal when a sufferer drinks and drives. Plus, you've paid your societal debt if you've done the time or paid the fine.

As far as the bill goes, Gov. Chris Gregoire is on the fence.

"She's still studying the issue," a spokesman for Gregoire said Friday.

Carrell's legislation -- Senate Bill 6402 -- was approved by the Senate Judiciary Committee last week and now sits before the Senate Transportation Committee.

The dedicated watchdogs at MADD aren't enthused. They prefer anti-drunken driving measures with teeth.

Meanwhile, the Washington State Patrol is withholding comment on the bill.

Carrell didn't return my calls. But I suspect he's downright stumped about why smart people are taking so long to see what he does -- that yellow license plates are a good way of visibly telling "sheep from goats" on the roads, as he put it to one Seattle reporter.

I wonder if such logic applies in Olympia, in separating do-something lawmakers from the do-nothings. If so, I've got a prize for the good senator -- a scarlet-colored plate to honor officials who drum up dumb ideas that waste government time and erode public confidence. Eureka!




Can shame sober someone up?

State lawmakers are wondering just that as they consider a law to require people convicted of drunken driving to put a bright-yellow license plate on their cars.

Ohio has required the so-called "party plates" for years — plenty of them ordered by Garfield Heights Municipal Court Judge Jennifer Weiler.

Weiler told me about the time she asked a classroom of sixth-graders whether they thought the law was fair, whether people who drink and drive should be punished with yellow plates.

Every hand went up.

"What if it was your mom's car?" she asked.

Every hand but two dropped like a torn kite.

The lesson? Shame works.

There aren't any statistics to show whether Ohio's yellow plates have been life-changing. In fact, the number of plates issued has gone up, from 4,709 in 2005 to 5,167 last year.

But Doug Scoles, executive director of MADD Ohio, said there has been a decline in the number of alcohol-related automotive fatalities in the four years the plates have been required.

"I can't say it's because of the plates; I can't back it up," Scoles said. "But I like to think they are part of the reason."

Nor can he say whether other drivers are more careful around yellow-plated drivers.


"But I know that I see them and think, 'I don't want to get too close to this guy,' " he said. "It's just human nature."

"If you have those plates, you're going to think twice about pulling into a bar. Forget the scarlet letter. These people are criminals."

But they also may be sick, said Patrick Hart, a Seattle psychotherapist and substance-abuse counselor.

"We view alcohol problems as an illness, so why don't we shame someone for kidney stones? Why don't we say, 'Suck it up, pull up your bootstraps and get rid of those kidney stones?' "

Well, because no one has been killed by a 2,700-lb. kidney stone that crossed the center lane going 75 mph.

Hart, no fool, knows this.

"The carnage associated with drunk driving is unfathomable," he said. "But there's no evidence that anyone ever said, 'I am going to go out and get a DUI.' "

Hart got one himself, years ago. He was "drunker than a peach-orchard boar" when he hit a parked car. And he was embarrassed. But that didn't move him to seek help. His family's compassion did.

In fact, he said, putting people's drinking problems on a license plate could drive them to drink.

"The shame simply perpetuates the problem," Hart said.

I have my own qualms about the plates. Police may see them as probable cause. Other drivers' reactions could make for even more trouble on the road.

Scoles disagreed. As long as people drink and drive, he said, there will be a need for police — and other citizens — to know what kinds of folks are sharing the road.

And those who have broken the law should know they are being watched.

"If we do nothing," Scoles asked, "we know what the results are going to be, right?"

DUI lawyer / drunk driving attorney news

A Boston-based federal bankruptcy judge was fined and his driver’s license suspended in New Hampshire in a drunken driving case.

Bankruptcy Judge Robert Somma did not contest DWI charges and was found guilty on Wednesday. He was accused of rear-ending a pick-up while driving drunk in Manchester last week. No one was hurt.

Under the plea deal, Somma agreed to a 12-month license suspension, which could be reduced to six months if he successfully completes an alcohol awareness program. He also paid $600 in fines and penalties.

The most shocking part about the ordeal was that he was wearing women's clothing at the time.

Robert Somma, 63, was arrested on Feb. 6 after his Mercedes-Benz hit a pickup truck on a Massachusetts road. When authorities removed him from the vehicle, they said he wore a black women's cocktail dress, fishnet stockings and high heels.

In a classroom at Maui police headquarters, officers in training learn to spot a drunk driver...

"They look for cues in a person's balance, in their eyes," said Lt. Bobby Hill.

Hill oversees Maui's DUI Task Force. Last year the unit rang up big numbers. Arrests reached a ten-year high for people caught driving under the influence. Cops made 1,011 arrests. Many of them were repeat offenders.
Maui police suspect a high number of automobile fatalities involved an impaired driver.

"Unfortunately, people aren't taking it seriously," Hill said. "They may not realize the consequences of it."

That troubles Paula Kahahane. It's understandable. On Sept. 7, 1992, a drunk driver killed her son on Haleakala Highway.

"It only takes one time for them to change our lives," she said. "My son was only eighteen."

For years, Kahahane has told her story to Maui DUI offenders. Last year she was shocked by the size of her audience.

"I counted at least thirty people per class," she said.

Maui isn't the only island fighting a DUI epidemic. In 2007 Oahu had its highest total in eight years. Police said besides alcohol more people were caught driving under the influence of prescription drugs, including medical marijuana.
And on Maui, more DUI arrests were made during daylight hours.

"You will be arrested," Hill said.

Maui police attribute the increase in arrests to two things: better enforcement and more people breaking the law.
This year Maui cops will set up sobriety checkpoints once a week. They're reminding drivers that at $1,000.00 for the first offense, Maui county has the highest DUI bail in the state.

Soon another batch of recruits will be patroling the streets prepared to put into practice what they've learned in the classroom.

San Diego DUI lawyer news

A 21-year-old San Marcos man is expected to be arraigned Wednesday on charges that he caused six hit-and-run crashes while driving San Diego DUI "extremely drunk" with his 1-year-old daughter in his SUV.

Luis Umberto Perez was arrested Monday night after a half-mile chase that ended at Hibiscus and Sycamore avenues in Vista around 7:30 p.m.

San Diego County sheriff's Sgt. Cliston Hensley told the Times that Perez drove his Ford Explorer in excess of 100 miles per hour at times and hit at least six other vehicles before pulling over for deputies.

Two of those hit-and-run crashes happened in San Marcos, three on Highway 78 and one in Vista. No injuries were reported.

Perez is scheduled to appear in a Vista courtroom this afternoon to face two felony and four San Diego DUI misdemeanor charges, including drunken driving, according to the sheriff's Web site. He is being held on $130,800 San Diego DUI bail. His San Diego DUI lawyer may request reduction of bail.

San Diego DUI attorney news

A San Jose woman was killed early this morning by an alleged DUI drunk driver in a two-vehicle collision on Oakland Road near Interstate 880.

The woman, whose name is being withheld by the Santa Clara County coroner's office pending family notification, was in the back seat of a Buick sedan which was struck by a GMC Sierra that police believe ran a red light at the intersection of Oakland Road and Murphy Avenue.

The driver of the Buick, Hao Duy Ngo, of San Jose, delivers the Mercury News and was likely heading to pick up his morning papers at the time of the accident. The relationship between Ngo and the woman is not known at this time.

The woman was the fifth person killed by a vehicle this year in San Jose; the previous four were pedestrian deaths.

The driver of the GMC, Guillermo Ruiz, 32, of San Jose, was arrested on suspicion of DUI driving under the influence and vehicular manslaughter. Ruiz is being treated at a nearby hospital with moderate injuries. A passenger in the truck also suffered moderate injuries, according to Graham. All four people involved in the accident are San Jose residents.

Ngo, who is one of 900 carriers, has delivered the Mercury News since 2002. He was taken to a nearby hospital, where he was listed in critical condition early this morning, according to Lt. George Graham of the Vehicular Crimes Unit.

Employees in the Mercury News circulation department are trying to find ways to help the family. David Rounds, the newspaper's vice president of circulation, said people in his department are upset about the tragedy. "It's real unfortunate anybody gets injured in an auto accident. Particularly if its a DUI."

Mercury News carriers earn about $1,500 monthly, and are paid by the number of newspapers they deliver. Rounds said most people have second jobs.

Just before 2 a.m., police responded to the DUI accident and found both vehicles with heavy damage. Three hours later, the white GMC Sierra was still resting on the sidewalk, turned on its side, and the dark-colored Buick was in the middle of the intersection, with major damage.

"It was a pretty big impact," Graham said.

Police believe the Buick was traveling westbound on Murphy Avenue, toward Brokaw Road, when it collided with the GMC, which was moving southbound on Oakland Road. Graham said "it is too early to tell" how fast the vehicles were moving when they collided.

Police found several bundled up newspapers and a bag of rubber bands in the Buick.

Anyone with DUI information is asked to contact investigator Kevin Cassidy of the Vehicular Crimes Unit at (408) 277-4654. Anyone wishing to remain anonymous can contact Crime Stoppers at (408) 947-STOP.

Think Arizona's DUI laws are tough?

Republican state lawmakers are pushing to strengthen Arizona's DUI laws, which already are regarded as the strictest in the nation.

But some Democrats and alcohol-industry lobbyists say two bills moving through the Senate would punish drunken-driving offenders too severely. They also say not enough time has passed to determine the effect of last September's DUI law that requires ignition-interlock devices be installed on vehicles of those convicted of drunken driving.





"This isn't a couple of tweaks to the bill," Steve Barclay, executive director of Beer and Wine Distributors of Arizona, said of one of the bills, a 36-page document. "This is a mad march to get more and more laws."

That measure, Senate Bill 1184, provides for harsher penalties for DUI offenders, including increasing from one to two years the time an interlock device must be installed on the offender's car if they are convicted of an aggravated DUI.

Another, Senate Bill 1008, would allow law enforcement officers to immediately suspend for 90 days the driver's license of someone who is arrested for causing a serious traffic accident while under the influence of alcohol or drugs.

Current law allows an officer to order a suspension that takes effect 15 days after it is issued.

Both bills cleared the Senate's public safety committee Thursday on 5-2 votes, with Democrats Rebecca Rios and Victor Soltero voting no. The proposals still have to pass another panel before heading to the full Senate.

The committee heard moving testimony from former state Rep. Debra Brimhall Pearson, who shared a story about how years ago her alcoholic father killed a man in a drunken driving accident. The man, who had three small children, burned to death in his car.

"I wished the first time he had a minor accident and a minor injury, someone took his driver's license away. Alcohol stole my father's ability to reason," Brimhall Pearson said. "He later recognized that a vehicle was a loaded gun in his hand when he was drunk."

Sen. Linda Gray, the committee chairwoman and lead sponsor of SB1184, said she wouldn't stop backing harsher DUI laws until there are no drunken-driving fatalities in Arizona.

"Yes, it's a hardship (for the offenders)," said Gray, R-Phoenix, "but ask the victims what hardship is."

Among other things, SB1184 would also:


• Allow DUI prosecutors to consider an offender's DUI convictions from the past seven years instead of three years when considering sentencing.


• Allow the court to decide in cases of extreme or aggravated DUIs whether an offender shall be barred from consuming alcohol or subjected to twice daily alcohol testing upon release.


• Allows Arizona Department of Transportation's Motor Vehicles Division to suspend an offender's driver's license for 90 days if he or she doesn't participate in or complete a treatment program.


• Require an interlock device to be installed for two years in the vehicle of a DUI offender who had someone under 15 in their vehicle at the time of the offense.

dui / dwi news

Francisco Liriano is having visa problems stemming from a 2006 DUI arrest, and expects to miss the first week of spring training.

Liriano is being forced to take a sobriety test and attend a counseling session before being allowed to come back to the United States. It's an unfortunate development considering he missed last season to Tommy John surgery, but he should be fine for Opening Day unless he suffers a setback.

SANTO DOMINGO, Dominican Republic — Minnesota Twins pitcher Francisco Liriano is having visa problems because of a drunken-driving arrest in 2006 and expects to be late for the start of spring training.
The Twins open camp Sunday in Fort Myers, Fla. Liriano was among baseball's top rookies in 2006 until an elbow injury ended his year, and the lefty missed the 2007 season while recovering from Tommy John surgery.

Liriano, arrested in Florida in 2006 on charges of speeding and drunken driving, said that tests required by a U.S. consulate in the Dominican Republic will delay his arrival for at least next week.

"They asked me to take a sobriety test, because of my situation with the DUI, since apparently there is a new law calling for that," the 24-year-old Liriano told The Associated Press on Thursday. He said he was informed that he also needs to attend a counseling session.

The U.S. consulate in Santo Domingo did not immediately respond to calls seeking comment.
"(The Twins) told me to take it easy and not to worry, that everything is going to come out OK," Liriano said.

Twins general manager Bill Smith said the team was waiting for more information.

"He just found out about it yesterday. Certainly he was surprised by it. But it's the law and he'll do whatever steps he has to go through and then report, hopefully, very shortly," Smith said from the Twins' spring training headquarters in Fort Myers, Fla.

Liriano was 12-3 with a 2.16 ERA in 2006.

Liriano, arrested in Florida in 2006 on charges of speeding and drunken driving, said that tests required by a U.S. consulate in the Dominican Republic will delay his arrival for at least next week.

"They asked me to take a sobriety test, because of my situation with the DUI, since apparently there is a new law calling for that," the 24-year-old Liriano told The Associated Press on Thursday. He said he was informed that he also needs to attend a counseling session.

San Diego DUI attorney news

The head of the state labs that test crime evidence is stepping down, a move that prosecutors and defense lawyers say could help bring back lost confidence in the way drunken-driving cases are handled around the state.

Barry Logan's resignation, effective March 14, comes after a series of problems at the Washington State Patrol toxicology lab have cast doubts on breath tests for suspected drunken drivers.

"Barry has done an excellent job of addressing the issues during this difficult period," State Patrol Chief John Batiste said. "But he and I agree that forward momentum will require different leadership."

The decision stunned attorneys who have worked with Logan on criminal cases and saddened his staff, leaving some in tears, but the lab has drawn stinging criticism about errors and ethical problems in recent months.

"Too many things went wrong on his watch," said defense attorney Francisco Duarte, who specializes in DUI cases. "I believe he wanted to run a laboratory that was based on integrity -- and ultimately, he failed to do so."

DUI attorney Ted Vosk, who has worked to uncover problems at the lab and has persuaded judges to throw out many breath-test results, said he believed Logan's departure was appropriate.

"His stepping down now seems to represent, at least in my mind, that we were right," Vosk said.

Logan has served as the state toxicologist since 1990 and became director of the Forensic Laboratory Services Bureau -- overseeing toxicology and crime labs -- in 1999, managing 220 workers at eight lab locations.

On Thursday, he said he has dedicated his career "to quality evidence in DUI cases" and, after spending months trying to fix the lab's problems, wants the public to know it "can have confidence in the results of these tests."

"I have done as much as I can," he said. "I feel that it's going to help move things forward to have a new director."

Logan, a 46-year-old native of Scotland who is well known and respected in his field, said he remains proud of the labs' work and takes responsibility for many of the Seattle-based toxicology lab's errors -- though he believes they were "dramatically overstated" by defense attorneys.

"With the benefit of hindsight, I can always say that I might have handled things differently, " he said.

Doubts about the lab's work surfaced last summer, when lab manager Ann Marie Gordon was accused of signing off on scientific tests she hadn't actually done.

Some of the criticism toward Logan was about how he handled a vague tip about the wrongdoing. He assigned Gordon to investigate the matter, apparently unaware that she was the problem.

Then other errors came to light involving the same issue: how the lab tests an ethanol-water solution used to make sure breath-test machines give accurate readings. The solution is critical in tens of thousands of drunken-driving cases each year because if it's off, people may face charges based on faulty results.

The State Patrol has maintained that inaccurate results have been extremely limited. Defense attorneys have argued that the lab's shoddy practices call all of its work into question.

In October, two Skagit County judges challenged Logan's credibility as they cited careless and potentially flawed work at the lab.

Last month, three King County District Court judges questioned his ability to serve as state toxicologist and found that the lab was fraught with ethical problems, scientific errors and carelessness -- making all breath tests unreliable.

On Thursday, King County Prosecutor Dan Satterberg said Logan built "a solid foundation" of forensic science and suggested that his resignation "is a positive step toward rebuilding the professional reputation of the lab."

Prosecutors, he said, "are eager to work with the State Patrol and the new toxicologist to make sure that they have corrected questioned administrative procedures ... and ultimately restored the confidence of the court system" in breath tests as evidence.

Batiste said he would immediately begin a search to replace Logan. Crime Lab Division Manager Larry Hebert, a 34-year veteran, will take over in the interim.

The state has already appointed Fiona Couper, who most recently served as chief toxicologist in Washington, D.C., to serve as the state toxicologist.

Her job will now be a separate position from the director of the Forensic Laboratory Services Bureau because having someone fill both jobs, as Logan does, is "too much to ask of any one person," Batiste said.



Dr. Barry Logan, head of the state crime and toxicology labs, has resigned following the discovery of deficiencies in the way DUI testing was conducted at the toxicology lab.

Logan's resignation is effective March 14.

As head of the Washington State Patrol’s Forensic Laboratory Services Bureau, Logan was responsible for operation of the state crime lab and toxicology lab. He also filled the role of state toxicologist.

"Barry and I spent a good deal of time discussing the future of his bureau," said State Patrol Chief John R. Batiste. "In the end, we came to a collegial and mutual agreement that a change in leadership is necessary."

For several months, the patrol has been in the process of correcting operational deficiencies discovered in the toxicology lab. Recent court rulings also were critical of the operation and management of the lab.

Batiste accepted the resignation "with regret." He has appointed Crime Lab Division Manager Larry Hebert, a 34-year veteran of the lab, as interim bureau commander.

Under Dr. Logan’s leadership, the lab grew dramatically in both size and scope. More than 50 scientists and professional staff were added, backlogs of cases were reduced, and the toxicology lab received accreditation from the American Board of Forensic Toxicologists.

Irregularities were discovered in the toxicology lab in late summer 2007.

A senior manager was found to have signed off on tests she did not personally perform. An investigation into that misconduct led to the discovery of other problems, including errors that may have materially affected breathalyzer results in about 130 DUI cases.

Batiste immediately ordered a series of audits, and all recommendations made by the auditors to date have been accepted. Most have already been implemented. A review of those audits is being done by the state’s Forensic Investigation Council, which will decide if it needs to conduct a further audit of its own.

The problem is, as so eloquently put by several, was that Logan allegedly misapprehended his role. His office was created by the people, when they enacted by initiative, the Implied Consent Law in 1968. The purpose was for the State Tox to PROTECT the people by insuring the integrity of the breath and blood testing programs so that citizens would not be falsely convicted based on faulty or sloppy science. The people had just authorized the government, without the involvement of the judicial branch of government, to invade their body to seize blood, or to compel them to supply a sample of their breath, under threat of serious consequences.

Instead, Dr Logan, and those that preceded him as well as many, if not most toxicologists from around the country allegedly became police advocates and apologists in the name of public safety, and have allegedly advocated, allegedly defended and allegedly covered up breaches of the procedures their job was to prevent.

Dr. Logan allegedly brought this onto himself and his transgressions are far more serious than those of most people, and because he allegedly violated his oath of office and his obligation to those who pay his salary, and he allegedly abandoned the basic principles of science for what purpose?

San Diego DUI lawyer / DWI attorney / drunk driving criminal defense lawyer news

West Virginia law prsently requires only repeat DUI / drunk driving offenders to install "Interlock technology", but first time DUI offenders may soon have to face the penalty as well.

"It's basically a breath testing device that's wired into the car's ignition system. Every time the person gets in they have to blow in the instrument and it detects whether they have alcohol on their breath, and if they do have it on their breath, the car would not start and run," says Chief T.R. Smith of the Wood County Sheriff's Department.

The new bill would require first time DUI offenders who blow a .15 or over to install the system, a device that Chief Smith says might not be stopping as many drunk drivers as you think.

"For a first offense it's a little extreme. From what I understand, it's pricey, it can be defeated, and I don't think it's a deterrent for someone that's determined to drive," says Chief Smith.

Instead of requiring the Interlock system for DUI first time offenders, he believes there's a better punishment.

"Second offense, third offense, I can see that, but for first time offense DUI the person should get a provisional drivers license, so he can continue to drive to work," says Chief Smith.

Whether DUI offenders deserve a stricter penalty or not, Chief Smith says over 200 people got DUI's last year in Wood County alone and about one third of them blew over .15. So, for people looking to drive after they've had a few drinks, Chief Smith says you may want to think twice.

San Diego DUI enforcement recognition

The Alpine Kiwanis Club recognized three law enforcement officers from different agencies last week for their San Diego DUI arrest service.

In a meeting Saturday, San Diego County Sheriff's Detective Fran Passalacqua, California Highway Patrol Officer Steve Reardon and U.S. Border Patrol Supervisory Agent Kyle L. Krall were honored with a small ceremony at Alpine Elementary School. It was part of the club's Law Enforcement Appreciation Day, an annual event in which the Kiwanis Club recognizes the achievements and community service of exceptional officers in the Alpine and East County region.

Reardon, who patrols the Alpine area, was recognized for his strong work ethic and record as a highway patrol officer. Reardon made 15 DUI arrests within a three-month span.

San Diego DUI lawyer news

13-year-old Michigan girl called 911 from her cellphone to say her DUI / drunken father was driving them down an expressway, bound for Florida.

Michigan police stopped the van on Interstate 75 and arrested 39-year-old Pawel Bozek of Hamtramck.

They say his blood alcohol level measured 0.22 per cent — nearly three times the legal limit.

The driver reportedly swerved and almost struck a guard rail as he was being pulled over and police found an open beer bottle in the vehicle.

Bozek has a Feb. 25 hearing on a DUI / drunk-driving charge.

How odd to see liberal Libertarians at "Reason" endorse this anti-DUI law.

Why Don't We Incapacitate Drunk Drivers?
February 14, 2008

As a rule, it's a bad idea to let pedophiles baby-sit, to hire embezzlers as tax collectors, or to give a pyromaniac a key to the fireworks factory. We generally try to avoid inviting dangerous people into situations that encourage them to repeat their destructive behavior. So why do we allow drunk drivers unfettered access to their cars?

That's a good question, for which New Mexico authorities had no good answer. For years, the state ranked among the very worst in the nation in alcohol-related fatalities. So three years ago, it decided a change was in order.

In the past, authorities had relied on license revocations to get drunks off the road. But here's a surprise: People who ignore laws against driving drunk also tend to ignore laws requiring them to have a valid license. For some, taking away their license had all the impact of confiscating their library card.

So the legislature, prodded by Gov. Bill Richardson, imposed a tighter constraint on those convicted of DWI: requiring a device that keeps a car from being operated by someone who's been drinking. Other states have mandated ignition interlock devices for those with multiple convictions, but New Mexico was the first to order them for all first offenders upon conviction.

The results were swift and sharp. Since the law took effect, the rate of drunk driving fatalities has dropped by nearly 20 percent. Nationally, by contrast, the rate actually rose slightly during that time. New Mexico DWI Czar Rachel O'Connor—that's her actual job title—notes that the state's campaign against drunk driving includes other steps as well, from a massive public-service ad campaign to intensive use of sobriety checkpoints. But the interlock rule has been a major factor in the improvement.

At the moment, some 7,000 New Mexicans have to pass a breath-alcohol test before they can start their cars. Adding up all the times that motorists have failed the breath test, O'Connor says, the mandate has prevented 63,000 trips by offenders who have been hitting the bottle.

Now the state has additional evidence that its approach is working as intended. A new analysis of New Mexico's experience, published in the journal Traffic Injury Prevention, finds that first offenders were 60 percent less likely to be rearrested if they had interlock devices than if they didn't. When the gadgets were removed, their recidivism rate rose to nearly the same level as those who had never had them.

That isn't terribly surprising. People who get behind the wheel of a two-ton machine when they're under the influence tend to be people with serious alcohol problems, and they tend to keep driving drunk as long as we let them. Suspending their licenses deters some, but Mothers Against Drunk Driving says research indicates that about three out of every four keep driving anyway. As MADD CEO Chuck Hurley puts it, "We need to find a way to separate their hands from the steering wheel."

Interlocks are the obvious solution. But so far, only four states have mandated them for all first offenders upon conviction.

Even then, they're not an insuperable obstacle. Determined sots can hotwire their cars, borrow vehicles or have someone else—such as a child—blow untainted carbon dioxide into the devices. Another problem, says O'Connor, is that some offenders claim to have gotten rid of their cars, signing them over to friends or relatives but retaining surreptitious use of them.

Still, the requirement does work to prevent a lot of impaired driving. And it puts no burden on taxpayers, since offenders bear the $1,000-a-year cost.

It also has benefits for the culprits. In most states, the standard method for stopping drunk drivers is to revoke their licenses so they aren't allowed to drive at all. Under this policy, they may drive all they want as long as they're stone cold sober. It incapacitates the incorrigible while sparing the repentant. A canceled license, which lets the offender police his own conduct, does just the opposite.

In 2006, more than 14,000 people across the country died in accidents involving drunk drivers. If that number strikes you as too high, interlocks for all DWI offenders is one proven way to lower it. If 14,000 sounds about right, though, then the status quo is just perfect.

DWI / Drunk Driving / DUI criminal defense lawyer news

Jane Walsh, the sister of first lady Barbara Richardson and the sister-in-law of Gov. Bill Richardson, is in trouble with the law.

Police were called to Walsh's workplace around 7:25 a.m. Wednesday, according to a DWI / Drunk Driving / DUI police report.

A driver on Interstate 40 had made the call to police after following her because he told DWI / Drunk Driving / DUI police she was driving dangerously.

TheDWI / Drunk Driving / DUI police report states that she was driving in the drain gutter, rubbing the curb and at one point drove up the curb and into a security gate. The report said a piece of her bumper came off, then she parked her car and went into work.

Another employee told DWI / Drunk Driving / DUI police he also witnessed the incident and asked Walsh if she was OK. She reportedly told him she was in bad shape.

A DWI / Drunk Driving / DUI Breathalyzer test showed no alcohol in Walsh's system, police said. However, police conducted a DWI / Drunk Driving / DUI field sobriety test which she failed, according to theDWI / Drunk Driving / DUI police report.

"It doesn't just mean alcohol. It could be other substances, mind-altering substances, whether they be illegal drugs or prescriptive drugs. That is the reason why a drug recognition officer was called and blood was drawn," said John Walsh of the Albuquerque Police Department.

DWI / Drunk Driving / DUI Police said it could take two to three weeks for the results on that blood work.

Walsh was booked into the DWI / Drunk Driving / DUI county jail, then released on her own recognizance.

San Diego DUI criminal defense attorney news

California DUI

NapaValleyRegister.com publishes monthly California DUI statistics on arrests and convictions for driving under the influence — and so-called “wet reckless” convictions — in Napa County.

California DUI Arrest information is from the Napa County Sheriff’s Department. Convictions, names and blood-alcohol levels are from Napa County Superior Court.
Convictions include cases in which the person pleaded guilty or no contest to one or more drunk driving charges, or where one or more such charges resulted in a guilty verdict at trial.

Vehicle code violations considered are: driving under the influence (Vehicle Code section 23152), reckless driving while under the influence (23103.5) and causing injury to another while driving while under the influence (23153).

The blood-alcohol levels provided by the California DUIcourt are based on a variety of tests — some taken at the scene of the arrest or county jail, others through a later blood test — and have not necessarily been proven or admitted in court. It is unlawful for any person to operate a vehicle if that person has a blood-alcohol level of .08 or more, according to the California Vehicle Code.

California DUI Arrests: 54

California DUI Convictions/pleas: 98

Reported California DUI blood-alcohol below .10 or unavailable: 23

Reported California DUI blood-alcohol between .10 and .19: 53

Reported California DUI blood-alcohol between .20 and .29: 17

Reported California DUI blood-alcohol between .30 and .39: 5








Last Name First Name City
Abbott Chad Michael San Francisco
Alvarez Francisco Javier Marquez Calistoga
Alvarez Horacio San Pablo
Amezcua Victor Valdez Napa
Anguiano Martin Napa
Aranda James Brandon American Canyon
Austin Valerie Matilda Roseville
Bailey James H. Cambridge
Bartleson Anthony Stephen Petaluma
Bauzon Romeo Calaunan Vallejo
Bruno Michael Eric Fairfield
Buell Christina Dawn Napa
Calderon Saul Ruiz Calistoga
Campuzano Jose Miguel Vallejo
Carlin Alexander Michael Baltimore
Carter Clancy Jane American Canyon
Casas Aparicio Ivan Napa
Ceballos Miguel Angel Vallejo
Clair Robert Walter San Jose
Clark Brandon Napa
Clark Chad Allen Napa
Cleveland Candace Corin Napa
Crampton Rhonda Lynn Napa
Delgadillo Juan Manuel Napa
Denova Carlos Bonifacio Vallejo

17 California DUI comment(s)


tgrl707 wrote on Feb 13, 2008 9:47 AM:

" so, i'm reading all these comments and am shocked by the ignorance of people today. i myself have been charged with a DUI, so i can comment first hand on this topic. i felt my DUI was unfair at the time, but i also took responsibilty for my actions (drinking and driving) and am paying the fines and issues that come with it. if you decide to "have a few beers" at a BBQ and then drive, YOUR putting yourself and everyone else at risk. this is not a new law that jst became inforced, this law has been around for years. if you don't want the fines or driving record points, higher insureance or possible jail time,.............then don't drink and drive. "



mypoint wrote on Feb 11, 2008 9:45 AM:

" So Napan, you're going to tell me that you have never been to a dinner, barbeque, ect and had 1-2 beers....Gimme a break...everyone has done it...it's a matter of luck if you don't get pulled over so give up your holier than now attitude "



Napan since 1965 wrote on Feb 10, 2008 12:56 PM:

" Give me a break! If you are stopped by an officer and feel the "breathalyzer" test is wrong, request a blood test--that is, if you are "sober" enough to think of it!! I'm almost certain you have that right.
I also have a suggestion to offer: Anyone who is CONVICTED of drunk driving (NOT just "charged" with it)ought to be sentenced to personally view dead bodies of automobile accident victims at the morgue (if that’s possible). If it isn’t, then require them to watch a "slide show" of the very worst of the fatal accident photographs! Most if not all law enforcement agencies have them on file!
I agree with the "public service" aspect—but for heaven's sake, don't have them drive another drunk home from a bar!
"



mypoint wrote on Feb 8, 2008 9:01 AM:

" How can they give people rides when they lose their license...i also agree that the punishment doesn't fit the crime. I think it ruins peoples lives and yes there are people that need to be off the road with no regard for human life, however having 1-2 beers at a barbeque could put you over the legal limit which is absolutely ridiculous. "



hodari_d wrote on Feb 8, 2008 12:46 AM:

" jeepracer10 has a briliant idea. punishment for DUI: give the drunks a ride home from the bar! (there are plenty of people who need a ride home) ride home is the solution, not a fine. put in a bus system, train, subway, subsidized taxi whatever...that's a solution that will work...
so before you start complaining, go to the bar and give these people a ride home...much more effective than putting everybody in jail... "



chunk wrote on Feb 7, 2008 6:50 PM:

" I agree with anotherguyinnapa. Sometimes people convicted of DUI are victims. They are not drunk and barely blow over a .08. I think there should be varying degrees of DUI's. Many people can drive with a .08 and are not even drunk or "buzzed." I own a breathalyzer and have blown a .08 in my home and not even felt like I drank. Having a DUI conviction on your record for 10 years is a little extreme. 10 years is way too long. how about 3-5. I do think people need to suffer the consequences when they are pulled over and are driving erratically ad especially if they harm others or themselves. This is a worn out subject but I'm sure there are a lot more tourists driving around the Wine Country during the day on the weekends than they have on this DUI list. Why not get the local highway patrol to bust these people on hwy 29? Just cause they're wine tasting, spending money, and not coming out of a bar doesn't excuse them from driving drunk does it? hell, a lot of them can probably afford it without it breaking the bank. "



jeepracer10 wrote on Feb 7, 2008 2:20 PM:

" Obviosly the current penalties for DUI are too weak. Almost 1/4 of the DUI's were above .20 (which is almost 3xs the legal limit). They should start making these folks spend community service hours telling others how bad DUI is. Or make them work off the hours by being a designated driver for others. "



JustMy$.02 wrote on Feb 7, 2008 10:48 AM:

" anotherguyinnapa, you are so far off base its ridiculous. NO ONE has the right to put other peoples lives in danger by being on the road after drinking. (just ask the lady who recently lost her legs).
The legal limit of .08 may seem low but that is the limit set by law. If you feel that strongly about the limit being too low, become an activist, gather the necissary data, and get it changed!
But remember, there has to be a limit and I agree we should error on the side of caution (ie keep it low). But dont ever think for a minute that a person with a DUI is a victim. You drink, dont drive. Its that simple. "



anotherguyinnapa wrote on Feb 6, 2008 11:45 PM:

" Napamama: Yes, they are victims, victims of the government. The government just comes up and takes thousands of dollars away from them and takes away their means of transportation, which often results in them losing their jobs because they can't get to work without a car. For what? A number on a breathalyzer. "DUI" is a misnomer; a more accurate name would be "Driving Over .08." Often there isn't even any evidence that they were driving unsafely. You can be sober and get a DUI. Many of these people have never caused an accident and never will, even if they continue to drive for the rest of their lives. Yet the government humiliates them, takes away their money, and sometimes takes away their ability to work. That's how these people are victims. Give them a break. "



Napamama wrote on Feb 5, 2008 7:31 PM:

" Convicted DUIers are victims? Oh puhleese. "



flibbertigibbet wrote on Feb 4, 2008 9:20 AM:

" To all below....
I "somewhat agree" I would like to see in list form like the DUI list, who and what with all that goes on in the valley. Furthermore, I think that the information being so "out there" would detour future incidents from happening, I know it sticks in my mind. Yesterday Super bowl Sunday!, cant wait to see Feb, or March's conviction DUI list. "anotherguy" these are convictions not arrests, read the description above. They have to go to court so it takes a while. "



anotherguyinnapa wrote on Feb 1, 2008 9:36 PM:

" Does anybody know if any of these people were caught at the checkpoint that was supposed to happen last Saturday? Was that checkpoint ever set up, or was it just a bluff by the lying-as-usual cops? "



anotherguyinnapa wrote on Feb 1, 2008 9:34 PM:

" By the way, leave these DUI people alone. They're victims of the radical DUI laws enacted because of the disproportional influence of the MADD lobby. A DUI can happen to anybody, especially here in Napa. It's basically a tax that is collected at random. "



anotherguyinnapa wrote on Feb 1, 2008 9:29 PM:

" moderator: i think what wineo is talking about is a monthly story that lists all of the felony convictions for the month--exactly like this one, except that it would list *all* of the felony convictions.
Your most wanted list is weak. Many of the people on there are simple druggies. In fact, 2 of the 5 on the list today are "most wanted" for "possession of a controlled substance." The other 3 are small timers too. These are not the McVeighs, Kaczynskis and Bin Ladens of the world. Why would anyone want to turn in someone wanted for possession of a controlled substance? There isn't even reward money on the table. "



napawineo wrote on Feb 1, 2008 12:41 PM:

" NVR Moderator, sure you show us some of the arrests but really do you show us all?? I think not...Why not list the names...and crimes commited by these felons??? These are felony arrests we have a right to know about all of them...not just what you guys feel like sharing......list them ALL "



NVR Moderator wrote on Feb 1, 2008 12:29 PM:

" napawineo:
You see those on a constant basis via articles written about felony arrests in the county.
There is also Napa's Most Wanted on the Web site, informing people each week of those facing felony warrants.
There is also the crime map on the Web site, updated weekly, showing what is taking place in Napa neighborhoods. "



napawineo wrote on Feb 1, 2008 11:16 AM:

" Hey NVR how about listing the names of people for Felony arrests for crimes committed in Napa County? Why just list misdemeanor DUI (in most cases) It only makes sense you would publish the names of the felony offenders to better inform the citizens about whats really going on in our neighborhoods??????? Any response NVR????? "

San Diego California DUI lawyer news

California Drunk Driving / DUI's are making a comeback in Hollywood!

FOX Sports reporter Josh Booty was pulled over by cops and tased after Josh refused to cooperate with the California DUI police officers.

Booty was originally stopped for speeding on the 55 Freeway until "the officers found him under the influence of alcohol, so he was transported to the Sheriff's department facility," O.C. Sheriff's California DUI police.

"During the booking process he became belligerent and uncooperative. The deputies had to use a taser to get him under control. During the process of taking him down, he received a black eye and a bloody nose."

Booty was cited for California DUI and released.

San Diego DUI attorney news

A driver with a history of driving drunk showed up at his DUI sentencing Monday plastered.

The Washington State Patrol says 35-year-old Joseph T. Longfellow of Woodinville was arrested December 2, 2007 at the scene of an accident in a construction zone on State Route 2020 near Sahalee Way in Redmond. Longfellow refused a breathalyzer and was ordered to appear for sentencing on a deferred prosecution.

Trooper Jeff Merrill says When Longfellow arrived at King County District Court in Redmond Monday afternoon, his attorney told the judge Longfellow had been drinking and appeared to be intoxicated.

The judge ordered Longfellow to take a breathalyzer, in which he blew a 0.32 – four times the legal limit in Washington state.

Instead of going to jail, Longfellow was taken to Overlake Hospital with possible alcohol poisoning. His sentencing will be rescheduled.

Longfellow has been arrested twice before for DUI.

San Diego California DUI lawyer / San Diego drunk driving attorney news

A man arrested Monday night for multiple hit-and-run crashes had no driver's license or identification and was "extremely drunk" while driving with his 1-year-old daughter riding in a back seat car seat, said Sgt. Tom Greenstone of the California Highway Patrol.

The man, later identified as Luis Umberto Perez, 21, of San Marcos, is suspected of hitting numerous cars -- both parked and moving -- in his sport utility vehicle while reaching speeds over 100 mph and then leading police on a short chase before surrendering, said Sgt. Cliston Hensley of the San Marcos Sheriff's Station.

"The guy's driving was completely erratic," Greenstone said.

He refused to identify himself after sheriff's deputies and California Highway Patrol officers arrested him, Hensley said, and was booked into the Vista jail as "John Doe." His daughter, who wasn't injured, was released to her mother, Greenstone said.

Perez faces two felony and four misdemeanor charges including drunken driving in connection with the incident, sheriff's Lt. Phil Brust said, and is being held on $130,800 bail. His initial appearance is scheduled for Friday.

Perez was driving a white four-door Ford Explorer, Greenstone said, and is suspected of being responsible for a string of about six hit-and-run crashes reported in San Marcos and Vista between 6:45 and 7:15 p.m. Monday night.

Two were confirmed to have occurred in San Marcos, three were reported to have occurred on westbound Highway 78 and at least one is reported to have occurred in Vista, Hensley said.

The two confirmed crashes occurred about 6:45 p.m., Hensley said. One was near the intersection of South Rancho Santa Fe Road and Linda Vista Drive and caused major damage to the other vehicle, sheriff's Sgt. Kelly Stuart said Monday night. No injuries were reported, she said. The other was at 120 S. Rancho Santa Fe Road, she said, and caused minor damage and no injuries.

Perez then got on westbound Highway 78 and is suspected to have hit three more vehicles, Hensley said, although no damage or injuries have been reported from those crashes. He then exited in Vista and was eventually stopped after a half-mile chase by Highway Patrol officers near the intersection of Hibiscus and Sycamore avenues, Greenstone said. He cooperated with officers who arrested him, he said.

If you were in a car that sustained damage from a hit-and-run in Vista or San Marcos Monday night, you're encouraged to contact sheriff's Deputy Steve Bentz at (760) 510-5212.

DUI / DWI / Drunk Driving defense lawyer news

The second annual Ken Jordan Award for Excellence in DUI Enforcement was awarded on Tuesday.

Corporal Andrew Baker of the Teller County Sheriff's Office received the award for his constant dedication to get drunk drivers off the streets.

"I’m happy to win it. I certainly didn't expect to walk away with it. This is a good day," said Corporal Andrew Baker.

Pikes Peak Region DUI Task Force presented commendation letters and certificates to several outstanding officers from five agencies that are members of the Task Force.

Members from Fort Carson, Colorado Springs, Monument, Woodland Park and the Teller County Sheriff's Office were nominated.

These officers often go the extra mile in DUI enforcement and they have also been recognized by their peers.

DUI / Drunk Driving criminal defense news

Gwinnett County Recorders Court Judge Patricia Muise found Brandle not guilty Feb. 1 of DUI driving under the influence, even though he refused a DUI breath test and DUI field sobriety test.

Some who were in DUI court when Brandle was acquitted questioned whether the officer received preferential treatment from the judge.

"He ought to know better than that," said Steven Mauldin of Stone Mountain, who was in recorders court that day for an unrelated case. "Is this how it works? The judge slaps their hand and says 'don't do that again' and then they're back out there again the next night?"

Muise's judicial assistant, Kim Everett, said Monday the judge did not want to comment on her ruling.

"There are some upset parties, and I understand that, but this case wasn't any different than any other case we hear," Everett said. "It all came down to evidence, and it just wasn't there."

Brandle, an undercover drug investigator, has been temporarily assigned to a desk job while an internal investigation is conducted, according to Gwinnett police spokeswoman Cpl. Illana Spellman. Brandle is taking reports from citizens over the phone, Spellman said.

So, Cpl. Kevin Brandle was charged Dec. 28 with drunken driving. A Gwinnett Recorder's Court judge acquitted him. ersonnel records show Brandle was suspended for two days in 2002 for getting into a confrontation with security guards at a concert. Gwinnett police are conducting an internal investigation into the DUI case to determine whether Brandle will face disciplinary action.

San Diego DUI attorney news

A Bibb County District Attorney's Office investigator has been charged with DUI, according to the Georgia State Patrol.

Robert Jordon Allen, 59, of Macon, was pulled over while driving northbound on Ga. 247 near Broadway just after midnight Saturday, said Trooper First Class Brandon Brown.

Allen was swerving in and out of his lane. After Allen was pulled over, Brown said he smelled alcohol.

He said Allen failed DUI field sobriety tests and his blood alcohol levels measured 0.19 on an Intoxilizer test.

Allen was booked into the Bibb County jail early Sunday morning and was released on $1,395 bond, according to jail records.

Allen started work at the district attorney's office in 2001 after retiring as a major with 30 years service with the Macon Police Department.

San Diego DUI lawyer news

Tennessee lawmakers are working on a group of bills to toughen laws against DUI / DWI /drunk drivers. If passed one bill would give officers the ability to revoke the license of a drunk driver immediately. Another would strengthen the state's open container law.

The current law allows open containers as long as the driver is not drinking.

The bills would create new felony categories for DUI / drunk drivers. It would also lower blood-alcohol limits for repeat or extreme DUI offenders.

They would also require ignition interlocks for everyone convicted of DUI / drunk driving offenses. Those devices would prevent the car from starting if alcohol is detected on the driver's breath.

San Diego DUI California attorney news

INDUSTRY - A man was arrested on suspicion of California DUI - drunk driving early Sunday after crashing his sport utility vehicle into a tree and a sheriff's station, California DUI officials said.

Juan Juarez's SUV was "totalled" in the crash, but he suffered only minor injuries, said Los Angeles County sheriff's California DUI deputies.

The crash occurred about 2:05 a.m. in front of the sheriff's Industry Station, 150 N. Hudson Ave., California DUI police said.

Officials believe the 22-year-old driver had just left a local bar as he was driving west on Stafford Street from Hacienda Avenue, California DUI police said.

He was driving near the sheriff's station at high speed when his SUV jumped the curb and struck a tree head-on, California DUI police said.

The impact caused the rear end of the truck to swing sideways, crashing into the south wall of the sheriff's station, he said.

The station sustained no significant damage, said California DUI police.

Jaurez remained in the SUV until firefighters pried open a stuck door, California DUI police said.

A woman passenger in the SUV was not hurt, California DUI police added.

Jaurez was taken to a local hospital for examination and booked for California DUI .

San Diego DUI attorney news - California DUI story

18-year-old whose car rolled and crashed into a brick wall on Ramon Road around 2 a.m. today was arrested on suspicion of California DUI driving under the influence, according to the California DUI Police .

Witnesses said Emanuel Tejeda Corona was driving more than 80 mph when he lost control and crashed into a brick wall on the north side of the 69-600 block of Ramon Road, according to California DUI police.

Corona, a Thousand Palms resident, was pulled from the vehicle by the Cathedral City Fire Department and transported to Desert Regional Medical Center.

He was uncooperative with hospital staff and displayed symptoms of California DUI - being under the influence of alcohol, California DUI police said, and was booked on suspicion of California DUI / drunk driving after being medically cleared from the hospital.

California DUI Police ask anyone with information to call 770-0303

San Diego / California DUI criminal defense lawyer news

A man with a history of DUI / DWI / Drunk Driving / driving under the influence is facing new DUI / drunken driving charges Sunday after crashing head-on with a minivan in Lake Forest, critically injuring a toddler.

Nelson Guaderrama Mercado, 27, was arrested on suspicion of California DUI driving under the influence of drugs or alcohol late Friday, said Orange County sheriff's Lt. Dan Dwyer.

He was denied bail and remains locked up pending California DUI arraignment, according to the sheriff's Web site.

In June, Mercado pleaded guilty to misdemeanor California DUI driving under the influence of alcohol and falsely representing himself to an officer, the Orange County Register reported.

The wreck occurred on Muirlands Boulevard near Entrados Drive.

Mercado was southbound in a 2002 Chevrolet pickup when he veered into the northbound lanes and struck a 1996 Ford minivan, which was carrying a family of five, California DUI authorities say.

The driver of the van, a 34-year-old woman, suffered a broken left arm and head injuries and was temporarily trapped in the California DUI wreckage, he said.

Her 5-year-old grandson, hospitalized in critical condition, suffered a fractured skull and two broken legs, he said.

A 19-year-old woman believed to be the mother of the boy, her 3-year-old child and two boys, 13 and 14, suffered lesser injuries, Dwyer said. Their names were withheld.

San Diego DUI attorney news

SMOKING BANS CAN be hazardous to some people's health.

A rigorous statistical examination has found that smoking bans increase DUI drunk driving fatalities. One might expect that a ban on smoking in bars would deter some people from showing up, thereby reducing the number of people driving home drunk.

But jurisdictions with smoking bans often border jurisdictions without bans, and some bars may skirt the ban, so that smokers can bypass the ban with extra DUI driving. There is also a large overlap between the smoker and alcoholic populations, which would exacerbate the danger from extra DUI driving.

The authors estimate that smoking bans increase fatal DUI drunken-driving accidents by about 13 percent, or about 2.5 such accidents per year for a typical county. Assuming a smoking ban is still worth it, the results suggest the need for a more aggressive approach to DUI / drunken driving - or a nationwide smoking ban.

Adams, S. and Cotti, C., "Drunk driving after the passage of smoking bans in bars," Journal of Public Economics (to be released).

San Diego DUI lawyer news

$10.2 million was awarded to a teenager who was paralyzed in a DUI / drunk driving crash while wearing a lap belt in the backseat.

The belt tore into Chelsea Pursell's abdomen, fracturing her spinal cord and causing internal injuries when the car hit a utility pole in May 2004. Five teens were in the car; Pursell was the most seriously injured. She turns 20 next month.

Pursell's attorney says the verdict assigned various amounts of liability to the driver, the car's maker, Volkswagen; and PPL, which owns the utility pole.

David Richman, an attorney who represented Volkswagen, says VW plans to appeal the verdict.

The driver, Kristofer Young, pleaded guilty to driving under the influence and a felony charge of DUI-related aggravated assault by motor vehicle.

San Diego California DUI lawyer news

Heidi Fleiss Looking Less Like a Madam Every Day

Heidi Fleiss arrested for DUI and drug possession

Former Hollywood madam Heidi Fleiss was arrested for DUI - driving under the influence and possession of prescription drugs.

Heidi Fleiss, the famous Hollywood madam, was arrested on Thursday morning in Las Vegas for possession of prescription drugs and driving while intoxicated. According to the Nevada's Nye County Sheriff's office, the police was called in the early hours on Thursday to respond to a possible DUI at the town of Pahrump. The police pulled over Heidi Fleiss and found prescription medications, but no prescription. Heidi Fleiss was arrested on four counts, including possession of dangerous drugs without a prescription and driving under the influence. A passenger with Fleiss was also arrested and charged with possession of marijuana. According to reports, Heidi Fleiss admitted carrying the pain killer Vicodin, but said she has a prescription, only it was not with her.

Heidi Fleiss became popular after a 1997 conviction on tax evasion charges in connection with a prostitution ring she was accused of running that catered to Hollywood celebrities. She moved to Nevada recently, planning to open a legal brothel. Lady of the DUI: Wondering when our old pal and former Hollywood madam Heidi Fleiss was finally going to open her brothel?

San Diego DUI California drunk driving attorney news

A 23-year-old motorist who was San Diego DUI California drunk driving / intoxicated when she struck and killed a man who was filling his gas tank on a Vista freeway offramp pleaded guilty Thursday to felony charges.

Jessica Lynn Hawk of Carlsbad entered her pleas to hit-and-run with death and vehicular manslaughter while intoxicated, and admitted an allegation that she caused great bodily injury to the victim, 37-year-old William Hanson.

Under the San Diego DUI California drunk driving plea deal, she will serve a four-year prison term. Judge Aaron Katz will formally sentence her on March 25.

Deputy District Attorney Christine Trevino said Hawk worked all day at a bar in San Marcos and had four drinks before leaving. Her 2-year-old son was in the vehicle at the time of the crash.

Hanson, a customer service agent from Oceanside, was about four feet inside the fog line on the Highway 78 ramp to Escondido Avenue when he was struck and killed by Hawk's car, the San Diego DUI California drunk driving prosecuting attorney said.

The woman immediately fled, tossing out broken parts of her vehicle as she drove off, and went to her boyfriend's Oceanside residence, the San Diego DUI California drunk driving prosecutor said.

A neighbor who heard media accounts of the crash saw Hawk's heavily damaged vehicle and called San Diego DUI California drunk driving police.

San Diego DUI / drunk driving Defense attorney William Cristophe said after the hearing that his client, who has no prior criminal record, was "extremely remorseful" about what happened.

San Diego CAlifornia DUI lawyer cases involving temporary registration as PC:

Brendlin v. California, 551 U.S. ___, 127 S. Ct. 2400; 168 L. Ed. 2d 132
(2007), plus, the original 3rd DCA case is helpful (now de-published - but
available - due to review by CA Supremes). A traffic – passenger -
detention case. (Brendlin is back before the CA Supremes and now must deal
with the DMV temp registration sticker issue.)

People v. Hernandez (2007) 146 CA4th 773; 53 CR3d 66. A traffic detention
case that follows Brendlin, supra, but (Note:. though a very good defense case,
the opinion has been superseded and, thus, de-published by a grant of review
by the CA Supremes on 3/21/07) Here, the trial court denied def.’s motion
to suppress, and a jury found him guilty of felony and misdo resisting
arrest, being under the influence of meth, and DUI of alcohol/drugs. Def.
appealed and argued that the police had no reasonable grounds to stop his
vehicle for having no license plates when a temporary operating permit was
lawfully placed, valid on its face, and seen by the cop. The COA agreed,
distinguishing the situation at bar — having no license plates — from that
in case law, in which there was reasonable suspicion to stop a car with a
temporary operating permit, an expired registration tab, and a missing front
license plate (sic, distinguishing the recent CA Supreme decision in P. v.
Saunders (2006) 38 C4th 1129; 136 P3d 859; 45 CR3d 66, holding otherwise.)

People v. Dean (2007) 158 CA4th 377; 69 CR3d 770; 2007 Cal. App. LEXIS 2075.
Another DMV temp license sticker traffic detention case. Def. pled after
his suppression motion was denied. Def. appealed on the ground that the
trial court erred in denying his suppress motion and the evidence obtained
in the course of a traffic stop. The COA found that the prosecution, in
opposing def.’s suppression motion, failed to meet its burden of proving
that there was an articulable and reasonable suspicion that def. committed a
traffic violation based on the facts and circumstances known to the officer
at the time of the traffic stop. The COA reversed the judgment, and
remanded the matter for further proceedings.

San Diego California DUI criminal defense lawyer

Court of Appeals of Washington, Division 1.

STATE of Washington, Respondent,

v.

Alvin Lawrence GILCRIST, Appellant.

No. 6877-6-I.

Feb. 4, 1980.

Defendant was convicted of escape by the Snohomish County Court, John E. Rutter, Jr., J., and was subsequently adjudged an habitual criminal based upon findings made during his first trial for escape and upon the fact that he had been adjudged an habitual criminal by a jury verdict entered following a conviction for first-degree assault, and he appealed. The Court of Appeals, Williams, J., held that: (1) trial court properly instructed jury that defense of involuntary intoxication must be established by preponderance of the evidence, and (2) Court of Appeals would not consider defendant's claim that it was error to adjudge him an habitual criminal based upon findings entered in previous proceedings, where defendant's status as habitual criminal had already been decided and affirmed by Supreme Court.

Affirmed.

West Headnotes

[1] Escape 6

151k6 Most Cited Cases

Since escape is general intent crime, temporary insanity caused by involuntary intoxication is complete defense. RCWA 9.31.010 (Repealed).

[2] Criminal Law 570(2)

110k570(2) Most Cited Cases

It is proper to require defendant to prove by preponderance of the evidence that his temporary insanity resulted from involuntary intoxication. U.S.C.A.Const. Amend. 14.

[3] Constitutional Law 266(7)

92k266(7) Most Cited Cases

Allocation to defendant of burden to prove by preponderance of the evidence that his temporary insanity resulted from involuntary intoxication presents due process problem only if absence of essential element of crime charged is an affirmative defense. U.S.C.A.Const. Amend. 14.

[4] Escape 1

151k1 Most Cited Cases

Absence of involuntary intoxication is not an essential element of crime of escape. RCWA 9.31.010 (Repealed).

[5] Judgment 751

228k751 Most Cited Cases

Where defendant had been adjudged habitual criminal during collateral proceeding in which he was charged and convicted of first-degree assault, and where such adjudication had been affirmed by Supreme Court, defendant's status as habitual criminal had been decided, and Court of Appeals would not consider defendant's claim that trial court erred in adjudging him habitual criminal based upon findings entered in such prior proceedings.

*328 **717 David C. Mitchell, Kafer, Good & St. Mary, Everett (Court-appointed), for appellant.

James B. Roche, Deputy Pros. Atty., Everett, for respondent.

WILLIAMS, Judge.

In 1975, Alvin Gilcrist was convicted of escape, RCW 9.31.010, and subsequently adjudged a habitual criminal. The escape conviction was reversed in State v. Gilcrist, 15 Wash.App. 892, 552 P.2d 690 (1976), and a new trial granted. On retrial, Gilcrist was again convicted. Thereafter, the trial court adjudged Gilcrist a habitual criminal based upon findings made during his first trial and upon the fact that he had been adjudged a habitual criminal by a jury verdict entered following a conviction for first-degree assault in 1977. [FN1]

FN1. That conviction and the habitual criminal determination were affirmed in State v. Gilcrist, 91 Wash.2d 603, 590 P.2d 809 (1979), but were on appeal when the trial court relied upon the findings entered therein.

Gilcrist first contends that his due process rights were violated by the trial court's instruction to the jury that "(t)he defense of involuntary intoxication must be established by a preponderance of the evidence."

[1][2][3][4] Escape as defined in RCW 9.31.010 is a general intent crime, thus, temporary insanity caused by involuntary intoxication is a complete defense. State v. Mriglot, 88 Wash.2d 573, 564 P.2d 784 (1977). The defendant has the burden of establishing the insanity defense by a preponderance of the evidence. That burden of proof is consistent with due process. State v. McDonald, 89 Wash.2d 256, 271-72, 571 P.2d 930 (1977). It is, therefore, proper to require the defendant to prove by a preponderance of the evidence that the temporary insanity resulted from involuntary intoxication. This allocation of the burden of proof presents a due process problem only if the absence of an essential element of the crime charged is an affirmative defense. Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281, 292 (1977). The absence of involuntary *329 intoxication is not an essential element of the crime of escape. RCW 9.31.010. The trial court properly instructed the jury on the burden of proof.

[5] Gilcrist also contends that it was error to adjudge him a habitual criminal based upon findings entered in the previous proceedings. This contention is without merit.

(O)nce the status of habitual criminal under the second classification has attached to a person, successive determinations for the same person are meaningless unless the governor has pardoned him. This is because the status once determined can be utilized thereafter by the sentencing court, upon receipt of proof of such status, in establishing the appropriate sentence for an habitual criminal convicted of another crime.

(Footnotes omitted.) State v. Ogle, 3 Wash.App. 549, 550-51, 475 P.2d 913, 915 (1970). In 1977, Gilcrist had been adjudged a habitual criminal during a collateral proceeding in which he was charged and convicted of first-degree assault. That adjudication has been affirmed by the Supreme Court. State v. Gilcrist, supra. Because Gilcrist's status as a habitual criminal has been decided, we need not consider it on this appeal. State v. Ogle, supra.

Affirmed.

RINGOLD and DORE, JJ., concur.

25 Wash.App. 327, 606 P.2d 716



2003 WL 21540414 (Tex.App.-Dallas)
Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.

MEMORANDUM OPINION

Do Not Publish Tex. R. App. 47

Court of Appeals of Texas,

Dallas.

Andrea Lynn STAMPER, Appellant,

v.

The STATE of Texas, Appellee.

No. 05-02-01730-CR.

July 9, 2003.

Insanity caused by involuntary intoxication is an affirmative defense to prosecution if, at the time of the alleged offense, the defendant, as a result of a severe mental defect caused by involuntary intoxication, did not know that his conduct was wrong. Mendenhall v. State, 77 S.W.3d 815, 818 (Tex.Crim.App.2002); Torres v. State, 585 S.W.2d 746, 749 (Tex.Crim.App.1979).

_______________________________________________________________________

276 Cal.Rptr. 517
Ordered Not Published
Previously published at: 226 Cal.App.3d 403
(Cal. Rules of Court, Rules 976, 977, 979)

Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent,

v.

Alejandro GARCIA, Defendant and Appellant.

No. D010682.

Dec. 19, 1990.

Certified for Partial Publication

Relying on the evidence that he took a prescription drug and possibly suffered unintended side effects from it, Garcia contends the trial court committed reversible error by failing to instruct the jury on the defenses of involuntary intoxication and unconsciousness. For the reasons that follow, we conclude the contention has merit.
[1][2][3] Generally, an accused may be completely relieved of criminal responsibility if, because of involuntary intoxication, [FN3] he was temporarily rendered legally insane or temporarily deprived of his mental capacity at the time he committed the offense. (Annot., When Intoxication Deemed Involuntary so as to Constitute a Defense to Criminal Charge (1976) 73 A.L.R.3d 195, 199.) Generally, courts have considered one to be involuntarily intoxicated when he has become intoxicated through the fault of another, by accident, inadvertence, or mistake on his own part. (Ibid.) In other words, involuntary intoxication encompasses those instances where the defendant's intoxication was not culpable. When intoxication results from medicine taken as prescribed, it is generally considered involuntary intoxication because a patient is entitled to assume that an intoxicating dose would not be prescribed by a physician. (Perkins v. United States (4th Cir.1915) 228 F. 408, 415.)


FN3. Whether intoxication results from alcohol or drugs is immaterial. (People v. Baker (1954) 42 Cal.2d 550, 268 P.2d 705.)



In California, involuntary intoxication comes within the unconsciousness defense, codified in section 26, subdivision Four. [FN4] "Unconsciousness due to involuntary intoxication is recognized as a complete defense to a criminal charge." (People v. Cruz (1978) 83 Cal.App.3d 308, 330, 147 Cal.Rptr. 740.) "An unconscious act within the contemplation of the Penal Code is one committed by a person who because of somnambulism, a blow on the head, or similar cause is not conscious of acting and whose act therefore cannot be deemed volitional. [Citation.]" (People v. Sedeno (1974) 10 Cal.3d 703, 717, 112 Cal.Rptr. 1, 518 P.2d 913, overruled on other grounds in People *521 v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1.) [FN5]
_______________________________________________________________________

77 S.W.3d 815
Briefs and Other Related Documents

Court of Criminal Appeals of Texas.

Craig Emmett MENDENHALL, Appellant,

v.

The STATE of Texas.

No. 1089-00.

June 12, 2002.

From 1974 to 1983, Texas Penal Code § 8.01(a) provided that "[i]t is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of mental disease or defect, either did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated." In Torres v. State, 585 S.W.2d 746, 749 (Tex.Crim.App.1979), we held that the defense of insanity due to involuntary intoxication was "implicit" in the language of § 8.01(a). [FN2] In other words, we held that, under § 8.01(a), it was an affirmative defense to prosecution that, at the time of the alleged offense, the defendant, as a result of a mental defect caused by involuntary intoxication, either did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated. We further held that, for the purposes of § 8.01(a), intoxication was "involuntary" if the defendant "exercised no independent judgment or volition in taking the intoxicant."

FN3. But see Annot., When Intoxication Deemed Involuntary so as to Constitute a Defense to Criminal Charge, 73 A.L.R.3d 195, 199 (1976)("[T]he courts have considered one to be involuntarily intoxicated when he has become intoxicated through the fault of another, by accident, inadvertence,

or mistake on his part, or because of a physiological or psychological condition beyond his control.").

810 A.2d 698, 2002 PA Super 344
Briefs and Other Related Documents

Superior Court of Pennsylvania.

COMMONWEALTH of Pennsylvania, Appellee,

v.

Jennie COLLINS, Appellant.

Submitted Aug. 26, 2002.

Filed Nov. 4, 2002.

Jury instruction

2) The defense of involuntary intoxication is available to a person if at the time of committing an act, the person's faculties were so impaired as the result of involuntary intoxication, unable to understand the nature and quality of his or her act or to distinguish between right and wrong with respect to the act--in other words either unable to know what he or she was doing or to judge that it was wrong.

_______________________________________________________________________

470 N.E.2d 63

Supreme Court of Indiana.

James H. HEYWARD, Appellant,

v.

STATE of Indiana, Appellee.

No. 1283S454.

Nov. 2, 1984

At trial, Appellant presented a witness whose testimony suggested that Appellant was involuntarily intoxicated when the instant crime was committed. Specifically, Robert Evans Walker testified that during the late afternoon hours of July 29, 1982, he "dropped three LSD pills" into Appellant's can of beer hoping to intoxicate Appellant such that he could steal Appellant's money. Appellant tendered to the trial court a proposed instruction to inform the jury that involuntary intoxication operates as a "complete defense to any crime." The trial court combined Appellant's proposal with one of the State's tendered instructions, however, and gave the following final instruction 6:
"It is a defense that the defendant committed the crime charged while intoxicated, if the intoxication resulted from the introduction of a substance into his body:
(1) without his consent; or
(2) when he did not know that the substance might cause intoxication.
This is called the defense of involuntary intoxication and it operates as a complete defense to any crime. Involuntary intoxication may result from involuntary introduction of alcohol or any other drug into the body.
Involuntary intoxication is a defense to a crime if the intoxication rises to the level that a defendant lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law."
[1] [2] Appellant is correct that the defense of involuntary intoxication may afford a complete defense which excuses the criminality of an act. Ind.Code § 35-41-3-5(a) (Burns 1979). To operate as a complete defense, however, the intoxication must be shown to have been of such a degree as to have deprived the accused of the power to deliberate or form the necessary design or guilty intent. Jackson v. State, (1981) Ind., 426 N.E.2d 685. This is to say that the intoxication must have at least temporarily put the accused into a state of mind which resembled insanity. For this reason, the trial court was correct to modify Appellant's proposed instruction by adding the language taken verbatim from Ind.Code § 35-41-3-6(a) (Burns 1979), Indiana's insanity defense statute. The language taken from the statute and incorporated into the instruction was: "lacked substantial capacity either to appreciate the wrongfulness of the [his] conduct or to conform his conduct to the requirements of law." We do not find that the trial court misstated the law by its instruction 6. Accordingly, we find no error.

San Diego DUI attorney news

Notre Dame tight end Yeatman charged with DUI

February 6, 2008

SOUTH BEND, Ind. San Diego native / Notre Dame tight end Will Yeatman was charged Wednesday with misdemeanor counts of DUI / drunk driving and criminal recklessness after allegedly driving a car on a campus sidewalk with his headlights off in the early morning hours.

The charges were filed a day after Yeatman, a 19-year-old sophomore, was suspended indefinitely from the football and lacrosse teams for an undisclosed violation of team policy. He remains enrolled in school, university spokesman Dennis Brown said.

A probable cause affidavit said Yeatman, a 6-foot-6, 263-pound tight end from San Diego, was arrested at 2:49 a.m. on Jan. 28 by campus police. Yeatman, who was released on $250 cash bond, had a blood-alcohol content of 0.11 percent, said Catherine Wilson, spokeswoman for the prosecutor's office. A blood-alcohol content of 0.08 percent is considered too drunk to drive under Indiana law.

Yeatman could not be reached for comment Wednesday because there was no telephone listing for him. A message seeking comment was left Wednesday by The Associated Press on an answering machine at the home of his parents.

Coach Charlie Weis declined to comment following a news conference Wednesday to announce signings of high school seniors to letters of intent, saying he would address the issue Friday when he holds a news conference to discuss other football topics.

If convicted of criminal recklessness, Yeatman could face up to a year in jail, Wilson said. The misdemeanor alcohol charge carries a penalty of up to 60 days in jail.

Typically, the prosecutor's office reviews such cases to determine whether those charged qualify for a pretrial diversion program, Wilson said.

"It depends on the defendant's criminal history, the particulars of the case and so forth," she said. "It will be determined if it is appropriate."

San Diego DUI attorney news

Arrested for DUI, car will be impounded for 12 hours

02/06/2008
Orcas Island tow truck operator Usek Suseol has been working since 2001 to convince the county to pass a law to prevent drunk drivers from driving their cars home after being arrested. Yesterday, five San Juan County Councilmembers voted for an impoundment ordinance. Councilmember Bob Myhr abstained. Drivers arrested for driving while under the influence of drugs or alcohol won't be able to get their cars back for 12 hours.

There were 83 driving under the influence of alcohol arrests in the county in 2007 and 63 driving while license suspended or revoked arrests which would be subject to the impoundment ordinance.

Prosecutor Randy Gaylord drafted the ordinance after researching ordinances from other jurisdictions and case law. The ordinance lists grounds for impoundment and the length time. The ordinance goes into effect 10 days after adoption - Feb. 15.

Suseol told the council Tuesday, "This keeps the driver away from the vehicle. Fortunately I don't know of any secondary accidents happening at this point. There is a case in Bellingham right now. A woman was arrested for a dui. She blew a .124. (.08 is legally drunk) and was driven home by police officers. Two hours later she was in a head on collision and put another woman in a wheelchair. She blew a .240. The victim is suing the (Whatcom) county and the state patrol for $10 million."

In an interview after the public hearing, Sheriff Bill Cumming said, "This provides us with another tool to improve safety, to make sure qualified drivers are on the road."

For the islands without tow truck operators, boots may be purchased and used. There are provisions to take into account the needs of the family. Early release of the vehicle is possible for personal or economic hardshipby submitting an application to the sheriff.


Charge length of impoundment
DUI 12 hours
3rd degree - driving with license suspended or revoked first time - no penalty
--------------------------------------------------------------------------------
second time - 15 days
2nd degree dwlsr first time - 30 days
--------------------------------------------------------------------------------
one prior - 60 days
--------------------------------------------------------------------------------
two priors - 90 days
1st degree - driving with license suspended or revoked same as second degree

San Diego DUI lawyer news

A former San Joaquin County sheriff has been sentenced to spend 15 days in jail after pleading no contest to a California DUI / drunk driving charge.

T. Baxter Dunn was arrested for California DUI in November after rear-ending a truck and later failing a sobriety test.

That was just the latest legal trouble for Dunn, who resigned as sheriff amid a public corruption scandal three years ago.

In 2005, he was sentenced to six months in prison for secretly investing in a company that wanted to build a power plant at the Port of Stockton.

This time, a California DUI judge says Dunn is eligible to perform community service rather than serve his jail time.

San Diego drunk driving / dui case

Woman Puts Seatbelt on Case of Beer but not Baby

DUI Investigators say a woman accused of drunk driving / dui drunk driving had a case of beer buckled up safely, and a one year old girl sitting in the backseat without a seatbelt or car seat.

On Super Bowl Sunday, a deputy saw a car drive through a red light and swerve back and forth over the center lane on U.S. 1 South.

The deputy stopped the car.

Investigators say the woman, who identified herself as Tina Williams, smelled of alcohol.

According to the report, Williams told the deputy she never had a license and was running out of gas.

The deputy saw a case of Busch beer in the front seat with a seat belt around it, and a baby girl in the backseat.

When asked why the girl wasn't restrained, Williams reportedly told the officer, "I don't know."

Williams told the deputy she had a few drinks. Authorities say she staggered when she got out of her car.

The deputy arrested her for DUI after she failed a drunk driving / dui field sobriety test.

Authorities also found two silver metal pipes in her purse.

Williams faces charges of drunk driving / dui driving under the influence, child endangerment, driving without a valid license running a red light and not having a seatbelt or child restraint.

San Diego criminal defense DUI lawyer news

Two Knoxville firefighters are now on administrative leave with pay, and are due in court in February to face charges of driving under the influence.Advertisement



Knoxville Police arrested Captain Edwin Ault, who has been a Knoxville firefighter since 1988, on January 31 after an accident on Chapman Highway and Stone Road.

According to the accident report, Ault was driving south on Chapman Highway when he tried to turn on to Stone Road and slid into a car waiting at the stop light. The roads were wet from rain, however, a KPD officer arrested Ault for DUI and a blood alcohol test was taken. The results are not known at this time. No one was injured in the wreck.

A warrant for Ault's arrest says the officer smelled alcohol on the firefighter's breath, and he asked him how much he had had to drink. Ault reportedly told the officer, "too much".

This is Ault's third impaired driving arrest. According to his arrest record, he was charged with DWI in 1980 and 1983.

Ault is due in court on February 21 for his most recent DUI charge.

Knoxville firefighter Brian Cowan was arrested and charged with DUI on January 6. He will be in court on February 11.

Cowan was stopped on Papermill Road just past Kingston Pike. In Cowan's arrest warrant, a Tennessee Highway Patrol officer says Cowan had red, bloodshot eyes and smelled like alcohol. The officer also said Cowan failed a field sobriety test, Cowan took a blood test at UT Medical Center after he was cuffed and arrested.

According to the incident report for Cowan, this is his first DUI offense.

According to Brent Seymour with the Knoxville Fire Department, Ault and Cowen will will appear for pre-disciplinary hearings with the department on Friday.

DUI attorney news

Troopers arrest an agent with the Department of Probation, Parole and Pardon Services with DUI and leaving the scene of an accident. The South Carolina Highway Patrol says 30-year-old Kerrie M. Specht was in a wreck early Sunday morning, on Interstate 26 in North Charleston. Troopers say Specht was off-duty and in her own car when she hit the back of another car and drove off. She was stopped a few minutes later. One person suffered minor injuries in the crash. Specht is out on bond. The Department of Probation, Parole and Pardon Services has not yet commented on her arrest.

San Diego DUI attorney news

Feb. 3, 2008

Scottsdale police arrested nearly 70 people on suspicion of DUI / DWI / drunken driving during the week of the FBR Open, nearly 20 more than last year.

Sixty-eight DUI people were cited as of Sunday afternoon as the sports event played a major role in the city's social scene. Super Bowl-related events made the popular tournament even busier.

The Department of Public Safety also increased its DUI patrols with local police agencies through the weekend. Scottsdale police cited 49 people for DUI drunken driving during the 2007 FBR Open. More than 20 DUI people were arrested in last year's Super Bowl Sunday DUI task force.

February 2nd, 2008

San Diego DUI lawyers news

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This California DUI Prosecutor's seminar is now tuition free.

Drunk Driving / DUI / DWI defense attorney news

New York Giants backup defensive end Adrian Awasom was arrested on suspicion of Drunk Driving / DUI - drunken driving by Arizona state police early Friday.

An officer with the Arizona Department of Public Safety stopped Awasom's vehicle at about 3 a.m. Friday on Interstate 10 in Phoenix, said Sgt. Tim Mason.
Blood test results aren't yet available, Mason said, but Awasom was cited on suspicion of driving under the influence and extreme DUI and was released.

Awasom, who arrived Thursday for Sunday's Super Bowl, has been on injured reserve since Sept. 18.

Giants spokesman Pat Hanlon said the team was aware of the situation but would not confirm any details.

Awasom was sent home by the team, Hanlon said.

In his third year in the league, Awasom played in the first two games this season, injuring his neck in the second game against Green Bay.

He was signed as a free agent in May 2005 and played in five games that season, mostly on special teams.

Awasom was waived before the start of the 2006 season and then signed to the practice squad. He was signed to the 53-man roster Oct. 26, 2006, and played in 10 games, finishing with 10 tackles, a sack, five quarterback hurries and four special teams tackles.

Drunk Driving / DUI lawyers were unavailable for comment.

San Diego California DUI warnings

Arizona's police state will be out in full force this weekend targeting drunk drivers with checkpoints and enforcement in areas of the Valley with Super Bowl parties, bars and restaurants.

Local police departments and the Maricopa County Sheriff's Office promise to be out in force this weekend in Scottsdale, Paradise Valley, Tempe and areas of Glendale and Phoenix where there are bars, restaurants and Super Bowl festivities.

Valley police agencies have been aggressively enforcing DUI laws in recent months with checkpoints and pulling over drivers late at night and on weekends.



In an effort to reduce alcohol-related crashes during Super Bowl weekend, the Carson City Sheriff's Department and the Nevada Highway Patrol will be staffing extra officers for DUI enforcement.

Starting today through Feb. 16, officers will be working overtime to crack down on drunk drivers, said Carson City Sheriff's Deputy Jarrod Adams.

"No matter who you're cheering for in the Super Bowl, remember that drunk driving is not a game," Adams said in a news release. "Drunk driving takes a terrible toll on the citizens and economic well-being of Carson City."

Adams said a good way to control your alcohol consumption is to limit drinks to one per hour and eat plenty while you drink to slow the alcohol's effects.

"Remember, if you plan on driving, you should limit the number of drinks you have to zero," he said.

Funding for the overtime for both Carson and NHP is provided by the Joining Forces grant, administered by the Nevada Office of Traffic Safety, Department of Public Safety.

"These officers will be concentrating their efforts on reducing the number of impaired drivers on Nevada roadways. By apprehending one impaired driver, we feel we have been successful in preventing an alcohol related accident.


Pennsylvania is joining a national crackdown on those who drink and drive this weekend.
Enforcement efforts, which begin today, will include sobriety checkpoints and roving patrols, with special emphasis being placed on Sunday evening and early Monday.

There were 81 alcohol-related crashes and two fatalities reported in Pennsylvania in 2006 on Super Bowl Sunday and the next morning.

The state Department of Transportation has budgeted nearly $4 million for DUI enforcement. It covers costs associated with the enforcement, such as police overtime, training and equipment for 54 task forces, which consist of approximately 450 police departments.