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.

I