San Diego DUI sweep news

May 31, 2008

San Diego area DUI Officers from a number of local and state law enforcement agencies conducted a sweep through Encinitas, Solana Beach and Del Mar looking for alcohol-related violations early Saturday, arresting 18 people.

Of those arrested, 12 were taken in for being drunk in public and the other six were busted for San Diego DUI - drunk driving, according to San Diego DUI lawyers.

Five people were cited for various offenses and four juveniles were contacted for curfew violations, San Diego DUI attorneys hear.

The San Diego DUI sweep, dubbed "Operation Tidal Wave," ran from 9 p.m. Friday to 2:45 a.m. Saturday morning, and included sheriff's San Diego DUI deputies; San Diego DUI police officers from Carlsbad, Chula Vista, Coronado, Escondido, La Mesa and UC San Diego; California Highway Patrol San Diego DUI officers, county Probation Department officers, agents from the state Department of Alcohol Beverage Control and employees of the county Parks and Recreation Department, San Diego DUI criminal attorneys report.

SanDiegoDUI.com

Legendary Drunk Driving Inquiry?

May 30, 2008

On July 18, 1969 came what has ever since been known as the Chappaquiddick Incident and the death of Mary Jo Kopechne, a former campaign worker for Robert Kennedy whose dead body was discovered inside an overturned car belonging to Ted Kennedy in a channel on a small island adjoining Martha’s Vineyard.

No satisfactory answer has ever been supplied by Kennedy or his supporters for the tragedy. An unconscionable delay in reporting the accident caused Kopechne’s death. Kennedy passed four homes with telephones after the accident and didn’t call the police until the next morning, the 19th. In the meanwhile, the overturnbed car was found in the pond by two fishermen who called police. A diver was sent down and discovered Kopechne’s body. At the inquest, the diver, John Farrar, testified that Kopechne’s body was pressed up in the car in the spot where an air bubble had been presumably formed. The inquest said the bubble could have allowed her to breathe for two hours afer the accident. Farrar testified: “Had I received a call within five to ten minutes of trhe accident…and was able as I was the following morning to be at the victim’s side within 25 minutes of receiving the call…there is a strong possibility that she would have been alive on removal from the submerged car.” Kennedy’s dithering, cowardice and emotional paralysis…fear of political retribution…led to the stall, most say. Mary Jo had an estimated two hours, trapped in the upturned car, to contemplate: max. The Only Possible Answer. Not long ago, a friend of mine told me a very interesting thing. He is now a prominent educator at Harvard, tenured, fashionably liberal, in his 60s-and in 1968 he was a young staffer to Bobby Kennedy…a close friend of the “Boiler Room Girls,” the females who worked Kennedy campaigns with single-minded dedication. He then served as a staffer to Ted Kennedy. He dated Mary Jo Kopechne. He filled in a blank space on that episode that makes sense. Relatively few know the Kennedy background that this balding professor know…and we spent a good deal of time as he worked through with me his conjecture on how Chappaquiddick happened. Understand, he was not present at the July 18, 1969 reunion of six women known as the “boiler-room girls” who had served in Robert’s 1968 presidential campaign-but his theory seems to me to be water-tight if you’ll pardon the implication. First let’s review the facts: The party was held at a borrowed facility, Lawrence Cottage, on Chappaquiddick island, adjoining Martha’s Vineyard and connected to it by ferry. Present were the six women, Ted Kennedy, Joesph Gargan, his cousin, Paul Markham, a friend of Gargan’s who would become U.S. Attorney for Massachusetts, Charles Tretter, an attorney and John Crimmins, Ted’s part-time driver. Kennedy was competing in the Edgartown Yacht Club Regatta, a sailing competition which was taking place over several days. Among the women present was Kopechne. Rumors have been flying around ever since the incident that she was a sexual playmate of Ted. Not so, says my friend who had dated her casually. In point of fact, Mary Jo was the opposite of a sex object, a kind of ever-loyal female nerd, the opposite of a vamp, who hardly dated, never had a romance (my friend’s association with her was platonic), who was ever-loyal and ready to do the grunt work. She was kind of like everyone’s kid sister. My friend makes no bones about that. She was the kind of girl who ran around in a circle-not a high cheek-boned beauty but a gawky, freckle-faced kid sister everyone sort of protected. While the others were distinctively party-girls, Mary Jo was not. She would take one drink, maybe a watered down cocktail or a glass of 3.2 beer…and as the party would liven up, she would kind of slip out and get in the back of a car owned by the one who brought her, curl up, dose and wait for the driver to come back to take her home. Not that she objected to the liveliness of a party but that she was kind of an oldish young girl, not endowed with looks or charm but just a loyal, dependable type, a kind of younger sister to the boiler-room girls. She came to the party in Ted Kennedy’s car, along with a number of other girls, most of whom were attracted to the Kennedys, especially the senator and who were quite used to the ways of the world with the family, he says: Kopechne being the only odd-exception. There was no doubt that there was ribaldry, drinking and joshing of a sexual innuendo nature that went on…as well as promiscuity… between the men and the attractive young women of the world, he says-as he had been with them at other outings in the company of the Kennedys. According to testimony of the other party-goers, Kennedy left the party at about 11:15 or 11:30 and Kopechne asked for a ride back to her hotel. At this point, my friend, who talked extensively with other party members following the inquest has an important amendment. As was her style, Kopechne had one drink and slipped out to take her accustomed spot, curled up in the back seat of Kennedy’s car, his mother’s 1967 Oldsmobile Delmont 88. Kennedy was feeling no pain nor was his female escort. They gabbed a lot as the half-inebriated senator maneuvered the car, evidently planning a tryst for himself and the girl with Kopechne knowing about the possibility or asleep. Here I stopped him. I asked: Planning a tryst with Mary Jo in the car? He said: “You don’t understand how Bachannalian the Kennedys were, from the old man, who brought Gloria Swanson on the Queen Mary to Europe with him while he traveled with Rose, to John who fooled around with Jackie’s press secretary, Pamela Turnure and scores, literally scores, of others whom Jackie had to know about.” He is right. All you have to do is to read Sally Bedell Smith’s “Grace and Power: The Private World of the Kennedy White House,” a book notable for its explicitness but also its annotation, one that has been cited by most scholars as revisionist-authentic. Kennedy men were reared to be womanizers in imitation of Old Joe-and John Kennedy was one of the worst, often disappearing in social events with a young woman for hours at a time while Jacqueline, as Ethel Kennedy had counseled, was expected to understand. Bobby was less so; Ted was more so. Back to the Chappaquiddick incident as reported by my friend-again, who was not there but whose close acquaintance with those who were has given him a special insight. He added: “Knowing about the possibility was de rigeur with boiler-room girls who protected-and sometimes participated in--the Kennedys’ vaunted womanizing…with the exception of Mary Jo who wasn’t interested, nor were the Kennedys attracted to her. But she was expected to `understand’ the promiscuity and sexual indulgence that would go on. The Kennedys behaved like British kings from the time of Henry VIII. Everyone knew who the concubines were and assented as did Mary Jo.” The story resumes. Inebriated, Kennedy was searching for a place to conduct the tryst with his attractive and willing female companion in the front seat while Mary Jo, curled up in the back seat, understood the drill from many other occasions with both Bobby and Ted. Both Kennedy and his tryst-object were so tanked-and Mary Jo on many other occasions like this one, so silent and acquiescent-they forgot she was present. Kennedy was trying to find a place for seclusion with the female companion. A deputy sheriff testified at the inquest that he saw Kennedy’s car on Dyke Road at 12:40 a.m. and that the driver sped off when he approached it. Now as all agree, Kennedy made a wrong turn onto an unlit dirt road that led to Dyke Bridge, a wooden bridge angled obliquely to the road with no guardrail, and drove over its side. The car plunged into tide-swept Poucha Pond and came to rest upside down under water. Kennedy and his front-seat boiler-girl companion were able to swim free of the vehicle and both were immensely relieved to have escaped death, forgetting in their alcoholic haze about Mary Jo in the back seat. Still inebriated they decided to get out of there, believing that while they were the worse for wear, they had survived. Kennedy claimed at the inquest that he called Kopechne’s name several times from the shore, then tried to swim down to reach her seven or eight times-doubted by my friend. His story is he then rested on the bank for several minutes before walking back alone to Lawrence Cottage where others of the party was still feting. My friend says the two of them walked back to the Cottage. Their walk took them past at least four houses which had telephones where he could have summoned help-but no call was made. His story is that he summoned Markham and Gargan to come to the pond to help him. Both reported they tried to dive into the water to save Kopechne many times. Then, Kennedy’s story continues, when the diving attempts failed, he told them to return to the college, “take care of the girls and I will take care of the accident.” It is their story that they assumed Kennedy would inform authorities once he returned to Edgartown and so they did not do so themselves. My friend’s story makes more sense. Kennedy and the boiler-girl escort who had been seated next to him in the front seat of the car, zapped out of their minds with booze, managed to escape from the overturned car in the pond and stumbled back to Lawrence Cottage, completely forgetting Mary Jo’s having been in the back seat-understandable since her and others’ presence at romantic rendezvous and trysts were always understood-and at the time, dismissed. In fact, Kopechne’s presence was blotted out for a time since the harrowing episode almost cost their own lives. To them, not remembering Mary Jo’s presence, since they had escaped, the event was merely an automobile accident-something that could be reported the next day rather than in the middle of the night to police. When they got back to the Cottage, they told the group and only then somebody said, “where was Mary Jo?” Kennedy and the boiler-room girl both said almost at once: “GOD! She was with us! We remember now!” The boiler-room girl dissolved in tears. The other girls hugged themselves and sobbed at the grisly thought of Mary Jo, trapped in the car and dying. Finally Gargan shouted to them: “Stop it! Stop it now! We can’t help her. We’ve got to protect the senator!” They all agreed. What to do now? A curtain of silence was imposed on the group by Kennedy and the two other men. Boiler-room people had long appreciated that confidentiality was mandated for Kennedy activities. A huddle was called between the three men and a rough plan detailed. By now Kennedy and his boiler-girl escort remembered firmly--Mary Jo had indeed been in the car. But now it was adjudged now too late to save her: the crucial thing was to save Kennedy from embarrassment and prosecution which would end the Kennedy idyll. They never could settle on a plan. It was too complicated. . There was an argumentative struggle over whether or not someone else should take the blame in order to protect Kennedy: but since this would mean prosecution, no one volunteered. But all agreed that the police should be notified. Who would do it? Kennedy insisted that one or the other of the two men do it-he was vociferous that he should not do the reporting. Neither of the two men, understandably, wanted to report something they had nothing to do with. This much they agreed to: Kennedy would go back to his hotel in Edgartown and call the police from there. Some discussion ensued as to whether or not it might be possible to suggest that Mary Jo had taken his keys and had driven his car, overturning it in the pond-but that was vetoed. There was no semblance of a general agreement on how to handle the problem. Obviously it was too late…and all were in too bad a shape…to reach a coherent strategy. What they did agree to was that Kennedy should get the hell out of there and go to the hotel in Edgartown. The girls went home and Kennedy was driven by Gargan and Markham to the Edgartown-Chappaquiddick ferry which connects Chappaquiddick to the rest of the island. But once there, more complications. The ferry was down for the night. As the three stood there wondering what to do, Kennedy said he would at least solve this dilemma. He swam the 500-foot channel back to Edgartown, went to his room, got into dry clothes and fell asleep on his bed at about 2 p.m. The two other men left. There always was the question whether he took off his shoes for the swim. Of course: he would have to. But strangely, that detail was not remembered when my friend questioned around. At the hotel, Kennedy didn’t call authorities about the accident as he had indicated he would do. Instead, he decided he had to invent a scenario that would say he was at the hotel that night. So at 2:55 a.m. he went downstairs, presented himself to the hotel clerk and others and complained that he had been awakened by a noisy party. This was to certify that he was in the hotel. He returned to his room, stayed awake for a time, then dozed. Then at 7:30 in the morning he made it a point to talk casually to the winner of the previous day’s sailing race-again as to establish his whereabouts. Still no phone call. But by then, unknown to him and the others, two fishermen had discovered the upturned car in the pond and called authorities. A diver was sent out to discover if anyone was in the car. Back in Edgartown, at 8 a.m. Gargan and Markham came to the hotel and were astounded to discover that Kennedy still had not notified the police. They got into a heated conversation over why he had not done so-and what to do now. Then all three of them took the ferry to Chappaquiddick, where at a pay phone near the dock Kennedy made a series of phone calls to some friends asking for advice and to Kopechne’s parents reporting her likely death. Now events that were clearly out of control had taken over the operation.A diver, John Farrar, was sent down and discovered Kopechne’s body. He testified at the inquest that her body was pressed up in the car in the spot where an air bubble would have formed. He later concluded that “had I received a call within five to ten minutes of the accident occurring and was able, as I was the following morning, to be at the victim’s side within 25 minutes of receiving the call, in such event there is a strong possibility that she would have been alive on removal from the submerged car.” The car was hauled up and the license plate was identified as belonging to Rose Kennedy-but, of course, a follow-up showed it was driven the night before by Ted Kennedy. When Kennedy finished making his phone calls, he was informed that the car was hauled up and the body discovered, he crossed back to Edgartown and went to the police station to report the accident. The Kennedy scenario was that Gargan then told the boiler-room girls what had happened: my friend says they knew what happened when Kennedy had returned from the accident. Kopechne’s parents did not allow an autopsy to be performed on their daughter. They did not bring any legal action against Kennedy but did receive a payment for $90,904 from him personally and $50,000 from his insurance company-pretty paltry pickings for the enormity of the tragedy that happened to them by Kennedy’s taking the life of their daughter. The Kopechnes later explained “we figured that people would think we were looking for blood money.” Their attitude changed later. There were public recriminations by them. Then they shut up. My friend says they were…let us say…adequately dealt with. The vast Kennedy crisis machine swung into action. On July 25, seven days after the incident Kennedy entered a plea of guilty to a charge of leaving the scene of an accident after causing injury. He wore a neck brace, worn on orders of his lawyers, my friend says, to show he was injured in a serious way-a public relations symbol of a sort to ward off belief that he had not suffered. The Kennedy clout fixed the verdict so that he received a sentence of two months in jail-suspended-and lost his driver’s license for a year. Later on TV he announced it was “indefensible that I had not reported the incident to the police immediately.” He said “I was overcome, I’m frank to say, by a jumble of emotions-grief, fear, doubt, exhaustion, panic, confusion and shock.” He denied he had been engaged in “immoral conduct” with Kopechne or that he had been driving drunk. District Attorney Edmund Denis was granted a hearing on petition for exhumation of Kopechne’s body based on the funeral director’s claim that blood was found on the body and clothing. But there is little evidence to corroborate and the finding is uncertain as to whether she was injured in the crash or in a frenetic struggle within the car. An inquest into her death took plce in Edgartown in January, 1970. Kennedy’s legal team got the Massachusetts Supreme Judicial court to order it be conducted in secret. A 793-page transcript was released four months later. Judge Boyle concluded that Kennedy and Kopechne did not intend to return to Edgartown when they left the party, that Kennedy did not intend to drive to the ferry slip and that Kennedy’s turn onto Dike Road was intentional. He said “negligent driving appears to have contributed to the death of Mary Jo Kopechne.” While under Massachusetts law, Boyle could have ordered Kennedy’s arrest, he did not. Denis chose not to pursue Kennedy for manslaughter despite Boyle’s findings. Do you think anyone but a Kennedy would get off this lightly? And, while we are not given to judge, it is mark of singular good fortune to him that Ted Kennedy will have time to ruminate about the things he did, both good and bad, in his political and private life… …as well as contemplate the lesson his Church has always taught about the purpose of life-specially the folly of elevating fame, riches and political power so as to disvalue the pursuit of holiness. Hang in there, Senator Ted. In more ways that men can count, you’ve been and are a lucky man.

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San Diego DUI criminal defense attorney news

May 30, 2008 14:41 hours

A San Diego county man pleaded guilty May 21 to running down a female cyclist in Solana Beach while San Diego DUI - under the influence of alcohol.

Brian Stephen Carnes, 42, pleaded guilty to a single count of hit-and-run with death and vehicular manslaughter while intoxicated, both felonies, stemming from the March 16, 2007, death of Jeannie Franklin, San Diego DUI attorneys understand.

In lieu of his San Diego DUI plea, Carnes faces up to 16 years in prison when he is sentenced Aug. 22.

Franklin, who had been wearing a helmet, was riding home on South Highway 101 in the bike lane from a Cardiff-by-the-Sea market when Carnes struck her. Authorities believe Carnes had a blood alcohol level of .26 at the time of the San Diego DUI incident.

According to San Diego DUI lawyer authorities, all the evidence in the roadway — bicycle and vehicle parts as well as scuffs and gouges in the road — were located inside the bike lane.

When Carnes was arrested a couple of hours after the 11:45 a.m. incident, San Diego Sheriff’s Deputies found two pints, one empty and the other nearly finished, of 100 proof Yukon Jack in the driver’s cab of his Toyota 4Runner, two new headlights and carwash tokens, San Diego DUI court documents show.

Further San Diego DUI investigation revealed that at least one of the pints of liquor had been purchased earlier that morning just minutes after Carnes had gotten off work and that the new headlights were purchased just shortly after the accident.

Further, it appeared to deputies that Carnes’ SUV had just been washed, according to San Diego DUI court records.

Carnes had been driving on a suspended license stemming from a 1997 DUI / driving under the influence conviction, according to San Diego DUI attorneys.

SanDiegoDrunkDrivingAttorney.net/blog

DUI / DWI criminal defense news

Man wonders how he got under influence, points to dog for DWI

May 30, 2008

A man who was arrested for drunk driving / DWI - driving while intoxicated apparently took his dog's pills by mistake.

Drunk driving / DWI authorities say that Clarence Fenton had phenobarbital in his system when he crashed his sport utility vehicle into a utility pole last November. It took several months for the results of the drunk driving / DWI blood tests that showed the drug in Fenton's system.

Police say they found a bottle of pills prescribed for "Saturn" at the scene. They say Fenton admitted taking pills and that "Saturn" is his dog.

Phenobarbital is a drug used to control seizures in people and pets.

Fenton appeared in drunk driving / DWI court on Thursday.

He says he didn't remember taking the pills but did take a newly prescribed antidepressant the day of the drunk driving / DWI crash.

DWI officials with the Iowa Statewide Poison Control Center say people taking their pet's medicine by mistake is more common that one might think. They say the center has taken about three similar calls this year.

www.SanDiegoDUIlawyer.com/blog

DUI defense lawyer news

May 31, 2008

The day after a magistrate threw out a DUI case against state Sen. Randy Scott, Dorchester County Sheriff Ray Nash called the ruling "outrageous" and defended the arrest video that led Magistrate Phillip Newsome to dismiss the case.

On Friday, Nash and 7th Circuit Deputy Solicitor Barry Barnette played the segment of video that Newsome said was missing a minute and 10 seconds of audio.

While the video played on a screen, Barnette pointed to icons that he said showed that the arresting officer's microphone was on at all times. He also pointed out background noise during the segment, such as the deputy's radio, that he said showed the microphone was working.

"There's no glitch," Barnette said. "There's no gap. There is nothing but continuous feed from the microphone," Barnette said, adding that the ruling could affect every DUI case in the state. "It's a huge problem. We're getting more DUI cases thrown out in pre-trial motions than are getting to the jury."

Nash also produced a letter from the president of the company that makes the ICOP video system attesting that the video, audio or other data can't be tampered with after it's shot.

Barnette said he will appeal the case so a jury can decide if Scott was intoxicated when he was arrested April 19.

Scott, his campaign manager Rod Shealy, and his law firm did not return messages left for them Friday.

A day after the judge's decision, it remained unclear how the ruling would affect Scott's June 10 primary battle against fellow Republican challenger Mike Rose and whether it also could alter an equally heated sheriff's race.

College of Charleston political science professor Bill Moore said the expected appeal of Newsome's ruling "keeps a cloud over Scott as long as that issue is not resolved prior to the primary. It does remain a high-profile part of that campaign."

Dorchester County GOP chairman Arthur Bryngleson agreed. "There's still a stigma or a question of guilt or innocence that has yet to be decided, although it is more positive for Randy than negative," he said.

Moore said the arrest saga also could affect the hotly contested sheriff's primary, even though Nash isn't on the ballot.

Scott maintained that the arrest was set up to hurt his chances against Rose, and he has said Nash had it in for him because Scott backed L.C. Knight, Nash's opponent when Nash originally was planning to run for re-election. Nash later dropped out of the race after an audit showed missing money at the jail. Scott had pushed for the audit.

After Scott was arrested, he told deputies they would lose their jobs when Knight was elected.

Nash has endorsed Folly Beach Public Safety Director Terry Boatwright in the race against Knight. Nash declined to speculate Friday on how Scott's trial might affect the sheriff's race. "I'm not politically astute," Nash said. "I'll leave that to the political speculators."

Bryngleson said the arrest wouldn't factor into the sheriff's race, but Moore said, "Obviously, the Scott arrest and subsequent events will play into the sheriff's race and could impact how a good number of voters vote."

Rose said while Scott avoided the jury's verdict, he won't avoid the voters.

Rose has focused less on the DUI arrest itself than on the tape recordings that the Dorchester County jail made of Scott talking by phone with his wife immediately after the arrest. In them, Scott seeks help from magistrates, whom he has a hand in appointing, to get out of jail. Scott later apologized.

"This dismissal is absolutely not an exoneration or vindication of Senator Scott. It absolutely does not conclude whether he was driving under the influence," Rose said. "Whether he was or he wasn't, it's clear he was abusing his position as a senator.

"Even handing a Senate card with his driver's license was wrong. If I was arrested, there's only three things I would have said, and that's 'Yes sir,' 'No sir,' and 'There's no excuse sir.' "

District 38 covers much of Dorchester County and a slice of Charleston County near Ladson and Ravenel. Charleston County GOP chairman Lin Bennett said she thinks Scott's actions recorded on tape, perhaps more than the DUI charge itself, could sway voters.

"Voters don't like that. They want elected officials to be regular people. They don't want them to appear like they're above everything," she said.



A minute gap in the audio portion of the videotape of the arrest of state Senator Randy Scott has led a judge to drop a DUI charge against the lawmaker.

The Post and Courier of Charleston reports that magistrate Phillip Newsome said yesterday state law requires a sworn statement explaining any problems with the videotape of a DUI arrest and authorities did not provide an explanation.

The Summerville Republican was set to stand trial when the ruling was issued.

Prosecutors say they will ask the judge to reconsider his ruling and likely appeal if he refuses.

sandiegodui.com

California drunk driving attorney news

May 29, 2008

When is one drink too many? That is what many should worry about after an evening of fun with friends or family before deciding if it’s safe to get behind the wheel of a 4,000-pound battering ram.

Extreme California drunk driving drivers, because of either addiction or apathy, don’t care about the law or about the safety of fellow motorists. While drinking alcohol impairs one’s judgment, intoxication is neither an excuse for stupidity — nor a license for murder.

Current California drunk driving law says a driver found to have a .08 percent blood-alcohol content or greater faces charges of California drunk driving - driving under the influence that for first-time offenders could result in at least a six-month suspension of their driver’s license, up to three year’s probation and fines, court costs and related fees of up to nearly $10,000. This BAC can occur after as little as two or three drinks, depending on sex and body size.

But a California drunk driving driver found to have a BAC of .20 or higher faces charges of ‘extreme’ California drunk driving - drunken driving, and may face even harsher punishment – including mandatory installation in their cars of cell phone-sized devices that prohibit the car from starting if .03 percent alcohol is detected.

It takes most men and women five or more drinks to qualify as ‘extreme’ drunken drivers. Between 2001 and 2003, nearly 2,200 Californians were killed in California drunk driving crashes involving extreme levels of alcohol of .20 or higher.

Experts say such extreme California drunk driving drivers are at least 20 times more likely to be involved in a fatal crash than a sober driver. California’s current threshold to be declared an extreme California drunk driving - drunken driver is as lenient as only four other states that define extreme drunk driving as .20, according to California drunk driving law experts.

If approved, California drunk driving judges would be required to give greater consideration to first-time extreme California drunk driving - DUI offenders to have breathalyzers installed in every car they drive.

Records show vehicle California drunk driving breathalyzers can dramatically reduce the number of drunk drivers on the road. In three states and two countries that installed breathalyzers in the cars of first-time offenders, recidivism dropped by more than half, some as much as a life-saving 77 percent.

SB 1190 has received unanimous, bipartisan support in two Senate committee hearings, and a 37-0 vote May 22 on the Senate floor. There would be no significant state costs, and my measure has already gained the endorsement of Mothers against Drunk Driving and the Association of California Insurance Companies.

• A DUI Driver who pled guilty last month to gross vehicular manslaughter while intoxicated and drunken driving causing injury, now faces a lengthy prison term.

• If he had a breathalyzer installed on his pickup last January, a victim's four children might still have a father.


www.Sandiegodrunkdrivingattorney.net/articles

California DUI / Drunk Driving Law enforcement from all over Kern worked hard to catch drunk drivers over Memorial Day weekend.

The Kern California DUI / Drunk Driving Law Task Force held a California DUI / Drunk Driving Law checkpoint on Main Street in Lamont and increased their presence in Bakersfield and Shafter.

In Lamont, fifty California DUI / Drunk Driving Law officers checked 745 cars over the weekend, resulting in 5 California DUI / Drunk Driving Law arrests and 43 impounded cars.

In Shafter and Bakersfield, they pulled over 50 cars and conducted 17 California DUI / Drunk Driving field sobriety tests. Also, eight people were arrested for California DUI / Drunk Driving's and 43 cars were impounded, according to California DUI / Drunk Driving lawyers.

California DUI / Drunk Driving Law Police will also beef up their presence during Independence Day and Labor Day weekend.

California DUI / Drunk Driving Law Police said the summer is the deadliest time, and motorists are urged to call 911 to report California DUI / drunk drivers.

“BUI?”

May 28, 2008 9:00 a.m.

With summer upon us, many people will be taking advantage of the warm weather and sunshine by going boating, water skiing, jet skiing, and sailing.

Be aware of “BUI” laws. While everyone knows that it is illegal to drive while “under the influence” of alcohol and/or drugs, many may not be aware that similar laws apply on the water. That is, it is illegal in the State of California to engage in “Boating Under the Influence.”

California Harbors and Navigation Code section 655 provides as follows:

(b) No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.

(c) No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood.

“BUI” is a misdemeanor crime and can be punished by imprisonment in the county jail for up to six months, and/or by a fine of up to $1,000.00. (Harb. & Nav. Code, § 668, subd. (d).)

If you have been cited or arrested for “BUI,” you need an aggressive California DUI / drunk driving defense law firm to represent you in your BUI case: www.SanDiegoDrunkDrivingAttorney.net

San Diego DUI Help

San Diego DUI attorney news

May 27, 2008 18:00 p.m.

San Diego DUI attorneys report that 3 people were killed in traffic accidents in San Diego County during the Memorial Day weekend, the California Highway Patrol said Tuesday in its final statistics for the three-day holiday period.

San Diego DUI / drunk driving statistics were recorded from 6 p.m. Friday to midnight Monday.

The San Diego DUI attorney tally also shows that 108 people were arrested in the county on suspicion of San Diego DUI / drunk driving / dwi - driving while intoxicated, compared to 155 arrests during the holiday period a year ago.


Statewide, San Diego DUI attorneys said 30 people were killed in traffic accidents during the holiday weekend, compared to 32 a year ago, and there were 1,445 DUI arrests, compared to 1,614 a year ago. San Diego DUI .com

California Drunk Boating BUI DUI in a boat defense attorney news

May 27, 2008

Sonora, CA -- 22 year old Hughson firefighter Cole J. Periera was arrested by the Tuolumne County Sheriff Office's Boat Patrol Sunday evening for allegedly operating his watercraft while under-the-influence: California Drunk Boating BUI DUI in a boat, California defense lawyers are told.

California Drunk Boating BUI Deputies responded to a 6:48pm call of a boat collision on Lake Don Pedro. Deputies learned that two crafts were involved; a 2002 Malibu boat and a 2002 blue Fineline ski boat.

Periera was allegedly operating the Malibu boat when it struck the Fineline at an approximate speed of 10-15mph. Individuals on the struck boat allegedly told deputies that they had stopped to allow occupants to urinate into the lake.

One of the individuals on the Fineline was an 18 year old female from Elk Grove who was reportedly injured and transported to Sonora Regional Medical Center with non-life threatening injuries, according to lawyers.

Periera allegedly showed signs of intoxication and was arrested for California Drunk Boating BUI DUI in a boat and booked into the County Jail, attorneys are told.

NICKELBACK frontman CHAD KROEGER has appealed his recent drunk driving conviction.
In his appeal, Chad is arguing that the breathalyzer test he was forced to take when he was pulled over for speeding in 2006 violated his rights.

Chad's lawyer says the breathalyzer results, which showed that the singer had nearly double the legal limit of alchol in his blood, should have been excluded from evidence because the arresting officer didn't have any "reasonable suspicion" that Chad was drunk.

San Diego DUI attorney news

May 27, 2008

A San Bruno police officer was offered a large stack of money to let a suspected drunk driver go, according to prosecutors who charged the vehicle’s passenger with felony bribery.


After the officer declined and called for back-up to handle the alleged bribe, the driver was let go — ironically, because he passed both the field sobriety test and a Breathalyzer.


Kelvin Hua, 26, however, was arrested and is now scheduled for jury trial June 23. Hua returns to court this afternoon for a pretrial conference at which he could settle the case or confirm the jury trial with the possibility of three years in prison if convicted.


Hua has been out of custody on $20,000 bail posted after his Sept. 29, 2007 arrest.


According to the District Attorney’s Office, the vehicle carrying Hua was stopped on El Camino Real in San Bruno for suspicion of drunk driving. While the officer interviewed the driver, Hua reportedly approached the officer asked if they could be released because they lived just down the street. The officer declined and Hua reportedly showed him the stack of money and said he would place it in the patrol car if they were let go.


After another officer was called to witness the event and noted Hua’s money, he was arrested. The police discovered $1,400 in his wallet and pocket.


“I’m not sure how much of that he offered the officer but it was in the hundreds,” said Chief Deputy District Attorney Steve Wagstaffe.


The driver then passed the field sobriety test and a blood alcohol test showed a legal amount of .06.


www.sandiegodrunkdrivingattorney.net

California's San Diego DUI lawyer news

A 19-year-old alleged San Diego DUI drunk driver going the wrong way on Olympic Parkway in Chula Vista struck a sport utility vehicle head-on Sunday, injuring herself and eight people in the SUV, San Diego DUI lawyers said.

Jennifer Deugan, who was alone in her vehicle, was arrested at a hospital following the roughly 3:25 a.m. wreck on Olympic Parkway near Interstate 805, San Diego DUI attorneys report. Deugan's injuries were described as serious, San Diego Drunk driving attorneys said.

Information about injuries to the occupants of the SUV was unavailable, but San Diego DUI police said they were taken to hospitals and we hope they get better.

SanDiegoDUIhelp.com

San Diego DUI Help Attorney news

The South Lake Tahoe Police Department will be conducting a DUI check point on June 18th from 10:00 PM to 2:00 AM on Lake Tahoe Blvd near Fairway Ave. Officers will be randomly screening drivers for signs of impairment. This will be a combined effort between the South Lake Tahoe Police Department and the California Highway Patrol. The number one cause of injury traffic collisions in South Lake Tahoe so far for 2008 is driving under the influence of drugs or alcohol. We will be conducting a strong summer campaign to combat this trend with a zero tolerance. “Over the Limit, Under Arrest”.

Funding for this program was provided by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration.

San Diego DUI Help Attorney news

The South Lake Tahoe Police Department will be conducting a DUI check point on June 18th from 10:00 PM to 2:00 AM on Lake Tahoe Blvd near Fairway Ave. Officers will be randomly screening drivers for signs of impairment. This will be a combined effort between the South Lake Tahoe Police Department and the California Highway Patrol. The number one cause of injury traffic collisions in South Lake Tahoe so far for 2008 is driving under the influence of drugs or alcohol. We will be conducting a strong summer campaign to combat this trend with a zero tolerance. “Over the Limit, Under Arrest”.

Funding for this program was provided by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration.

Bribery of DUI cop not a good idea

May 26, 2008 19:30 p.m.

A man arrested for DUI / drunk driving faces a felony charge after he allegedly offered a DUI officer $50.

Court documents show 23-year-old Scott M. Hayward faces a felony count of bribery of municipal or county officers after he allegedly offered the money in his pocket to a DUI arresting officer.

Hayward was arrested early Friday morning on misdemeanor charges of allegedly DWI / driving while intoxicated and possession of marijuana. DUI Reports indicate Hayward was placed in a patrol car where he allegedly offered $50 to a DWI officer.

A hearing is scheduled June 4. If convicted, Hayward faces up to 14 years in prison.

www.SanDiegoDrunkDrivingAttorney.net/articles

San Diego DUI criminal defense attorney news

May 25, 2008 19:25 pm

A DUI / drunk driver called 9-1-1 to report himself, DUI police said.

When the dispatcher asked what the man was reporting, he said, “I just don't know if I'm safe to be driving.”

“Why wouldn't you be safe?” the dispatcher asked.

“I'm pretty drunk,” the man answered.

The DUI / drunk driver made that call while driving north on Interstate 5 last week.

The dispatcher was able to talk the DUI / drunk man into pulling off the road.

DUI / drunk driving police said his breath alcohol level was .18 – more than twice the legal limit, according to DUI / drunk driving lawyers in San Diego.

SanDiegoDUIhelp.com

Good news out of San Diego

May 25, 2008

CHP: Less San Diego DUI / Drunk Driving arrests, wrecks this weekend

Fewer drivers are being arrested for San Diego DUI / Drunk Driving - driving under the influence this Memorial Day weekend on San Diego County's freeways. More good news is that no one has been killed.

This year, CHP officers have taken 65 people into custody for San Diego DUI / Drunk Driving between 6 p.m. Friday and 6 a.m. Sunday, San Diego DUI / Drunk Driving lawyers reported.

At this point last year, CHP officers arrested 103 passengers for San Diego DUI / Drunk Driving during the same time period, San Diego DUI / Drunk Driving attorneys note.

Statewide, California DUI / Drunk Driving arrest numbers are also down about 10 percent compared to last year, while there are 12 fatalities this year, three less than in 2007.

All in all a good weekend. www.SanDiegoDUIhelp.com

California DUI - DMV defense attorney caselaw update

1
Filed 5/22/08 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
PAUL DYER,
Plaintiff and Respondent,
v.
DEPARTMENT OF MOTOR VEHICLES,
Defendant and Appellant.
C054971
(Super. Ct. No. TCV1113)
APPEAL from a judgment of the Superior Court of Placer
County, Trilla E. Bahrke, Court Commissioner. Reversed.
Edmund G. Brown, Jr., Attorney General, Jacob A.
Appelsmith, Senior Assistant Attorney General, Vincent J.
Scally, Jr., Supervising Deputy Attorney General, and Barbara A.
Morris, Deputy Attorney General, for Defendant and Appellant.
Barry W. Jones for Plaintiff and Respondent.
Following his arrest for driving under the influence of
alcohol (DUI), the Department of Motor Vehicles (DMV) suspended
plaintiff Paul Dyer’s driver’s license under the “administrative
per se” statutes. (See Veh. Code, §§ 13353.2, 13353.3,
2
23158.5.)1 After an administrative hearing, the DMV upheld the
suspension.
Dyer then filed a petition for writ of administrative
mandate in superior court. (Veh. Code, § 13559, subd. (a); Code
Civ. Proc., § 1094.5.) Citing Vehicle Code section 40800, the
court granted the petition on the sole ground that the arrest
was unlawful because the officer who pulled Dyer over on
suspicion of DUI was driving an unmarked patrol vehicle.
On this appeal by the DMV, we shall reverse the judgment of
the trial court. There was no evidentiary basis to support a
finding that Vehicle Code section 40800 was violated and even if
there was, the fact that the detaining officer was driving an
unmarked vehicle did not render the subsequent arrest unlawful.
We also reject Dyer’s argument that the arrest was invalid
because another officer, who placed him under arrest, did not
personally observe him driving under the influence. (Pen. Code,
§ 836.)
Because the trial court relied on a legally infirm ground
for granting the petition and failed to conduct an independent
review of the sufficiency of the evidence to support the DMV’s
factual findings, we shall vacate and remand for a new hearing.
1 Undesignated statutory references are to the Vehicle Code in
effect at the time of the February 2006 incident.
3
FACTUAL BACKGROUND
2
Just after midnight on February 9, 2006, Sergeant Jess
Phariss, who was on uniformed duty in an unmarked Placer County
Sheriff’s Department vehicle, was traveling southbound on state
highway 267. The weather was clear and road conditions were
good.
Sergeant Phariss spotted a Jeep Cherokee that was traveling
southbound at 35 miles per hour in a 55-miles-per-hour zone.
The Jeep sped up to 60 miles per hour as Sergeant Phariss caught
up to it, then slowed to 40. Subsequently, Sergeant Phariss saw
the Jeep cross over both the solid double yellow and/or the
broken single yellow center line at least 10 times. On three of
those occasions, the Jeep crossed completely into the northbound
lane of traffic and then abruptly returned to the southbound
lane.
At 12:24 a.m., Sergeant Phariss requested that Deputy
Robert Griggs proceed towards the location of the Jeep. Phariss
activated his emergency lights and initiated a traffic stop of
the Jeep. Griggs arrived to assist as Phariss approached the
driver, later identified as Dyer, and asked him why he appeared
unable to keep his vehicle within his lane of traffic. Dyer
answered, “Uh . . . I didn’t know I was in the other lane.”
Phariss then asked if there was anything mechanically wrong with
the Jeep, to which Dyer answered negatively. During the
2 Our factual summary is taken from the administrative record in
this case.
4
encounter, Sergeant Phariss noticed objective symptoms of
intoxication, including a moderate odor of alcohol on Dyer’s
breath, confusion, unsteady balance, slow, slurred speech, and
red eyes.
Sergeant Phariss directed Dyer to step out of the Jeep and
go to the rear of the vehicle where Deputy Griggs was standing.
Dyer stumbled out of the Jeep and Griggs administered a series
of field sobriety tests, which Dyer performed very poorly.
Griggs then tried to obtain a breath sample. Dyer put his lips
to the mouthpiece several times but did not breathe into it.
Finally, he gave a “quick ‘puff’” of air into the mouthpiece,
which registered an “inconclusive” 0.072 blood-alcohol content
(BAC). Based on Dyer’s poor performance on the sobriety tests
and the observations of Phariss and Griggs, Griggs placed Dyer
under arrest for DUI.
During an inventory search of the Jeep, Sergeant Phariss
found an opened, partially consumed bottle of vodka under the
driver’s front seat, a glass pipe associated with smoking
marijuana and a film canister containing marijuana.
Dyer was transported to the county jail for booking, where
Deputy Griggs administered two Intoxilyzer breath tests at 1:07
a.m., some 30 minutes after the arrest. The two breath samples
each registered 0.11 BAC.
5
PROCEDURAL HISTORY
Based on the investigation reports of Deputy Griggs and
Sergeant Phariss and the results of the Intoxilyzer test, the
DMV suspended Dyer’s driver’s license under section 13353.2.
Dyer requested an administrative hearing. After an evidentiary
hearing, the appointed DMV hearing officer found that the
requirements of section 13353.2 had been met, and she upheld the
suspension.
Dyer then filed a petition for writ of mandate in superior
court. (See § 13559, subd. (a).) Although the court’s initial
ruling was to deny the writ, it ultimately reversed itself upon
receipt of supplemental briefing. The trial judge determined
that because Sergeant Phariss was driving an unmarked patrol car
and not wearing a uniform in violation of section 40800, Dyer
was not “lawfully arrested” and therefore the license suspension
was improper. The DMV appeals from the judgment granting the
writ of mandate.
DISCUSSION
I. General Principles
“It is a criminal offense to drive while under the
influence of alcohol or a drug, or to drive with 0.08 percent or
more, by weight, of alcohol in the blood. [Citations.] In
addition to criminal sanctions, the Legislature has established
administrative procedures whereby the DMV may suspend a person’s
driver’s license for driving under the influence or with a
specified blood-alcohol level. [¶] The DMV has long been
6
authorized to suspend drivers’ licenses of persons convicted of
specified alcohol related driving offenses, or of persons who
refused to submit to a chemical test to determine their bloodalcohol
level. [Citations.] At issue here is legislation
enacted in 1989, operative July 1, 1990, designed to allow
suspension of drivers’ licenses before conviction for driving
with a blood-alcohol level of [0.08 percent].” (Gikas v. Zolin
(1993) 6 Cal.4th 841, 846 (Gikas), fn. omitted.)
Under the administrative per se statutes, “when a person is
arrested for driving under the influence and is determined to
have a prohibited blood-alcohol level, the arresting officer or
the DMV serves the person with a ‘notice of the order of
suspension.’ (§ 13353.2, subds. (b) & (c), 23158.5, subds. (a)
& (b).) The notice informs the person that his or her driver’s
license will be suspended 45 days from the date of service,
states the reason and statutory grounds for the suspension, and
explains the person’s right to seek an administrative hearing.
(§§ 13353.2, subd. (c), 13353.3, subd. (a).)” (Gikas, supra,
6 Cal.4th at p. 846.) “The DMV automatically reviews the
suspension order to determine, by a preponderance of the
evidence, whether: (1) the arresting officer had reasonable
cause to believe the person was driving in violation of section
23152 or section 23153; (2) the person was placed under arrest;
and (3) the person was driving with 0.08 percent or more, by
weight, of alcohol in the blood. (§ 13557.) The determination
is based upon the officer’s report and any evidence accompanying
7
the report. (§ 13557, subd. (a).) The person may request a
hearing with the DMV limited to these issues, at which
additional evidence may be presented.” (Gikas, at pp. 846-847.)
A person whose license suspension is upheld may seek
judicial review of an adverse decision by way of petition for
writ of administrative mandate. (Veh. Code, § 13559, subd. (a);
Code Civ. Proc., § 1094.5.) Review is strictly limited to the
record of the administrative hearing; the trial court may not
consider any other evidence. (§ 13559, subd. (a).) “The
superior court uses its independent judgment to review DMV
hearing decisions which suspend driver’s licenses. [Citation.]
Under this standard of review, the court must independently
weigh the evidence and may make its own findings. [Citation.]
It must set aside the administrative decision where the agency’s
findings are not supported ‘by the weight of the evidence.’
(Code Civ. Proc., § 1094.5, subd. (c).)” (Ocheltree v. Gourley
(2002) 102 Cal.App.4th 1013, 1017 (Ocheltree).)
On appeal, our task ordinarily is limited to ascertaining
whether substantial evidence supports the trial court’s
findings. (Coombs v. Pierce (1991) 1 Cal.App.4th 568, 576
(Coombs).) However, the application of an interpreted statute
to undisputed facts is subject to our independent review.
(Hoschler v. Sacramento City Unified School Dist. (2007)
149 Cal.App.4th 258, 262; see Villalobos v. Zolin (1995)
35 Cal.App.4th 556, 558.)
8
II. Lawfulness of the Arrest
The trial court’s decision to annul the DMV suspension
turns exclusively on the lawfulness of Dyer’s arrest. The
following facts are undisputed: (1) Sergeant Phariss was on
uniformed3 patrol in an unmarked sheriff’s department vehicle
when he observed Dyer driving erratically, radically changing
speeds and crossing over the double yellow line multiple times;
(2) Phariss summoned Deputy Griggs to assist him with the
contact; (3) Phariss pulled over Dyer’s vehicle and observed
obvious signs of intoxication; (4) Griggs arrived and
administered field sobriety tests, on which Dyer performed very
poorly; (5) Griggs placed Dyer under arrest for drunk driving
and Phariss recovered an open, partially consumed bottle of
vodka under the driver’s seat; (6) about 30 minutes after the
arrest, Dyer gave two breath samples at the county jail, each of
which registered a BAC reading of 0.11 percent.
Under the administrative per se statutes, in order for the
DMV to validly suspend a person’s driver’s license, “the
underlying arrest must have been lawful.” (Gikas, supra,
6 Cal.4th at p. 847; see also Mercer v. Department of Motor
Vehicles (1991) 53 Cal.3d 753, 760 (Mercer).)
3 The trial court’s finding that Sergeant Phariss was not
wearing a uniform finds no support in the record. Phariss’s
report states unequivocally, “I was on uniformed patrol in an
unmarked Placer County Sheriff’s Department vehicle.” (Italics
added.)
9
“A law enforcement officer may legally stop a motorist if
the facts and circumstances known to the officer support a
reasonable suspicion that the driver has violated the Vehicle
Code or some other law.” (People v. Hardacre (2004)
116 Cal.App.4th 1292, 1300 (Hardacre).) No claim is made that
Sergeant Phariss lacked reasonable cause to pull Dyer over on
suspicion of DUI. The pivotal question is whether Dyer’s arrest
was unlawful because Sergeant Phariss was driving in an unmarked
vehicle when he effectuated the traffic stop.
The parties spend a significant portion of their briefs
discussing the question of who has the burden of proof with
respect to whether Sergeant Phariss complied with section 40800.
The parties apparently focused on the final sentence of the
trial court’s decision, which states: “The record was devoid of
any proof that would allow the Court to make a finding that the
Officer was exempt from the requirements of Vehicle Code
[section] 40800.” (Italics added.) However, it is unnecessary
to resolve the burden of proof dispute because, as we shall
show, section 40800 has no relevance to this case.
A. No Evidence That Section 40800 Was Violated
Former section 40800 provided, in relevant part: “Every
traffic officer on duty for the exclusive or main purpose of
enforcing the provisions of Division 10 or 11 of this code
[traffic safety laws] shall wear a full distinctive uniform, and
if the officer while so on duty uses a motor vehicle, it must be
10
painted a distinctive color specified by the commissioner.”4
(Stats. 1961, ch. 202, § 2, p. 1212, italics added.)
Section 40800 is included in a chapter of the Vehicle Code
dealing with speed traps. Speed trap laws have been on the
books in California since 1923. (Hardacre, supra,
116 Cal.App.4th at p. 1296; People v. Sullivan (1991)
234 Cal.App.3d 56, 58.) In the words of an early California
Supreme Court case, speed trap laws reflect a legislative
determination that “‘“the presence of traffic officers actually
patrolling the highways dressed in distinctive uniforms and in
plain sight of all travelers on the highways would have a most
salutary effect in securing the observance of each and all of
the regulations imposed upon drivers of vehicles upon the public
highways.”’” (Fleming v. Superior Court (1925) 196 Cal. 344,
349.) Commentators have also suggested that the Legislature was
“motivated by a desire to eliminate clandestine methods of
traffic enforcement designed to augment local revenues through
exorbitant fines.” (Sullivan, supra, 234 Cal.App.3d at p. 58.)
Regardless of its purpose section 40800, by its plain
language, applies only to “traffic officer[s]” whose “exclusive
or main purpose” is to enforce traffic laws on the public
highways. In his report, Sergeant Phariss states only that he
4 Section 40800 was subdivided and rewritten in 2007, after the
proceedings in this case. The amendments did not affect the
substance of the statute at issue here. (See Stats. 2007, ch.
682, § 18.)
11
was on “uniformed patrol in an unmarked Placer County Sheriff’s
Department vehicle.” There is no evidence in the administrative
record that Sergeant Phariss was a “traffic officer” or that his
main duties consisted of traffic enforcement. On the contrary,
Phariss appeared to be exercising supervisory duties on the
night in question: Rather than make the arrest himself, he
requested that Deputy Griggs, “the deputy assigned to the King’s
Beach area,” assist him at the scene; and it was Griggs who
conducted the sobriety tests and placed Dyer under formal
arrest.
The trial court was not permitted to grant the writ based
on speculation or assumptions about the nature and scope of
Sergeant Phariss’s duties. Without any evidence in the record
that Phariss was a traffic officer whose exclusive or primary
duty consisted of traffic enforcement, a necessary predicate for
the applicability of section 40800 was lacking.
B. A Section 40800 Violation Does Not Render a Subsequent Arrest Unlawful
Even assuming that Sergeant Phariss qualified as a “traffic
officer” and that his traveling in an unmarked vehicle failed to
comply with the directive of section 40800, the violation would
not have invalidated Dyer’s arrest.
Normally, the issue of what consequence to attach to a
violation of a statute would depend on whether we interpreted
the enactment as “directory” or “mandatory.” (See, e.g., Cox v.
California Highway Patrol (1997) 51 Cal.App.4th 1580, 1586-
1587.) That inquiry is unnecessary here, however, because the
12
Legislature has clearly spelled out what sanctions should follow
from a violation of section 40800.
Former section 40804 provided, in relevant part, “(a) In
any prosecution under this code upon a charge involving the
speed of a vehicle, any officer or other person shall be
incompetent as a witness if the testimony is based upon or
obtained from or by the maintenance or use of a speed trap. [¶]
(b) Every officer arresting, or participating or assisting in
the arrest of, a person so charged while on duty for the
exclusive or main purpose of enforcing the provisions of
Divisions 10 and 11 is incompetent as a witness if at the time
of such arrest he was not wearing a distinctive uniform, or was
using a motor vehicle not painted the distinctive color
specified by the commissioner.”5 (Stats. 1978, ch. 84, § 1,
p. 219, italics added.)
Likewise, section 40805 of the speed trap law provides:
“Every court shall be without jurisdiction to render a judgment
of conviction against any person for a violation of this code
involving the speed of a vehicle if the court admits any
evidence or testimony secured in violation of, or which is
inadmissible under this article.” (Italics added.)
The import of these sections is unmistakable. In any
prosecution of a person charged with an offense “involving the
5 Section 40804 was rewritten in 2007, after the proceedings in
this case. The amendments did not affect the substance of the
statute discussed here. (See Stats. 2007, ch. 682, § 19.)
13
speed of a vehicle,” the testimony of the arresting officer is
inadmissible unless that officer was in uniform and driving a
marked patrol car. The Legislature has thus created a specific
and limited remedy for a violation of section 40800--the
exclusion of the noncomplying officer’s testimony in a
prosecution for speed-related offenses. These sanctions
further the chief goal of speed trap legislation, i.e., to
restrict clandestine enforcement of the speed laws by officers
not clearly identified as law enforcement personnel.
The offense of driving under the influence does not
“involve the speed of a vehicle” as defined in section 40805.
(See Hardacre, supra, 116 Cal.App.4th at p. 1299.) Thus, where
the driver is detained or arrested on a charge of DUI, the
exclusionary provisions of sections 40804 and 40805 are
inapplicable. (Hardacre, at p. 1299.)
The case of People v. Tuck (1977) 75 Cal.App.3d 639 (Tuck)
illustrates this point. There, Tuck was a passenger in a car
pulled over for speeding by two plainclothes officers traveling
in an unmarked vehicle. The officers found contraband in the
vehicle and Tuck was later convicted of its possession. On
appeal, Tuck claimed the trial court should have granted his
motion to suppress the evidence on the ground that the officers’
violation of section 40800 rendered the vehicle stop illegal.
(Tuck, at pp. 642-643.)
The appellate court disagreed. It first pointed out, as we
just did, that the statute only applies to traffic officers
14
whose main duties were traffic enforcement. Secondly, section
40800 does not prohibit an officer in an unmarked patrol car
from detaining a vehicle where he has reasonable cause to
believe the driver has committed a traffic offense; rather, it
simply renders inadmissible the officer’s testimony in a
prosecution for a speed-related violation. (Tuck, supra,
75 Cal.App.3d at pp. 643-644.) Since Tuck was not prosecuted
for a speed offense, the conviction was affirmed. (Ibid.)
Tuck’s analysis applies here. Since the Legislature has
authorized no sanction for section 40800 violations other than
as set forth in sections 40804 and 40805, the trial court erred
in fashioning its own remedy by declaring the arrest unlawful.6
(See People ex rel. Van De Kamp v. American Art Enterprises,
Inc. (1983) 33 Cal.3d 328, 333.) “[I]t is the role of the
judiciary to simply ascertain and declare what is in terms or in
substance contained in the statute, not to insert what has been
omitted or omit what has been included. In other words, the
courts ‘may not, under the guise of construction, rewrite the
6 We are unable to discern the basis for Dyer’s and the trial
court’s fixation on Mercer, supra, 53 Cal.3d 753. Mercer held
merely that the Vehicle Code and Penal Code statutes as then
written rendered unlawful the arrest of a person for drunk
driving unless the arresting officer actually saw the volitional
movement of the vehicle--regardless of whether the driver could
be convicted in a criminal court of drunk driving. (Mercer, at
pp. 757-758, 768-769.) Our analysis, like that in Mercer, rests
solely on statutory construction. Because the sanctions for a
section 40800 violation are expressly set forth in the Vehicle
Code, there is no need to resort to criminal case law regarding
suppression of evidence.
15
law or give the words an effect different from the plain and
direct import of the terms used.’” (People v. Massicot (2002)
97 Cal.App.4th 920, 925.)
C. Penal Code Section 836
Relying on Penal Code section 836, Dyer claims that his
arrest by Deputy Griggs was unlawful because only Sergeant
Phariss, not Griggs, observed the conduct that formed the basis
for the arrest, i.e., drunk driving.
Penal Code section 836 provides that a peace officer may
make an arrest without a warrant whenever he has “probable cause
to believe that the person to be arrested has committed a public
offense in the officer’s presence.” (Pen. Code, § 836, subd.
(a)(1), italics added.) Dyer claims the judgment should be
affirmed on the alternative ground that the arresting officer,
Deputy Griggs, did not personally observe him committing a
misdemeanor DUI.
The argument lacks merit.7 The California Supreme Court
case of Freeman v. Dept. Motor Vehicles (1969) 70 Cal.2d 235
(Freeman) is on point and dispositive. In Freeman, Deputy
Sheriff Fowler observed Freeman driving in an apparent state of
intoxication and stopped his vehicle. He then summoned the
assistance of Highway Patrol Officer Byrd, who made the arrest.
7 Although the trial court never reached this contention
because it granted the writ on a different ground, we will
resolve it, since it raises a pure question of law under an
undisputed set of facts.
16
When the defendant refused to submit to a chemical sobriety
test, his license was suspended by the DMV. (Id. at pp. 235-
236.)
Freeman challenged the license suspension on the ground
that his arrest was unlawful because Officer Byrd did not see
him commit the misdemeanor of drunk driving. The state Supreme
Court framed the question as follows: “If a peace officer
‘stops’ a motor vehicle driver for an alleged misdemeanor
traffic offense committed in his presence, may a valid arrest be
made by another peace officer who was summoned by the first
peace officer but did not see the driver commit the alleged
offense?” (Freeman, supra, 70 Cal.2d at pp. 236-237.)
The court answered this question affirmatively, stating in
part: “Officer Byrd was not the sole arresting officer. Deputy
Sheriff Fowler, by ‘stopping’ plaintiff for the alleged offense
and detaining him pending arrival of an officer of the highway
patrol, initiated, and thereby participated in, the arrest.
(See Pen. Code, §§ 834, 835.) Deputy Sheriff Fowler did not
himself complete the arrest, but it was completed by a person he
had summoned to aid him in making the arrest, as he was entitled
to do under section 839 of the Penal Code. That section reads:
‘Any person making an arrest may orally summon as many persons
as he deems necessary to aid him therein.’” (Freeman, supra,
70 Cal.2d at p. 237, fn. omitted, italics added.) Inasmuch as
Deputy Sheriff Fowler personally observed the conduct and
related his observations to Highway Patrol Officer Byrd, who
17
assisted Fowler by making the arrest, the court held that the
requirements of Penal Code section 836 were satisfied.
(Freeman, at pp. 237-238.)
The actions of Sergeant Phariss and Deputy Griggs were
precisely analogous to those of Deputy Sheriff Fowler and
Highway Patrol Officer Byrd in Freeman. After observing Dyer’s
erratic driving, Phariss summoned Griggs to assist him with the
traffic stop. Although it was Griggs who formally placed Dyer
under arrest, both officers participated actively therein.
Where one officer has reasonable suspicion, based on
personal observation, that a suspect may be driving while
intoxicated, he may summon another officer to assist him in
making the arrest. (Pen. Code, § 839.) Because both officers
participated in arresting Dyer for DUI, his arrest complied with
Penal Code section 836. (See also Johanson v. Department of
Motor Vehicles (1995) 36 Cal.App.4th 1209, 1216-1217 [where
parking attendant could have made a citizen’s arrest for DUI,
licensee’s subsequent arrest by an officer he summoned did not
violate Pen. Code, § 836].)
We reject Dyer’s argument that the later enactment of
Vehicle Code section 40300.5 rendered Freeman obsolete as
authority. That section merely provides exceptions to the
requirement that misdemeanor drunk driving must occur in the
arresting officer’s presence.8 It does not vitiate Freeman’s
8 Vehicle Code section 40300.5 provides that a peace officer
may, notwithstanding the “presence” requirement of Penal Code
18
conclusion that Penal Code section 836 is not violated when the
officer who observes drunk driving behavior summons another to
assist him in making the arrest.
III. Whether Dyer Was Driving with a BAC of 0.08 Percent or Above
As a final ground for affirmance, Dyer contends there was
no substantial evidence that he drove with a BAC level of at
least 0.08 percent. Acknowledging that the trial court made no
finding on this issue, on appeal Dyer relies on the doctrine
that a judgment will be affirmed if correct on any ground,
regardless of the reasons the trial court advanced to support
its ruling.
The record shows that Dyer performed extremely poorly on
the field sobriety tests. Only after several attempts did he
muster enough breath to record a reading on the mouthpiece of
the PAS (preliminary alcohol screening) device, which was an
“inconclusive” 0.072 percent BAC. Two Intoxilyzer tests
administered 30 minutes after his arrest registered a BAC
reading of 0.11 percent, well over the legal limit.
The administrative hearing officer found, based on the
evidence, that Dyer drove with a BAC of at least 0.08 percent.
On a petition for administrative mandate, the trial court was
required to exercise its independent judgment to determine
section 836, make a warrantless drunk driving arrest under
certain exigent circumstances. Because we uphold the arrest on
other grounds, we find it unnecessary to determine whether the
instant arrest fell within any of these exceptions.
19
whether this finding was supported “‘by the weight of the
evidence.’” (Ocheltree, supra, 102 Cal.App.4th at p. 1017.)
The appellate court reviews the trial court’s determination
under the substantial evidence test. (Coombs, supra,
1 Cal.App.4th at p. 576.)
Owing to its erroneous legal conclusion that the arrest of
Dyer was unlawful, the trial court failed to decide whether the
weight of the evidence supported the administrative hearing
officer’s finding that Dyer drove with a BAC in excess of the
legal limit. Because the trial court failed to perform this
essential function, it is impossible to review its determination
for substantial evidence and the matter must be remanded for a
new hearing. (Barber v. Long Beach Civil Service Com. (1996)
45 Cal.App.4th 652, 659-660.) “A trial court abuses its
discretion when it applies the wrong legal standards applicable
to the issue at hand.” (Paterno v. State of California (1999)
74 Cal.App.4th 68, 85.) Where the trial court decides the case
by employing an incorrect legal analysis, reversal is required
regardless of whether substantial evidence supports the
judgment. (See Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429,
436.)
DISPOSITION
The judgment is reversed and the cause is remanded to the
trial court for further proceedings consistent with the views
20
stated herein. The DMV shall recover its costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1).) (CERTIFIED FOR
PUBLICATION.)
BUTZ , J.
We concur:
RAYE , Acting P.J.
MORRISON , J.

Since 1923, California has outlawed the police tactics upon which many other states rely to conduct speed traps. One key provision of this statute prohibits traffic police from using any vehicle not distinctively marked. In most cases, this means the traditional black and white design. In her ruling last week, Justice M. Kathleen Butz cited a 1991 decision explaining the legislature was "motivated by a desire to eliminate clandestine methods of traffic enforcement designed to augment local revenues through exorbitant fines."


California DUI lawyers note a problem is that the court wrongly declares that 40800 is in a chapter called "Speed Traps".

This is not so, 40800 is found in a chapter labeled "Illegal Evidence" and thereafter each sub-chapter is labeled appropriately. The sub-chapter of 40800 was in fact specifically titled by the legislators as "Vehicle and Uniform Used by Officers".

This is goes directly against the Dyer's Court's holding, they say one thing and do the opposite:


“[I]t is the role of the judiciary to simply ascertain and declare what is in terms or in substance contained in the statute, not to insert what has been
omitted or omit what has been included. In other words, the
courts ‘may not, under the guise of construction, rewrite the
law or give the words an effect different from the plain and
direct import of the terms used.’” (People v. Massicot (2002)
97 Cal.App.4th 920, 925.)

The legislature specifically labeled each of these Titles and Subtitles in accordance with their meaning. And so while you must show that the officer must be on for the exclusive purpose of enforcing the traffic laws, one can viably argue the claim of the court that the law is limited to speed violations - when not in proper uniform.

California Criminal Defense Lawyer may continue to pursue any argument that fits under those facts when cop not in uniform or marked unit - even for non-speeding offenses.

San Diego DUI defense attorney news

www.SanDiegoDUI.com

May 25, 2008 10:30 a.m.

DUI Car and Truck Ignition InterLocks Could be Coming to California

A vote on DUI ignition interlock devices goes before the Assembly in Sacramento this week. The special DUI breathalyzers are nothing new in other states, but if passed this week in the Assembly, and approved by the Governor, it's a first for California.

The executive director of California's Mothers Against Drunk Driving says there are too many DUI related accidents resulting in death: "It is preventable, we can use research and technology to make this work, and that's the logic behind it," San Diego DUI lawyers hear.

However, The American Beverage Institute views the DUI locks much differently.

"Once these are in all cars they're going to be set much, much lower than .08, so it is going to effectively eliminate somebody's ability to have a glass of wine with dinner, or a beer at a ball game and then drive home," said Sarah Longwell, managing director of the ABI.

Assembly Bill 2784 would require all convicted California DUI - drunk drivers, including those facing their first DUI conviction, to install an interlock on their vehicle for a specified period of time in order to have their license reinstated.

www.SanDiegoDUIhelp.com

May 24, 2008

Will convicted California DUI - drunk drivers be forced to pass an alcohol breath test before starting their cars?

For more than 20 years, special California DUI breathalyzers -- hard-wired to a car's ignition to prevent the vehicle from starting if alcohol is detected -- have been installed under judicial order in the cars of repeat, or especially egregious, alcohol offenders. But in the last few years, six states have passed laws that require the devices, called ignition interlocks, in the cars of everyone convicted of California DUI - driving under the influence.

California is considering making interlocks mandatory for all California DUI offenders. A bill could pass the state Assembly next week. And a group of automakers has launched a major project with the federal government to develop advanced technologies that could someday make alcohol detectors a standard feature in all cars.

Advocates of interlocks, particularly Mothers Against Drunk Driving, say the devices could reduce the nation's estimated 17,000 annual alcohol-related automotive fatalities, and thereby ease the burden that California DUI drunk driving places on the nation's criminal justice system.

Critics, led by the American Beverage Institute and lawyers specializing in California DUI defense, contend that ignition interlocks aren't as effective as claimed and are a burdensome invasion of privacy.

This month, the beverage institute ran full-page ads in USA Today and the New York Times showing mug shots of celebrities convicted of drunk driving, including Lindsay Lohan and Kiefer Sutherland, saying that interlocks should be used only for "hard-core drunk drivers."

Her group worries that laws requiring the devices for all convicted California DUI drunk drivers would discourage consumers from having a drink at dinner, costing the restaurant industry untold sums of money.

The Driver Alcohol Detection System for Safety, a five-year, $10-million project funded by the National Highway Traffic Safety Administration and automakers including Toyota Motor Corp. and General Motors Corp., said the research could very well mean alcohol detectors will become a standard option in every car.

No country has a universal ignition interlock mandate, and Sweden, the only one to attempt such a law, seems unlikely to get permission from the European Union.

Instead, as-yet-undeveloped technologies, which could use retina scans or skin spectrometry, would be the kind of thing carmakers install as a non-mandated safety feature, like side air bags, and would be unnoticeable to the driver. However, once such a device is installed, its use probably would not be optional.

In the past, the public has been resistant to laws that require some safety equipment. In 1973, NHTSA promulgated a rule requiring the use of devices that would prevent cars from starting if the driver's seat belt was not engaged. It was revoked amid public protest.

Last year Nissan Motor Co. revealed a concept car that incorporated an arrangement of alcohol sensors, including one built into the gearshift.

At the moment, that's far from the case. As of August, there were 134,000 ignition interlocks employed in 45 states, a number that's grown substantially since 2005, when New Mexico passed the first law mandating interlocks for first offenders.

The devices, manufactured by fewer than a dozen companies, are installed at the user's expense and must be breathed into before the car can start.

The user leases the device for a monthly fee, typically about $65, and must take it to a technician every two months to get it recalibrated. The blood-alcohol sensitivity is generally set around 0.03%. That's well below the legal limit of 0.08%; convicted drunk drivers are prohibited from driving with any alcohol in their blood.

If users don't come in for device calibration, their car will eventually cease to start, even if they blow into the machine stone sober, said Corey Hickok, owner of ACS Interlock, a Santa Ana business that services the interlocks for about 300 customers every two months. And newer generations of interlocks prevent boozing on the road (or keeping the car idling in a bar parking lot) by requiring California DUI probationers to blow into the device at random times.

Smart Start Inc., which leases 30,000 interlock devices at a time, had a new model that takes pictures of the driver breathing into the machine, saving the information on a chip, to prevent cheating. He estimates that the number of interlocks in the country could grow to 750,000 should all 50 states adopt laws requiring them for all DUI offenders.

California's proposed California DUI law, which unanimously passed the Assembly Appropriations Committee on Thursday, is aimed at reducing the 1,300 alcohol-related fatalities on the state's roads each year. It's considered likely to pass the full chamber next week.

Joshua Dale, executive director of the California DUI Lawyers Association, points out the statistics are far from clear on whether laws that require interlocks for first time California DUI offenders actually reduce fatalities. "We're probably going to see that cellphones cause more deaths than drunk drivers," the prominent California DUI lawyer maintains.

www.sandiegodui.com/penalties

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N THE COURT OF APPEALS OF IOWA
No. 7-873 / 07-0824
Filed January 16, 2008
STATE OF IOWA,
Plaintiff-Appellant,
vs.
RICHARD STEVEN WILKES,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Cass County, Timothy O’Grady, Judge.
In this discretionary appeal, the State seeks to reverse the district court’s ruling suppressing evidence. AFFIRMED.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, and Daniel Feistner, County Attorney, for appellant.
Leslie G. Peters, Avoca, for appellee.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
2
EISENHAUER, J.
The State appeals from the trial court’s suppression of sobriety tests conducted by Atlantic police officer Paul Wood on defendant Richard Steven Wilkes. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Around midnight on January 11, 2007, Officer Wood was driving his police car on a routine patrol accompanied by a reserve officer. While passing a former quarry, he saw a pickup truck parked in the quarry’s parking area. The former quarry is now owned by the city of Atlantic. The pickup was facing towards the quarry with its engine running and its lights on. Officer Wood turned into the only entrance/exit for the quarry and, without activating his lights or using his siren, drove to a point ten to fifteen feet behind the pickup and parked while leaving his headlights focused on the truck. Officer Wood got out and approached the truck on the driver’s side while the reserve officer approached from the passenger side. Wilkes was the driver and he had a female passenger.
When Officer Wood reached the driver’s door, Wilkes rolled down his window. Officer Wood asked Wilkes what was going on and Wilkes replied he was looking for a fishing spot. Officer Wood asked for driver’s licenses from both parties, returned to his car and ran them through dispatch.
At some point, Officer Wood noticed a strong odor of alcohol coming from Wilkes and when he returned with the licenses he asked Wilkes to get out of the truck to perform field sobriety tests. Eventually, Wilkes was arrested and charged with operating while intoxicated, first offense, in violation of Iowa Code section 321J.2 (Iowa 2007). Wilkes filed a pre-trial motion to suppress evidence
3
gathered by Officer Wood and the trial court granted his motion. In May 2007, the State applied for discretionary review, which was granted.
II. STANDARD OF REVIEW.
Because this case concerns the constitutional right to be free of unreasonable searches and seizures; our review of the district court’s suppression ruling is de novo. State v. Kreps, 650 N.W.2d 636, 640 (Iowa 2002). We independently evaluate the totality of the circumstances shown by the entire record. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).
III. LEGALITY OF SEIZURE.
Police officers are allowed to stop and briefly detain “an individual or vehicle for investigatory purposes based on a reasonable suspicion that a criminal act has occurred or is occurring.” Kreps, 650 N.W.2d at 641. To meet the reasonable cause standard the police officer “must be able to articulate something more than an inchoate and unparticularized suspicion or hunch.” State v. Haviland, 532 N.W.2d 767, 768 (Iowa 1995).
Officer Wood testified he was approaching the truck to see what was going on but he had no suspicion of any wrongdoing. Instead, he was doing a welfare check and was “going to make sure everything was okay with the people in the vehicle.” There was no evidence the quarry was a high crime area and there was no evidence of recent criminal activities at the quarry itself. The circumstances here do not support a valid investigatory stop under Haviland: “a lone vehicle idling in a darkened parking lot at 12:30 a.m. does not, without more, support a reasonable suspicion of criminal activity.” Id. at 769.
4
However, police questioning by itself is generally not a seizure. Reinders, 690 N.W.2d at 82. Rather, “[a] seizure occurs when an officer by means of physical force or show of authority in some way restrains the liberty of a citizen.” State v. Pickett, 573 N.W.2d 245, 247 (Iowa 1997). Courts examine whether the circumstances of the encounter are so intimidating that a reasonable person would have believed he was not free to leave. Reinders, 690 N.W.2d at 82.
We agree with the district court’s conclusion “the more credible evidence shows Wilkes was seized within the meaning of the Fourth Amendment.” Officer Wood parked his marked patrol car ten to fifteen feet behind Wilkes’s truck and left his headlights shining directly on the truck. Officer Wood was in uniform as he approached the driver’s side of the truck and at the same time the reserve officer approached the passenger side of the truck. Under these circumstances a reasonable person would not have believed he was free to leave. See id.
The State argues Officer Wood’s seizure is valid because he was engaged in a “bona fide community caretaking activity justifying the intrusion.” See State v. Crawford, 659 N.W.2d 537, 543 (Iowa 2003). This exception has been applied where an officer stopped a car with a burned-out taillight; where an officer stopped a vehicle whose speeding posed a danger to park campers; where an officer helped with a flat tire; and where an officer opened a car door to check on a driver slumped over the wheel. Id. The intrusion here by Office Wood did not occur under similar circumstances and we agree with the district court:
There was no evidence that Wilkes needed assistance. His vehicle was running. His headlights were on. There was no evidence of a crash, a mechanical breakdown or some other problem. There were no emergency flashers in use. Unlike other caretaker cases, Wilkes was not slumped over or showing other signs of distress. No evidence was presented to show a factual basis for Wood’s
5
belief that Wilkes was in need of assistance. The community caretaking exception is not applicable.

May 23,2008

San Diego DUI lawyers warn: Attention all motorists. Consider curbing your need for speed this Memorial Day weekend as Solano roadways will be swarming with law enforcement officers on the lookout for traffic and California DUI offenders.

The California DUI California Highway Patrol announced this week that it will be patrolling en masse from 6 p.m. today through midnight Monday.

The CHP's focus - seat belt violators, speeders and motorists who drink and drive, California DUI lawyers understand.

Also on alert will be the Solano County AVOID Task Force, one of several throughout the Bay Area scheduled to host California DUI checkpoints and conduct California DUI strike forces.

The California DUI enforcement, California DUI attorneys said, is to detect and remove impaired drivers from the roadway.

Memorial Day is traditionally the start of the summer season and the end of the school year, California DUI officials said, factors which contribute to it being among the deadliest weekend holidays.

Which is why law enforcement agencies throughout the Bay Area will make every effort, officials said, to remove California DUI drivers from the roadway before they hurt or kill themselves, or worse, an innocent victim, California DUI lawyers are told.

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May 24, 2008

Shirley DUI case not to be dismissed by pretrial DUI motion:

Defensive tackle Jason Shirley, the Bengals' fifth-round draft pick, was not at the OTA practice Thursday. He was in Fresno County Superior Court, where his California DUI lawyer asked for his California DUI / Drunk Driving case to be dismissed on grounds the district attorney did not legally obtain Shirley’s medical records and are using them, San Diego DUI lawyers learned.

A judge denied the motion so a California DUI jury trial could start immediately. Shirley faces misdemeanor charges for California DUI - driving under the influence, driving with a blood-alcohol content of .08 or higher, hit-and-run driving and driving with a suspended license and expired registration for two separate incidents last fall, California DUI attorneys hear.

Bengals rookie, defensive tackle Jason Shirley, will likely stay in Fresno after his latest motion to have his case dismissed was rejected. Shirley will now face a jury trial with selection beginning Tuesday (government is off on Monday) at 9 a.m. in front of Judge Mark Snauffer at the Superior Court of Fresno County. Opening arguments open Wednesday and closing arguments could be heard as soon as Friday -- Shirley will miss three practices during that time.

Shirley faces a DUI, a hit-and-run and driving with a suspended license. It would seem that Shirley, if convicted of all charges, could perhap face up alot of time in jail. At the lowest, he could pay a lot of money and face probation, etc.

The maximum penalty under California law for the first offense of a DUI is six months in jail, $1,000 fine plus substantial penalty assessments set by statute, restitution fines, and 120-day suspension of driver's license. A hit-and-run (only property damage, no injuries) carries a maximum of one-year in jail and could be as high as $10,000. Driving under a suspended license, Shirley could face up to five days in county jail. If a second offense is found guilty, Shirley could face up to a year in jail.

SanDiegoDUI.com

DWI criminal defense attorney news

May 21, 2008

Habitual offender caught driving has 22 convictions, 8 for DWI

John Morgan's past driving convictions were unveiled during his probable cause hearing Tuesday and include a total of 22 convictions, eight of them for drunk driving / DWI / driving while intoxicated.

John Joseph Morgan, 50, of 188 Madison St. waived his probable cause hearing in front of Judge Stephen Morrison in Portsmouth District Court and through a public defender had his felony habitual offender case moved to Rockingham County Superior Court for review in front of a grand jury.

According to a police affidavit, Morgan was driving down Islington Street on May 6 when police noticed a defective headlight on the vehicle he was operating.

After pulling Morgan's vehicle over police ran a check on his criminal history, which revealed he was certified as a habitual offender and was driving without a valid driver's license.

Morgan was then placed under dwi arrest, after which police discovered a non-driver's identification in his wallet that confirmed his identity.

Arraigned via video on May 8 from the Rockingham County House of Corrections, Judge Sawako Gardner noted Morgan's seven previous dwi / driving while intoxicated convictions from 1976, 1979, 1986, 1988, 1991, 1999 and 2001.

During Tuesday's hearing, Morgan's record revealed that he in fact had eight convictions for drunk driving / driving while intoxicated and 14 for operating after suspension. Bail remained set at $500 cash and Morgan was taken back to the county jail.




A man has been charged in a drunken driving incident in which he attempted to flee police and ran over a patrolwoman in the process.

Early Sunday morning, a St. Anthony police officer attempted to pull over a vehicle driving erratically, swerving, and striking the curb. Despite the fact that the squad car’s lights were flashing, the driver did not pull over immediately, instead driving about one block and pulling into an apartment building on McKinley Ave.

According to the criminal complaint, the driver of the vehicle, 22-year-old Brian Thomas Johnson, had very red eyes, his breath reeked of alcohol, and his speech was slurred.

When asked to perform some field sobriety tests, Johnson told the officer, “Why are you doing this to me? I’m a good guy and I made it home so just let me go.” He became very agitated and repeated that the officer just needed to let him go.

Police say Johnson then lunged for his vehicle. The officer tried to stop him, but he was able to put the key in the ignition and start the vehicle. Johnson then put the vehicle in reverse, forcing the officer to jump into the vehicle to avoid being hit by the open door. She fell backward into the vehicle.

Johnson then accelerated and sped away, hitting a curb and causing the officer to be thrown from the vehicle.

The officer landed on the pavement, hitting her head and right shoulder. Johnson then ran over her right forearm, and the officer was dragged by the knees for a short distance.

Johnson left the parking lot and headed eastbound on 37th Ave. before crashing into another vehicle and coming to a stop. He had to be forcibly restrained.

The officer suffered numerous injuries to her head, knee, elbow, forearm, hands and shoulders in the incident.

A toxicology sample was taken from Johnson and submitted for testing.

He has one prior impaired driving conviction. In 2004, Johnson was convicted of fourth degree DUI.

Johnson is now charged with fleeing a peace officer in a motor vehicle, a felony; obstructing legal process or arrest, a felony; and third degree DWI, a gross misdemeanor. If convicted, Johnson could face a maximum penalty of 9 years in prison, and/or an $18,000 fine.

DWI defense lawyers wonder.

San Diego California DUI attorney news

May 20, 2008

Over a year after a California DUI - drunk driver crashed into Faith Hinkley's car on her birthday and took her husband's life, she looked the other driver in the face for the first time Monday in a San Joaquin County courtroom. Hinkley told Lodi resident Dale Eisner, 51, about the pain of losing her husband of one year, Pierre Ackermann, and having such major head injuries that she spent months in the hospital.

She heard Eisner admit to driving with a blood-alcohol content of 0.23 percent, nearly three times the legal limit, that Dec. 22, 2006, night. Just six months earlier, he had been convicted of California DUI - driving under the influence.

And then for the California DUI, shortly before a judge sentenced Eisner to more than 10 years in state prison, Hinkley heard from Eisner himself.

"To the family of the Ackermanns and the Hinkleys, I am very, very sorry," he said. "I know this caused them a lot of pain."

Then he admitted something else: "I didn't drink for 22 years. I know I am an alcoholic. I drank for one year, and all this happened," Eisner said, his voice breaking.

For Hinkley, who at one point after the crash didn't even recognize her father or know the color red, it was good to hear Eisner take responsibility.

"To see the bailiff take him out of the courtroom felt good. But I'm not happy," she said.

On the night their paths crossed, Eisner was driving west along Highway 12 in his Ford F-150 pick-up truck. He came upon a slow-moving car and began to pass it, crossing the double yellow line. Eisner's truck slammed head-on into the Saturn that Ackermann was driving.

Ackermann was flown by medical helicopter to a trauma center but died of his injuries four hours later. Hinkley, his wife of one year, had critical injuries that soon racked up huge hospital bills — two helicopter rides totaled about $29,000, and each day in the intensive care unit cost $10,000, according to her parents. Months of rehabilitation followed, California DUI lawyers learned.

Hinkley's father, Dick Hinkley of Stockton, told Judge Terrence Van Oss about the hours after the crash, when he had to call Ackermann's father in South Africa to tell him that the son who bore his name was dead, per California DUI attorneys.


www.sandiegodui.com

Nothing is more challenging for San Diego DUI lawyers when San Diego California DUI judges refuse to apply the proper law to the facts. It's refreshing to see a Florida judge who understands the law.

May 19, 2008

14 Fla. L. Weekly Supp. 1151a
Criminal law -- Search and seizure -- Investigatory stop -- Reasonable suspicion -- Spinning tires in parking lot did not, standing alone, create reasonable suspicion to initiate investigatory stop -- Motion to suppress granted

STATE OF FLORIDA vs. ZACHARY JOHNSEN, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Criminal Division. Case No. 502007CT002699AXX SB. October 16, 2007. Reginald R. Corlew, Judge. Counsel: Michael Braxton, Miami.


ORDER GRANTING MOTION TO SUPPRESS
THIS CAUSE came before the Honorable Reginald R. Corlew, County Court Judge, on October 5, 2007. Officer Crawford testified on behalf of the State and was crossed examined by the defense counsel. Following closing arguments, the Court took the issue under advisement and reserved ruling.


FACTS
On February 1, 2007, Officer Crawford was on patrol and he observed a pick-up truck, driven by Defendant, in a bar parking lot with the tires spinning. The Officer also observed the Defendant spin his tires leaving the parking lot onto Military Trail. The Officer then followed the Defendant for about three quarters of a mile on Military Trail traveling at a high rate of speed. The Officer pulled Defendant over and conducted a DUI investigation. The defense counsel filed a motion to suppress all evidence resulting from the investigation on the basis that the stop was invalid.


LEGAL ANALYSIS
Did Officer Crawford have a well founded or reasonable suspicion to initiate a stop after he observed Defendant spinning his tires in the parking lot? This Court concludes that the Officer lacked reasonable suspicion to stop the vehicle. A police officer may conduct an investigatory stop on less than probable cause if the police officer has a reasonable, articulable suspicion that a person has committed, is committing, or is about to commit a crime. Popple v. State, 626 So.2d 185 (Fla. 1993). An investigatory stop requires a well founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop. Id. A founded suspicion is a belief which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge. Tamer v. State, 463 So.2d at 1239.

In the subject case, the State argues that the stop was valid because Defendant was driving his vehicle in an unusual manner and cites Finizio v. State, 800 So.2d 347 (Fla. 4th DCA 2001). In Finizio, the motorist, while pulling into a gas station, hit a curb and then sped up rapidly to a pay phone area and came to a quick stop. The court in Finizio held the motorist was driving his vehicle in an unusual manner and police officer had reasonable suspicion to stop the vehicle.

This Court is not persuaded by Finizio that Defendant was driving his vehicle in an unusual manner. The case that is directly on point is Donaldson v. State, 803 So.2d 856 (Fla. 4th DCA 2002). In Donaldson, the motorist was observed by an officer squealing his tires in a parking lot. The court held that this was not unusual driving and that the stop was invalid. The court further reasoned that squealing tires alone does not constitute a traffic infraction nor does it represent a danger to public safety.

In the subject case, when Officer Crawford was in pursuit of the Defendant, there was no radar, pace clock, visual estimation of speed, or any other method used to measure speed, which would warrant a stop. Moreover, the Officer did not observe any weaving, drifting, or swerving by Defendant prior to the stop. Officer Crawford testified that the sole reason for the stop was the spinning of the tires in the parking lot. The State argues that the stop was valid because the spinning of the tires was in violation of F.S. 316.154 “Improper Start” which provides, “No person shall start a vehicle which is stopped, standing, or parked, unless and until such movement can be made with reasonable safety.” In applying this statute, the State has failed to prove that the spinning of the tires alone was without reasonable safety. There was no evidence that at the time Defendant's tires were spinning there were other cars in the parking lot that would have been endangered or that there was a disregard for the safety of others.

Although, the State maintains that the spinning of the tires shows a reckless disregard for public safety they did not articulate specifically whose safety was at risk in the instant case. Therefore, the Court does not believe that spinning the tires alone constitutes a danger to public safety. To that end, Officer Crawford did not have probable cause or reasonable suspicion to initiate an investigatory stop. For the reasons stated herein, the Motion to Suppress is granted.

ORDERED AND ADJUDGED that the Defendant's Motion to Suppress is hereby GRANTED.




THE STATE OF NEW HAMPSHIRE v. ERNEST P. PEPIN
THE SUPREME COURT OF NEW HAMPSHIRE

Hillsborough- northern judicial district

No. 2006-458

Argued: March 21, 2007
Opinion Issued: May 1, 2007

Kelly A. Ayotte, attorney general (Benjamin A. Agati, attorney, on the
brief and orally), for the State.

James T. Brooks, assistant appellate defender, of Concord, on the brief
and orally, for the defendant.

DALIANIS, J. Following a trial on stipulated facts in the Superior
Court (Barry, J.), the defendant, Ernest P. Pepin, appeals his
conviction for operating a motor vehicle after having been certified
as a habitual offender. See RSA 262:23 (2004) (amended 2006). The
sole issue on appeal is whether the trial court erred in denying the
defendant's motion to suppress. We reverse and remand.

The trial court found the following: The defendant was stopped
shortly after midnight on October 6, 2005, by Officer Eric Desmarais
of the Manchester Police Department who heard the tires of the
defendant's vehicle "squeal." Desmarais' police cruiser was
positioned immediately behind the defendant at a red light in a left
turn lane. When the light changed, Desmarais heard the defendant's
tires squeal, a squeal that was more than a "chirp" which caught
Desmarais' attention. Desmarais testified that it was a "club" night
in Manchester and the road conditions were dry. He activated his
blue lights and pulled the defendant over. The defendant did not
appear intoxicated, but in doing a license check, Desmarais learned
that the defendant was a habitual offender.

The defendant filed a motion to suppress, contending that the stop
of his vehicle violated Part I, Article 19 of the New Hampshire
Constitution and the Fourth and Fourteenth Amendments of the United
States Constitution. The trial court denied the motion, finding that
Desmarais was justified in stopping the defendant's vehicle because
he had a reasonable suspicion that the defendant had committed a
crime.

On appeal, the defendant argues that he was subject to an unlawful
seizure because Desmarais lacked reasonable suspicion when he
ordered him to stop. Accordingly, the defendant argues that the
trial court erred in denying his motion to suppress.

Our review of the trial court's motion to suppress is de novo,
except as to any controlling facts determined by the trial court in
the first instance. State v. Gubitosi, 152 N.H. 673, 676 (2005). We
first address the issues under the State Constitution and cite
federal opinions for guidance only. State v. Ball, 124 N.H. 226,
231-33 (1983).

For a police officer to undertake an investigatory stop, the officer
must have a reasonable suspicion - based upon specific, articulable
facts taken together with rational inferences from those facts -
that the person stopped has been, is, or is about to be, engaged in
criminal activity. State v. Beauchesne, 151 N.H. 803, 809 (2005). In
deciding whether the officer conducted a lawful investigatory stop,
we conduct a two-step inquiry: first, we determine when the
defendant was seized; second, we determine whether, at that time,
the officer possessed a reasonable suspicion that the defendant was,
had been or was about to be engaged in criminal activity. Id.

Neither party disputes that the defendant was seized when Desmarais
pulled the vehicle over. Therefore, we turn to the second inquiry:
whether Desmarais possessed a reasonable suspicion that the
defendant was, had been or was about to be engaged in criminal
activity. Id. To determine the sufficiency of an officer's
suspicion, we consider the articulable facts in light of all
surrounding circumstances, keeping in mind that a trained officer
may make inferences and draw conclusions from conduct that may seem
unremarkable to an untrained observer. State v. McKinnon-Andrews,
151 N.H. 19, 26 (2004). A reasonable suspicion must be more than a
hunch. Id. The articulated facts must lead somewhere specific, not
just to a general sense that this is probably a bad person who may
have committed some kind of crime. Id. The officer's suspicion must
have a particularized and objective basis in order to warrant that
intrusion into protected privacy rights. Id.

The State argues that Desmarais had reasonable suspicion of a
violation of the road racing statute, RSA 265:75, I (2004), which
provides:

No person shall drive any vehicle on a highway in any race, speed
competition or contest, drag race or acceleration contest, test of
physical endurance, exhibition of speed or acceleration, or for the
purpose of making a speed record; and no person shall in any manner
participate in any such race, competition, contest, test or exhibition.
The State argues that Desmarais suspected the defendant of engaging
in an "exhibition of speed or acceleration. " RSA 265:75. Courts
construing similar statutory language have found that "[m]oving from
a stopped position with the tires spinning suggests a vehicle is
accelerating" and thus provides reasonable suspicion of an
"exhibition of acceleration. " Singleton v. State, 91 S.W.3d 342, 346
(Tex. App. 2002) (citing cases). However, such suspicion is
generally supported by other facts in addition to squealing tires,
such as an observation that the engine revved and the car traveled
"at a high rate of speed," Jones v. State, 579 So. 2d 66, 68-69
(Ala. Crim. App. 1991); the car went forward fifty yards, stopped,
backed up, then accelerated forward, causing tires to squeal, spin
and throw gravel, State v. Whitehurst, 772 P.2d 1251, 1253 (Kan. Ct.
App. 1989); or the car squealed and rapidly accelerated in reverse,
creating "an unusual amount of dust," State v. Ova, 539 N.W.2d 857,
860 (N.D. 1995).

In Singleton, a driver squealed his tires while making a right turn.
Singleton, 91 S.W.3d at 346. The officer was behind him and pulled
him over for squealing his tires. Id. The court ruled that he lacked
reasonable suspicion to stop the vehicle for excessive acceleration.
Id. at 347. As the Singleton court put it, "Squealing of tires alone
suggests a sound and does not always indicate acceleration. " Id. at
346. It further concluded that "[a]t no point did [the officer]
testify that it appeared [the defendant] was accelerating through
the turn or that acceleration was the cause of the tires squealing .
. . . There were no other facts articulated by the officer to
suggest that the reason for the squealing of the tires was
acceleration. " Id.

In this case, too, the trial court did not find any fact to
establish that the squeal of the tires was an exhibition of speed or
acceleration. The trial court's characterization of the car as
"lurch[ing] forward" has no support in the record. Also, as in
Singleton, the officer in this case did not testify that the
defendant's speed increased after the squeal; in fact, he stated:
"[The driver] wouldn't have had time to even get up to speed." The
defendant complied almost instantly and pulled over "about a hundred
feet" from the intersection. Further, Desmarais did not observe any
erratic driving before he heard the squeal.

Thus, we hold that a brief squeal of tires, without more, does not
support a reasonable suspicion that the road racing statute had
been, was or was about to be violated. Singleton v. State, 91 S.W.3d
at 346; State v. Giger, 130 P.3d 149 (Kan. Ct. App. 2006) (table).

The State also argues that Desmarais had reasonable suspicion that
the defendant was driving while intoxicated in violation of RSA
265:82, I (2004), which provides in pertinent part:

No person shall drive or attempt to drive a vehicle upon any way:

(a) While such person is under the influence of intoxicating liquor
. . . .
Beyond the brief tire squeal, there was no erratic operation or
traffic violation to support reasonable suspicion of driving while
intoxicated. See State v. Smith, 154 N.H. 113, 116 (2006)
(reasonable suspicion and/or probable cause existed when officers
witnessed the defendant cross the yellow line, drive completely off
the road, run a stop sign, and nearly collide with an oncoming
vehicle). The only other facts upon which the State relies are that
it was a "club night" in Manchester and that the police are "always
looking for possible drunk drivers." The State argues, "[G]iven the
place and time of the defendant's behavior, [the officer's]
suspicions were reasonable that the defendant may have been driving
under the influence."

We have observed that: "Although a person's mere presence in a
high-crime area, even at a late hour, is not a sufficient basis,
standing alone, to justify a brief investigatory detention, the hour
and the character of the area may cast an individual's own conduct
in a more suspicious light." State v. Vadnais, 141 N.H. 68, 70-71
(1996). However, in analyzing facts that would support reasonable
articulable suspicion, it is the particular and not the general that
counts. Here, there was no evidence that the defendant had pulled
out of a club parking lot or that there were any clubs in the
immediate vicinity of the stop. Therefore, there is little reason
why the character of the area in this case should "cast [the
defendant's conduct] in a more suspicious light." Id. In the absence
of any additional specific facts, we hold that the brief squeal of
tires, even on "club night," did not give rise to reasonable
suspicion of driving while intoxicated.

Because we conclude that the stop violated the State Constitution,
we need not decide whether it also violated the Federal
Constitution.

Reversed and remanded.

BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred.

NH

www.sandiegodrunkdrivingattorney.net/blog

May 19, 2008

DRUNK DRIVING - GOVERNMENT RIGHT TO PRESENT RETROGRADE EXTRAPOLATION
EVIDENCE

People v. Warlick (Superior Court Appellate Division, San Diego,
3/11/08, JAD08-01) 08 C.D.O.S. 5908

DA had right to introduce evidence of "retrograde extrapolation" as circumstantial evidence to prove BA level was .08 at time defendant drove car. Baker v. Gourley
(2002) 98 Cal.App.4th 1263 does not prohibit People from proving .08
with such evidence. Baker involved admin per se laws and not criminal
proceeding.

DUI lawyers emphasize to ensure that officials scrupulously honor this right to decline field sobriety testing, it was established in Edwards v. Arizona, [451 U.S. 477 (1981) ], and Oregon v. Bradshaw, supra, the stringent rule that an accused who has invoked his Fifth Amendment right to assistance of counsel cannot be subject to official custodial interrogation unless and until the accused
(1) “initiates” further discussions relating to the investigation, and
(2) makes a knowing and intelligent waiver of the right to counsel under the [waiver] standard of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), and its progeny. See Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984).

See also www.sandiegodrunkdrivingattorney.net/articles.

San Diego California DUI attorney news

May 19, 2008

Sheriff's sergeant is hurt in Southern California DUI crash

A Los Angeles County sheriff's sergeant is in stable condition after his sport-utility vehicle was hit by a Southern California DUI drunk driver in Compton.

The Southern California DUI crash occurred about 3 a.m. Sunday as the sergeant was responding to a call about a stolen vehicle. He was at the intersection of Compton Boulevard and Santa Fe Avenue with his emergency lights and siren on. He had the right of way when he was hit, said sheriff's Sgt. Raul Regalado. The 25-year-old man who allegedly hit the sergeant's vehicle was treated at a hospital, released and then arrested on suspicion of a California DUI - drunk driving, Southern California DUI police said.

www.sandiegoduihelp.com

San Diego DUI attorney Rick Mueller sets forth California's Vehicle Code sections pertaining to refusal of a chemical test:

23612. (a) (1) (A) A person who drives a motor vehicle is deemed to
have given his or her consent to chemical testing of his or her
blood or breath for the purpose of determining the alcoholic content
of his or her blood, if lawfully arrested for an offense allegedly
committed in violation of Section 23140, 23152, or 23153. If a blood
or breath test, or both, are unavailable, then paragraph (2) of
subdivision (d) applies.
(B) A person who drives a motor vehicle is deemed to have given
his or her consent to chemical testing of his or her blood or urine
for the purpose of determining the drug content of his or her blood,
if lawfully arrested for an offense allegedly committed in violation
of Section 23140, 23152, or 23153.
(C) The testing shall be incidental to a lawful arrest and
administered at the direction of a peace officer having reasonable
cause to believe the person was driving a motor vehicle in violation
of Section 23140, 23152, or 23153.
(D) The person shall be told that his or her failure to submit to,
or the failure to complete, the required chemical testing will
result in a fine, mandatory imprisonment if the person is convicted
of a violation of Section 23152 or 23153, and (i) the suspension of
the person's privilege to operate a motor vehicle for a period of one
year, (ii) the revocation of the person's privilege to operate a
motor vehicle for a period of two years if the refusal occurs within
10 years of a separate violation of Section 23103 as specified in
Section 23103.5, or of Section 23140, 23152, or 23153, or of Section
191.5 or subdivision (a) of Section 192.5 of the Penal Code that
resulted in a conviction, or if the person's privilege to operate a
motor vehicle has been suspended or revoked pursuant to Section
13353, 13353.1, or 13353.2 for an offense that occurred on a separate
occasion, or (iii) the revocation of the person's privilege to
operate a motor vehicle for a period of three years if the refusal
occurs within 10 years of two or more separate violations of Section
23103 as specified in Section 23103.5, or of Section 23140, 23152, or
23153, or of Section 191.5 or subdivision (a) of Section 192.5 of
the Penal Code, or any combination thereof, that resulted in
convictions, or if the person's privilege to operate a motor vehicle
has been suspended or revoked two or more times pursuant to Section
13353, 13353.1, or 13353.2 for offenses that occurred on separate
occasions, or if there is any combination of those convictions or
administrative suspensions or revocations.
(2) (A) If the person is lawfully arrested for driving under the
influence of an alcoholic beverage, the person has the choice of
whether the test shall be of his or her blood or breath and the
officer shall advise the person that he or she has that choice. If
the person arrested either is incapable, or states that he or she is
incapable, of completing the chosen test, the person shall submit to
the remaining test. If a blood or breath test, or both, are
unavailable, then paragraph (2) of subdivision (d) applies.
(B) If the person is lawfully arrested for driving under the
influence of any drug or the combined influence of an alcoholic
beverage and any drug, the person has the choice of whether the test
shall be of his or her blood, breath, or urine, and the officer shall
advise the person that he or she has that choice.
(C) A person who chooses to submit to a breath test may also be
requested to submit to a blood or urine test if the officer has
reasonable cause to believe that the person was driving under the
influence of a drug or the combined influence of an alcoholic
beverage and a drug and if the officer has a clear indication that a
blood or urine test will reveal evidence of the person being under
the influence. The officer shall state in his or her report the facts
upon which that belief and that clear indication are based. The
person has the choice of submitting to and completing a blood or
urine test, and the officer shall advise the person that he or she is
required to submit to an additional test and that he or she may
choose a test of either blood or urine. If the person arrested either
is incapable, or states that he or she is incapable, of completing
either chosen test, the person shall submit to and complete the other
remaining test.
(3) If the person is lawfully arrested for an offense allegedly
committed in violation of Section 23140, 23152, or 23153, and,
because of the need for medical treatment, the person is first
transported to a medical facility where it is not feasible to
administer a particular test of, or to obtain a particular sample of,
the person's blood, breath, or urine, the person has the choice of
those tests that are available at the facility to which that person
has been transported. In that case, the officer shall advise the
person of those tests that are available at the medical facility and
that the person's choice is limited to those tests that are
available.
(4) The officer shall also advise the person that he or she does
not have the right to have an attorney present before stating whether
he or she will submit to a test or tests, before deciding which test
or tests to take, or during administration of the test or tests
chosen, and that, in the event of refusal to submit to a test or
tests, the refusal may be used against him or her in a court of law.

(5) A person who is unconscious or otherwise in a condition
rendering him or her incapable of refusal is deemed not to have
withdrawn his or her consent and a test or tests may be administered
whether or not the person is told that his or her failure to submit
to, or the noncompletion of, the test or tests will result in the
suspension or revocation of his or her privilege to operate a motor
vehicle. A person who is dead is deemed not to have withdrawn his or
her consent and a test or tests may be administered at the direction
of a peace officer.
(b) A person who is afflicted with hemophilia is exempt from the
blood test required by this section.
(c) A person who is afflicted with a heart condition and is using
an anticoagulant under the direction of a licensed physician and
surgeon is exempt from the blood test required by this section.
(d) (1) A person lawfully arrested for an offense allegedly
committed while the person was driving a motor vehicle in violation
of Section 23140, 23152, or 23153 may request the arresting officer
to have a chemical test made of the arrested person's blood or breath
for the purpose of determining the alcoholic content of that person'
s blood, and, if so requested, the arresting officer shall have the
test performed.
(2) If a blood or breath test is not available under subparagraph
(A) of paragraph (1) of subdivision (a), or under subparagraph (A) of
paragraph (2) of subdivision (a), or under paragraph (1) of this
subdivision, the person shall submit to the remaining test in order
to determine the percent, by weight, of alcohol in the person's
blood. If both the blood and breath tests are unavailable, the person
shall be deemed to have given his or her consent to chemical testing
of his or her urine and shall submit to a urine test.
(e) If the person, who has been arrested for a violation of
Section 23140, 23152, or 23153, refuses or fails to complete a
chemical test or tests, or requests that a blood or urine test be
taken, the peace officer, acting on behalf of the department, shall
serve the notice of the order of suspension or revocation of the
person's privilege to operate a motor vehicle personally on the
arrested person. The notice shall be on a form provided by the
department.
(f) If the peace officer serves the notice of the order of
suspension or revocation of the person's privilege to operate a motor
vehicle, the peace officer shall take possession of all driver's
licenses issued by this state that are held by the person. The
temporary driver's license shall be an endorsement on the notice of
the order of suspension and shall be valid for 30 days from the date
of arrest.
(g) (1) The peace officer shall immediately forward a copy of the
completed notice of suspension or revocation form and any driver's
license taken into possession under subdivision (f), with the report
required by Section 13380, to the department. If the person submitted
to a blood or urine test, the peace officer shall forward the
results immediately to the appropriate forensic laboratory. The
forensic laboratory shall forward the results of the chemical tests
to the department within 15 calendar days of the date of the arrest.

(2) (A) Notwithstanding any other provision of law, a document
containing data prepared and maintained in the governmental forensic
laboratory computerized database system that is electronically
transmitted or retrieved through public or private computer networks
to or by the department is the best available evidence of the
chemical test results in all administrative proceedings conducted by
the department. In addition, any other official record that is
maintained in the governmental forensic laboratory, relates to a
chemical test analysis prepared and maintained in the governmental
forensic laboratory computerized database system, and is
electronically transmitted and retrieved through a public or private
computer network to or by the department is admissible as evidence in
the department's administrative proceedings. In order to be
admissible as evidence in administrative proceedings, a document
described in this subparagraph shall bear a certification by the
employee of the department who retrieved the document certifying that
the information was received or retrieved directly from the
computerized database system of a governmental forensic laboratory
and that the document accurately reflects the data received or
retrieved.
(B) Notwithstanding any other provision of law, the failure of an
employee of the department to certify under subparagraph (A) is not a
public offense.
(h) A preliminary alcohol screening test that indicates the
presence or concentration of alcohol based on a breath sample in
order to establish reasonable cause to believe the person was driving
a vehicle in violation of Section 23140, 23152, or 23153 is a field
sobriety test and may be used by an officer as a further
investigative tool.
(i) If the officer decides to use a preliminary alcohol screening
test, the officer shall advise the person that he or she is
requesting that person to take a preliminary alcohol screening test
to assist the officer in determining if that person is under the
influence of alcohol or drugs, or a combination of alcohol and drugs.
The person's obligation to submit to a blood, breath, or urine test,
as required by this section, for the purpose of determining the
alcohol or drug content of that person's blood, is not satisfied by
the person submitting to a preliminary alcohol screening test. The
officer shall advise the person of that fact and of the person's
right to refuse to take the preliminary alcohol screening test.


23577. (a) If any person is convicted of a violation of Section
23152 or 23153, and at the time of the arrest leading to that
conviction that person willfully refused a peace officer's request to
submit to, or willfully failed to complete, the chemical test or
tests pursuant to Section 23612, the court shall impose the following
penalties:
(1) If the person is convicted of a first violation of Section
23152, notwithstanding any other provision of subdivision (a) of
Section 23538, the terms and conditions of probation shall include
the conditions in paragraph (1) of subdivision (a) of Section 23538.

(2) If the person is convicted of a first violation of Section
23153, the punishment shall be enhanced by an imprisonment of 48
continuous hours in the county jail, whether or not probation is
granted and no part of which may be stayed, unless the person is
sentenced to, and incarcerated in, the state prison and the execution
of that sentence is not stayed.
(3) If the person is convicted of a second violation of Section
23152, punishable under Section 23540, or a second violation of
Section 23153, punishable under Section 23560, the punishment shall
be enhanced by an imprisonment of 96 hours in the county jail,
whether or not probation is granted and no part of which may be
stayed, unless the person is sentenced to, and incarcerated in, the
state prison and execution of that sentence is not stayed.
(4) If the person is convicted of a third violation of Section
23152, punishable under Section 23546, the punishment shall be
enhanced by an imprisonment of 10 days in the county jail, whether or
not probation is granted and no part of which may be stayed.
(5) If the person is convicted of a fourth or subsequent violation
of Section 23152, punishable under Section 23550 or 23550.5, the
punishment shall be enhanced by imprisonment of 18 days in the county
jail, whether or not probation is granted and no part of which may
be stayed.
(b) The willful refusal or failure to complete the chemical test
required pursuant to Section 23612 shall be pled and proven.



23578. In addition to any other provision of this code, if a person
is convicted of a violation of Section 23152 or 23153, the court
shall consider a concentration of alcohol in the person's blood of
0.15 percent or more, by weight, or the refusal of the person to take
a chemical test, as a special factor that may justify enhancing the
penalties in sentencing, in determining whether to grant probation,
and, if probation is granted, in determining additional or enhanced
terms and conditions of probation.





13353. (a) If a person refuses the officer's request to submit to,
or fails to complete, a chemical test or tests pursuant to Section
23612, upon receipt of the officer's sworn statement that the officer
had reasonable cause to believe the person had been driving a motor
vehicle in violation of Section 23140, 23152, or 23153, and that the
person had refused to submit to, or did not complete, the test or
tests after being requested by the officer, the department shall do
one of the following:
(1) Suspend the person's privilege to operate a motor vehicle for
a period of one year.
(2) Revoke the person's privilege to operate a motor vehicle for a
period of two years if the refusal occurred within 10 years of
either (A) a separate violation of Section 23103 as specified in
Section 23103.5, or of Section 23140, 23152, or 23153, or of Section
191.5 or subdivision (a) of Section 192.5 of the Penal Code, that
resulted in a conviction, or (B) a suspension or revocation of the
person's privilege to operate a motor vehicle pursuant to this
section or Section 13353.2 for an offense that occurred on a separate
occasion.
(3) Revoke the person's privilege to operate a motor vehicle for a
period of three years if the refusal occurred within 10 years of any
of the following:
(A) Two or more separate violations of Section 23103 as specified
in Section 23103.5, or of Section 23140, 23152, or 23153, or of
Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code,
or any combination thereof, that resulted in convictions.
(B) Two or more suspensions or revocations of the person's
privilege to operate a motor vehicle pursuant to this section or
Section 13353.2 for offenses that occurred on separate occasions.
(C) Any combination of two or more of those convictions or
administrative suspensions or revocations.
The officer's sworn statement shall be submitted pursuant to
Section 13380 on a form furnished or approved by the department. The
suspension or revocation shall not become effective until 30 days
after the giving of written notice thereof, or until the end of a
stay of the suspension or revocation, as provided for in Section
13558.
(D) For the purposes of this section, a conviction of an offense
in any state, territory, or possession of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, or the
Dominion of Canada that, if committed in this state, would be a
violation of Section 23103, as specified in Section 23103.5, or
Section 23140, 23152, or 23153, or Section 191.5 or subdivision (a)
of Section 192.5 of the Penal Code, is a conviction of that
particular section of the Vehicle Code or Penal Code.
(b) If a person on more than one occasion in separate incidents
refuses the officer's request to submit to, or fails to complete, a
chemical test or tests pursuant to Section 23612 while driving a
motor vehicle, upon the receipt of the officer's sworn statement that
the officer had reasonable cause to believe the person had been
driving a motor vehicle in violation of Section 23140, 23152, or
23153, the department shall disqualify the person from operating a
commercial motor vehicle for the rest of his or her lifetime.
(c) The notice of the order of suspension or revocation under this
section shall be served on the person by a peace officer pursuant to
Section 23612. The notice of the order of suspension or revocation
shall be on a form provided by the department. If the notice of the
order of suspension or revocation has not been served by the peace
officer pursuant to Section 23612, the department immediately shall
notify the person in writing of the action taken. The peace officer
who serves the notice, or the department, if applicable, also shall
provide, if the officer or department, as the case may be, determines
that it is necessary to do so, the person with the appropriate
non-English notice developed pursuant to subdivision (d) of Section
14100.
(d) Upon the receipt of the officer's sworn statement, the
department shall review the record. For purposes of this section, the
scope of the administrative review shall cover all of the following
issues:
(1) Whether the peace officer had reasonable cause to believe the
person had been driving a motor vehicle in violation of Section
23140, 23152, or 23153.
(2) Whether the person was placed under arrest.
(3) Whether the person refused to submit to, or did not complete,
the test or tests after being requested by a peace officer.
(4) Whether, except for a person described in subdivision (a) of
Section 23612 who is incapable of refusing, the person had been told
that his or her driving privilege would be suspended or revoked if he
or she refused to submit to, or did not complete, the test or tests.

(e) The person may request an administrative hearing pursuant to
Section 13558. Except as provided in subdivision (e) of Section
13558, the request for an administrative hearing does not stay the
order of suspension or revocation.
(f) The suspension or revocation imposed under this section shall
run concurrently with any restriction, suspension, or revocation
imposed under Section 13352, 13352.4, or 13352.5 that resulted from
the same arrest.


13353.1. (a) If a person refuses an officer's request to submit to,
or fails to complete, a preliminary alcohol screening test pursuant
to Section 13388, upon the receipt of the officer's sworn statement,
submitted pursuant to Section 13380, that the officer had reasonable
cause to believe the person had been driving a motor vehicle in
violation of Section 23136, and that the person had refused to submit
to, or did not complete, the test after being requested by the
officer, the department shall do one of the following:
(1) Suspend the person's privilege to operate a motor vehicle for
a period of one year.
(2) Revoke the person's privilege to operate a motor vehicle for a
period of two years if the refusal occurred within 10 years of
either of the following:
(A) A separate violation of subdivision (a) of Section 23136, that
resulted in a finding of a violation, or a separate violation, that
resulted in a conviction, of Section 23103, as specified in Section
23103.5, of Section 23140, 23152, or 23153, or of Section 191.5 or
subdivision (a) of Section 192.5 of the Penal Code.
(B) A suspension or revocation of the person's privilege to
operate a motor vehicle if that action was taken pursuant to this
section or Section 13353 or 13353.2 for an offense that occurred on a
separate occasion.
(3) Revoke the person's privilege to operate a motor vehicle for a
period of three years if the refusal occurred within 10 years of any
of the following:
(A) Two or more separate violations of subdivision (a) of Section
23136, that resulted in findings of violations, or two or more
separate violations, that resulted in convictions, of Section 23103,
as specified in Section 23103.5, of Section 23140, 23152, or 23153,
or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal
Code, or any combination thereof.
(B) Two or more suspensions or revocations of the person's
privilege to operate a motor vehicle if those actions were taken
pursuant to this section, or Section 13353 or 13353.2, for offenses
that occurred on separate occasions.
(C) Any combination of two or more of the convictions or
administrative suspensions or revocations described in subparagraph
(A) or (B).
(b) For the purposes of this section, a conviction of an offense
in any state, territory, or possession of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, or Canada
that, if committed in this state, would be a violation of Section
23103, as specified in Section 23103.5, or Section 23140, 23152, or
23153, or Section 191.5 or subdivision (a) of Section 192.5 of the
Penal Code, is a conviction of that particular section of the Vehicle
or Penal Code.
(c) The notice of the order of suspension or revocation under this
section shall be served on the person by the peace officer pursuant
to Section 13388 and shall not become effective until 30 days after
the person is served with that notice. The notice of the order of
suspension or revocation shall be on a form provided by the
department. If the notice of the order of suspension or revocation
has not been served by the peace officer pursuant to Section 13388,
the department immediately shall notify the person in writing of the
action taken. The peace officer who serves the notice, or the
department, if applicable, also shall provide, if the officer or
department, as the case may be, determines that it is necessary to do
so, the person with the appropriate non-English notice developed
pursuant to subdivision (d) of Section 14100.
(d) Upon the receipt of the officer's sworn statement, the
department shall review the record. For the purposes of this section,
the scope of the administrative review shall cover all of the
following issues:
(1) Whether the peace officer had reasonable cause to believe the
person had been driving a motor vehicle in violation of Section
23136.
(2) Whether the person was lawfully detained.
(3) Whether the person refused to submit to, or did not complete,
the test after being requested to do so by a peace officer.
(e) The person may request an administrative hearing pursuant to
Section 13558. Except as provided in subdivision (e) of Section
13558, the request for an administrative hearing does not stay the
order of suspension or revocation.



13353.1. (a) If a person refuses an officer's request to submit to,
or fails to complete, a preliminary alcohol screening test pursuant
to Section 13388 or 13389, upon the receipt of the officer's sworn
statement, submitted pursuant to Section 13380, that the officer had
reasonable cause to believe the person had been driving a motor
vehicle in violation of Section 23136 or 23154, and that the person
had refused to submit to, or did not complete, the test after being
requested by the officer, the department shall do one of the
following:
(1) Suspend the person's privilege to operate a motor vehicle for
a period of one year.
(2) Revoke the person's privilege to operate a motor vehicle for a
period of two years if the refusal occurred within 10 years of
either of the following:
(A) A separate violation of subdivision (a) of Section 23136, that
resulted in a finding of a violation, or a separate violation, that
resulted in a conviction, of Section 23103, as specified in Section
23103.5, of Section 23140, 23152, or 23153, or of Section 191.5 or
subdivision (a) of Section 192.5 of the Penal Code.
(B) A suspension or revocation of the person's privilege to
operate a motor vehicle if that action was taken pursuant to this
section or Section 13353 or 13353.2 for an offense that occurred on a
separate occasion.
(3) Revoke the person's privilege to operate a motor vehicle for a
period of three years if the refusal occurred within 10 years of any
of the following:
(A) Two or more separate violations of subdivision (a) of Section
23136, that resulted in findings of violations, or two or more
separate violations, that resulted in convictions, of Section 23103,
as specified in Section 23103.5, of Section 23140, 23152, or 23153,
or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal
Code, or any combination thereof.
(B) Two or more suspensions or revocations of the person's
privilege to operate a motor vehicle if those actions were taken
pursuant to this section, or Section 13353 or 13353.2, for offenses
that occurred on separate occasions.
(C) Any combination of two or more of the convictions or
administrative suspensions or revocations described in subparagraph
(A) or (B).
(b) For the purposes of this section, a conviction of an offense
in any state, territory, or possession of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, or Canada
that, if committed in this state, would be a violation of Section
23103, as specified in Section 23103.5, or Section 23140, 23152, or
23153, or Section 191.5 or subdivision (a) of Section 192.5 of the
Penal Code, is a conviction of that particular section of the Vehicle
or Penal Code.
(c) The notice of the order of suspension or revocation under this
section shall be served on the person by the peace officer pursuant
to Section 13388 and shall not become effective until 30 days after
the person is served with that notice. The notice of the order of
suspension or revocation shall be on a form provided by the
department. If the notice of the order of suspension or revocation
has not been served by the peace officer pursuant to Section 13388,
the department immediately shall notify the person in writing of the
action taken. The peace officer who serves the notice, or the
department, if applicable, also shall provide, if the officer or
department, as the case may be, determines that it is necessary to do
so, the person with the appropriate non-English notice developed
pursuant to subdivision (d) of Section 14100.
(d) Upon the receipt of the officer's sworn statement, the
department shall review the record. For the purposes of this section,
the scope of the administrative review shall cover all of the
following issues:
(1) Whether the peace officer had reasonable cause to believe the
person had been driving a motor vehicle in violation of Section
23136.
(2) Whether the person was lawfully detained.
(3) Whether the person refused to submit to, or did not complete,
the test after being requested to do so by a peace officer.
(e) The person may request an administrative hearing pursuant to
Section 13558. Except as provided in subdivision (e) of Section
13558, the request for an administrative hearing does not stay the
order of suspension or revocation.



13353.2. (a) The department shall immediately suspend the privilege
of a person to operate a motor vehicle for any one of the following
reasons:
(1) The person was driving a motor vehicle when the person had
0.08 percent or more, by weight, of alcohol in his or her blood.
(2) The person was under 21 years of age and had a blood-alcohol
concentration of 0.01 percent or greater, as measured by a
preliminary alcohol screening test, or other chemical test.
(3) The person was driving a vehicle that requires a commercial
driver's license when the person had a 0.04 percent or more, by
weight, of alcohol in his or her blood.
(b) The notice of the order of suspension under this section shall
be served on the person by a peace officer pursuant to Section 13388
or 13382. The notice of the order of suspension shall be on a form
provided by the department. If the notice of the order of suspension
has not been served upon the person by the peace officer pursuant to
Section 13388 or 13382, upon the receipt of the report of a peace
officer submitted pursuant to Section 13380, the department shall
mail written notice of the order of the suspension to the person at
the last known address shown on the department's records and, if the
address of the person provided by the peace officer's report differs
from the address of record, to that address.
(c) The notice of the order of suspension shall clearly specify
the reason and statutory grounds for the suspension, the effective
date of the suspension, the right of the person to request an
administrative hearing, the procedure for requesting an
administrative hearing, and the date by which a request for an
administrative hearing shall be made in order to receive a
determination prior to the effective date of the suspension.
(d) The department shall make a determination of the facts in
subdivision (a) on the basis of the report of a peace officer
submitted pursuant to Section 13380. The determination of the facts,
after administrative review pursuant to Section 13557, by the
department is final, unless an administrative hearing is held
pursuant to Section 13558 and any judicial review of the
administrative determination after the hearing pursuant to Section
13559 is final.
(e) The determination of the facts in subdivision (a) is a civil
matter that is independent of the determination of the person's guilt
or innocence, shall have no collateral estoppel effect on a
subsequent criminal prosecution, and shall not preclude the
litigation of the same or similar facts in the criminal proceeding.
If a person is acquitted of criminal charges relating to a
determination of facts under subdivision (a), or if the person's
driver's license was suspended pursuant to Section 13388 and the
department finds no basis for a suspension pursuant to that section,
the department shall immediately reinstate the person's privilege to
operate a motor vehicle if the department has suspended it
administratively pursuant to subdivision (a), and the department
shall return or reissue for the remaining term any driver's license
that has been taken from the person pursuant to Section 13382 or
otherwise. Notwithstanding subdivision (b) of Section 13558, if
criminal charges under Section 23140, 23152, or 23153 are not filed
by the district attorney because of a lack of evidence, or if those
charges are filed but are subsequently dismissed by the court because
of an insufficiency of evidence, the person has a renewed right to
request an administrative hearing before the department. The request
for a hearing shall be made within one year from the date of arrest.

(f) The department shall furnish a form that requires a detailed
explanation specifying which evidence was defective or lacking and
detailing why that evidence was defective or lacking. The form shall
be made available to the person to provide to the district attorney.
The department shall hold an administrative hearing, and the hearing
officer shall consider the reasons for the failure to prosecute given
by the district attorney on the form provided by the department. If
applicable, the hearing officer shall consider the reasons stated on
the record by a judge who dismisses the charges. No fee shall be
imposed pursuant to Section 14905 for the return or reissuing of a
driver's license pursuant to this subdivision. The disposition of a
suspension action under this section does not affect any action to
suspend or revoke the person's privilege to operate a motor vehicle
under any other provision of this code, including, but not limited
to, Section 13352 or 13353, or Chapter 3 (commencing with Section
13800).


13353.2. (a) The department shall immediately suspend the privilege
of a person to operate a motor vehicle for any one of the following
reasons:
(1) The person was driving a motor vehicle when the person had
0.08 percent or more, by weight, of alcohol in his or her blood.
(2) The person was under 21 years of age and had a blood-alcohol
concentration of 0.01 percent or greater, as measured by a
preliminary alcohol screening test, or other chemical test.
(3) The person was driving a vehicle that requires a commercial
driver's license when the person had a 0.04 percent or more, by
weight, of alcohol in his or her blood.
(4) The person was driving a motor vehicle when both of the
following apply:
(A) The person was on probation for a violation of Section 23152
or 23153.
(B) The person had a 0.01 percent or more, by weight, of alcohol
in his or her blood, as measured by a preliminary alcohol screening
test or other chemical test.
(b) The notice of the order of suspension under this section shall
be served on the person by a peace officer pursuant to Section 13388
or 13382. The notice of the order of suspension shall be on a form
provided by the department. If the notice of the order of suspension
has not been served upon the person by the peace officer pursuant to
Section 13388 or 13382, upon the receipt of the report of a peace
officer submitted pursuant to Section 13380, the department shall
mail written notice of the order of the suspension to the person at
the last known address shown on the department's records and, if the
address of the person provided by the peace officer's report differs
from the address of record, to that address.
(c) The notice of the order of suspension shall clearly specify
the reason and statutory grounds for the suspension, the effective
date of the suspension, the right of the person to request an
administrative hearing, the procedure for requesting an
administrative hearing, and the date by which a request for an
administrative hearing shall be made in order to receive a
determination prior to the effective date of the suspension.
(d) The department shall make a determination of the facts in
subdivision (a) on the basis of the report of a peace officer
submitted pursuant to Section 13380. The determination of the facts,
after administrative review pursuant to Section 13557, by the
department is final, unless an administrative hearing is held
pursuant to Section 13558 and any judicial review of the
administrative determination after the hearing pursuant to Section
13559 is final.
(e) The determination of the facts in subdivision (a) is a civil
matter that is independent of the determination of the person's guilt
or innocence, shall have no collateral estoppel effect on a
subsequent criminal prosecution, and shall not preclude the
litigation of the same or similar facts in the criminal proceeding.
If a person is acquitted of criminal charges relating to a
determination of facts under subdivision (a), or if the person's
driver's license was suspended pursuant to Section 13388 and the
department finds no basis for a suspension pursuant to that section,
the department shall immediately reinstate the person's privilege to
operate a motor vehicle if the department has suspended it
administratively pursuant to subdivision (a), and the department
shall return or reissue for the remaining term any driver's license
that has been taken from the person pursuant to Section 13382 or
otherwise. Notwithstanding subdivision (b) of Section 13558, if
criminal charges under Section 23140, 23152, or 23153 are not filed
by the district attorney because of a lack of evidence, or if those
charges are filed but are subsequently dismissed by the court because
of an insufficiency of evidence, the person has a renewed right to
request an administrative hearing before the department. The request
for a hearing shall be made within one year from the date of arrest.

(f) The department shall furnish a form that requires a detailed
explanation specifying which evidence was defective or lacking and
detailing why that evidence was defective or lacking. The form shall
be made available to the person to provide to the district attorney.
The department shall hold an administrative hearing, and the hearing
officer shall consider the reasons for the failure to prosecute given
by the district attorney on the form provided by the department. If
applicable, the hearing officer shall consider the reasons stated on
the record by a judge who dismisses the charges. A fee shall not be
imposed pursuant to Section 14905 for the return or reissuing of a
driver's license pursuant to this subdivision. The disposition of a
suspension action under this section does not affect an action to
suspend or revoke the person's privilege to operate a motor vehicle
under another provision of this code, including, but not limited to,
Section 13352 or 13353, or Chapter 3 (commencing with Section 13800).



13353.3. (a) An order of suspension of a person's privilege to
operate a motor vehicle pursuant to Section 13353.2 shall become
effective 30 days after the person is served with the notice pursuant
to Section 13382 or 13388, or subdivision (b) of Section 13353.2.
(b) The period of suspension of a person's privilege to operate a
motor vehicle under Section 13353.2 is as follows:
(1) If the person has not been convicted of a separate violation
of Section 23103, as specified in Section 23103.5, of Section 23140,
23152, or 23153, of Section 191.5 or subdivision (a) of Section 192.5
of the Penal Code, the person has not been administratively
determined to have refused chemical testing pursuant to Section 13353
or 13353.1, or the person has not been administratively determined
to have been driving with an excessive concentration of alcohol
pursuant to Section 13353.2 on a separate occasion, that offense or
occurrence occurred within 10 years of the occasion in question, the
person's privilege to operate a motor vehicle shall be suspended for
four months.
(2) If the person has been convicted of one or more separate
violations of Section 23103, as specified in Section 23103.5, Section
23140, 23152, or 23153, Section 191.5 or subdivision (a) of Section
192.5 of the Penal Code, the person has been administratively
determined to have refused chemical testing pursuant to Section 13353
or 13353.1, or the person has been administratively determined to
have been driving with an excessive concentration of alcohol pursuant
to Section 13353.2 on a separate occasion, that offense or occasion
occurred within 10 years of the occasion in question, the person's
privilege to operate a motor vehicle shall be suspended for one year.

(3) Notwithstanding any other provision of law, if a person has
been administratively determined to have been driving in violation of
Section 23136 or to have refused chemical testing pursuant to
Section 13353.1, the period of suspension shall not be for less than
one year.
(c) If a person's privilege to operate a motor vehicle is
suspended pursuant to Section 13353.2 and the person is convicted of
a violation of Section 23152 or 23153, including, but not limited to,
a violation described in Section 23620, arising out of the same
occurrence, both the suspension under Section 13353.2 and the
suspension or revocation under Section 13352 shall be imposed, except
that the periods of suspension or revocation shall run concurrently,
and the total period of suspension or revocation shall not exceed
the longer of the two suspension or revocation periods.
(d) For the purposes of this section, a conviction of an offense
in any state, territory, or possession of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, or the
Dominion of Canada that, if committed in this state, would be a
violation of Section 23103, as specified in Section 23103.5, or
Section 23140, 23152, or 23153, or Section 191.5 or subdivision (a)
of Section 192.5 of the Penal Code, is a conviction of that
particular section of the Vehicle Code or Penal Code.




13353.4. (a) Except as provided in Section 13353.7 or 13353.8, the
driving privilege shall not be restored, and a restricted or hardship
permit to operate a motor vehicle shall not be issued, to a person
during the suspension or revocation period specified in Section
13353, 13353.1, or 13353.3.
(b) The privilege to operate a motor vehicle shall not be restored
after a suspension or revocation pursuant to Section 13352, 13353,
13353.1, or 13353.2 until all applicable fees, including the fees
prescribed in Section 14905, have been paid and the person gives
proof of financial responsibility, as defined in Section 16430, to
the department.
(c) This section shall become operative on September 20, 2005.







13388. (a) If a peace officer lawfully detains a person under 21
years of age who is driving a motor vehicle, and the officer has
reasonable cause to believe that the person is in violation of
Section 23136, the officer shall request that the person take a
preliminary alcohol screening test to determine the presence of
alcohol in the person, if a preliminary alcohol screening test device
is immediately available. If a preliminary alcohol screening test
device is not immediately available, the officer may request the
person to submit to chemical testing of his or her blood, breath, or
urine, conducted pursuant to Section 23612.
(b) If the person refuses to take, or fails to complete, the
preliminary alcohol screening test or refuses to take or fails to
complete a chemical test if a preliminary alcohol device is not
immediately available, or if the person takes the preliminary alcohol
screening test and that test reveals a blood-alcohol concentration
of 0.01 percent or greater, or if the results of a chemical test
reveal a blood-alcohol concentration of 0.01 percent or greater, the
officer shall proceed as follows:
(1) The officer, acting on behalf of the department, shall serve
the person with a notice of an order of suspension of the person's
driving privilege.
(2) The officer shall take possession of any driver's license
issued by this state which is held by the person. When the officer
takes possession of a valid driver's license, the officer shall
issue, on behalf of the department, a temporary driver's license.
The temporary driver's license shall be an endorsement on the notice
of the order of suspension and shall be valid for 30 days from the
date of issuance, or until receipt of the order of suspension from
the department, whichever occurs first.
(3) The officer immediately shall forward a copy of the completed
notice of order of suspension form, and any driver's license taken
into possession under paragraph (2), with the report required by
Section 13380, to the department. For the purposes of this
paragraph, "immediately" means on or before the end of the fifth
ordinary business day after the notice of order of suspension was
served.
(c) For the purposes of this section, a preliminary alcohol
screening test device is an instrument designed and used to measure
the presence of alcohol in a person based on a breath sample.




13389. (a) If a peace officer lawfully detains a person previously
convicted of Section 23152 or 23153 who is driving a motor vehicle,
while the person is on probation for a violation of Section 23152 or
23153, and the officer has reasonable cause to believe that the
person is in violation of Section 23154, the officer shall request
that the person take a preliminary alcohol screening test to
determine the presence of alcohol in the person, if a preliminary
alcohol screening test device is immediately available. If a
preliminary alcohol screening test device is not immediately
available, the officer may request the person to submit to chemical
testing of his or her blood, breath, or urine, conducted pursuant to
Section 23612.
(b) If the person refuses to take, or fails to complete, the
preliminary alcohol screening test or refuses to take or fails to
complete a chemical test if a preliminary alcohol device is not
immediately available, or if the person takes the preliminary alcohol
screening test and that test reveals a blood-alcohol concentration
of 0.01 percent or greater, the officer shall proceed as follows:
(1) The officer, acting on behalf of the department, shall serve
the person with a notice of an order of suspension of the person's
driving privilege.
(2) (A) The officer shall take possession of any driver's license
issued by this state that is held by the person. When the officer
takes possession of a valid driver's license, the officer shall
issue, on behalf of the department, a temporary driver's license.
(B) The temporary driver's license shall be an endorsement on the
notice of the order of suspension and shall be valid for 30 days from
the date of issuance, or until receipt of the order of suspension
from the department, whichever occurs first.
(3) (A) The officer shall immediately forward a copy of the
completed notice of order of suspension form, and any driver's
license taken into possession under paragraph (2), with the report
required by Section 13380, to the department.
(B) For the purposes of subparagraph (A), "immediately" means on
or before the end of the fifth ordinary business day after the notice
of order of suspension was served.
(c) For the purposes of this section, a preliminary alcohol
screening test device is an instrument designed and used to measure
the presence of alcohol in a person based on a breath sample.

Drunk Driving story about a Montana Man

May 18, 2008


Jack Ass blasts ‘Jackass’

“A Montana man who legally changed his name to Jack Ass in 1997 (to raise awareness of the perils of drunk driving) says Jackass, the controversial MTV stunt-fest and subsequent film, has besmirched his sterling reputation, and … has filed a $10 million lawsuit against Viacom.” (Michael Rosenwald, “The Appellative Court: The Real Jack Ass”, The New Yorker).

SanDiegoDrunkDrivingAttorney.net/articles

San Diego DUI lawyer news

May 18, 2008

SanDiegoDrunkDrivingAttorney.net/blog

“Drunk Driving Victim Sues Designated Driver”.

New frontiers of liability dept.: in Boulder, Colo., a lawyer for car-crash victim Doris Gray is suing not just the drunken driver whose vehicle hit her car but also “the driver’s friend, who reportedly failed to keep her promise to be a designated driver”. Although none of the participants could think of any earlier cases in which persons have been held liable for shirking a designated-driver role, a former head of the Colorado Trial Lawyers Association claims the new theory is “pretty solid”.

May 18, 2008

What may a San Diego California DUI officer be looking when contacted?

San Diego DUI signs of intoxication taught at pro-prosecution San Diego California DUI police academies include:

1. Flushed face of the San Diego driver
2. Red, watery, glassy and/or bloodshot eyes
3. Odor of alcohol on breath
4. Slurred speech
5. Fumbling with wallet trying to get license
6. Failure to comprehend the officer's questions
7. Staggering when exiting vehicle
8. Swaying/instability on feet
9. Leaning on car for support
10. Combative, argumentative, jovial or other "inappropriate" attitude
11. Soiled, rumpled, disorderly clothing
12. Stumbling while walking
13. Disorientation as to time and place
14. Inability to follow directions of the San Diego officer


If I refuse to take a San Diego DUI blood or breath test, is the DMV consequence a 12 to 24 month driver's license suspension? Yes.

Here are potential, major San Diego California DUI effects:

1. Your driver's license could be suspended for a period of twelve to twenty-four months. (This may be true even if you are found not guilty of the San Diego DUI charge.)

2. The fact of refusal to submit to a San Diego California DUI blood or breath test may be introduced as "consciousness of guilt" in your San Diego drunk driving court case.

3. Your San Diego DUI lawyer may offer other reasons for the purported refusal.

4. Even though you refuse, the San Diego DUI officer may perform a forced blood draw and use those San Diego DUI blood test results against you. Your San Diego DUI attorney then must defend both: a) the refusal and b) the blood test results.


Do I have a choice of San Diego California DUI chemical tests?

Yes.

When a person is arrested in San Diego California for DUI, he or she is supposed to be given a choice of a San Diego breath or a San Diego blood test. The San Diego officer is required by law to perform the San Diego drunk driving test one chooses.

San Diego DUI a specialized area of law with increasingly harsh San Diego California DUI consequences. There are many complex procedural, evidentiary, constitutional, sentencing and administrative license San Diego California DUI issues.


What possible defenses are there in San Diego California DUI & DMV cases?

Possible San Diego California DUI / DMV defenses in a given San Diego California drunk driving case are almost limitless due to the complexities of the offense and must be determined only by one's experienced San Diego DUI / DMV defense attorney.


San Diego DUI / DMV defenses may include:

1. San Diego Driving Issues: Impairment is insufficient.

The San Diego DUI prosecution must also prove that the person was actually driving. This may be difficult in may cases including but not limited to accidents when the San Diego officer arrives after driving has completed, there are no witnesses as to who was the driver of the vehicle, e.g.

2. Lack of Probable Cause: San Diego California DUI evidence can be suppressed if the San Diego DUI officer did not have legal and sufficient/competent factual cause to (a) stop or contact, (b) detain, and/or (c) arrest.

3. San Diego Breath Defenses
4. San Diego Blood Defenses
5. San Diego California DMV Defenses
6. Other San Diego Drunk Driving Defenses

What are San Diego DUI police looking for when fishing for drunk drivers on San Diego California's roads?

The following is a list of purported signs or pseudo-"symptoms" (in descending order of purported probability) that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:

1. Turning with a wide radius on San Diego county road
2. Straddling center of lane marker
3. "Appearing to be drunk"
4. Almost striking object or vehicle
5. Weaving
6. Driving on other than designated highway
7. Swerving
8. Speed more than 10 mph below limit
9. Stopping without cause in traffic lane
10. Following too closely
11. Drifting
12. Tires on center or lane marker
13. Braking erratically
14. Driving into opposing or crossing traffic
15. Signaling inconsistent with driving actions
16. Slow response to traffic signals
17. Stopping inappropriately (other than in lane)
18. Turning abruptly or illegally
19. Accelerating or decelerating rapidly
20. Headlights off on a San Diego county road

If arrested for drunk driving in San Diego California, you have a chance to complete a free evaluation form at http://www.SanDiegoDrunkDrivingAttorney.net/survey. Or call 1 800 THE-LAW-DUI.

San Diego DUI attorney news

An Illinois man convicted of drunken driving for the ninth time was sentenced Friday to 20 years in prison -- the longest rap for DUI that DuPage County authorities can recall.

The hefty prison term imposed on 41-year-old Taurino Maldonado -- who racked up the convictions in less than 20 years -- may be the only way to ensure he doesn't keep drinking and driving, prosecutors said.

"Time and time again, Mr. Maldonado thumbed his nose at the law," DuPage County State's Attorney Joseph Birkett said after the sentencing. "He continued to get behind the wheel not only after his first or second DUI, but after his seventh and eighth."

Maldonado allegedly didn't stop drinking and driving even after his ninth DUI arrest, which happened in Bensenville in May 2007 after his car bounced off the curb and swerved into oncoming traffic. Three weeks later, Maldonado was arrested again for DUI, though that charge later was dropped, according to court records.

A jury in April convicted him of aggravated DUI stemming from the Bensenville arrest. After he was stopped, he apologized to police for having "too many beers" and fell back into his vehicle as he was attempting to climb out, according to records.

He faced up to 30 years on the upgraded felony charge because of his history of drunken driving, which dates back to his first conviction in 1989. Six of those convictions were in California, where he previously lived, while two others were in Cook County.

Maldonado will serve about 10 years of the sentence imposed Friday by DuPage County Judge Kathryn Creswell.

Maldonado never injured anyone while driving drunk, DUI lawyers point out.

San Diego DUI defense news

Man sets new Swedish drunk driving record
15 May 08

A 22-year-old from Varberg in western Sweden may have arranged his own sad entry in the record books.He had a blood-alcohol level of .336 percent when he slammed into a wall and was arrested for drunk driving.

The figure, which is more than 16 times Sweden’s legal limit of 0.02 percent, could have even been higher were it not for authorities' decision to read at the lower end of the margin for error.

“My statistics include a 21-year-old where the highest level was around .294 percent,” said professor Wayne Jones of the National Board of Forensic Science’s offices in Linköping to the Hallands Nyheter newspaper.

“I’m confident in saying that this one year older resident of Varberg has set a new Swedish record for a 22-year-old."

Jones is a professor in experimental alcohol research.

Several years of high alcohol consumption can give an individual an increased tolerance for higher levels of alcohol.

But to only be 22-years-old and have a blood-alcohol level near .36 percent while driving appears to be exceptional.

The man is soon to be indicted.

www.sandiegodrunkdrivingattorney.net/blog

San Diego DUI criminal defense attorney news

DUI or drunk driving info

May 15, 2008

www.SanDiegoDrunkDrivingAttorney.net/articles

In the United States the National Highway Traffic Safety Administration (NHTSA) estimates that 17,941 people died in 2006 in "alcohol-related" collisions, representing 41 percent of total traffic deaths in the US. Over 500,000 people were injured in alcohol-related accidents in the US in 2003. NHTSA defines fatal collisions as "alcohol-related" if they believe the driver, a passenger, or a nonoccupant of the vehicle (such as a pedestrian or pedalcyclist) had a blood alcohol content (BAC) of 0.01 or greater. NHTSA defines nonfatal collisions as "alcohol-related" if the accident report indicates evidence of alcohol present. NHTSA specifically notes that "alcohol-related" does not necessarily mean a driver or nonoccupant was tested for alcohol and that the term does not indicate a collision or fatality was caused by the presence of alcohol. On average, about 60 percent of the BAC values are missing or unknown. To analyze what they believe is the complete data, statisticians simulate BAC information.

All states in the U.S. designate a "per se" blood or breath alcohol level as the threshold point for an independent criminal offense. A second criminal offense of driving "under the influence" or "while impaired" is also usually charged in most states, with a permissive presumption of guilt where the person's blood alcohol concentration (BAC) is .08 percent or greater (units of milligrams per deciliter, representing 8 g of alcohol in 100 deciliters of blood). Some states (e.g., Colorado) include a lesser charge, sometimes referred to as driving while ability impaired (this may apply to individuals with a .05 percent or above, but less than the .08 per se limit for the more serious charge.

Prior to wider emphasis on drinking and driving in the 1980s, standards of .10-.15 percent were in place. The legal limit for commercial drivers in the U.S. is set at 0.04 percent. All states also observe a much stricter standard for drivers under the age of 21, commonly of .01-.02; these are often referred to as "Zero Tolerance" laws.

Federal Air Regulation 91.17 (14 CFR 91.17) prohibits pilots from flying aircraft with an alcohol level of 0.04% or more, and/or within eight hours of consuming alcohol, and/or while under the impairing influence of any drug. The same prohibition applies to any other crew members on duty aboard the aircraft (flight attendants, etc.). Some airlines impose additional restrictions, and many pilots also impose stricter standards upon themselves. Commercial pilots found to be in violation of regulations are typically fired or resign voluntarily, and they may lose their pilot certificates and/or be subject to criminal prosecution under Federal or State laws, effectively ending their careers.

Unlike DUI, DWI, or OWUI cases that involve alcohol, there is generally no "per se" or legal limit that is employed for persons accused of driving under the influence of prescription medication or illicit drugs (although this is not the case in Ohio). Instead, the key inquiry focuses on whether the driver's faculties were impaired by the substance that was consumed. The detection and successful prosecution of drivers impaired by prescription medication or illegal drugs can therefore be difficult. Similarly, although urinalysis toxicology screens can detect the presence of such substances in the driver's bloodstream, these analyses are unable to demonstrate that the substance was actually causing impairment at the time of driving. In response to these problems, several jurisdictions are currently considering legislation that would establish "zero tolerance" laws for those drivers arrested for DUI and found to have drugs or medication in their system. Additionally, breathalyzers have been developed for the purpose of administering roadside or laboratory tests that can detect the actual level of a controlled substance in an individual's body.

Many jurisdictions require more serious penalties (such as jail time, larger fines, longer DUI program, the installation of ignition interlock devices) in cases where the driver's BAC is over 0.20, or 0.15 in some places. These additional sanctions are an attempt to deter and punish the operation of a vehicle at extremely high BAC levels and the concomitant danger posed to the safety of persons and property by heavily impaired drivers. In many cases, the reason given for these additional sanctions is because an average person would have passed out from that much alcohol. To be able to drive at that level, a person has to have consumed alcohol regularly for months in order to increase his/her alcohol tolerance and therefore is likely to have driven drunk repeatedly. However, since there is currently no standard test to measure alcohol tolerance, proponents of additional penalties for high-BAC offenders point to some studies that indicate that high-BAC offenders are more likely to be involved in a crash and more likely to recidivate. Critics of such laws point out that due to wide variations of alcohol tolerance, people with high tolerances will suffer the additional penalties, despite being less impaired than those with lower tolerances who drive with much lower BACs.

Some U.S. states also increase the penalties for drunk driving (even to the point of making it a felony) if certain other aggravating circumstances besides a high BAC are present, such as if the drunk driver caused an accident requiring the hospitalization of another person lasting greater than a specified period of time (often 72 hours), in cases where an accident resulted in property damage exceeding a certain amount (often $500), or where the driver has prior (and relatively recent) convictions for drunk driving. In addition, most states observe administrative laws that further penalize people convicted of DUI, typically enforced by the department that issues driver's licenses, usually titled Department of Motor Vehicles (DMV), or Department of Licensing. Also, in many states, persons under 21 who purchase, or even attempt or conspire to purchase, alcohol can have their driving privileges suspended (if they already are licensed drivers) or delayed (if not) even if they were not caught actually driving while intoxicated. This belief that restricting alcohol availability and increasing sentences on the basis of damage done is contrary to all the evidence available from other jurisdictions. Australia and the UK have higher alcohol consumption rates, lower ages for alcohol consumption, much lower sentencing regimes for DUI Manslaughter, and much lower incidences of DUI.

Similar laws apply to other activities involving transportation; Michigan prohibits intoxicated bicycling, horseback riding, buggy driving, use of motorized farm implements, or boating, the latter whether a pilot or passenger, with much the same threshold of intoxication.

Following are common procedures when a law enforcement officer has reason to suspect a driver is intoxicated.

There are several situations in which the officer will come into contact with a driver, some examples are:

The driver has been involved in an automobile accident; the officer has responded to the scene and is conducting an investigation.
The driver has been stopped at a sobriety checkpoint (also known as roadblocks).
The police have received a report, possibly from an anonymous citizen, that a described car has been driving erratically. The officer should verify the erratic driving before pulling the driver over. In some cases, the driver will no longer be in the vehicle.
The officer on patrol has observed erratic, suspicious driving, or a series of traffic infractions indicating the possibility that the driver may be impaired. This is by far the most common reason for stopping a suspect.
A police officer has stopped a vehicle for a lesser traffic offense, notices the signs of intoxication, and begins the DUI investigation.

The following list of DUI symptoms, from a publication issued by the National Highway Traffic Safety Administration (DOT HS-805-711),[5] is widely used in training officers to detect drunk drivers. After each symptom is a percentage figure which, according to NHTSA, indicates the statistical chances through research, that a driver is over the legal limit.

Turning with wide radius -- 65
Straddling center or lane marker -- 65
Appearing to be drunk -- 60
Almost striking object or vehicle -- 60
Weaving -- 60
Driving on other than designated roadway -- 55
Swerving -- 55
Slow speed (more than 10mph below limit) -- 50
Stopping (without cause) in traffic lane -- 50
Drifting -- 50
Following too closely -- 45
Tires on center or land marker -- 45
Braking erratically -- 45
Driving into opposing or crossing traffic -- 45
Signaling inconsistent with driving actions -- 40
Stopping inappropriately (other than in lane) -- 35
Turning abruptly or illegally -- 35
Accelerating or decelerating rapidly -- 30
Headlights off -- 30

If the officer observes enough to have a reasonable suspicion to legally justify a further detention and investigation, he will ask the driver to step out of the vehicle.

The officer will typically approach the driver's window and ask some preliminary questions. During this phase of the stop the officer will note if they detect any of the following indicators of intoxication

odor of an alcoholic beverage on the driver's breath or in the car generally
slurred speech in response to the questioning
watery, blood shot, and/or reddish eyes
flushed face
droopy eyelids
difficulty in understanding and responding intelligently to question
fumbling with his driver's license and registration
the plain-view presence of containers of alcoholic beverages in the vehicle.
admission of consumption of alcoholic beverage

If the officer observes enough to have a reasonable suspicion to legally justify a further detention and investigation, he will ask the driver to step out of the vehicle. In some states (Texas and Louisiana, for example), if the officer has reasonable suspicion or probable cause to make the stop, the driver can be ordered out of the vehicle at anytime, not just during a DUI investigation.

The officer will administer one or more field sobriety tests (FSTs). FSTs are "divided attention tests" that theoretically test the suspect's ability to perform the type of mental and physical multitasking that is required to operate an automobile. The most commonly administered FSTs include:

horizontal gaze nystagmus test, which involves following an object with the eyes (such as a pen) to determine characteristic eye movement reaction. A sober person should be able to smoothly track the the object with their eyes. In an intoxicated individual the eyes will **** as they follow the object
walk-and-turn (heel-to-toe in a straight line)
one-leg-stand
modified-position-of-attention (feet together, head back, eyes closed for thirty seconds; also known as the Romberg test)
finger-to-nose (tip head back, eyes closed, touch the tip of nose with tip of index finger)
recite all or part of the alphabet (a common myth is that the alphabet must be recited backwards, however, this is never done during an FST, as many sober people are unable to do this.)
touch each finger of hand to thumb counting with each touch (1, 2, 3, 4, 4, 3, 2, 1)
count backwards from a number such as 30 or 100
breathe into a "portable or preliminary breath tester" or PBT

Although most law enforcement agencies continue to use a variety of these FSTs, increasingly a 3-test battery of standardized field sobriety tests (SFSTs) is being adopted. These tests are recommended by the National Highway Traffic Safety Administration (NHTSA) after studies indicated other FSTs were relatively unreliable. The NHTSA-approved battery of tests consists of the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand. In some states, such as Ohio, only the standardized tests will be admitted into evidence, provided they were administered and objectively scored "in substantial compliance" with NHTSA standards (ORC 4511.19(D)(4)(b)).

FSTs are more effective at determining the level of impairment than they are at estimating the driver's blood alcohol concentration (BAC). However, studies question whether the tests increase the officer's ability to judge either. In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on the accuracy of FSTs. His staff videotaped individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects had "had too much to drink and drive". The blood-alcohol concentration of each of the 21 DUI subjects was .00, unknown to the officers. The result: the officers gave their opinion that 46% of these innocent people were too drunk to be able drive. This study showed the possible inaccuracy of FSTs. Cole and Nowaczyk, "Field Sobriety Tests: Are they Designed for Failure?", 79 Perceptual and Motor Skills Journal 99 (1994).

An increasingly used field sobriety test involves having the suspect breathe into a small, handheld breath testing device. Called variously a PAS ("preliminary alcohol screening") or PBT ("preliminary breath test"), the units are small, inexpensive versions of their larger, more sophisticated instruments at the police stations, the EBTs ("evidentiary breath test"). Whereas the EBTs usually employ infrared spectroscopy, the PAS units use a relatively simple electrochemical (fuel cell) technology. Their purpose, along with other FSTs, is to assist the officer in determining probable cause for arrest. Although because of their relative inaccuracy they were never intended to be used in court for proving actual blood-alcohol concentration, some courts have begun to admit them as evidence of BAC.

If the officer has sufficient probable cause that the suspect has been driving under the influence of alcohol, he will make the arrest, handcuff the suspect and transport him to the police station. En route, the officer may advise him of his Miranda rights and his legal implied consent obligation to submit to an evidentiary chemical test of blood, breath or possibly urine.

Laws relating to what exactly constitutes probable cause vary from state to state. In California it is a refutable presumption that a person with a BAC of .08 or higher is driving under the influence. However section 23610(a)(2) of the California Vehicle Code states that driving with a BAC between .05 and .08 "shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage."

At the police station, the arrestee will be offered a chemical test of breath, blood or, much less frequently, urine. Breath test results are usually available immediately; urine and blood samples are sent to a lab for later analysis to determine the BAC or possible presence of drugs.

If the arrestee refuses to submit to chemical testing, he will usually be booked for driving under the influence; there will be no evidence for filing the second charge of driving with .08% blood alcohol content. In some cases the arrestee may be charged with DUI even after passing a breathalyzer test if he or she refuses also to take subsequent urine or blood tests. However, the refusal will carry increased penalties on the driving under the influence charge (typically a longer license suspension and/or an increased jail sentence), and the act of refusing may be admissible in court as evidence of "consciousness of guilt". In an increasing number of jurisdictions, if the suspect refuses to take a chemical test the police in some states may restrain the individual and forcefully withdraw blood; This is particularly common in situations involving an accident with injury or death. In some jurisdictions this may require obtaining a warrant from a judge.

While chemical tests are used to determine the driver's BAC, they do not determine the driver's level of impairment. However, state laws usually provide for a rebuttable legal presumption of intoxication at blood alcohol levels of .08 or higher.

The accuracy of breath, blood and urine testing is a subject of some dispute, with various scientific studies indicating unreliable results. In any case, breath and urine tests can only estimate the BAC at the time the test is taken, which can be different than when the vehicle was actually operated. Evidence of the BAC at time of driving is often presented in the form of retrograde extrapolation, a questionable process whereby earlier blood alcohol levels are estimated by applying a formula developed in 1932 known as the Widmark factor.

If it is determined after arrest that the person's blood alcohol concentration is not at or above the legal limit of .08, they will probably be released without any charges. One may, however, still be charged with driving under the influence of alcohol on the basis of driving symptoms, observed impairment, admissions and/or performance on the field sobriety tests. And if there is suspicion of drug usage, a blood or urine test is likely, or at least the testimony of a specially-trained officer called a Drug Recognition Expert (DRE). Assuming sufficient evidence of impaired driving from drugs, the arrestee may face charges of driving under the influence of drugs or the combined influence of alcohol and drugs.

Most of the time, the driver will either be kept in a holding cell (sometimes referred to as the "drunk tank") until he is deemed sober enough to be released on bail or on his "own recognizance" ("O.R."). A date to appear in court for an arraignment will be given to him. If he cannot make bail or is not granted O.R., he will be kept in jail to wait for the arraignment on remand.

Convinced that many DWI offenders are alcohol dependent persons and that incarceration is not an effective deterrent to such individuals, Dr. Jeffrey Runge, head of the National Highway Traffic Safety Administration (NHTSA), promotes DWI courts as an alternative.

These innovative courts use substance abuse intervention with hard-core repeat offenders who plead guilty to driving while intoxicated. Those accepted into the diversionary program are required to abstain from alcohol. Some are required to wear a device that monitors and records any levels of alcohol detected in their bloodstreams.

It appears that DWI courts are effective, compared to standard punishment, in reducing DWI recidivism.

An SR-22 is an official documentation required in some states to redeem a suspended drivers license and get your car registered at the local Department of Motor Vehicles (DMV). A SR-22 Filing is a form issued by an insurance company which removes a suspension order placed by the DMV's office on your driving privilege. The filing provides a guarantee to the state that an insurance company has issued at least minimum liability coverage for the person making that filing and that the insurance company will notify the DMV should the insurance ever lapse for any reason.

SR-22 differs from the standard SR-1 form required for accidents or other traffic violations in that is it specific to a DUI violation.

www.SanDiegoDrunkDrivingAttorney.net/blog

San Diego DUI criminal defense lawyer news

May 14, 2008

A dramatic San Diego DUI crash in Mission Valley leaves a car looking like a mangled mess, and police are blaming it on illegal street racing, San Diego DUI attorneys report.

The San Diego DUI crash happened Tuesday night along Friars Road, west of Fashion Valley.

One driver was sent to the hospital with minor injuries, after his car slammed into a tree. A second driver was not hurt. He made the initial call to 911.

Several witnesses tell police the cars were going between 80 and 100 miles per hour, which is double the speed limit.

"It's pretty selfish to come out here driving at those speeds when you got families out here, and people like, just good citizens using this roadway for the right purpose, and San Diego PD is not going to tolerate this type of driving," San Diego Police Sergeant Art Doherty.

San Diego DUI Police say the driver of the wrecked car is suspected of San Diego DUI - driving drunk. The unharmed driver was questioned and released, but his car was towed away.

Both are facing charges for drag racing, according to San Diego DUI attorneys.

www.sandiegoduilawyer.com/blog

San Diego DUI attorney news

May 14, 2008

A police officer blew into a breath analysis machine so a corrective services colleague could dodge a drink driving charge, the Police Integrity Commission (PIC) has been told.

The PIC is investigating whether any police engaged in serious misconduct or criminal activity over two separate breath tests, in Moree and Orange in rural NSW, last year.

In each incident, someone with links to NSW Police returned a positive roadside breath test, but appeared to have avoided a further test by a breath analysis machine as required by law.

In his opening address, David Staehli SC told the commission the two unconnected incidents were troubling, as they indicated a culture among certain officers of providing special treatment for people they knew.

However, many police did not find such practices acceptable, he told the commission, sitting in Sydney.

"The tension between such views is potentially demoralising, not only to the public, who might be dismayed by the knowledge that such things go on, but to the honest members of the police force itself who are obliged to continue to do their duty in the knowledge that such events have occurred ... and being carried out by their workmates," Mr Staehli said.

The first incident, at Moree in the state's north-west in September 2007, involved corrective services officer David John Webb.

He was arrested after returning a mid-range alcohol level of 0.09 in a roadside breath test.

Mr Webb was taken to Moree police station, where he worked, and was able to ask a colleague to inform his boss, John Arthur Weavers, of his predicament.

The PIC was told a flurry of late night phone calls ensued.

"After a series of events, set off by those telephone calls, it appears that rather than Mr Webb being required to blow in to breath analysis machine, another police officer took his place and did so instead," Mr Staehli told the commission.

The machine registered zero and this was recorded as Mr Webb's analysis, he said.

Mr Webb was then allowed to drive home with a police escort, despite having blown a second reading of 0.134 on a roadside type breath testing machine beforehand.

Very interesting. www.sandiegodrunkdrivingattorney.net/articles

San Diego DUI attorney news

May 13, 2008

Are cell phones more dangerous than a San Diego DUI driver? The debate will slow down. www.sandiegodrunkdrivingattorney.net/blog

California's new hands-free cell phone law could save 300 lives a year, a new study indicates.

Similar laws in other states already have saved lives, the Public Policy Institute of California reported Monday night. In particular, those laws have helped reduce the number of deaths from accidents that occurred in bad weather, on wet roads or during rush-hour.

"The hands-free law has the potential to change people's behavior in lots of ways," said Jed Kolko, a research fellow at the PPIC, an independent, non-profit, non-partisan research group. But Kolko, who wrote the report, noted the benefit of such laws "is really concentrated in adverse driving conditions."

His findings appear to sharply contradict data from the California Highway Patrol. According to the CHP, cell phone usage was a factor in just six fatal accidents in 2006, the last year for which data was available.

Taking effect on July 1, California's law will require drivers to use a hands-free device such as a Bluetooth headset when talking on their cell phones while behind the wheel. A separate law bars those younger than 18 from using a cell phone or other mobile device at all while driving.

The hands-free law is aimed at reducing what many see as a growing danger: drivers distracted by the cell phones pressed against their ears.

"I believe this (law) will save lives," said State Sen. Joe Simitian, D-Palo Alto, who was the chief sponsor of the law. Noting the PPIC's new study, he added, "The latest data suggests that's absolutely the case."

To assess the potential impact of California's new law, Kolko took a look at crash data from other states that have already implemented similar rules and compared it with data from states without such laws. New York, New Jersey, Connecticut and the District of Columbia enacted hands-free laws before California.

Kolko then compared other potential factors, including the fact that traffic deaths have been trending downward nationwide. He found that in the first six months after the hands-free laws took effect, traffic deaths in bad weather for states with those laws were 52 percent lower than they would have been expected to be. Wet road fatalities were 38 percent lower, and rush-hour deaths were 17 percent lower.

The effect was inconsistent over time. But data from New York, which in 2001 enacted the first hands-free law, suggest that it holds up over the long term. Three to four years into New York's law, bad weather traffic deaths were 63 percent lower than would be expected, while wet road deaths were 64 percent lower than expected.

Assuming that California would see similar percentage declines in death rates, Kolko applied those figures to the state's total number of annual fatalities in adverse conditions. That's how he got the 300 figure, which he calls a "conservative estimate."

Kolko's research doesn't explain why hands-free laws lower traffic related deaths. There's not enough data yet to know, he said.

Conservative though Kolko's numbers may be, his research may still prove controversial, in light of CHP's data. Between 2004 and 2006, CHP reported no more than eight fatal accidents a year involving cell phone usage.

That number is not directly comparable with the PPIC's, because more than one person could have died in each of those crashes. However it does suggest that far fewer people are dying on California roads due to talking on a cell phone than the PPICs reports the new law will save.

Cell phone usage prior to a collision is probably significantly underreported, Kolko argues, because of the difficulty in assessing it after the fact.

Conversely, other studies have suggested that talking on a hands-free device is much more dangerous than either the CHP figures indicate or the PPIC study suggests. Those studies contend that talking on a cell phone while driving is just as dangerous as driving while legally drunk - regardless of whether the driver is using a hands-free device or not.

"The problem isn't that drivers' hands aren't on the wheel," said David Meyer, a professor of psychology at the University of Michigan. "It's that their mind is not on the road."

Kolko doesn't dispute the notion that cell phone usage - hands-free or no - can impair driving. But his research indicates that hands-free laws may help in other ways, such as by alerting drivers to the dangers of driving while on a cell phone or encouraging them to use cell phones only when conditions might permit them to be used more safely.

www.sandiegodrunkdrivingattorney.net

San Diego DUI lawyer news

www.SanDiegoDUIlawyer.com/blog

May 13, 2008

San Diego DUI attorneys report a new nationwide report estimates that roughly a quarter of all drivers in some states drove under the influence of alcohol in the past year.

In this first ever national report, it was found that 15.1 percent of the nation's drivers age 18 and older drove under the influence of alcohol at least once in the past year. The report compiled by the Substance Abuse and Mental Health Services Administration (SAMHSA) found that driving under the influence varied greatly from state to state. Utah received the lowest score with a rate of 9.5 percent.

San Diego DUI attorneys believe this is something that Governments and individuals need to seriously address because the high percentages of alcohol consumption and abuse can translate into serious trouble for our cities and towns, including increased public health costs and injuries and death resulting from drinking and driving.

State estimates of adults driving under the influence of alcohol and illicit drugs are based on the combined data from the 2004 to 2006 National Surveys on Drug Use and Health (NSDUH). The estimates are annual averages based on combined data collected from 127,283 drivers surveyed in 2004, 2005 and 2006, the most recent data available to the research team.

San Diego DUI lawyers hope that the release of this study forces more public agencies into action. DUI or driving under the influence of alcohol is among the leading sources of preventable death by injury in the United States.

Everyone should recognize the extreme importance for experienced legal representation as the consequences for receiving a DUI or Drunk Driving conviction are severe.

www.SanDiegoDrunkDrivingAttorney.net/blog

San Diego DUI attorney case

May 13, 2008

Noli v. Department of Motor Vehicles (1981) 125 Cal.App.3d 446 , 178 Cal.Rptr. 5

Following an administrative hearing, respondent Department of Motor
Vehicles ordered appellant's driver's license suspended for six months
pursuant to Vehicle Code section 13353, which provides for such
suspension when a motorist lawfully arrested for driving under the
influence of intoxicating liquor refuses to submit to one of three
chemical tests for determining the alcoholic content of his blood. The
present appeal is from a judgment of the superior court denying
appellant's petition for administrative mandamus to compel respondent
to vacate the license suspension order.

Appellant was arrested in Merced County by California Highway Patrol
officers in the evening of June 30, 1980, on suspicion of drunk
driving (Veh. Code, § 23102, subd. (a)). The two officers took him to
the Merced Community Medical Center (Medical Center). In the parking
lot there, before they entered the building, one officer read the
following statement to appellant from a Department of Motor Vehicles
form: "You are required by state law to submit to a chemical test to
determine the alcoholic content of your blood. You have a choice of
whether the test is to be your blood, breath or urine. If you refuse
to submit to a test or fail to complete a test, your driving privilege
will be suspended for a period of six months. You do not have the
right to talk to an attorney or to have an attorney present before
stating whether you will submit to a test, before deciding which test
to take, or during the administration of the test chosen. If you are
incapable or state you are incapable of completing the test you
choose, you must submit to and complete any of the remaining tests or
test." The officer then asked appellant successively whether he would
submit to a blood test, a breath test, or a urine test. Appellant
answered no to the first two but yes to the urine test. The two
officers then took appellant into the Medical Center and asked him
again whether he would submit to a blood test or a breath test, which
would be given at the Medical Center, but appellant refused both.

Appellant was "combative" with the officers and was in handcuffs while
at the Medical Center. The officers were unwilling to remove the
handcuffs at the Medical Center to allow the urine test to be taken
there. They told appellant that the urine test would have to be given
at [125 Cal.App.3d 449] the jail, but that the blood test and breath
test could only be given at the Medical Center, and if appellant was
transported to the jail for the urine test and failed to complete that
test, he would not have another opportunity to take the blood test or
the breath test. Appellant was insistent he would take only the urine
test.

The officers then took appellant back to the patrol car (putting him
in the car "forcibly") and proceeded with him to the county jail. At
the jail the handcuffs were removed and appellant was placed in the
drunk tank and given directions to proceed with his part of the urine
test. After a brief interval appellant reported back to the officers
he was unable to urinate. He was told that if he could not complete
the test his license would be suspended for six months. The officers
waited approximately 20 minutes but without further result.

The evidence on the point was conflicting, but the trial court found
that appellant did not request to be given another opportunity to take
the breath test or the blood test.

Respondent's decision after the administrative hearing was that the
automatic suspension of appellant's driver's license under section
13353 should remain in effect. The trial court in the administrative
mandamus proceeding reviewed the evidence presented at the
administrative hearing and, exercising its independent judgment,
determined in effect that appellant had failed and refused to complete
any of the three blood alcohol tests prescribed in section 13353,
without legal excuse, and denied the writ of mandate.

[1] We agree with respondent and the trial court. The total picture
disclosed shows a young man of large physical build, from all
indications heavily under the influence of alcohol, aggressive and
combative in his behavior with the officers and requiring physical
restraint. To say that he was uncooperative with the officers would be
a gross understatement. (We note appellant stipulated at the
administrative hearing that the arresting officer had reasonable cause
to believe appellant had been driving while drunk; and that he was
lawfully arrested.) The officers were justified in concluding, in the
circumstances, that appellant was unwilling to take any of the tests
and in fact was refusing to do so despite the warning given to him
about the consequences.

Section 13353 states in part: "The person arrested shall have the
choice of whether the test shall be of his blood, breath, or urine,
and he [125 Cal.App.3d 450] shall be advised by the officer that he
has such choice. If the person arrested either is incapable, or states
that he is incapable, of completing any chosen test, he shall then
have the choice of submitting to and completing any of the remaining
tests or test, and he shall be advised by the officer that he has such
choice." We hold that in the circumstances here presented, section
13353 did not require the officers to offer appellant another
opportunity to choose one of the two tests he had categorically
refused, when it would mean transporting him back to the Medical
Center to do so, particularly when there was little reason to believe
he would submit to either of those tests if the opportunity were
renewed. To hold otherwise would be to exalt form over substance in
the interpretation of the statute and make the arresting officers
subservient to the caprice of an inebriated and uncooperative
arrestee. The officers had more important things to do than play games
with appellant in his condition. What it boils down to is that one who
is lawfully under arrest for drunk driving should not be able to
frustrate the procedure contemplated by section 13353 and defeat its
purpose by being combative and uncooperative with the arresting
officers. fn. 1

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May 11, 2008

A man who slurs his speech because of a traumatic brain injury he suffered in a 1999 fall says police wrongfully arrested him in March because they mistook his disability for dui - intoxication.

Ryan Dinsmore, 33, was arrested and handcuffed on suspicion of dui - driving under the influence while en route to the city jail to visit a friend who was being held there.

The results of a dui blood test taken at Providence St. Peter Hospital during the more than three hours in which Dinsmore was in custody show he was not dui / under the influence of drugs or alcohol. The results of those dui tests were released April 18.

He will not be charged with a dui crime.

"He showed them the scar on the back of his head; it's horrible — because you have a disability, that you're guilty of something."

After her son suffered the injury, he was in an intensive-care unit in San Francisco for a month, then was at a rehabilitation hospital for three months. The disability has affected rhythm and balance and the way his eyes track. He had to relearn to walk, and he read aloud from children's books to regain his speech.

Dinsmore blew 0.00 on Breathalyzer

Dinsmore said that when he stopped his car near City Hall about 6:15 p.m. March 15 to ask an officer, listed in the police report as B. Anderson, for directions to the jail, she asked how much he had been drinking and told him he seemed as though he was using drugs or under the dui - influence of alcohol.

A second officer, drug-recognition expert Bryan Wyllie, arrived to assist.

Wyllie searched the vehicle and found nothing illegal. A police report says Dinsmore then was arrested and taken to the police station, where he registered a 0.00 on a dui Breathalyzer test, which detects blood-alcohol level.

Wyllie still "found probable cause to believe Dinsmore was under the influence of a CNS (central nervous system) depressant and unable to operate a motor vehicle safely," the dui report says.

Wyllie took Dinsmore to Providence St. Peter Hospital to undergo a dui blood test for drugs and alcohol.

"It was humiliating," Dinsmore said. "I was treated like a common criminal."

Dinsmore said he explained to the officers that he was not intoxicated and showed them the 4- to 5-inch scar on the back of his head from when he fell out of a tree in the San Francisco area. They didn't believe him.

Reasonable dui treatment

Cmdr. Tor Bjornstad said that based on the dui police report he has read, Wyllie "seemed to be proceeding very reasonably."

Bjornstad added that although what Dinsmore went through is unfortunate, "I do have to say that I don't think the officers were out of bounds based on their experience and training."

dui report isn't unique

The executive director of the Brain Injury Association of Washington said he has heard of cases similar to Dinsmore's.

Gene Van den Bosch said his organization is sympathetic with officers and first responders who must make snap judgments in pressure situations, and he conceded that a reasonable person could, in some circumstances, confuse brain-injury symptoms for intoxication.

He said that in the past three weeks, his organization has begun making cards available to members stating that they are brain-injury survivors.

Bjornstad said that if all brain-injured people carried such cards, it might be helpful to law enforcement, but it wouldn't be 100 percent effective because it still is possible for them to be intoxicated.

"If there was a fail-safe solution out there, we would welcome it gladly," he said.

No training

Bjornstad and a sergeant with the Washington State Patrol said they are not aware of any special training for police cadets in distinguishing between brain-injury symptoms and intoxication.

"We can only go with the indicators that we have in front of us," said State Patrol Sgt. Freddy Williams.

Williams said that once in his 20 years of working patrols, he almost arrested a brain-injured man who was exhibiting "all the signs and symptoms of someone who was intoxicated." Another trooper with knowledge of brain injury came along and prevented the arrest, Williams said.

Symptoms are similar

Dr. Kathleen Bell, medical director of the brain-injury program at the University of Washington, said it's not uncommon for brain-injured subjects to have poor impulse control in stressful situations, which could lead them to say the wrong thing to an officer.

Bell, who serves on the executive board of the Brain Injury Association of Washington, said the organization is beginning to develop educational programs for law enforcement officers and spread the word about how to recognize and deal with brain-injured people.

When told of Dinsmore's arrest, Bell said, "I'm a little surprised that a substance-abuse specialist came out and didn't clue into this at all."

Failed dui field test

Dinsmore, a South Puget Sound Community College student, said he failed one of the field sobriety tests, the "horizontal gaze" test, because his eyes cannot move from side to side normally.

Wyllie's "DUI interview" report states that Dinsmore's eyes were watery and bloodshot, his face was flushed, and his speech was slurred. It also says his attitude was "argumentative." In a box that asks the officer his opinion of a suspect's level of intoxication, Wyllie checked the box indicating "extreme."

Dinsmore said that after he was released by dui police, he was not allowed to see his friend at the jail.

Dinsmore says it "seems like I was really discriminated against because I was handicapped. City officials should not be allowed to treat people in this manner."

Last year, Tenino police reacted similarly, forcing him to take sobriety tests when he went to the police department to get insurance information for a vehicle that had struck his parked car. However, he was not arrested.

San Diego DUI criminal defense attorney news

May 12,2008

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Cell phone trends:

United States over 254 million people subscribed to such wireless communication devices as cell phones as of February 2008, compared with approximately 4.3 million in 1990, according to the Cellular Telecommunications & Internet Association.

Increased reliance on cell phones has led to a rise in the number of people who use the devices while driving. There are two dangers associated with driving and cell-phone use, including text messaging. First, drivers must take their eyes off the road while dialing. Second, people can become so absorbed in their conversations that their ability to concentrate on the act of driving is severely impaired, jeopardizing the safety of vehicle occupants and pedestrians. Since the first law was passed in New York in 2001 banning hand-held cell-phone use while driving, there has been debate as to the exact nature and degree of hazard. The latest research shows that while using a cell phone when driving may not be the most dangerous distraction, because it is so prevalent it is by far the most common cause of this type of crash and near crash.


RECENT DEVELOPMENTS

* Studies: Studies about cell-phone use while driving have focused on several different aspects of the problem. Some have looked at its prevalence as the leading cause of driver distraction. Others have looked at the different risks associated with hand-held and hands-free devices. Still others have focused on the seriousness of injuries in crashes involving cell-phone users and the demographics of drivers who use cell phones. Below is a summary of some recent research on the issue.

* In July 2007 the National Highway Traffic Safety Administration and the National Center for Statistics and Analysis released the results of their National Occupant Protection Use Survey (NOPUS), which found that in 2006 5 percent of drivers used hand-held cell phones, down from 6 percent in 2005, the first decline since the survey began tracking hand-held cell phone use in 2000. The decline in use occurred in a number of driver categories, including female drivers (down from 8 to 6 percent), drivers in the Midwest (down from 8 to 4 percent), drivers age 25 to 69 (down from 6 to 4 percent) and drivers of passenger cars (down from 6 to 4 percent) to name but a few. NOPUS is a probability-based observational survey. Data on driver cell-phone use were collected at random stop signs or stoplights only while vehicles were stopped and only during daylight hours.

* A survey of dangerous driver behavior was released in January 2007 by Nationwide Mutual Insurance Co. The survey of 1,200 drivers found that 73 percent talk on cell phones while driving. Cell phone use was highest among young drivers.

* Text messaging, or “texting” by teens, a driving distraction related to cell phone use, was the subject of an August 2006 Teens Today survey conducted by the Liberty Mutual Research Institute for Safety and Students Against Destructive Decisions (SADD). The survey showed that teens considered sending text messages via cell phones to be their biggest distraction. Of the teens surveyed, 37 percent said that text messaging was extremely or very distracting, while 20 percent said that they were distracted by their emotional states and 19 percent said that having friends in the car was distracting. The January 2007 survey by Nationwide found that 19 percent of motorists say they text message while driving.

* Motorists who use cell phones while driving are four times as likely to get into crashes serious enough to injure themselves, according to a study of drivers in Perth, Australia, conducted by the Insurance Institute for Highway Safety. The results, published in July 2005, suggest that banning hand-held phone use won’t necessarily improve safety if drivers simply switch to hand-free phones. The study found that injury crash risk didn’t vary with type of phone.

* Many studies have shown that using hand-held cell phones while driving can constitute a hazardous distraction. However, the theory that hands-free sets are safer has been challenged by the findings of several studies. A study from researchers at the University of Utah, published in the summer 2006 issue of Human Factors, the quarterly journal of the Human Factors and Ergonomics Society, concludes that talking on a cell phone while driving is as dangerous as driving drunk, even if the phone is a hands-free model. An earlier study by researchers at the university found that motorists who talked on hands-free cell phones were 18 percent slower in braking and took 17 percent longer to regain the speed they lost when they braked.

* A September 2004 study from the NHTSA found that drivers using hand-free cell phones had to redial calls 40 percent of the time, compared with 18 percent for drivers using hand-held sets, suggesting that hands-free sets may provide drivers with a false sense of ease.

* A study released in April 2006 found that almost 80 percent of crashes and 65 percent of near-crashes involved some form of driver inattention within three seconds of the event. The study, The 100-Car Naturalistic Driving Study, conducted by the Virginia Tech Transportation Institute and the National Highway Traffic Safety Administration (NHTSA), breaks new ground. (Earlier research found that driver inattention was responsible for 25 to 30 percent of crashes.) The new study found that the most common distraction is the use of cell phones, followed by drowsiness. However, cell-phone use is far less likely to be the cause of a crash or near-miss than other distractions, according to the study. For example, while reaching for a moving object such as a falling cup increased the risk of a crash or near-crash by nine times, talking or listening on a hand-held cell phone only increased the risk by 1.3 times. The study tracked the behavior of the 241 drivers of 100 vehicles for more than one year. The drivers were involved in 82 crashes, 761 near-crashes and 8,295 critical incidents.

* These findings confirm an August 2003 report from the AAA Foundation for Traffic Safety that concluded that drivers are far less distracted by their cell phones than by other common activities, such as reaching for items on the seat or glove compartment or talking to passengers. That study was based on the analysis of videotapes from cameras installed in the vehicles of 70 drivers in North Carolina and Pennsylvania.

* State and Federal Initiatives: The number of state legislatures debating measures that address the problem of cell-phone use while driving and other driver distractions continues to rise. As of March 2008 four states — Connecticut, New Jersey, New York and Utah — plus the District of Columbia had laws on the books banning the use of hand-held cell phones while driving. Similar laws in California and Washington State go into effect in July 2008. Except for Utah and Washington State, the laws are all “primary enforcement,” meaning a motorist may be ticketed for using a hand-held cell phone while driving without any other traffic offense taking place.

* About 17 states have passed laws banning or restricting young drivers from using cell phones. The most recent state to enact such legislation is California. But the California law goes farther than any other state’s. It bans the use of any mobile device by drivers under age 18. This includes a cell phone, a broadband personal communication device, specialized mobile radio device, handheld device or laptop computer.

* In May 2007 Washington become the first state to ban the practice of texting with a cell phone while driving; New Jersey passed a similar law that took effect on March 1, 2008. In Washington, the fine for DWT (driving while texting) is set at $101, but since it is a secondary offense a driver must be pulled over for some more grievous infraction before the penalty can be imposed. In New Jersey the fine for DWT is $100, but the state has made the offense one of primary enforcement (see above). In Connecticut drivers can be fined $100 not only for using a cell phone, but those pulled over for speeding or other moving violations can be fined for other driving distractions such as putting on makeup or turning to discipline children in the back seat. In New York, the first state to enact such legislation, in 2001, drivers face fines of $100 for the first violation, $200 for the second and $500 thereafter.

* Businesses: Businesses are increasingly prohibiting workers from using cell phones while driving to conduct business. Exxon Mobil and Shell are examples of large companies that ban employees’ use of any type of cell phone while driving during work hours. The California Association of Employers recommends that employers develop a cell phone policy that requires employees to pull off the road before conducting business by cell phone.

* Court Decisions: In December 2007 International Paper Co. agreed to pay a $5.2 million settlement to a Georgia woman who was rear-ended by one of its employees. The employee was driving a company car and talking on a company cell phone at the time of the accident. The settlement was reached even though the employee had violated her company’s policy of requiring the use of hands-free headsets while driving. The suit is among the most recent of several cases where an employer has been held liable for an accident caused by a driver using a cell phone. (See background section on Employer and Manufacturer Liability.)

BACKGROUND

Cell phones play an integral role in our society. However, the convenience they offer must be judged against the hazards they pose. Inattentive driving accounted for 6.4 percent of crash fatalities in 2003—the latest data available—according to the U.S. Department of Transportation. Inattentive driving includes talking, eating, putting on make up and attending to children. Using cell phones and other wireless or electronic units are also considered distractions.

As many as 40 countries may restrict or prohibit the use of cell phones while driving. Countries reported to have laws related to cell phone use include Australia, Austria, Belgium, Brazil, Botswana, Chile, the Czech Republic, Denmark, Egypt, Finland, France, Germany, Greece, Hungary, India, Ireland, Israel, Italy, Japan, Jordan, Kenya, Malaysia, the Netherlands, Norway, the Philippines, Poland, Portugal, Romania, Russia, Singapore, the Slovak Republic, Slovenia, South Africa, South Korea, Spain, Sweden, Switzerland, Taiwan, Turkey, Turkmenistan, the United Kingdom and Zimbabwe. Most countries prohibit the use of hand-held phones while driving. Drivers in the Czech Republic, France, the Netherlands and the United Kingdom may use cell phones but can be fined if they are involved in crashes while using the phone. Drivers in the United Kingdom and Germany also can lose insurance coverage if they are involved in a crash while talking on the phone.

Supporters of restrictions on driving while using a cell phone say that the distractions associated with cell phone use while driving are far greater than other distractions. Conversations using a cell phone demand greater continuous concentration, which diverts the driver’s eyes from the road and his mind from driving. Opponents of cell phone restrictions say drivers should be educated about the effects of all driver distractions. They also say that existing laws that regulate driving should be more strictly enforced.

Employer and Manufacturer Liability: Although only a handful of high-profile cases have gone to court, employers are still concerned that they might be held liable for accidents caused by their employees while driving and conducting work-related conversations on cell phones. Under the doctrine of vicarious responsibility, employers may be held legally accountable for the negligent acts of employees committed in the course of employment. Employers may also be found negligent if they fail to put in place a policy for the safe use of cell phones. In response, many companies have established cell phone usage policies. Some allow employees to conduct business over the phone as long as they pull over to the side of the road or into a parking lot. Others have completely banned the use of all wireless devices.

In an article published in the June 2003 edition of the North Dakota Law Review, attorney Jordan Michael proposed a theory of cell phone manufacturer liability for auto accidents if they fail to warn users of the dangers of driving and talking on the phone at the same time. The theory holds that maker liability would be similar to the liability of employers who encourage or demand cell phone use on the road. Holding manufacturers liable would cover all persons who drive and use cell phones for personal calls. Michael notes that some car rental agencies have already placed warnings on embedded cell phones in their cars.

http://www.sandiegodrunkdrivingattorney.net/

If you recently came across a great article written by Joel Stein and published in the Los Angeles Times, you read how Mr. Stein tells us about his quest for medical marijuana.

Yes, marijuana, that demon weed that corrupts our children, makes them lazy and makes them hungry.

While most of the people in our jail are in for a California DUI or domestic violence charges, there are quite a few who have been arrested and are sitting out a possession of marijuana charge. I can’t really think of a more worthless charge, although loitering comes pretty close. I’d suppose that the two charges would kind of combine for some people who smoke a lot of pot, get tired, take a nap and wake up with a ticket in their shirt for loitering and handcuffs on their wrists for possessing rolling papers.

Believe me, there are enough shootings, assaults, murders and robberies to keep our justice system quite busy without searching out the people who have a preference for smoking the wrong kind of plant. Don’t believe me? Here are a few incidents that happened just this weekend in Omaha, which isn’t exactly Lebanon, you know?

So anyways, Mr. Stein tells a doctor that he suffers from insomnia and headaches, forks over his $80 and gets the equivalent of a medical permission slip - which allows him to hop over to one of 200 dispensaries in his area and purchase a variety of marijuana called “Sugar Kush.”

Yeah I don’t know what that is. Sounds very marjiuana-y though.

Joel Stein goes on to expound on the fact that since Los Angeles cops aren’t going to arrest you for possessing up to 8 ounces of marijuana as long as you have that medical dispensation form, dealers are hurting for business:

In fact, Benson buys all his pot from a dispensary now. Even with the sales tax, he pays the same price and, he said, gets more consistent quality than he did from a dealer. “I had a dealer who came by my house, but this is more convenient,” he said. When I asked him how that could be, he explained: “I used to have to sit there and listen to his stories. Because dealers like to hang out.”

Joel’s conclusion is quite satisfying for anyone who thinks that marijuana isn’t quite as big a deal as everyone wants to make it out to be:

I always wondered what would happen if marijuana were legalized for anyone over 18. It seems it already has been, and nothing happened.


www.sandiegoduilawyer.com/blog

San Diego DUI lawyer news

May 12, 2008

www.sandiegodrunkdrivingattorney.net/blog

A 17-year-old boy was arrested on suspicion of California DUI - driving under the influence after the Honda he was driving crashed Sunday near the intersection of Petaluma-Point Reyes Road and Laurel Canyon Road by Nicasio Reservoir, California DUI attorneys report.

The juvenile, whose identity was withheld by the CHP, was driving a white Honda at the time of the accident. No one else was injured. The car was totalled, CHP officer Marc Johnston said. The year and model of the Honda was not known.

The California DUI crash happened at 2:23 p.m. The driver was taken to Marin General Hospital as a precaution, California DUI lawyers said. The CHP is investigating this California DUI.

San Diego California DUI lawyer commentary

Ever been afraid of stupid people in large groups? Who hasn't.

This is why, though one's own beliefs coincide with many pagan groups and even the Satanic church, one can’t join them. Eventually, if they get big and powerful enough, they spawn True Believers.

True Believers should scare you. They are zealots who insist their agenda is right, but moreso, their lives are such empty wastelands, they have nothing better to do than focus on converting the rest of us to their way of thinking.

Since they can’t change our minds most of the time, they change local, state, and federal laws around us. These changes are usually not based on scientific fact or anything really plausible, but on the opinion or the belief system (BS) of the True Believers themselves.

It’s very sneaky. Using the legal system, they’ve managed to force every other citizen around them to conform and obey to a set of rules in which not all of us agree. Consider the penalities for having a tiny amount of marijuana on your person in just about any US locality, but that you can travel from one state to another and get a hookup for good pot in just a few hours. That’s quite a disconnect between those who fight for stronger pot laws and society at-large.

When you think of True Believers, your first thought might be of the neo-conservative movement and/or Xtian fundamentalists. If you’re under 30, you may be surprised to learn that, once upon a time, religion didn’t play a part in politics at all. Separation of church and state was the norm. Then Jerry Falwell started his Moral Majority - which was neither, based on the number of preachers, priests, and pastors who are regularly caught up in prostitution, drinking/drugs, embezzlement, homosexual, and/or child-abuse scandals - and suddenly ultra-conservative groups were going after harmless drugs like marijuana and MDMA, a woman’s right to choose, and the latest on their agenda, pushing for a Constitutional amendment to deny gays the right to legally marry.

But when you think of True Believers, have you considered Mothers Against Drunk Driving? Any reason not to?

Do you know what your local, federal and state laws and propaganda are regarding drinking alcohol and various stats? Get the scoop.

To maintain all the rights you hold dear now, start paying attention to what organizations like MADD are doing in your own community. If the drinkers and/or smokers got their act together to fight city hall, there may be NO bans on ANY vice whereever you live.

The “DUI crackdown”, along with the accompanying loss of constitutional rights, has been unjustifiably justified by the numbers of deaths on the highways caused by drunk drivers. As the U.S. Supreme Court in Michigan v. Sitz said, DUI “sobriety checkpoints” appear to violate our Fourth Amendment right to be free of suspicionless stops by the police — but this illegal intrusion on our privacy is “outweighed” by the “carnage” on our highways of 25,000 deaths caused each year by alcohol. Where did these statistics come?

Years ago, the statistics kept on traffic fatalities included a category for “alcohol-caused” deaths. To justify such things as sobriety checkpoints, lowered blood alcohol levels and automatic at-the-scene DUI license suspensions, however, these statistics were subtly changed to “alcohol-related”. Not “caused”, but related. This meant that a perfectly sober driver who hit and killed an intoxicated pedestrian, for example, would be involved in an “alcohol-related” incident. Similarly, a sober driver who is struck by another sober driver carrying an intoxicated passenger chalked up another “alcohol-related” death. Further, if the officer believes the driver to be intoxicated but chemical tests show he is not, the death is nevertheless reported as “alcohol-related”. In fact, if the tests indicate the presence of any alcohol at all, say .02%, the fatality will be chalked up as “alcohol-related”.

In 1999, the federal General Accounting Office (GAO) reviewed these figures from the National Highway Traffic Safety Administration — and issued a report stating that they “raised methodological concerns calling their conclusions into question ”. The statistics, the GAO report said, “fall short of providing conclusive evidence that .08% BAC laws were, by themselves, responsible for reductions in alcohol related fatalities.” In other words, the statistics weren’t even valid when applied to alcohol-related fatalities, much less alcohol-caused deaths.

So what are the real numbers? The Los Angeles Times also decided to investigate the validity of these statistics. In 2002, NHTSA’s figures claimed 18,000 deaths on the nation’s highways attributable to drunk driving. The Times found that only about 5,000 of these involved a drunk driver causing the death of a sober driver, passenger or pedestrian. (Research by other groups, such as “Responsibility in DUI Laws, Inc.”, indicate the figure is actually under 3,000.)

5,000. A fraction of the number being used by the government and political pressure groups like MADD. Despite this irritating little truth, MADD, law enforcement and federal and state governments continue to use the same false statistics to justify the passage of unfair and unconstitutional DUI laws.

Get MADD now. Why leave it up to old people who are afraid to evolve into 21st century ways of thinking.

You may want to purchase a copy of Ain’t Nobody’s Business If You Do. The book is back in print, more relevant than ever, and only $9.95 on Amazon.com. A well-informed society doesn’t allow the government to exceed its boundaries.

www.SanDiegoDrunkDrivingAttorney.net/articles

San Diego DUI attorney news

May 10, 2008

DUI Police in San Luis Obispo crack down on DUI - drunk driving.

DUI Officers from the San Luis Obispo and Cal Poly Police Departments held a DUI checkpoint in the city Friday night.

More than 400 drivers were stopped. Of those, four were arrested for DUI and booked into the San Luis Obispo County Jail.

DUI Officers want to remind folks to always designate a sober driver and never get behind the wheel after drinking.



San Diego DUI Lawyer - San Diego Attorney Drunk Driving / San Diego DWI Lawyer can help you beat the charge: http://www.SanDiegoDUIlawyer.com .

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San Diego DUI Attorney Rick Mueller Background and Contact Information http://www.sandiegoduilawyer.com/about.html

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San Diego Criminal Defense Attorney - San Diego DUI Lawyer news

Barbara McCloone was arrested by Phoenix DUI police on suspicion of DUI - driving under the influence of alcohol. Based on two DUI breath tests, it was determined McCloone had a blood-alcohol content roughly three times the legal limit of 0.08 percent.

The 57-year-old Phoenix woman was charged with extreme DUI, leaving the scene of her single-car accident and speeding.

Under harsher DUI laws passed last year, McCloone, a first-time offender, would be required to equip her car with a breath-testing device known as an ignition interlock. She would also have to serve a minimum of 45 days in jail because her BAC exceeded 0.20 percent, putting her in the new "super extreme DUI" category.

But McCloone and three other DUI offenders are challenging Arizona's new laws, arguing that they are unconstitutionally "vague and ambiguous." And some state lawmakers are worried a DUI judge may soon strike down the laws, eliminating mandatory interlock devices for first-time DUI offenders.

McCloone's attorney makes the case that the statute does not specify at what time the individual's alcohol content must exceed 0.20 percent. Another provision of the laws makes it illegal for a person to have a blood-alcohol content of 0.15 percent or more within two hours of getting behind the wheel.

"Because the statute is not specific and, therefore, unclear, it fails to provide persons of ordinary intelligence a reasonable opportunity to know what is prohibited and fails to contain explicit standards of application to prevent arbitrary and discriminatory enforcement," McCloone's attorney, Lawrence I. Kazan, wrote in a lawsuit filed in Phoenix Municipal Court.

An omnibus DUI bill sponsored by House Speaker Jim Weiers, R-Phoenix, would have cleared up any ambiguity in the laws, including a discrepancy over sentencing. But Gov. Janet Napolitano vetoed House Bill 2395 late last month, objecting to a provision that would reduce the amount of time first-time DUI offenders would be required to use the interlock device.

There's a possibility a DUI judge would toss out the DUI laws over technicalities. But Sen. Jim Waring, another Phoenix Republican, said there's a good reason why the liquor lobbyist and other DUI interlock opponents are fighting for the DUI bill's defeat.

San Diego Criminal Defense Attorneys & San Diego DUI Lawyers at www.sandiegodrunkdrivingattorney.net

San Diego DUI criminal defense attorney news

May 10, 2008

What's really going on inside your head when you make a decision, make a mistake, or have a few drinks? Researchers are using fMRI techniques to monitor blood flow through parts of the brain as it responds to stimuli. They hope to shed some light on the mysterious inner workings of the human mind. Guests discuss three recent research projects making use of the technique:

A study published in the journal Nature Neuroscience looks at brain activity during the process of making a simple decision — whether to push a button with the right or left hand. The researchers found that parts of the brain activated as much as seven seconds before the person being studied was aware of having made a decision. By looking at the patterns of brain activity, the researchers could predict which button the subject would choose to push.

In Proceedings of the National Academy of Sciences, researchers report that they were able to detect patterns of brain activity about 10 seconds before the study subjects made a mistake in simple, mindless tasks.

A researcher at the National Institute on Alcohol Abuse and Alcoholism is using fMRI to study the effects of alcohol on the brain. He found that people with blood alcohol levels of 0.08 (legally intoxicated in some states) exhibit increased activity in a part of the brain associated with rewards, and a change in the brain's fear response to risks.

Though the technique is being eagerly explored in a variety of fields, fMRI has received criticism from some brain experts as being the modern-day equivalent of phrenology.


www.sandiegodrunkdrivingattorney.net/blog

San Diego DUI criminal defense attorney news from www.SanDiegoDUI.com

May 9, 2008

It is graduation season again and there will be many celebrations and opportunities to indulge and the temptation to get behind the wheel. San Diego wants to promote safe and responsible driving to avoid California DUI / Drunk Driving arrests in San Diego.

According to San Diego DUI criminal defense lawyers and the San Luis Obispo County Drug & Alcohol Services, San Luis Obispo County consistently ranks higher than the California average for adult arrests for California DUI / Drunk Driving / driving-under-the-influence and adult arrests for alcohol violations.

San Diego DUI criminal defense attorney observers attribute SLO County's ranking to alert law enforcement and the high percentage of college-age population among the general driving population. Although California DUI arrests are high, SLO County's alcohol-involved motor vehicle accidents and hospitalizations are among lowest in the state.

San Diego DUI criminal defense attorneys believe the public should be aware of the many alternatives available to DUI / Drunk Driving /driving under the influence and would like to see a reduction in California DUI arrests.

We shouldn’t only rely on California DUI offenders to get caught after the fact. Americans have to change their mindset and try to separate the two activities of drinking and driving to prevent the situation in the first place. We need to take our driving privilege and the safety of others seriously.

For more information, visit www.SanDiegoDrunkDrivingAttorney.net/blog.

San Diego DUI criminal defense attorney news

When police stopped him one night in Sarasota, Villis Sanders told officers that the small blue pills in his car were Aleve, an over-the-counter medicine for his aching wisdom teeth.

A patrolman used a drug kit to find out what the pills were. The test said the tablets were amphetamines, Sanders was jailed and his car was impounded.

But it turns out that the test was wrong — prosecutors took the pills to a laboratory before Sanders’ trial and found that they were Aleve, after all.

The miscue raises questions about the reliability of police drug kits and how the results of a roadside test can land an innocent person in jail.

Agencies throughout the country use similar kits to identify drugs, and the tests are often the only way for an officer to figure out whether someone is carrying a bag of headache powder or a bag of cocaine.

Experts say that “false positives” are rare, but when the police department tested additional pills — including an independent Aleve tablet — the results were still the same:

Aleve shows up as amphetamines.

And no one knows why the test keeps getting it wrong.

The manufacturer says that officers may not have been properly trained or that Aleve contains a compound similar to those found in amphetamines. Officials from Bayer Health Care, which makes Aleve, did not immediately respond to questions.

And Sarasota police officials questioned both the kits and the compounds in Aleve — but say that they did everything they could to figure out what Sanders was carrying that night.

Sanders was pulled over in late March for a broken tag light. His license had been suspended because of unpaid traffic tickets, and he spent 22 hours in jail.

About a month after the arrest, prosecutors dropped the drug charge and the city paid back more than $1,000 in towing and impound fees.

“I feel bad for the guy, I really do,” said Capt. Bill Spitler, head of the department’s patrol division. "No one should be arrested for something they did not do.”

Sanders’ arrest is not the first time that a law enforcement agency jailed a man after a false positive.

In Manatee County last year, a man was arrested on drug charges after deputies found white powder in his car. The powder, they said, was cocaine. He said it was caffeine powder. When the substance went to a lab, the suspect was right.

“It is rare, but it happens,” says Mike Healy, a forensic chemist from the Manatee County Sheriff’s Office. “You don’t see it a lot, but that is why these are presumptive tests. It’s enough to have someone arrested, but it is not enough to take to court.”

The manufacturer of the kits, Morris-Kopec Forensics, no longer makes the tests, says company president Wayne Morris. But the issue, he said, is not with his product but with the officers or the pills.

Morris said there may be an ingredient in Aleve that is similar to the compounds in amphetamines, or that the officers were not trained to recognize the difference between a street drug and one available at the corner pharmacy.

“That’s why they call them ‘presumptive tests,’” he said. “It just means that this is an indication that what they found could be a controlled substance.”

In this case, both of the tablets found in Sanders’ car were blue and oblong, and each was stamped with the word “Aleve.”

San Diego DUI Criminal Defense Attorney news

www.SanDiegoDrunkDrivingAttorney.net/blog

May 8, 2008

The SOFT/AAFS Forensic Laboratory Guidelines (http://www.soft- tox.org/docs/ Guidelines% 202006%20Final. pdf) only refer to "local, state, or federal regulations" (apparently for political reasons).

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

SOFT / AAFS Forensic Laboratory Guidelines 2006

7.2.8 Specimens may be transferred to a secure long-term refrigerator/ freezer after analysis. Transfers between storage areas and/or subsequent disposal should be documented. The laboratory should develop a standard operating procedure for retention and disposal of specimens. This procedure should reflect local, state, or federal regulations.

7.2.9 The laboratory should maintain a written policy and instructions pertaining to retention, release and disposal of specimens.

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

However, the federal regulations, such as the HHS guidelines for workplace drug testing (http://www.workplac e.samhsa. gov/fedpgms/ Pages/HHS_ Mand_Guid_ Effective_ Nov_04.aspx) require a one-year retention of positive samples:



DEPARTMENT OF HEALTH AND HUMAN SERVICES
Substance Abuse and Mental Health Services Administration

Mandatory Guidelines for Federal Workplace Drug Testing Programs


Subpart C--Certification of Laboratories Engaged in Urine Drug Testing for Federal Agencies

3.1 Introduction.
3.2 Goals and Objectives of Certification.
3.3 General Certification Requirements.
3.4 Capability to Test for Five Classes of Drugs and to Conduct Validity Tests
3.5 Initial and Confirmatory Capability at Same Site.
3.6 Personnel.
3.7 Quality Assurance and Quality Control.
3.8 Security and Chain of Custody.
3.9 One-Year Storage for Positive, Adulterated, Substituted, and Invalid Specimens.
3.10 Documentation.
3.11 Reports.
3.12 Certification.
3.13 Revocation.
3.14 Suspension.
3.15 Notice.
3.16 Recertification.
3.17 Performance Testing (PT) Requirement for Certification.
3.18 PT Program Samples.
3.19 Evaluation of PT Sample Results.
3.20 Inspections.
3.21 Results of Inadequate Performance.
3.22 Listing of Certified Laboratories

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

The DOT regulations (http://www.datia. org/pdf_resource s/part_40. pdf) also use a one-year retention policy in compliance with HHS guidelines:

49 CFR Part 40

Procedures for Transportation Workplace
Drug and Alcohol Testing Programs; Final
Rule
VerDate

Section 40.99 How Long Does the
Laboratory Retain Specimens After
Testing?

We have simplified this section.
Specimens which were positive,
adulterated, substituted, or invalid must
be kept for one year. In response to
requests from commenters, we have
provided that the laboratory must keep
the specimens longer only if they
receive a request from an employer,
employee, MRO, C/TPA, or DOT agency
representative. Absent such a request,
the laboratory may discard the
specimen. This rule applies to primary
and split specimens alike. With respect
to negative tests and specimens rejected
for testing (e.g., because of a fatal or
uncorrected flaw), the laboratory should
follow HHS guidance. We do not believe
it is necessary to restate the guidance
here.

The generally accepted standard in forensic sciences for sample retention is at least one year. However, although they should, some local or state regulations/ laboratories may not accept forensic and federal standards.


www.SanDiegoDrunkDrivingAttorney.net

San Diego DUI attorney news

May 8, 2008

A Cinco de Mayo check of probationers with felony San Diego DUI convictions led to an arrest this week in Escondido, San Diego DUI lawyer authorities said.

The San Diego County Probation Department's DUI Enforcement Team worked with police from Escondido, San Diego and Chula Vista to check 21 San Diego DUI probationers at their residences on Monday, said Probation Department spokesman Derryl Acosta. The terms of their probation bar these individuals from drinking alcohol, and Breathalyzer tests were administered at each residence, San Diego DUI lawyers learned.

Two people, including one Escondido man, were arrested for being out of compliance with their probation terms, San Diego DUI attorneys understand. County Probation plans to conduct similar operations in the future, according to www.sandiegodrunkdrivingattorney.net .

San Diego DUI criminal defense lawyer news

May 7, 2008

People v. Smith (2008) , Cal.App.4th

II. Application of Collateral Estoppel in the Context of Per Se and
Generic DUI Offenses

A. Our task is to determine whether the collateral estoppel rule should
be applied in a particular case with " 'with an eye to all the
circumstances of the proceedings,' " and with realism, rationality,
and practicality. ( Ashe, supra , 397 U.S. at p. 444; Santamaria,
supra , 8 Cal.4th at pp. 920, 926.) A practical application of
collateral estoppel in the context of this case necessarily requires a
consideration of the manner in which the Legislature has defined
offenses involving persons who drive with alcohol in their system.

The Legislature has created two offenses to punish unsafe driving
resulting from a driver's alcohol consumption: (1) driving while under
the influence of alcohol (§ 23152, subd. (a) (generic DUI)), and (2)
driving with a blood alcohol level of .08 or more (§ 23152, subd. (b)
(per se DUI)). (See People v. Bransford (1994) 8 Cal.4th 885 , 888.)
The two offenses are related because they pertain to the same criminal
event, but are {Slip Opn. Page 11} distinct because they have
different elements of proof--i.e., the generic DUI offense requires a
showing of driving impairment but does not require a showing of any
particular blood alcohol level, and the per se DUI offense requires a
showing of a .08 or more alcohol level but does not require a showing
of driving impairment. Although both punish the same act--unsafe
driving caused by alcohol consumption--that act can be established by
proving either impairment or a blood alcohol level of .08 or higher.
The creation of an offense based on a .08 or greater blood alcohol
level (without requiring proof of actual driving impairment) passes
constitutional muster because scientific evidence shows driving
impairment at this level of alcohol. (See Burg v. Municipal Court
(1983) 35 Cal.3d 257 , 267-268.) Concomitantly, because scientific
evidence shows impairment at the .08 level, when a defendant is
charged with generic DUI the Legislature has authorized a jury
instruction setting forth a permissive presumption allowing the jury
to infer the ultimate fact of driving under the influence from the
basic {Slip Opn. Page 12} fact of a .08 or more blood alcohol level.
(§ 23610; People v. Milham (1984) 159 Cal.App.3d 487 , 503-505; see
CALCRIM 2110.) fn. 2

Thus, although the generic and per se DUI offenses are distinct, they
are interrelated, and it is in this context that we must consider
whether collateral estoppel principles apply.

In the first trial the jury found the prosecution could not prove
beyond a reasonable doubt that Smith had a blood alcohol level of .08
or more while driving, but could not agree whether he was under the
influence of alcohol while driving. Double jeopardy principles did not
bar retrial on the generic DUI count because its elements are distinct
from per se DUI. However, collateral estoppel principles could apply
to bar issues (1) that were necessarily decided by the first jury, and
(2) that are issues of ultimate fact in the second trial. (
Santamaria, supra , 8 Cal.4th at pp. 916, 922.) fn. 3

Here, the first collateral estoppel component is clearly met. The jury
in the first trial necessarily decided that the prosecution could not
prove beyond a reasonable doubt that Smith drove with a blood alcohol
level of .08 or more. Unlike the situation in Santamaria , where the
jury could have rejected the knife use finding based on a doubt {Slip
Opn. Page 13} whether the defendant committed the murder by personally
using the knife or as an aider and abettor, here the sole reason the
jury could have rejected a guilty verdict on the per se DUI count was
that it found that the prosecution had not proven Smith's blood
alcohol level was at least .08 while driving.

As to the "ultimate fact" component, it would appear, at first blush,
that the jury's rejection of the per se DUI count does not implicate
collateral estoppel principles. At the second trial the prosecution
had to prove impairment as a result of alcohol consumption; it did not
need to prove that Smith had a blood alcohol level of .08 or more
while driving. {Slip Opn. Page 14}

Thus, the fact determined at the first trial (rejection of the .08
finding) was, at least facially, not an issue of ultimate fact in the
second trial. But such a strict construction of the ultimate fact
requirement would fail to consider the interrelated nature of the two
offenses--i.e., (1) they involve the precise same criminal event, and
(2) by virtue of the section 23610 presumption, a violation of per se
DUI (.08 or more blood alcohol level) supports an inference of
impairment establishing a violation of generic DUI.

Additionally, such a strict construction ignores the evidentiary
impact of the section 23610 presumption in a generic DUI trial where,
as here, the only disputed issue is impairment. Although a jury
deciding whether a defendant is guilty of driving while impaired is
not required to rely on a .08 finding, that finding, coupled with the
presumption instruction, plays a pivotal--if not decisive--role in the
jury's determination of the charge. For all practical purposes,
permitting the second jury to consider whether the defendant had a .08
or more blood alcohol level while driving allowed the second jury to
decide an issue that was virtually dispositive of the ultimate fact,
even though that predicate fact was necessarily adjudicated and
rejected in the first trial. When considered in this context,
collateral estoppel is clearly implicated.

At the first trial, the prosecution proffered two different crimes in
an effort to punish the defendant for his alleged unsafe driving
arising from the consumption of alcohol. The first jury rejected the
crime premised on the .08 or higher blood alcohol level allegation (§
23152, subd. (b)), but could not reach a conclusion regarding the
crime premised on an impairment allegation (§ 23152, subd. (a)). Thus,
the whole purpose of the second trial was to determine whether the
prosecution could prove "drunk driving" {Slip Opn. Page 15} under the
impairment theory, and to do so without relying on the .08 blood
alcohol level finding rejected by the first jury and without the
benefit of the inference of impairment attendant to such a finding.

Because collateral estoppel principles were not applied, instead of
advising the jury of the limitation arising from the first jury's
verdict, the second jury was told it could render a guilty verdict
premised on the very finding rejected by the first jury: i.e., that
Smith drove with a blood alcohol level of .08 or more. Indeed, to the
extent the second jury based its verdict on a finding that the
defendant drove with a .08 or more blood alcohol level, the first
jury's acquittal was effectively negated.

Given that per se and generic DUI concern the same criminal event,
and that a finding establishing per se DUI supports an inference that
can establish generic DUI, this case strongly implicates the core
collateral estoppel concern of "protect[ing] a man who has been
acquitted from having to 'run the gantlet' a second time." ( Ashe,
supra , 397 U.S. at p. 446.) This case is distinctively different from
Catlin , where the court found no unfairness in requiring relitigation
of an issue resolved in an uncharged offense trial because the
defendant was on trial for an entirely distinct criminal event. Here,
it was inherently unfair to require Smith to relitigate an issue that
a jury resolved in his favor in a trial involving the same criminal
event , and which issue (if resolved against him) could have been
highly influential or even dispositive on the ultimate issue of fact
in the retrial. Further, unlike the situation in Santamaria , Smith
was seeking to prevent the prosecution from pursuing a theory that was
rejected in the context of an acquittal of the main criminal event,
not in the context of a conviction of the main criminal event. {Slip
Opn. Page 16}

Applying the collateral estoppel protection in a practical, realistic
manner, we conclude that the first jury's finding that the prosecution
did not prove the defendant drove with a .08 or more blood alcohol
level is binding on the prosecution in the second trial and cannot be
relitigated.

B.

Having concluded that collateral estoppel applied at the second trial
because the first jury necessarily decided the .08 issue and the .08
issue equated with an issue of ultimate fact at the second trial, we
now address the three specific contentions of error raised by Smith:
(1) the .17 blood alcohol level evidence should have been excluded;
(2) the jury should not have been instructed regarding the permissive
presumption of driving under the influence arising from a .08 or more
blood alcohol level; and (3) the jury should have been instructed to
presume Smith's blood alcohol level was less than .08 while driving.

Our holding that collateral estoppel barred relitigation of the issue
of whether Smith drove with a .08 or more blood alcohol level does not
bar use of the evidence that his blood alcohol level was .17 about one
hour after the accident. Based on the expert testimony regarding
alcohol absorption and Smith's own testimony that he drank alcohol
after the accident, the first jury's finding that the prosecution
could not prove Smith had at least a .08 blood alcohol level while
driving did not necessarily constitute a finding that he did not have
a .17 blood alcohol level about one hour after the accident. Indeed,
Smith concedes that he had a .17 blood alcohol level about one hour
after the accident and attributes it to his claim that after the
accident he consumed alcohol he had in his car. {Slip Opn. Page 17}

Further, even though the first jury rejected the .08 finding, the
evidence that Smith's blood alcohol level was .17 about one hour after
the accident was still relevant to the prosecution's case on the issue
of whether he was impaired at the time of driving. The jury's finding
that the prosecution could not prove beyond a reasonable doubt that
Smith drove with a blood alcohol level of .08 or more does not
preclude a finding that Smith drank a substantial amount of alcohol
before the accident, even though the prosecution could not show it had
reached the .08 level while he was driving. For example, the second
jury could find that Smith's postaccident .17 blood alcohol level
supported an inference that he drank a substantial amount of alcohol
both before and after the accident, and that (when considered with all
the evidence) he had enough alcohol in his system while driving to
cause impairment even though his blood alcohol level was not shown to
have reached .08 while driving.

However, given the collateral estoppel bar operative because of the
first jury's acquittal on the per se DUI count, the second jury should
not have been instructed regarding the permissive presumption of
driving under the influence arising from a .08 or more blood alcohol
level. The permissive presumption, which arises "[i]f the People have
proved beyond a reasonable doubt that the defendant's blood alcohol
level was .08 percent or more" (CALCRIM No. 2110), is premised on a
finding directly contrary to the {Slip Opn. Page 18} finding rejected
by the first jury. fn. 4

Additionally, because the jury was presented with the .17 blood
alcohol level evidence, the jury should have been instructed that it
must presume Smith's blood alcohol level was not .08 or more at the
time he was driving. fn. 5 In order to consider the implications of
the .17 blood alcohol evidence, the jury necessarily needed to
consider what level of blood alcohol can cause impairment. Relevant to
this issue, the jurors were aware from expert witness testimony and
the prosecutor's argument that the legal blood alcohol limit for
driving is below .08, and the jury was instructed on the permissive
presumption of driving under the influence arising from a .08 or more
blood alcohol level. fn. 6 Based on the .17 blood alcohol evidence and
their knowledge of the .08 {Slip Opn. Page 19} threshold, the jurors
could readily draw an inference that Smith had a .08 or greater blood
alcohol level while driving, and in turn readily infer that he drove
under the influence. A special instruction effectively advising the
jury about the first jury's acquittal on the .08 count was necessary
to ensure that the second jury did not improperly rest its verdict on
a finding that was expressly rejected by the first jury. fn. 7

C.

The erroneous failure to preclude the second jury's consideration of
the .08 issue was prejudicial under any standard of review. (See
Chapman v. California (1967) 386 U.S. 18, 24 [harmless beyond
reasonable doubt standard for federal constitutional error]; People v.
Watson (1956) 46 Cal.2d 818 , 836 [no reasonable probability of
different result standard for state law error].) Because a finding
that the defendant drove with a .08 or more blood alcohol level
carries such a strong inference of driving impairment and the jury was
expressly instructed regarding this inference, there is a reasonable
probability that had this theory been foreclosed, the second jury
would have reached a different verdict. Although there was sufficient
evidence to support a finding that Smith was driving under the
influence of alcohol, this is an issue that a jury must resolve
without {Slip Opn. Page 20} being permitted to rely on a finding that
Smith drove with a .08 or more blood alcohol level. fn. 8

San Diego DUI criminal defense attorney jockey news

Jockey Patrick Valenzuela was fined $1,595 and sentenced to three years' probation after pleading guilty to a charge of driving under the influence during a pre-trial hearing May 6 in San Bernardino County Superior Court.

According to court records, a second DUI charge was dropped in connection with the Dec. 22 early-morning arrest of the 45-year-old Valenzuela at a fast food restaurant in Upland, Calif. A not guilty plea Valenzuela made to the charges at his arraignment Feb. 21 was withdrawn and a May 19 trial date in the case vacated.

Valenzuela, whose conditional jockey license was rescinded by the California Horse Racing Board in late December because of the alcohol-related offense, has not ridden since Dec. 26.

He agreed to pay a $1,595 fine, which included an unspecified victim restitution amount, a $35 "installment fee" and $100 court-appointed counsel fee, making the total assessment $1,730.

Valenzuela, who was present in court, was represented by William Duffy, a San Bernardino County deputy public defender.

Under terms of his probation, Valenzuela must violate no laws other than minor traffic ones, pay his fine and related costs, attend a county-approved first offender alcohol program for four months, not drive a motor vehicle unless properly licensed and insured, and not operate a vehicle with a measurable blood alcohol level. If arrested, Valenzuela agreed to submit to any required blood, breath or urine testing.

Valenzuela was sentenced to two days in jail but was given credit for two days time served. He is to present proof of satisfactory completion of the alcohol program to the court by Nov. 28.

According to the CHRB, Valenzuela is not eligible to apply for a new conditional jockey's license until after Dec. 31.

A $50,000 bench warrant was issued by the court March 26 when Valenzuela failed to appear for a pre-trial hearing in the case. He appeared voluntarily April 18 and the bench warrant was recalled.

Valenzuela had 106 starts with 12 winners in 2007, according to statistics compiled by The Jockey Club Information Systems. In his career, Valenzuela has 3,969 wins from 25,674 lifetime starts, with $150,677,127 in earnings. Since November 1978, he has been unable to ride because of suspension or license denials for a total of 86 months, or more than seven years.

Among his victories are triumphs in the 1989 Kentucky Derby (gr. I) and Preakness Stakes (gr. I) on Sunday Silence, and seven Breeders’ Cup wins.

May 8, 2008

Governor Withdraws DUI Bill

Because of budget concerns, Governor Bredesen has withdrawn a bill to immediately revoke the license of anyone arrested for DUI.

Supporters say the measure would have been one of the most effective ways to fight drunk driving.

But in a letter to state lawmakers, the Governor said the budget crunch would make impossible to hire dozens of new state workers to oversee the program.

www.sandiegodrunkdrivingattorney.net/articles

May 7, 2008


San Diego Criminal Defense Attorney and top San Diego Criminal Defense Lawyer for misdemeanors and felonies. Experienced, successful, and dedicated. Free online consultation. Lynn Thomas has over 20 years of criminal defense experience and has successfully represented thousands of people.

No matter what the crime or possible punishment - felony or misdemeanor arrest - assault, battery, child abuse, domestic violence, drugs, felony, misdemeanor, fraud, theft, sex, etc. this is the San Diego criminal defense lawyer you need.

http://www.sandiegodui.com/criminal.html

lynnthomasmueller@yahoo.com

San Diego DUI criminal defense attorney news from South Carolina

May 6, 2008

The DUI trial of Lowcountry State Sen. Randy Scott will be managed by a Spartanburg, S.C. prosecutor - not the solicitor assigned to his district - a judge ruled today.

Trey Gowdy, the 7th Circuit solicitor will prosecute the case after 1st Circuit solicitor David Pascoe recused himself. The decision ostensibly clears the way for Scott to receive a “fair trial.”

Scott’s DUI arrest also unexpectedly morphed into a case study on the First Amendment over the weekend.

Specifically, the Senator’s attorneys attempted to block the publication of several incriminating jailhouse tapes which included Scott cursing extensively and instructing a magistrate to “get off his lazy ass” and release him from jail.

FITSNews was pressured to remove the tapes from our website by Scott’s attorneys, although that was before they recognized that the lawyers drink the blood of their young.

Initial reports were that the trial itself was set to be moved to Spartanburg, but apparently a venue hasn’t been set yet.


South Carolina DUI criminal defense lawyer legend Reese Joye single-handedly got the legislature in his state to require videotaping of all DUI arrests. No other state has that requirement, Reese, with the connections he brilliantly nurtured, was able to do that amazing feat.


South Carolina is quite innovative in one aspect of its DUI law: South Carolina is the only state in the nation with mandatory videotaping by the arresting officer of the DUI arrest and breath test. Videotape is the most accurate, honest, representation of what happens in the field and at the police station following a South Carolina DUI arrest.

The law requires that the tape begin no later than the activation of the officer's blue lights and conclude after the arrest of the person for DUI and must include the person being advised of his/her Miranda Warnings, if required by state or Federal law, before any field sobriety tests are given. The failure to read the rights on tape can result in suppression of the videotape.

The videotaping at the breath site must be completed within three (3) hours or the breath test will be subjected to suppression. The breath site video must also include the reading of Miranda and the entire breath test procedure; i.e., the reading of the implied consent warning, checking the mouth, waiting 20 minutes, informing the defendant of the videotape recording, and letting the defendant know he or she can refuse the test.

If there is no way to videotape the proceedings, the officer must fill out a sworn affidavit certifying that it was physically impossible to videotape this waiting period. The arresting officer may administer the breath test if he is certified and the 20-minute observation period is videotaped.

If videotaping by law enforcement is not conducted pursuant to statute when it could have been (i.e., if law enforcement does not do it and could have done it), then the case can be dismissed. However, if the proper affidavits are filed explaining with sufficient reasons why the videotape of the DUI arrest was not available, then failure to videotape is excused.


From: < http://www.scstateh ouse.net/ reports/aar2006/ d10.pdf>



• E-Government Initiatives - Breath Alcohol Testing Digital Video Recordings SLED is now providing digital breath alcohol testing video recordings online from 135 breath testing sites statewide. This allows criminal justice system personnel (prosecutors, judges, law enforcement officers, defense attorneys, and others) as well as the person tested, to view digital video recordings of a given subject’s breath alcohol test. The viewed video recording can then be digitally recorded by the viewer for later use. This initiative is an efficiency and cost-savings measure for SLED and for external customers. The recordings were previously taped using analog equipment, hand-carried or mailed upon request, etc. Statewide implementation has been completed. The online video-recordings are protected through a password protected mechanism, and are available at no charge via the SLED Web site. SLED is the first state in the nation to provide this service via an uplink to the Internet. Datamaster Results Breath alcohol testing results from 160 Datamaster machines at 121 locations throughout South Carolina are available to attorneys and others at no charge via the SLED Web site.


The statutes are available on the internet (videotape requirement is SC 56-5-2953)

at:


http://www.scstateh ouse.net/ code/t56c005. htm




In other South Carolina DUI news, criminal defense attorney, Stuart Axelrod, watched the patrol car video of the night a North Myrtle Beach police officer stopped Atlantic Beach town councilwoman back on April 14.

Axelrod says that there were several issues he saw on the tape that makes him question officer Jim Ellis' decisions that night, the main one, turning his microphone off during the stop.

Ellis pulled Pierce over on Highway 17 business after the video shows Pierce driving under 20 miles per hour in the passing lane, then her van drifts over into the middle lane of traffic, before she crosses back across her lane and half into the median.

The video also shows Pierce hitting her brakes several times for no apparent reason, before Ellis turns his lights on her and pulls her over.

During the stop, which happened around 11:40 p.m., Pierce tells Ellis she just left church and that she had taken pain medicine for back pains.

Pierce admits she took a dosage of oxycodone, and told Ellis she had a prescription for the narcotic, but that she didn't have it with her.

During the stop, an unidentified Atlantic Beach officer pulls up, just out of view of the patrolman's camera, and the two begin a conversation, which starts out involving Pierce.

Only seconds into the conversation, the Atlantic Beach officer tells Ellis that he does know who Pierce is, then Ellis turns his microphone off.

Axelrod said in his 11 years of defending DUI drivers, he's never seen a case with so many questions, "I think it's kind of questionable to turn off a mic when a police officer stops somebody. It's there for the police officer's safety, the person he stops safety, and for the record. So, there's no question here, as you're asking me, we don't know what transpired in that conversation."

North Myrtle Beach police chief William Bailey said that Ellis had no idea who Pierce was when he stopped her.

Axelrod said he doesn't believe from the video that Ellis even tried to test Pierce's sobriety, "In some sense, they could have taken her out of that car, they could have had her do a field sobriety test as they do for everybody that I represent."

Ellis issued Pierce a warning ticket for her erratic driving, according to Bailey.

Ellis then told Pierce she shouldn't drive with the oxycodone in her system, then told her he'd let her drive home while he followed her back down Highway 17 business to her home in Atlantic Beach.

Axelrod said Ellis put too much on the line that night, "What should have been done was, he should have called her a cab. He could have had someone come get her, and they could have left her car right there. I think, if he thinks she's driving under the influence and then she drove home; let's say she ran over somebody with a police officer following behind her, who would be liable?"

www.SanDiegoDrunkDrivingAttorney.net/articles

San Diego DUI attorney news

Filed 5/6/08 P. v. Bryant CA2/7

NOT TO BE PUBLISHED IN THE 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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,
Plaintiff and Respondent,

v.

RAYMOND BRYANT,

Defendant and Appellant.
B201689
(Los Angeles County

Super. Ct. No. KA077913)


APPEAL from a judgment of the Superior Court of Los Angeles County,

Tia Fisher, Judge. Affirmed.

Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

______________________________

Raymond Bryant ran from officers during a traffic stop and was later apprehended in possession of methamphetamine. Bryant was charged by criminal complaint with transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)) (count 1), possession for sale of methamphetamine (Health & Saf. Code, § 11378) (count 2), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) (count 3), driving with a blood alcohol level of .08 percent or more (Veh. Code, § 23152, subd. (b)) (count 4), and resisting, obstructing or delaying a peace officer (Pen. Code, § 148, subd. (a)(1)) (count 5).

At the conclusion of the preliminary hearing, the magistrate granted Bryant’s motion to dismiss count 1, transporting methamphetamine, but ordered Bryant to be held to answer in superior court on the remaining counts.

Bryant was charged by information on April 4, 2007 with possession for sale of methamphetamine (count 1), and the three misdemeanor offenses of driving under the influence, driving with a blood alcohol level in excess of .08 percent, and resisting, obstructing and delaying a peace officer. The information specially alleged as to count 1 that Bryant had suffered a prior serious or violent felony conviction within the meaning of the “Three Strikes” law (Pen. Code, § 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), had served a separate prison term for a felony (Pen. Code, § 667.5, subd. (b)) and had suffered one prior drug-related conviction (Health & Saf. Code, § 11370.2, subd. (c)). Represented by retained counsel, Bryant pleaded not guilty to all counts and denied the special allegations.

On May 24, 2007, the trial court conducted in camera proceedings pursuant to Bryant’s motion for production of documents under Pitchess v. Superior Court (1974) 11 Cal.3d 531 and Evidence Code section 1043 and found no discoverable material.1 The same date, the People filed an amended information to add count 5, charging Bryant with transporting methamphetamine. As to counts 1 and 5, the amended information specially alleged the sentencing enhancements originally alleged in the information as to count 1. Bryant pleaded not guilty to all counts and denied the special allegations as to counts 1 and 5 of the amended information.

On May 29, 2007, the trial court heard and denied Bryant’s motion to dismiss count 5 of the amended information pursuant to Penal Code section 995, and jury trial commenced.

According to the evidence at trial, on January 27, 2007, California Highway Patrol Officers Michelle Marks and her partner were patrolling a freeway close to midnight. Marks saw a car in the adjacent lane swerve onto the shoulder, noticed the car’s registration tags had expired, and initiated a traffic stop off the freeway. Marks contacted Bryant, the driver, and detected the odor of alcohol on Bryant’s breath. After asking some investigatory questions, Marks had Bryant perform various field sobriety tests. Marks also administered a preliminary screening test. While Marks was waiting for the test results to register, Bryant fled on foot. Marks gave chase only briefly because Bryant had not been frisked for weapons.

About an hour later, Glendora Police Officer Timothy Staab found Bryant on the street not far from where his car had been stopped. Bryant was searched by police and ordered to sit on the curb. When Bryant sat down and extended his legs, a plastic object flew out from under the right cuff of his sweatpants. Staabs determined it was a plastic baggie, inside of which were seven small baggies containing a combined weight of 1.17 grams of methamphetamine. Inside Bryant’s jacket, police recovered $5,200 in $100 bills.

Following his arrest, Bryant submitted to a blood test that showed his alcohol level to be .10 percent. No methamphetamine was detected in his blood.

Bryant’s motion to dismiss under Penal Code section 1118.1 was heard and denied.

Bryant did not testify in his defense. Jean Royer, district manager for H & R Block, testified on January 27, 2007, Bryant had been issued a check for $6,572.24 reflecting the amount of his anticipated Internal Revenue Service income tax refund. California Highway Patrol Officer John Escobedo testified he found no contraband or drug paraphernalia during an inventory search of Bryant’s car.

The trial court granted Bryant’s motion to bifurcate trial of the prior conviction allegations. While the jury was deliberating, Bryant waived his right to a jury trial of the prior convictions.

The jury acquitted Bryant of count 1, possession for sale of methamphetamine, but convicted him of the lesser included offense of possession of methamphetamine (Health & Saf. Code, § 11377) and of the remaining counts 2 through 5.

At the sentencing hearing, Bryant waived court trial on the prior conviction allegations and admitted his prior convictions were true. The court heard and denied Bryant’s motion to dismiss his prior strike (burglary) conviction for sentencing purposes under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Bryant was sentenced to an aggregated term of ten years in state prison, consisting of six years (the three-year middle term doubled under the Three Strikes law) for transporting methamphetamine (count 5), three years for the prior drug-related conviction enhancement (Health & Saf. Code, § 11370.2, subd. (c)), and one year for the prior prison term enhancement (Pen. Code, § 667.5, subd. (b)). On the remaining counts 1 through 4, the trial court stayed imposition of sentence under Penal Code section 654.

Bryant received presentence custody credit of 248 days (166 actual days and 82 days of conduct credit). The court ordered Bryant to pay a $20 security assessment, a $50 lab fee plus penalty assessment, and a $200 restitution fine. A parole revocation fine was imposed and suspended pursuant to Penal Code section 1202.45.

Bryant filed a timely appeal and we appointed counsel to represent him on appeal. After an examination of the record, counsel filed an “Opening Brief” in which no issues were raised. On February 5, 2008, we advised Bryant he had 30 days within which to personally submit any contentions or issues he wished us to consider. On February 21, 2008, we received a handprinted response in which Bryant made the following claims, (1) he was “never formally charged with” transporting methamphetamine in violation of Health & Safety Code section 11379, subdivision (a); (2) the evidence was insufficient to support his conviction of that offense; (3) the trial court erred by instructing the jury on the elements of transporting methamphetamine; (4) the trial court erred by sentencing him under the Three Strikes and by imposing the three-year prior drug-related conviction enhancement; and (5) defense counsel was constitutionally ineffective for allowing Officer Marks to remain in court during the preliminary hearing as the People’s designated investigating officer.

We have examined the entire record and are satisfied Bryant’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106, 112-113; People v. Wende (1979) 25 Cal.3d 436, 441.) Bryant’s claims are not supported by the record on appeal and/or the applicable law.

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

PERLUSS, P. J. WOODS, J.



1 Following the in camera hearing, the trial court ordered the custodian of records to produce another personnel file for inspection. The court reviewed this additional Pitchess material and determined there was nothing discoverable.

San Diego DUI Criminal Defense Attorney news

May 6, 2008

A man faced with little time for reflection - accused of leading officers on a New Year's Eve chase while drunk, then killing a police dog by jumping off the San Diego Coronado Bridge with the animal - pleaded not guilty Tuesday to four felony counts, with his San Diego DUI Criminal Defense Attorney.

Cory Byron, 27, faces four years and four months in state prison if convicted of harming a police animal, evading officers with reckless driving, driving under the influence of alcohol causing injury and driving with a measurable blood-alcohol level causing injury, say San Diego DUI Criminal Defense Attorneys.

The defendant, who has previous DUI convictions from 2003 and 2005, is also charged with misdemeanor counts of DUI with a prior within 10 years, driving with a measurable blood-alcohol level with a prior within 10 years, and hit-and-run, San Diego DUI Criminal Defense Lawyers report.

At a hearing at the Vista Courthouse, Judge Dan Goldstein scheduled Byron's trial for the first week of September. He also set a San Diego DUI Criminal Defense Attorney readiness conference for May 27.

Oceanside police Officer Rodrick Sadler testified at a hearing earlier this month that he had just left his station with his dog, Stryker, when he spotted a possible drunken driver in a pickup truck swerving from lane to lane on nearby State Route 76, San Diego DUI Criminal Defense Attorneys are told.

He said he turned on his overhead lights, then activated his siren when the driver didn't stop. Byron made a U-turn against a red arrow at Melrose Drive and went westbound on SR 76, running red lights at numerous intersections before striking a vehicle at College Boulevard, San Diego DUI Criminal Defense Attorneys are told the officer said. The defendant then turned south on Interstate 5, exited at Pershing Drive in downtown San Diego and made a U-turn to return to the freeway.

According to San Diego DUI Criminal Defense Attorney sources, the pickup went onto the bridge but stopped at mid- span after striking a wall. He said he deployed Stryker when the defendant got out of his vehicle and acted like he was about to run, despite commands to stay put.

Stryker grabbed onto Byron's left arm and took him down to the roadway next to a concrete barrier, Sadler said. The dog continued gripping the defendant's arm as he got up and turned in a motion that seemed as if he was trying to fling the canine over the wall, San Diego DUI Criminal Defense Lawyer sources report.

He said he ran to try to reach the dog, but Byron put his leg onto the barrier and went over with the animal still attached. Byron was rescued by San Diego Harbor Police officers immediately after the fall and was hospitalized for more than a week with a collapsed lung and other injuries. The dog was buried at Camp Pendleton. A mother and two daughters in the car that was rammed in the College Boulevard intersection testified that they are plagued by aches and pains, per San Diego DUI Criminal Defense Attorneys.

Jesus Magdaleno, a California Highway Patrol officer who took part in the chase, said the defendant's blood-alcohol level when tested four hours after the pursuit was .17 percent, more than double the state's legal limit, according to San Diego DUI Criminal Defense Lawyers.

The San Diego DUI Criminal Defense case hinges on legal interpretations of the penal code for harming animals, and whether Byron was truly aware that he was sending Stryker to his death.

The entire incident on the bridge lasted five seconds, and from the length of time from when Byron stood with the dog to when he went over the side was a second and a half, San Diego DUI Criminal Defense Attorney Anthony Solare correctly pointed out.

"The fact of the matter is this happened very quickly and with little time for reflection," his San Diego DUI Criminal Defense Lawyer said.

San Diego Drunk Driving Criminal Defense Lawyer Help



San Diego Drunk Driving / DMV Defense Attorney Rick Mueller specializes in California DUI and DMV law.



San Diego DUI Defense Lawyer Rick Mueller is the only DMV - DUI attorney who was the featured Speaker at 7 DUI seminars in San Diego County in the last several years.



San Diego DUI Lawyer Rick Mueller is known as a "DMV Guru".




Rick is specially recognized as a San Diego DUI Editorial Consultant for the most comprehensive reference book for California DUI law. Known as California's bible for DUI defense, the book features some of San Diego DUI attorney Rick Mueller's hard work.



San Diego DUI / drunk driving lawyer Rick Mueller is a Specialist Member of the California DUI Attorneys Association. He is also a member of the National College for DUI Defense and the National Association of Criminal Defense Lawyers.



San Diego DUI / DMV Lawyer Rick Mueller speaks at Strategies in Handling DUI Cases seminars, at the DUI & Drug Defense seminar at the San Diego Bar Building, at the North San Diego County Bar Association's Drunk Driving - DMV seminars, and at the Public Defender's Office DMV - DUI Training seminars.

San Diego DUI Lawyer assistance:



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San Diego DUI criminal defense attorney news

5/5/2008) - Ronald Wilkinson has spent years in law enforcement most recently as a District Attorney investigator.

But police say he was breaking the law around 1:00 Saturday morning.

An officer says he spotted Wilkinson going west on Highway 385 near the Kirby exit, where he drifted off the road, went across the grass and slammed into a guard rail.

Police say he was swaying, had slurred speech and had a strong intoxicant odor.

"Mr. Wilkinson at that time refused to take any sobriety test. We did not give a field sobriety test either, due to the circumstances of where they were at on the interstate there." says the Shelby County Sheriff's Department.

Wilkinson was charged with DUI, reckless driving and refusing a sobriety test.

The state issued 2001 Crown Vic he is accused of driving into a pole has heavy front end damage and sits at a local Body shop.

At Wilkinson's Bartlett town home, no one answered. Neighbors we talked to didn't know much about him.

"I thought he did chauffeuring with that black car, but he is an investigator, ok." says one neighbor.

Wilkinson is a former cop who now investigates drug and narcotics cases for the District Attorney.

"He's got a reputation of being one of the best investigators in this community. It's an unfortunate situation but it is what it is and we will deal with it." says Shelby County District Attorney Bill Gibbons.

Wilkinson had only minor injuries in the accident. He is out of jail on 1-thousand dollars bond. His case has been reset to May 20, 2008 so he can get an attorney. He remains suspended with pay.


www.sandiegoduilawyer.com/blog

Drunk Boating

http://www.sandiegodrunkdrivingattorney.net/blog.html

Chicago Bears running back Cedric Benson was arrested for operating a boat while intoxicated on Saturday. According to reports, Cedric Benson failed the sobriety test while operating a 30-foot boat, then resisted arrest and had to be pepper-sprayed and dragged by the officers ashore. The incident happened on Lake Travis (Texas) Saturday night, when his boat with 15 other passengers was stopped by a Lower Colorado River Authority officer for a random safety inspection. "When Benson did not pass the test, he presented himself as a threat to the officer and argued about whether or not he would be taken to land to have a follow-up field sobriety test performed on land and refused to put on a life jacket," was the statement made by the local authorities. The charges are class B misdemeanors, each punishable by up to six months in jail and a fine, Cedric Benson was released from jail on Sunday on a $14,500 bond.

This is not the first time the Chicago Bears running back gets in trouble. In 2002, misdemeanor drug and alcohol charges against him were dropped.

San Diego DUI attorney news

CSI star GARY DOURDAN is "embarrassed" by his recent arrest for alleged drug possession.
The actor was apprehended by police after he was found asleep in his incorrectly parked car early on Monday morning (28Apr08) in Palm Springs, California. Cops searched his vehicle, before arresting him on suspicion of possessing heroin, cocaine, Ecstasy and prescription drugs.
Dourdan posted $5,000 bail and was released following the incident.
He tells People.com, "Obviously I am embarrassed to find myself in this situation, and I am profoundly grateful to everyone for their support. I have complete confidence in and respect for the justice system and will cooperate fully with any investigation."
On Saturday (03May08), an email from Dourdan to his pal Shaun Robinson was read out on her Access Hollywood show.
It read, "Obviously I certainly wish I hadn't been responsible for so many people getting to the festival's (California's Coachella festival) VIP area. And the after party, it ran me ragged, but I'm glad pulling over did prevent a DUI.
"I am blessed that the Sgt. realized that the luggage carrying whatever they found was not mine and that my tests have been coming back negative."

San Diego DUI criminal defense attorney news

Roadside drug testing? The device used in Australia is called DrugWipe, from a German co called Securetec. DrugWipes can be set up for 1, 2 or 5 tests: THC (not metabolites), methamphetamine (usually also gets MDMA), opiates, benzodiazepines and cocaine.

The test device they are using here is the THC/MET combination. Too many legal opiates and benzos here, relatively low cocaine use due to expense and distance from South America.

Reading between the lines, the drug tests are so expensive that they are not really random. The cops seem to be targeting rave parties and long-distance trucking routes.

Links to check out:

arrivealive.vic.gov.au (state government propaganda)

securetec.net (manufacturer)

pathtec.com.au (Australian distributor)

www.sandiegodrunkdrivingattorney.net/blog

San Diego DUI criminal defense attorney / San Diego drunk driving defense lawyer news

Police & Critics Say Anti-Poleez Breath Mints Stink

5/2/08

A controversial new breath mint is on the market. It's called Anti-Poleez, and its makers claim it can eliminate the smell of alcohol on your breath, but police think the product stinks. They say it targets young people, encourages underage drinking and drinking and driving.

"I think someone will make money with this product, but I don't know if maybe it's the best idea," said SDSU student, Rosie.

Some San Diego State University students are talking about a new and controversial breath mint.

The Swiss made Anti-Poleez mints claim to hide the smell of alcohol, tobacco and food odors.

When News 8 contacted SDPD for reaction, they hadn't heard about Anti-Poleez.

"We definitely want to take a look at this. So, we're going to go in and to an alcohol study in a controlled environment," said Mark McCullough with the SDPD's Traffic Division.

McCullogh says the test will be done on San Diego police officers.

The mints are sold at liquor stores and convenience stores especially around college campuses.

There's been criticism about the product sending a mixed message about drinking and driving and underage drinking.

Although the Anti-Poleez message is don't drink and drive, police and Mother's Against Drunk Driving are concerned about the product's advertising message.

"You think this is going to get you out of a very sad statement," said Pat Hodgkin the Executive Director, MADD.

"The advertising, the scantily-clad female police officer with a name like Anti-Poleez and it covers up the odor of alcohol. They're really targeting younger people," explained McCullough.

Drucker, like many others say:

"I don't think one or two beers necessarily affects the way your driving, being 20 versus 21 doesn't make that much of a difference. So, if these will keep you out of jail, I say keep on in your pocket at all times," said Marc Drucker a student at SDSU.

But that's not how the San Diego Police Department sees it.

"Thinking by just taking some of these, I won't get arrested...that's not going to happen," continued McCullough.

Law enforcement agencies around the county use sobriety checkpoints to get drunk drivers off the roads. A spokesperson for Anti-Poleez tells News 8 these breath mints will do nothing to help people pass a breathalyzer test.

"This is not going to mask alcohol, if you are over the limit," noted Hodgkin.

Officer McCullogh says, police are able to determine if someone is legally drunk through a sobriety test.

Now, it's time to put Anti-Poleez to the test taste.

The mints contain a mixture of sweeteners and ammonium chloride.

"They taste okay, and like I said, it may not get you out of an arrest, but if you do get arrested you might have some fun in jail cause it gives you really fresh breath," said McCullough.

News 8 cameras will be there when San Diego Police test the Anti-Poleez breath mints.

Off-duty officers will drink some alcohol and then be given some Anti-Poleez mints.

The San Diego Police Department wants to make sure the mints are not interfering with any of its breath testing equipment.

San Diego DUI lawyers do not need a mint defense to show the many frequent shortcomings of San Diego DUI police enforcement allegations. www.sandiegodrunkdrivingattorney.net/why

San Diego DUI lawyer article

Joyce Chang, x Ph.D. and S. Elliot Kollman, 2 B.A.
The Effect of Temperature on the Formation of
Ethanol by Candida Albicans in Blood
REFERENCE: Chang, J. and Kollman, S. E., "The Effect of Temperature on the Formation of
Ethanol by Candida Albicans in Blood," Journal of Forensic Sciences, JFSCA, Vol. 34, No. 1,
Jan. 1989, pp. 105-109.
ABSTRACT: The effect of temperature on microbial fermentation in blood was studied. Specimens
of human blood from a blood bank were inoculated with Candida albicans, an organism
capable of causing fermentation. A preservative was added to a portion of the inoculated specimens.
These inoculated specimens, as well as uninoculated blood, were stored under various
temperature conditions. Production of ethyl alcohol was monitored over a period of six months.
Fermentation was found to be highly temperature dependent, with refrigeration proving to be
most effective at inhibiting ethanol formation.
KEYWORDS: forensic science, blood, Candida albicans, alcohol, temperature, ethanol
It has been shown that several microorganisms occasionally found in blood specimens are
capable of producing ethyl alcohol [1,2]. Although Blume and Lakatua [1] found that sodium
fluoride effectively inhibited alcohol production from a variety of microorganisms,
one--Candida albicans--appeared to be unaffected by the addition of fluoride. C. albicans
is commonly found in man, usually in the oral cavity and digestive tract, and less commonly
in the vaginal tract of women. Though generally harmless, it can manifest itself as a pathogen.
The organism has been called the most common and most serious pathogen of man [3].
The legal ramifications of this are obvious. If an organism common to man is capable of
producing ethyl alcohol in stored blood, the question arises: Are the results of alcohol analysis
reflective of an individual's level of intoxication or of post-sampling fermentation? With
this in mind, we embarked upon a study of temperature versus ethanol production.
Method
Four plastic collection bags of human blood of 4S0-mL capacity were obtained from the
Peninsula Memorial Blood Bank of Burlingame, California. Each bag contained dextrose
(2.0 g), sodium citrate (1.66 g), citric acid (206 rag), monobasic sodium phosphate (140 mg),
and adenine (17.3 mg). The blood was pooled and half of the pool was inoculated with C.
albicans (Strain ATCC 14056). The inoculum was prepared to produce a final concentration
of approximately 10 000 organisms per millilitre. This concentration was selected from a
prior series of studies in which varying concentrations of this organism were cultured to assess
optimum growth.
Received for publication 27 July 1987; revised manuscript received 20 Jan. 1988; accepted for publication
21 March 1988.
IToxicologist. PharmChem Laboratories, Menlo Park, CA.
2Criminalist, Forensic Laboratory, San Mateo County Sheriff's Department, San Mateo, CA.
105
ASTM International
106 JOURNAL OF FORENSIC SCIENCES
The inoculated and uninoculated blood was divided among 112 10-mL Venoject~ tubes.
Of these tubes, 56 contained 100 mg of sodium fluoride and 20 mg of potassium oxalate. The
other half contained no additives. The tubes were filled under nonsterile conditions with the
uninoculated tubes serving as an experimental control over this study design. Representative
sets of samples (A -- uninoculated, --fluoride; B = inoculated, --fluoride; C = uninoculated,
+fluoride; and D = inoculated, +fluoride) were then divided into temperature storage
sets: refrigerated (6~ room temperature (22~ and body temperature (37~ Specimens
were analyzed after periods of 1 day, 2 days, 3 days, 5 days, 10 days, 35 days, and 6
months.
Analysis was performed by direct injection into a Hewlett-Packard 5880A gas chromatograph
equipped with a flame ionization detector and a 6-ft by Vs-in. (1.8-m by 3-mm)outside
diameter (O.D.) stainless steel column packed with 0.2% Carbowax 1500 on 60/80
Carbopack C. Column temperature was 115~ The injection port and detector temperatures
were 180~
An 0.8-mL specimen of each sample was diluted with 3 mL of deionized water containing
about 0.5% v/v of methyl ethyl ketone internal standard. Secondary alcohol standards of
0.220, 0.122, and 0.340% w/v ethyl alcohol were used to calibrate the instrument. Additionally,
quality control samples (0.177% w/v ethyl alcohol) were analyzed at the beginning,
end, and in the middle of each run. The minimum detectable concentration was determined
to be 0.003% w/v ethyl alcohol.
Results
Duplicate analyses of the two pools, both inoculated and uninoculated, showed that no
ethyl alcohol could be detected at time zero. Therefore, we could assume, with reasonable
certainty, that any ethanol found during the period of study would be the product of microbial
fermentation.
37~
Two representative sets of bank blood were kept at body temperature and analyzed after
periods of 28 h (one day) and 69 h (three days). Figure 1 shows that after 28 h at 37~ only
two of the four specimens in Subset B (inoculated, --fluoride) produced ethyl alcohol in
concentrations of 0.007 and 0.006% w/v. After approximately three days, Subset B showed
A '(Untreated Blood) B (candida Albicans C (Preservative D (Preservative and
only) only) Candl da Albicans )
0 .0~7 ~ &9
28 hrs ~] .0~6 ~ 0
0 0 0
~mmmsm$$1 . 053 o o
FIG. l--Ethanol production in blood at 37~ after periods of 28 and 69 h. Values are in % w/v.
CHANG AND KOLLMAN - TEMPERATURE EFFECT ON ETHANOL FORMATION 107
alcohol production in all four specimens: 0.028, 0.019, 0.041, and 0.053% w/v. Subset A,
which had not been inoculated and contained no sodium fluoride, produced only a trace of
alcohol after 69 h in two of four specimens. Both specimens contained 0.005% w/v ethyl
alcohol. Specimens containing preservative, both inoculated and uninoculated, showed no
detectable production of alcohol after three days at 37~
22~
The room temperature sets of blood were analyzed after periods of 1, 2, 5, 10, 35, and 182
days. The results are illustrated in Fig. 2. As this figure indicates, the production of ethyl
alcohol, once started after 5 days of incubation, was not affected by the presence of sodium
fluoride. However, only the specimens inoculated with Candida albicans showed significant
alcohol production. As with the 37~ sets of specimens, Subset A (uninoculated, --fluoride)
showed slight (0.014 and 0.016% w/v) alcohol production in two of the four specimens. The
uninoculated specimens that contained sodium fluoride (Subset C) showed no alcohol production
even after 35 days of room temperature storage.
6~
Five sets of specimens were kept under refrigeration and analyzed at 1, 5, 10, 35, and 182
days. No evidence of fermentation was found during the first 35 days. After 182 days, only a
trace (0.004% w/v) of ethanol was found in 1 of the 4 uninoculated specimens that contained
no sodium fluoride preservative. Of the 4 specimens inoculated with C. albicans that also
contained no sodium fluoride, only 2 showed slight (0.008 and 0.015% w/v) alcohol production
after 182 days of refrigerated storage. None of the preserved specimens, inoculated or
uninoculated, showed any alcohol production after 182 days at 6~
A (Untreated)
I day
: 2 days
5 days 0 .014
i0 days
35 days (not analyzed)
,~22
.~ d~s %6
.021
0 (Candida only) C (Pr~aervative
only)
F 0
0
E ~ "D~9 0
~ i ~ . 069 8
~lm~ , 062 0
(not analyzed)
0
m~l .~74 (not: analyzed)
~ .839
.066
O (Preservative--
and Candida)
i oo
o
0
i oo
o
.071
| .059
,065
.069
.037
.~3B
(not analyzed)
FIG. 2--Ethanol production in blood at 22~ after periods of 1, 2, 5, I0, 35, and 182 days. Values are
in % w/v.
108 JOURNAL OF FORENSIC SCIENCES
Discussion
We studied the preservation and storage of blood specimens used for alcohol analysis,
with emphasis on the issue of the loss or gain of ethanol over time. Winek and Paul [4] found
no significant variation in alcohol content when blood specimens were analyzed within 14
days of collection regardless of the conditions of storage and preservatives present. This is in
keeping with Glendening and Waugh's findings [5]. However, long-term storage has generally
resulted in a loss of alcohol with time [5-7]. Also, it has been conceded that ethanol can
be produced in blood specimens under certain conditions [1,2].
The issue of ethanol loss during long-term storage has been addressed in length in many
publications. The preservation of blood with sodium fluoride has been shown to prevent
effectively alcohol loss for up to two months when the specimens were stored at room temperature
[5]. For longer periods of time, refrigeration was found to be necessary [5, 8]. Meyer et
al. [8] found the freezing of blood specimens to be most effective in preventing ethanol loss.
The issue of alcohol gain in blood specimens taken from living subjects has received less
scrutiny. The instances of neoformation of alcohol are less common. Nonetheless, the issue,
both legal and scientific, remains.
Tests on postmortem blood specimens, which are more likely to exhibit neoformation of
ethanol, have shown that sodium fluoride is generally sufficient to preserve the integrity of
th,e specimens [1, 9]. However, Blume and Lakatua [1] found that sodium fluoride was ineffective
in preventing ethanol production by C. albicans. Our study generally supports their
conclusions. Although we detected no alcohol in a preserved group of specimens incubated
at 37~ for 69 h, specimens that had been inoculated with C. albicans and stored at room
temperature for more than five days showed significant alcohol formation. Furthermore,
ethanol formation, once started in these inoculated specimens, generally increased although
the absolute amount of ethanol formed appeared to be reaching a plateau concentration at
approximately 0.08% w/v. On the basis that ethanol formation in blood would arise predominantly
by the metabolic conversion of glucose, we calculated the maximum amount of
ethanol that could be created by glucose fermentation. Using a blood glucose concentration
of 95 rag/100 mL of blood, we calculated a first approximation value based upon the complete
conversion of glucose to ethanol via the anaerobic glycotic pathway in which 1 mole of
glucose converts to 2 moles of ethanol. This calculated value is 0.05% w/v. The amount of
ethanol formed in our study exceeded this value. We subsequently discovered that the blood
from the Peninsula Memorial Blood Bank is treated not only with the addition of citrate but
also 2.0 g of glucose per unit of blood. Therefore, our hypothesis of the maximum fermentation
yield could not be assessed.
Room temperature storage of all specimens gave negligible or no ethanol formation until
Day 5, and even under these conditions specimens that were uninoculated and contained
fluoride formed no alcohol over a period of 35 days. Under refrigerated storage, none of the
specimens showed any evidence of fermentation during the first 35 days, and only traces of
alcohol were found after 6 months.
It appears that fermentation proceeds readily only by direct inoculation or contamination
with C. albicans. Under such conditions the formation of ethanol is not inhibited by sodium
fluoride. We have also found that the amount of alcohol formed over time is highly dependent
upon the temperature of storage. Storage for approximately i day (28 h) at 37~ 2 days
at 22~ and 35 days at 6~ produced no alcohol in specimens that were uninoculated and
contained sodium fluoride as a preservative. Under these same storage temperatures and
storage periods, the maximum amount of ethanol formation would be expected in inoculated
and unpreserved specimens. Even in such specimens, the highest concentration of ethanol
attained was 0.007% w/v.
Our study further showed that even when specimens were purposely inoculated with C.
albicans, no alcohol formation took place for 69 h at 37~ if sodium fluoride at 10 mg/mL of
blood was used as a preservative.
CHANG AND KOLLMAN 9 TEMPERATURE EFFECT ON ETHANOL FORMATION 109
Therefore, it appears that legal questions regarding the issue of the neoformation of ethyl
alcohol should be rendered moot if preservatives and short transport times are routinely used
in bringing specimens to the laboratory and refrigeration is used in specimen storage.
Acknowledgments
We would like to express our thanks to Leticia Ruperto for her word processing assistance
and to Kenneth Mark, supervisor of the San Mateo County Toxicology Laboratory, under
whom this study was undertaken.
We would also like to thank Michael Nachtigall, M.S., and the San Mateo County Public
Health Laboratory for providing the C. albicans culture for this study.
References
[1] Blume, P. and Lakatua, D. J., "The Effect of Microbial Contamination of the Blood Sample on the
Determination of Ethanol Levels in Serum," American Journal of Clinical Pathology, Vol. 60, Nov.
1973, pp. 700-702.
[2] Corry, J. E. L., "Methods of Assessing the Effect of Microbes in Blood and Urine on Ethanol Levels,"
paper presented at the Eighth International Conference on Alcohol, Drugs and Traffic Safety,
Stockholm, Sweden, June 1980.
[3] Shepard, M. G., Poulter, R. T. M., and Sullivan, P. A., "Candida Albicans: Biology, Genetics, and
Pathogenicity," Annual Review of Microbiology, Vol. 39, 1985, pp. 579-614.
[4] Winek, C. L. and Louette, J. P., "Effect of Short-Term Storage Conditions on Alcohol Concentrations
in Blood from Living Human Subjects," Clinical Chemistry. Voi. 29, No. 11, 1983, pp. 1959-
1600.
[5l Glendening, B. L. and Waugh, T. C., "The Stability of Ordinary Blood Alcohol Samples Held
Various Periods of Time Under Different Conditions," Journal of Forensic Sciences, Vol. 10, No. 2,
April 1965, pp. 192-200.
[6] Stone, H. M., Muirhead, J. M., and Thompson, H. R., "Preservation and Storage of Blood Samples
Containing Alcohol," in Alcohol, Drugs and the New Zealand Driver, H. M. Stone, Ed., New
Zealand Department of Scientific and Industrial Research, Wellington, 1982, pp. 29-36.
[7] Chang, R. B., Smith, W. A., Walkin, E., and Reynolds, P. C., "The Stability of Ethyl Alcohol in
Forensic Blood Specimens," Journal of Analytical Toxicology. Vol. 8, March/April 1984, pp.
66-67.
[8] Meyer, T., Monge, P. K., and Sakshaug, J., "Storage of BJood Samples Containing Alcohol," Acta
Pharmacotogica et Toxicologica. Vol. 45, 1979, pp. 282-286.
[91 Blackmore, D. J., "The Bacterial Production of Ethyl Alcohol," Journal qfForensic Sciences, Vol.
8, No. 4, Oct. 1968, pp. 73-78.
Address requests for reprints or additional information to
S. Elliot Kollman
Forensic Laboratory
San Mateo County Sheriff's Department
31 Tower Rd.
San Mateo, CA 94402



www.sandiegodui.com

San Diego DUI attorney news

Nonsense conflicts with Science sometimes.

IACT "research" and articles seem to rather consistently show that the rest of the world is wrong:

1) Glover says storage at extreme temperature has no additive effect to the blood;
2) The Texas group of maintenance technicians say that breath temp has no effect on breath alcohol readings;
3) Tyndall does not affect IR;
4) Errors in programming don't affect the reliability of tests.

So if their own testing doesn't confirm what they set out to prove, they simply discard the tests that are in conflict with their theories (ala Pat Harding) and publish the results that do support their ideas.

In NV, a police toxicologist and an officer both testify that the failure to refrigerate blood sample will result in a lower BAC not higher. The LEO actually dropped off the study to my office. "The Effect of Heat on Blood Samples Containing
Alcohol" P.L. Glover North Carolina Health and Human Services.

But Glover;s IACT newsletter is NOT a peer-reviewed publication.

In fact, the National Committee for Clinical and laboratory Standards now known as the Clinical and Laboratory Standards Institute apparently disagrees with IACT's alleged study. This excerpt is from the standard T/DM6A Blood Testing in the Clinical Laboratory- Approved standard:

Specimens that are to be transported or mailed in
an unrefrigerated condition, or stored for more
than 48 hours should be preserved with higher
concentrations of sodium fluoride (10 mg/mL of
blood; 0.24mmol/mL) .8 However, it has been
documented that changes produced by contaminating
microorganisms can affect alcohol
concentrations in blood specimens even in the
presence of preservatives. Blume and Lakatua15
reported that various organisms isolated from
contaminated blood specimens were capable of
producing ethanol when inoculated into bank
blood. Candida albicans was particularly active in
this regard, producing significant quantities of
alcohol even in the presence of sodium fluoride.
These investigators recommended that fluoride
(10 mg/mL; 0.24mmol/ml) be used as a
preservative and that care should be taken to
assure that microbial organisms are not
introduced into the specimens.

Of course, there is a huge difference between "heating" the samples, and failing
to refrigerate them. Read the study carefully.

You would expect that heating the samples would kill anything that
was alive, stop any fermentation, (sterilizing milk will do that by
heating to a high temperature, which kills all bacteria) and
evaporate off alcohol. Common sense. You would not expect that to
happen if you fail to refrigerate.

Look also at the research into impairment at 0.08: The National Safety Council Committee on Alcohol and Other Drugs spent 6 years revising and rewording and finding supportive evidence to say that "All people, reguardless of prior drinking experience, are impaired with respect to operating a motor vehicle by the time they reach a 0.08." Yet out of all the supportive documents they list, not a single one of them shows that everybody was impaired based upon the testing conducted for the said article. And none of those studies used drinking drivers as a part of their research.

Look at the Grand Rapids Study and the 0.04 dip: fewer accidents occurred amoung people in this group. State people explain that one away as an anomoly due to insufficient representation of persons in that alcohol group, or other such nonsense.

San Diego DUI lawyers look to real experts, the real world and scientists who stay on top of the dissemination of bad information from those who care about their own interests. www.SanDiegoDUI.com

San Diego DUI attorneys are often told the San Diego Sheriff's Dept., San Diego CHP, Oceanside PD, Carlsbad PD, Chula Vista PD and other agencys' breath test machines (Intoximeters Inc. EC/IR) are difficult to blow into.

San Diego DUI attorney Rick Mueller has some interesting correspondence between the US Dept. of Transportation (NHTSA) and Intoximeters Inc. President regarding this problem. www.sandiegodrunkdrivingattorney.net/articles

Intoximeters Inc. sent a letter to NHTSA requesting that US Dept. of Transportation agency to consider the fact that not all people are able to provide a sufficient breath sample.

They even gave "unfamiliarity with the testing device on the part of the test subject" as a reason for failure. They follow with the comment that on repeated attempts, the person may feel embarrassed.

A switch from an Intoxilyzer to the EC/IR will show a huge learning curve as the police learn how to ASK for the sample. They have to quit saying "Blow Harder", quit telling people it is like blowing up a balloon.

Many states have about a year with high insufficient breath claims and refusal rates when the EC/IR was first introduced.

When a San Diego DUI arrestee is arrested for a San Diego DUI and the San Diego county law enforcement claim there is a "refusal" for failure to blow correctly, one may want to get a copy of this key correspondence by emailing rick@SanDiegoDUI.com .

Also, a report from Wyoming indicates that not only does the EC/IR have the slope detector turned off, but most of them have the interferent detector turned off. There are outrageously high readings all the time, it gives an attorney the opportunity to argue the disconnect defense.

The actual quantitative result comes from the fuel cell. These fuel cells wear out quickly and through discovery you can find out if it has reached its max fuel cell gain. Ronald Henson has a great presentation on this issue. Because the fuel cell gives the quantitative result, the machine is supposed to be connected to a dedicated power source. None of the machine’s in Wyoming have a dedicated power source and the one in Laramie runs off the same power line as the rest of the jail.

San Diego DUI attorney news

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
State of Minnesota,
by Michael Campion, its
Commissioner of Public Safety,
Plaintiff,
vs.
CMI of Kentucky, Inc.,
a Kentucky corporation,
Defendant.
Civil Case No. 08-603 (DWF/AJB)
REPLY TO COUNTERCLAIM
Plaintiff State of Minnesota, by its Commissioner of Public Safety, Michael
Campion (“the State”), for its Reply to the Counterclaim asserted by Defendant CMI of
Kentucky, Inc. (“CMI”), states that, except as hereinafter expressly admitted, qualified or
otherwise answered, it denies each and every allegation in CMI’s Counterclaim. The
State further replies as follows:
I. Reply
1. In response to the allegations set forth in paragraph 62 of CMI’s Answer
and Counterclaim, the State admits that Michael Campion is the Commissioner of the
Minnesota Department of Public Safety, and admits that the State is a party in interest.
2. The State admits the allegations set forth in paragraph 63.
3. In response to the allegations set forth in paragraph 64, the State admits that
CMI is engaged in the manufacture, sale and support of breath alcohol testing products to
Case 0:08-cv-00603-DWF-AJB Document 7 Filed 04/29/2008 Page 1 of 11
2
law enforcement professionals. The State further admits that CMI’s Intoxilyzer brand of
breath alcohol test instruments utilizes infrared spectrometry to detect and analyze the
presence of alcohol in a subject’s system. Upon information and belief, the State admits
that the Intoxilyzer has been approved by the National Highway Transportation Safety
Administration. Upon information and belief, the State admits that CMI sells its breath
alcohol testing equipment throughout the U.S. and around the world. With respect to the
remaining allegations set forth in paragraph 64, the State is without information sufficient
to form a belief as to the truth or falsity of those allegations, and therefore denies them.
4. The State admits the allegations set forth in paragraph 65.
5. In response to the allegations set forth in paragraph 66, the State admits that
in or about early 1997 the State awarded a contract to CMI, and since that time the State
has maintained over 200 Intoxilyzer instruments which are configured according to the
State’s specifications. Upon information and belief, the State admits that an existing
Intoxilyzer model was configured to meet the State’s needs and specifications. Upon
information and belief, the State further admits that this stock model Intoxilyzer, when
configured to the State’s specifications, has been referred to anecdotally by the State and
others as the “Minnesota model,” and that this same model has been referred to
anecdotally by CMI and others as the “Minnesota instrument.” With respect to the
remaining allegations set forth in paragraph 66, the State is without information sufficient
to form a belief as to the truth or falsity of those allegations, and therefore denies them.
Case 0:08-cv-00603-DWF-AJB Document 7 Filed 04/29/2008 Page 2 of 11
3
6. In response to the allegations set forth in paragraph 67, the State denies that
in its response to the RFP, CMI informed the State that the options requested by the State
already existed in its standard Intoxilyzer model or were in the final stages of design. The
State affirmatively alleges that CMI informed the State that the options requested by the
State already existed or could be incorporated into a Minnesota configured
Intoxilyzer 5000 and meet the initial delivery requirement of thirty days after the award of
the contract. With respect to the allegation that CMI’s configuration of the Intoxilyzer
5000EN to conform to the State’s specifications did not require or result in the creation or
origination of any copyrightable material, the State responds that this allegation merely
sets forth a legal conclusion to which no responsive pleading is required. The State
denies any remaining allegations in paragraph 67.
7. The State admits the allegations set forth in paragraph 68.
8. In response to the allegations set forth in paragraph 69, the State admits that
pursuant to contract, CMI agreed to make its Owner’s Manual available to criminal
defendants, subject to a very brief, one-half page Confidentiality Agreement. With
respect to the remaining allegations set forth in paragraph 69, the State is without
information sufficient to form a belief as to the truth or falsity of those allegations, and
therefore denies them.
9. In response to the allegations set forth in paragraph 70, the State admits that
the source code is, in layperson’s terms, a computer program that has been written in a
“human readable” language. Upon information and belief, the State admits that the same
Case 0:08-cv-00603-DWF-AJB Document 7 Filed 04/29/2008 Page 3 of 11
4
source code was used to program all of the Minnesota model Intoxilyzers currently in use
in the State of Minnesota. The State is without knowledge sufficient to form a belief as to
the truth or falsity of the remaining allegations in paragraph 70, and therefore denies
them.
10. The State is without knowledge sufficient to form a belief as to the truth or
falsity of the allegations set forth in paragraph 71, and therefore denies them.
11. In response to the allegations set forth in paragraph 72, the State
affirmatively alleges that CMI has made the source code to the Intoxilyzer available to
one criminal defendant in the State of Minnesota, but has refused to provide the State
with a copy of that same code. With respect to the remaining allegations set forth in
paragraph 72, the State is without knowledge sufficient to form a belief as to the truth or
falsity of those allegations, and therefore denies them.
12. In response to the allegations set forth in paragraph 73, the State denies that
it has erroneously asserted that it owns all or some part of the source code. The State
admits the remaining allegations set forth in paragraph 73.
13. The State admits the allegations set forth in paragraph 74.
14. In response to the allegations set forth in paragraph 75, the State admits that
CMI has not been a party to any implied consent or criminal DWI cases in the State of
Minnesota. The State affirmatively alleges that it has requested CMI’s intervention in
such cases, but that CMI has refused to intervene. With respect to the remaining
Case 0:08-cv-00603-DWF-AJB Document 7 Filed 04/29/2008 Page 4 of 11
5
allegations in paragraph 75, the State responds that these are legal conclusions to which
no responsive pleading is required.
15. In response to the allegations set forth in paragraph 76, the State responds
that the allegation that Minnesota district courts have not acknowledged or addressed the
substantial risk of harm to the State’s testing program that would follow from
dissemination of the source code without appropriate controls is a legal conclusion to
which no responsive pleading is required. The State is without knowledge sufficient to
form a belief as to the truth or falsity of the remaining allegations set forth in paragraph
76 and, therefore denies them.
16. In response to the allegations set forth in paragraph 77, the State denies that
it does not own any part of the source code. The State admits the remaining allegations
set forth in paragraph 77.
17. The State denies the allegations set forth in paragraph 78.
18. In response to the allegations set forth in paragraph 79, the State
affirmatively alleges that in early 2006 it began requesting that CMI voluntarily provide it
with a copy of the source code to the Minnesota model Intoxilyzer. The State admits that
CMI initially refused to produce the source code to the State or to any other litigant in the
State of Minnesota. The State affirmatively alleges that while CMI has produced a copy
of the source code to one criminal defendant in Dakota County, it has refused to produce
the source code to the State. The State lacks information sufficient to form a belief as to
Case 0:08-cv-00603-DWF-AJB Document 7 Filed 04/29/2008 Page 5 of 11
6
the truth or falsity of the remaining allegations in paragraph 79, and therefore denies
them.
19. In response to the allegations set forth in paragraph 80, the State admits that
CMI revised its policy regarding disclosure of the source code in September 2007, and
since then CMI has voluntarily offered to make the source code available subject to
litigants signing a specific Non-Disclosure Agreement and Protective Order. The State
lacks information sufficient to form a belief as to the truth or falsity of the remaining
allegations in paragraph 80, and therefore denies them.
20. The State denies the allegations set forth in paragraph 81.
21. The State admits the allegations set forth in paragraph 82.
22. The allegations set forth in paragraph 83 are legal conclusions to which no
responsive pleading is required.
23. The allegations set forth in paragraph 84 are legal conclusions to which no
responsive pleading is required.
24. The allegations set forth in paragraph 85 are legal conclusions to which no
responsive pleading is required.
25. The allegations set forth in paragraph 86 are legal conclusions to which no
responsive pleading is required.
26. In response to the allegations set forth in paragraph 87, the State admits that
CMI has not been a party to any of the actions in which a Minnesota district court ordered
Case 0:08-cv-00603-DWF-AJB Document 7 Filed 04/29/2008 Page 6 of 11
7
the State to produce the source code. The State affirmatively alleges that CMI has made
no effort to intervene in any of those matters, despite requests from the State that it do so.
The State denies the remaining allegations set forth in paragraph 87.
27. The State admits the allegations set forth in paragraph 88.
28. The allegations set forth in paragraph 89 are legal conclusions to which no
responsive pleading is required.
29. In response to the allegations set forth in paragraph 90, the State admits that
CMI’s response to the Request for Proposal included a sample cover letter to attorneys, a
brief Confidentiality Agreement, and an affidavit to be executed by the requesting
attorney. The State further admits that the cover letter to attorneys specifically references
CMI’s Operator’s Manual. The State denies that the documents contained in the contract
between the State and CMI expressly limit the information that CMI would provide to
individual defendants to the Operator’s Manual. The State is without information
sufficient to form a belief as to the truth or falsity of the remaining allegations set forth in
paragraph 90.
30. In response to the allegations set forth in paragraph 91, the State admits,
upon information and belief, that CMI has offered to produce its Operator’s Manual to
criminal defendants when asked. The State denies the remaining allegations set forth in
paragraph 91.
31. The State denies the allegations set forth in paragraph 92.
Case 0:08-cv-00603-DWF-AJB Document 7 Filed 04/29/2008 Page 7 of 11
8
32. In response to the allegations set forth in paragraph 93, the State denies that
CMI has offered to provide it with a copy of the source code pursuant to a suitable Non-
Disclosure Agreement and Protective Order. The State affirmatively alleges that it has
executed the Non-Disclosure Agreement and Protective Order provided to it by CMI, and
CMI has nonetheless refused to provide it with a copy of the source code. The State also
affirmatively alleges that CMI has provided a copy of the source code to one criminal
defendant in Dakota County whose counsel signed a Non-Disclosure Agreement and
Protective Order provided by CMI. The State admits that CMI’s Non-Disclosure
Agreement and Protective Order has been rejected by an overwhelming majority of
district court judges and litigants. The State denies the remaining allegations set forth in
paragraph 93.
33. In response to the allegations set forth in paragraph 94, the State
affirmatively alleges that an overwhelming majority of district court judges have refused
to execute CMI’s proposed Protective Order. The State admits that some courts have
refused to consider CMI’s interests because it has not become a party to the matter. The
State further admits that many district court judges have crafted their own protective
orders after ordering production of the source code. Upon information and belief, the
State denies that a significant majority of these judicially-crafted protective orders would
not adequately protect CMI’s interests.
34. In response to the allegations set forth in paragraph 95, the State reasserts
each and every response set forth above.
Case 0:08-cv-00603-DWF-AJB Document 7 Filed 04/29/2008 Page 8 of 11
9
35. In response to the allegations set forth in paragraph 96, the State admits that
it has asserted an ownership interest in some or all of the source code. The State denies
the remaining allegations set forth in paragraph 96.
36. The allegations set forth in paragraph 97 are legal conclusions to which no
responsive pleading is required.
37. The State asserts that the allegations set forth in paragraph 98 are legal
conclusions to which no responsive pleading is required.
38. The allegations set forth in paragraph 99 are legal conclusions to which no
responsive pleading is required. The State nonetheless agrees with CMI on this point.
39. The allegations set forth in paragraph 100 are legal conclusions to which no
responsive pleading is required.
40. In response to the allegations set forth in paragraph 101, the State reasserts
each and every response set forth above.
41. In response to the allegations set forth in paragraph 102, the State denies
that the source code is proprietary to CMI. The State is without information sufficient to
form a belief as to the truth or falsity of the remaining allegations, and therefore denies
them.
42. In response to the allegations set forth in paragraph 103, the State denies
that the source code is proprietary to CMI. The State is without information sufficient to
Case 0:08-cv-00603-DWF-AJB Document 7 Filed 04/29/2008 Page 9 of 11
10
form a belief as to the truth or falsity of the remaining allegations, and therefore denies
them.
43. In response to the allegations set forth in paragraph 104, the State denies
that the source code is proprietary to CMI. The State is without information sufficient to
form a belief as to the truth or falsity of the remaining allegations, and therefore denies
them.
44. The allegations set forth in paragraph 105 are legal conclusions to which no
responsive pleading is required. The State nonetheless agrees with CMI on this point.
45. The allegations set forth in paragraph 106 are legal conclusions to which no
responsive pleading is required.
II. Affirmative Defenses
46. CMI’s counterclaim fails to state a claim for which relief can be granted.
47. CMI’s counterclaim may be barred by the doctrines of waiver, estoppel, or
laches.
48. CMI’s counterclaim may be barred by the applicable statutes of limitation.
49. The State reserves any other affirmative defenses.
III. Request for Relief
WHEREFORE, the State respectfully requests judgment against CMI, dismissing
its claims in their entirety, and for an award of reasonable fees, costs, and disbursements
Case 0:08-cv-00603-DWF-AJB Document 7 Filed 04/29/2008 Page 10 of 11
11
incurred in the defense of this action and such further relief as the Court deems just and
appropriate.
Dated: April 29, 2008 LORI SWANSON
Attorney General
State of Minnesota
s/ Martin A. Carlson__________
Martin A. Carlson
Assistant Attorney General
Atty. Reg. No. 0299650
Emerald A. Gratz
Assistant Attorney General
Atty. Reg. No. 0345829
445 Minnesota Street, Suite 1800
St. Paul, MN 55101
Telephone: (651) 297-3076
Fax: (651) 297-4077
AG: #1992579-v1
Case 0:08-cv-00603-DWF-AJB Document 7 Filed 04/29/2008 Page 11 of 11

San Diego drunk driving criminal defense attorney news

A bill banning certain advertisements by DUI defense lawyers may be unconstitutional on two separate fronts, the state’s attorney general has opined.

The bill in question has a provision sponsored by Sen. Rosalind Kurita (D-Clarksville) that explicitly prohibits attorneys from advertising that they specialized in DUI cases, from advertising a discounted rate for DUI defense, guaranteeing a certain judgment in the case or claiming that the attorney had more expertise than another on drunken driving defense.

Immediate constitutional issues were raised regarding Kurita’s amendment when she first introduced it last week, and an attorney general’s opinion was requested.

And in an April 29 opinion, state Attorney General Bob Cooper opined that Kurita’s amendment is “vulnerable to constitutional attack” on grounds it “violates the separation of powers doctrine.”

“The Tennessee Supreme Court has the inherent constitutional authority to regulate the courts and the attorneys who practice before them,” Cooper wrote. “(Kurita’s amendment) improperly attempts to exercise powers properly belonging to the Supreme Court.”

In addition, Cooper opined that Kurita’s amendment “raises significant First Amendment concerns.”

“DUI defendants have a substantial interest in learning as much as possible about the attorneys who will represent them,” the opinion states.

In response to the opinion, Kurita said she’ll “have to find another way” to curtail drunk driving.

Kurita sponsored the amendment because she said she was tired of seeing suspected drunk drivers not be convicted.

Her opponent in August’s Democratic primary, Tim Barnes, is an attorney whose practice area includes DUI defense.


www.sandiegodrunkdrivingattorney.net/articles

San Diego DUI criminal defense lawyer news

For an Arizona DUI cop paid to find drunk drivers, it's like fishing in a can between 10 p.m. and 2 a.m according to the President of the Southern Arizona DUI Task Force, "as many as one out of every four cars on the road is being operated by an impaired driver."

Between prom, graduations, Cinco de Mayo and Memorial Day--there's a lot of partying going on right now. Involved in those celebrations are your friends, your children and any number of people who are close to you.

"Being perfectly frank with you, the first thing to go is judgment--the more you drink--your judgment goes."

That's why the DUI Task Force is busy all month, but definitely busier in some areas more than others.

"There's several bars in this area, a lot of them are local bars. People that go to them live around here, but still gotta get home."

Deputy Ed Curtin is talking about a small pocket on the northwest side--that's notorious for DUI arrests.

Interstate 10 to the West, Oracle Road to the East, River to the North and Wetmore to the South. It's only about five square miles, but this hotspot accounts for nearly 40 percent of all the DUI's in Pima County.

Says Deputy Curtin, "You're sitting at a four-way stop at midnight on a Friday--one of us is probably drunk."

Needless to say the driver was arrested--in the middle of the county's biggest DUI hotspot.

In the city, similar hotspots are located along the Speedway corridor and on 4th Avenue, but to a much lesser extent when college students go home for the summer. Still, that's not to say these are the only places you'll cross paths with drunk drivers.

Does that mean Oro Valley is next DUI hotspot? Well that's hard to say. Statistics don't yet support that, but it's further evidence that drunk drivers are everywhere--and it's in everybody's best interest to know that.

ARIZONA TRAFFIC FATALITIES AND ROLE OF ALCOHOL

As shown in the chart below, the alcohol related fatalities in Arizona peaked in 1986, steadily declined in most of the subsequent years and increased in both 2000 and 2001, bucking the overall trend. In 2006, out of all traffic fatalities, 409 involved a blood alcohol concentration (BAC) of 0.08 or higher - down slightly from 2005.

Year Total Alc-Rel % 0.08+ %

1982 724 422 58 376 52

1983 675 388 57 350 52

1984 869 473 54 418 48

1985 893 502 56 444 50

1986 1007 582 58 511 51

1987 939 532 57 462 49

1988 944 488 52 439 47

1989 879 443 50 390 44

1990 869 434 50 398 46

1991 816 429 53 390 48

1992 809 403 50 359 44

1993 801 400 50 355 44

1994 904 410 45 360 40

1995 1035 478 46 410 40

1996 994 442 45 386 39

1997 951 451 47 405 43

1998 980 444 45 377 39

1999 1024 424 41 371 36

2000 1036 469 45 407 39

2001 1051 487 46 425 40

2002 1132 489 43 428 38

2003 1120 470 42 408 36

2004 1150 435 38 376 33

2005 1,177 492 42 434 37

2006 1,280 502 39 409 32

Criminal status of DUI laws in Arizona

In Arizona, 1st and 2nd offenses are class 1 misdemeanors 3rd or subsequent offenses are class 4 felonies - Citation: §§13-604, 13-701, 13-707, 13-801, 13-802, 28-1382 & 28-1383 (2)

Sources for Arizona drunk driving information and statistics

US Dept. of Transportation, National Highway Traffic Safety Administration, 12/02

(2) National Conference of State Legislatures, 2004

San Diego DUI lawyer news

Honolulu police opened an internal affairs investigation after an officer, who's restricted to desk duty, managed to disappear with a blue-and-white car for 12 hours.

Officer James Urban is charged with DUI or drunken driving. Sources say the 31-year-old appeared to be intoxicated when he finally returned with the patrol car at about 2 am Tuesday.

Sources say the Kapolei officer was stripped of his gun and badge following a previous DUI arrest. They say he left the Kapolei station to deliver some paperwork, then disappeared.

Sources say, at one point, the blue-and-white car he took was seen parked in front of a bar on Kokea Street in Kalihi.

Urban is scheduled to appear in court May 27th.

www.sandiegodrunkdrivingattorney.net/blog

San Diego California DUI attorney news

A young California woman who was held to answer two weeks ago for the death of a Santa Rosa woman in a crash on state Highway 12 near Kenwood in July pleaded guilty to all the California DUI charges this morning.

Chelsea Tedeschi, 22, pleaded guilty before Judge Rene Chouteau to gross vehicular manslaughter while intoxicated, and two counts of California DUI causing great bodily injury or death. She also admitted her blood-alcohol level was more than 0.15 percent, nearly twice the legal limit.

Deputy District Attorney David Barkhurst said Tedeschi faces 13 years and eight months in prison when she is sentenced May 29.

Tedeschi was driving her mother's 2000 Volvo east on Highway 12 on July 17 when it struck a 2005 Honda Civic driven by 16-year-old Douglas Todd. The crash killed Todd's mother, 44-year-old Jane Beverly Todd at the scene.

Tedeschi and Douglas Todd were injured and taken to Santa Rosa Memorial Hospital.

Trisha Meyers, of Sonoma, testified at Tedeschi's preliminary hearing April 17 that she saw Tedeschi cross the double yellow lines of the highway and swerve back toward the right shoulder of the road seven times as she drove behind her that night. She said she did not see the collision but came upon it on her way home.

California Highway Patrol Officer Juan Leon testified Tedeschi had a blood-alcohol level of 0.22 percent. At the hospital, Tedeschi said she had two vodka drinks and a glass of wine earlier that evening and had taken the anti-depressant Celexa that day and Vicodin that morning. The Physicians' Desktop Reference advises Celexa users not to take the drug when drinking alcohol or any other drug that affects the brain.

California DUI Defense attorney Chris Andrian told the judge insufficient evidence of gross negligence was presented during the preliminary California DUI hearing.

"There was no evidence she wasn't in her lane," Andrian said.

Chouteau, however, held Tedeschi to answer to the gross vehicular manslaughter charge because there was evidence Tedeschi had been swerving as she drove down the highway and drank alcohol that day.

A California DUI trial date was to be set for Tedeschi today.

California DUI lawyer info at www.sandiegodrunkdrivingattorney.net/blog

San Diego California DUI lawyer news

www.SanDiegoDrunkDrivingAttorney.net/articles

April 30, 2008



D for Dennis' DUI or Dennis' Drunk Driving

Star Dennis Rodman received a California DUI. Click on link above to see Dennis' handsome face.

Charges: In December 1999, NBA star Dennis Rodman was busted in California and charged with DUI.

Dennis' Mugshot taken on December 23, 1999

Rodman pleaded guilty to California DUI - drunk driving and driving without a valid license charges. He was fined $2,000 and placed on three years probation.

San Diego DUI attorney news

Use of Ambien and dissociative events in sleepdriving.

May 1, 2008

Record Sales of Sleeping Pills Are Causing Worries


Americans are taking sleeping pills like never before, fueled by frenetic workdays that do not go gently into a great night's sleep, and lulled by a surge of consumer advertising that promises safe slumber with minimal side effects.

About 42 million sleeping pill prescriptions were filled last year, according to the research company IMS Health, up nearly 60 percent since 2000.

But some experts worry that the drugs are being oversubscribed without enough regard to known, if rare, side effects or the implications of long-term use. And they fear doctors may be ignoring other conditions, like depression, that might be the cause of sleeplessness.

Although the newer drugs are not believed to carry the same risk of dependence as older ones like barbiturates, some researchers have reported what is called the "next day" effect, a continued sleepiness hours after awakening from a drug-induced slumber.

Ten percent of Americans report that they regularly struggle to fall asleep or to stay asleep throughout the night. And more and more are turning to a new generation of sleep aids like Ambien, the best seller, and its competitor, Lunesta. Experts acknowledge that insomnia has become a cultural benchmark — a side effect of an overworked, overwrought society.

"Clearly, there's a significant increase in people who report insomnia and, from my perspective, that is the result of our modern-day lifestyle," said Dr. Gregg D. Jacobs, a psychologist and assistant professor of psychiatry at Harvard. Or at least that is an impression that drug makers are clearly trying to capitalize on, he said.

And that concerns him and some other researchers who warn that despite their advertised safety, the new generation of sleep aids can sometimes cause strange side effects.

The reported problems include sleepwalking and short-term amnesia. Steven Wells, a lawyer in Buffalo, said he started using Ambien last year because his racing mind kept him awake at night. But he quit after only one month, concerned about several episodes in which he woke up to find he had messily raided the refrigerator and, finally, an incident in which he tore a towel rack out of a wall.

"The weird thing was that I had no recollection of it the next day," said Mr. Wells, who added that he found the episodes frightening.

Ambien's maker, Sanofi-Aventis, said the drug had been used for 12 billion nights of patient therapy. "When Ambien is taken as prescribed, it's a safe and effective treatment," said Emmy Tsui, a company spokeswoman.

A Food and Drug Administration spokeswoman, Susan Cruzan, said she was not aware of an unusual number of complaints with the drugs.

Drug makers spent $298 million in the first 11 months of 2005 to convince consumers that the sleep aids are safe and effective. That was more than four times such ad spending in all of 2004.

In the last year, much of the advertising surge has been a result of competition from Lunesta, which the drug maker Sepracor introduced last April to compete with Ambien. Through November, Sepracor led the sleeping pill advertising field, spending more than $185 million, according to figures from TNS Media Intelligence, which did not have final figures for December.

In response, Sanofi-Aventis, marketing both Ambien and its controlled-release version, Ambien CR, spent $107 million from last January through November, according to TNS. That was nearly double its ad spending on Ambien in 2004.

Even the most infrequent television viewers would have trouble missing the Lunesta ads, which feature a luna moth fluttering around the bed of a peaceful sleeper. Dr. Jacobs said that in one hour of prime-time television recently, he saw three ads for sleeping pills: two for Lunesta and another for Ambien.

"You've got the patient population being bombarded with advertising on TV," Dr. Jacobs said. "You've got increased advertising to physicians. You've got a formula for sales going up dramatically."

One financial analyst, Jon LeCroy of Natexis Bleichroeder, said Lunesta's ad campaign last fall was tied to the new season of "Desperate Housewives," whose audience is about 55 percent female. Studies have shown that women have insomnia more frequently than men.

Last week, Sepracor's stock jumped $8.53 in one day, after Sepracor reported a profit and remarkably strong use of Lunesta in its first year on the market, with sales of $329 million. More than 213,000 doctors wrote 3.3 million prescriptions for it last year, the company says.

Sepracor announced the addition of 450 people to its current sales force of 1,500 to increase marketing of the drug to physicians.

Sanofi-Aventis, with a sales force of 3,000, is working to shift patients from Ambien, which loses its patent protection in October, to the newer version, Ambien CR. The newer pill has a quickly dissolving outer layer meant to immediately induce sleep, with a slower-dissolving inner layer to sustain sleep.

Another drug in the class is Sonata, marketed by King Pharmaceuticals. Because it is short acting, Sonata is recommended for people who have trouble falling asleep but no trouble staying asleep.

Drugs in the class are frequently referred to as "Z" drugs, a play on both their effect and the Z's in their generic names, like zolpidem (Ambien) and eszopiclone (Lunesta). All aim at a brain neurotransmitter that is believed to reduce neural activity.

Another new entrant to the market, Rozerem, by the Japanese company Takeda Pharmaceuticals, has been available in drugstores since September but has not yet been heavily advertised. The drug works by a different mechanism from the others, acting on the brain's melatonin receptors, which are believed to play a role in sleep-wake cycles.

Mr. LeCroy, the analyst, who is also a medical doctor, predicts the advertising will intensify if Neurocrine Biosciences and its partner Pfizer are permitted to introduce their new sleeping pill, Indiplon; an F.D.A. decision on that is expected in May.

"That's going to make the competition get more cutthroat," Mr. LeCroy said, predicting that the market for branded sleeping pills, currently about $2 billion a year, could grow to $3.8 billion, even with Ambien set to go generic. "This is only going to get crazier."

The Carlat Psychiatry Report, a newsletter by Dr. Daniel J. Carlat, a psychiatrist in Newburyport, Mass., reviewed the Z drugs recently and concluded that their differences were merely subtle. But Dr. Carlat warned that Lunesta, because it was longer acting, was more likely to cause next-day sleepiness problems "in comparison with some of its cousins."

Dr. Carlat cited a 1998 study in Britain, published in The Lancet, which found that taking zopiclone, the compound known as the "mother" of Lunesta and marketed in Europe, was linked to an increased risk of automobile accidents.

But Sepracor's chief financial officer, David P. Southwell, said that Lunesta, while a chemical variant of zopiclone, was a totally different drug. He referred a reporter to the F.D.A.-approved label, which lists clinical studies of next-day effects showing there was no consistent pattern of impaired mental functioning the day after Lunesta use.

The possible role of Ambien was investigated in connection with well-chronicled transportation disasters in 2003 — the crash of the Staten Island Ferry, which killed 11 passengers, and an accident involving a Texas church bus in Tallulah, La., which killed 8 passengers. The assistant captain who was piloting the ferry, like the bus driver, had a prescription for Ambien, but there was no evidence either had taken it before the crashes.

Dr. David G. Fassler, a clinical professor of psychiatry at the University of Vermont College of Medicine, said he was concerned that the heavy marketing and prescribing of the sleep medications would lead to use in patients who have underlying conditions that are left untreated.

"I'm concerned that difficulty sleeping can be a sign of multiple disorders, including problems with anxiety and depression," he said, expressing worry that patients who are not thoroughly evaluated might be treated for their insomnia while other problems, like anxiety or decreased appetite, are not addressed.

In clinical trials, the most common side effect of the drugs, however, is that people wake up feeling sleepy the next day.

Dr. Daniel J. Buysse, a University of Pittsburgh psychiatrist who has consulted for the industry on sleeping pills, said they were a rare example of drugs in which the desired effect and the major side effect were the same thing. "One occurs when you want it, and the other occurs when you don't," he said.

Another problem associated with using sleeping pills is a condition commonly called traveler's amnesia, in reference to the frequent use by people who travel across time zones. Such amnesia can occur when people return to daytime activities too quickly after taking the drugs.

The labels carry warnings that the drugs should be used only when people can devote a full night to sleeping. In some cases, however, users have reported that they awakened during the middle of the night in sleepwalking states, but — like Mr. Wells, the lawyer in Buffalo — had no recollection of their activities.

The amnesiac effects of Ambien were a factor in the acquittal last week of a United States Air Force linguist who had been charged with raping a colleague while the two were stationed in Qatar. The woman who said she was the victim, also a linguist, testified that she was not sure whether the incident was a dream because she had taken Ambien, according to the Stars and Stripes report on the military trial, which occurred in Britain.

Dr. Buysse said such bouts of nocturnal uncertainty occur occasionally with various Z drugs.

"There have been some case reports of people who have been sleepwalking only when taking the drug," Dr. Buysse said. "I think it's rare, and it's the kind of thing that no one is going to have a very good estimate of. But if it happens to you, who cares if you're the only person of many?"

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