San Diego DUI lawyers report a big part of the reason for the State's latest freeze is its hiring of part-time employees. Of 9,017 DMV employees statewide, 1,345 -- or 15 percent -- could be gone by Friday after Gov. Arnold Schwarzenegger signs an executive order to deal with the state's fiscal crisis.

The department also has 751 contractors who could be terminated. And that won't be good news for customers, said Amber Carlson, who would lose her $14.75-an-hour part-time job answering phones and processing paperwork at the DMV's Sacramento headquarters.

"People aren't going to get their licenses back as quick. There's going to be more people on hold trying to get their questions answered," said Carlson, 25. "He (Schwarzenegger) is trying to push people, and he's pushing the wrong people."

Schwarzenegger is expected to sign the executive order Thursday, the first day of the August pay period.

About 22,000 temporary, part-time and contract state workers face layoffs. That could mean fewer food safety inspections and cutbacks in the programs that stock fish in the state's rivers and lakes, among many consequences.

The governor also is expected to order that many of the 200,000 regular state employees under his control be paid the federal minimum wage of $6.55 an hour until a state budget is passed. Lawmakers have failed to agree on a spending plan for the fiscal year that began July 1, arguing over whether they should enact tax increases or steep cuts to close a $15.2 billion deficit.

The workers receiving the federal minimum wage will be reimbursed for their full salaries once a budget deal is reached. The others will simply be out of work.

Schwarzenegger spokesman Aaron McLear said law enforcement, emergency, disaster and other critical workers would be exempt from the executive order.

The federal court-appointed receiver who runs the state prison health care system on Wednesday exempted all his state employees from the cutbacks.

Schwarzenegger's executive order is designed in part as a way to pressure lawmakers to strike a budget deal quickly, but it also is expected to prompt immediate challenges.

Controller John Chiang, a Democrat, said he will defy Schwarzenegger and keep sending permanent employees their full checks, rather than paying them minimum wage. State employee unions promise to seek injunctions blocking the entire executive order.

Both concede the governor likely has the power to lay off the seasonal and part-time workers.

Schwarzenegger said he has little choice because the state could run out of cash without a budget. The administration projects that firing the employees, ending contracts and suspending overtime would save the state about $100 million a month.

"Being governor, I have to make sure that we pay our bills and that we have the money," Schwarzenegger said at a news conference on Tuesday.

While many state workers can get low-interest loans until they receive back wages, Kim Croff, 44, of Carmichael, is one of those set to lose her DMV job with little savings as a cushion.

"I'm very worried. Unemployment is up, jobs are very scarce. There's no one really hiring. The economy is really bad," Croff said as she and Carlson protested the pending cuts during their lunch hour Wednesday. "It takes a toll on you, just worrying about it."

Croff schedules driving test and vehicle registration appointments for $14.25 an hour. While she works 40 hours a week, she's not considered a permanent, full-time employee and will lose her job.

Her Sacramento call center, one of five statewide, is staffed by about 85 people, about 30 of whom are part-time employees.

Jim Zamora, spokesman for Service Employees International Union, said seasonal fruit and vegetable inspectors also might be laid off -- "the people who protect you from salmonella."

"By getting rid of them at this time of year, you're potentially creating problems for the state," said Zamora, who represents the largest state employees' union.

The governor's office said it's not clear whether food inspectors would be subject to the executive order.

Agencies are informing the administration how many of their employees are considered crucial to public safety.

State Sen. Dean Florez asked the Legislature's legal office for an opinion about whether the governor can fire the 22,000 workers. Last week, the nonpartisan Legislative Counsel's Office advised that Schwarzenegger cannot force the state controller to pay only minimum wage. The administration disagrees, citing a previous court order.

California DUI attorneys report a man Charged With California DUI While Trying to Fill Car With Jet Fuel. The motorist broke through security fence to fill car with special fuel.

San Jose Police patrolling the Reid-Hillview Airport around 8:30 pm found Robert Rodebush, 20, had got through a locked gate and was trying to fill his gas tank with fuel formulated for airplanes. Upon California DUI investigation they determined the man was intoxicated and arrested him for California DUI - driving under the influence in California.

The high lead content of aviation fuel can harm a conventional car engine but police reportedly have had several people try to illegally fill their gas tanks thinking it would boost performance. The fuel is accessible from a self-serve pump using a credit card. The illegal effort wasn’t to save money as aviation fuel costs $5.97 per gallon, according to California DUI lawyers.

It is speculated that Rodebush received the combination to the gate lock from someone who works at the airport. He was charged with unauthorized use of the gas pump, attempted theft, trespassing and California DUI drunk driving.

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San Diego DUI lawyers are told felony charges have been filed against the off-duty San Diego police officer who wounded a mother and her son in a traffic confrontation in Oceanside in March, District Attorney Bonnie Dumanis announced Tuesday.

District Attorney Bonnie Dumanis announced the San Diego criminal charges at a noon news conference. Officer Frank White, who was off-duty the day of the incident, faces a felony count of gross negligent discharge of a firearm with two enhancements for great bodily injury and one misdemeanor count of exhibiting a firearm. If convicted, he faces a maximum penalty of nine years in prison.

White is scheduled to be arraigned in the Vista courthouse at 1:30 p.m. where he is expected to surrender to authorities, San Diego DUI lawyers learned.

Brave and decisive Bonnie did not take any questions. There are pending lawsuits filed by the mother and the kid.

“Every officer-involved shooting is carefully reviewed by the District Attorney's Office to determine if criminal charges should be filed,” she said. “Based on the evidence and the law, these charges are appropriate.”

The incident happened the night of March 15, when White and his wife encountered Rachel Silva, who was driving with her then 8-year-old son, Johnny, in the passenger seat.

The incident allegedly evolved from an apparent road-rage dispute and ended with White firing five rounds into Silva's car, San Diego DUI lawyers heard.

Silva was shot twice in the arm, her son, once in the knee, according to San Diego DUI lawyers. Silva has pleaded not guilty to felony child endangerment and five misdemeanors: two San Diego DUI - drunk driving charges, possession of marijuana, driving on a suspended license and driving on a license suspended for a previous DUI conviction.

Oceanside police said Silva's blood-alcohol level was 0.15 percent – nearly twice the legal limit – at the time. San Diego DUI officials also said she had some marijuana in her system.

Silva has said she doesn't recall how the confrontation started and doesn't know why White fired into her car. She also said she was only trying to get away from him when she saw his gun.

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A suburban Chicago lawmaker has pleaded guilty to DUI in Sangamon County.

Elmhurst Republican Representative Bob Biggins issued a statement Monday saying he made a "serious mistake." Biggins apologized and said he accepted "the full legal consequences."

Sangamon County Assistant State's Attorney William Vig says Biggins was ordered to pay a fine of more than $1,200 after pleading guilty. His sentence also includes one year of court supervision.

Biggins was stopped May 28th in Springfield.

Vig says Biggins' license also has been suspended for six months because he refused a breathalyzer. But Vig says Biggins has a driving permit that will let him drive for work.

Petaluma Police arrested nine drivers Saturday night and early Sunday in a special DUI operation.


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Eight extra officers were on the street from 4 p.m. Saturday through 3 a.m. today searching for drunken drivers, police Sgt. Ken Savano said.

One person was arrested on suspicion of possessing two loaded and concealed guns in a vehicle. Two others were arrested on suspicion of drunken driving, four for not having licenses, and one for public intoxication after being reported by a citizen before he drove his vehicle, Savano said.

Another person was arrested on suspicion of possessing marijuana in a vehicle.

Seven vehicles were towed, four of which are being held for 30 days because their drivers had no licenses.

The operation was funded by a grant from the California Office of Traffic Safety. Additional DUI operations and checkpoints are planned throughout the year under this grant project, Savano said.

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San Diego DUI attorneys hear a Nevada Highway Patrol sergeant accused of smoking marijuana off-duty before causing a fatal three-vehicle crash resigned Friday.
NHP spokesman Dan Burns told The Associated Press that Edward Lattin, 20-year NHP veteran who headed a team that investigated fatal crashes, submitted his resignation.

Lattin, 46, was facing two internal investigations stemming from the June crash, Burns said. Watkins has denied that Lattin was impaired by marijuana. He said Lattin is diabetic, and might have had a reaction to a blood sugar level fluctuation or another medical episode while driving.

Lattin is free on $50,000 bail awaiting an Oct. 15 court hearing on a felony charge of driving under the influence resulting in death. He faces a mandatory two to 20 years in prison if convicted. A Las Vegas judge also ordered Lattin to submit to random drug tests and give up driving until his criminal case is resolved.

Las Vegas police say Lattin's Ford F-150 was traveling 53 mph to 58 mph when it slammed into the back of a Toyota sedan stopped in a center turn lane about 1:30 p.m. June 11 on a busy boulevard several miles west of the Las Vegas Strip. The posted speed limit is 45 mph.

A passenger in the Toyota, Ying Warren, 49, was killed when she was thrown from the car as it spun into oncoming traffic and was hit by a Chevrolet pickup. The drivers of the Toyota and the Chevrolet pickup were treated for various injuries and released.

Witnesses told police that just before the crash Lattin's pickup almost struck another car and ran up on a sidewalk before swerving across three traffic lanes and hitting the Toyota.

Police later said Lattin's blood contained levels of the active ingredient in marijuana that were about 2½ times the limit that state law presumes a person to be impaired.

Police said Lattin had 5.6 nanograms per milliliter of delta 9 tetrahydrocannabinol, the active ingredient in marijuana in his blood, along with 26 nanograms per milliliter of THC carboxylic acid, a marijuana metabolite. The state limit is 2 nanograms of THC.


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is an honor badge she will surely wear with pride: a Santa Barbara police officer is named "Best DUI Officer" in Santa Barbara County.

Christina Ortega netted 13 drunk drivers during the 19-day winter holiday crackdown.

The arrests took place as part of the "Avoid the 12" campaign, which is the interagency crackdown funded by the state's Office of Traffic Safety.

"This is an important achievement," said Santa Barbara County Sheriff's Deputy Win Smith, campaign coordinator. "Every single one of those 13 people could have driven a mile down the road and hurt or killed someone."

Authorities said they saw a 28 percent rise in DUI arrests during the winter campaign.

San Diego DUI lawyers report that a car whose driver was allegedly drunk struck a carport in a mobile home park Tuesday night. The residents weren't home at the time, San Diego DUI lawyers said.

The San Diego Drunk Driving crash happened at 9:50 p.m. Tuesday at the Santiago Estates mobile home park in the 200 block of South Emerald Drive, San Diego DUI attorneys are told. The driver crashed the car into the carport and an electrical box, cutting off power and water to the home, San Diego DUI lawyers said.

The driver was taken to Tri-City Medical Center with minor injuries then booked into Vista Jail on suspicion of drunken driving, San Diego DUI / drunk driving attorneys believe. A San Diego Gas & Electric Co. crew responded to restore power to the home, San Diego DUI criminal defense lawyers said.

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When you want to hire a car, your driver licence may be subject to background check, which is an uncomfortable situation.

You might not find out this is happening when you hand over your driver’s license, but most agencies disclose it somewhere on their Web site. (Most importantly they’d claim that you already acknowledged this when signing the policy form).

Alamo, Avis, Budget, Dollar, Hertz and Thrifty all check their customers’ driving records through Department of Motor Vehicles (DMV) databases — at least sometimes.

“I’m not sure that it’s done every single time, but enough that it warrants being included in our policies,” said Jason Logan, a spokesman for Dollar and Thrifty. Among the major car rental companies, Enterprise is an exception to this trend. “We do not run a D.M.V. check on drivers,” said Christy Conrad, an Enterprise spokeswoman. “We inspect the driver’s license to check that it’s ‘facially valid.’ ”

Neil Abrams, president of the Abrams Consulting Group, which works with the car rental industry, said that some companies began doing these checks more than a decade ago, and that over time the technology linking Department of Motor Vehicles records has improved — and gotten more affordable. Even so, he questioned whether companies check every customer for every rental. “There are 100 million rental transactions a year in the industry, domestically,” Mr. Abrams said. “That’s a lot of driver’s licenses that have to be validated.”

Many companies list on their Web site reasons they might reject a customer based on his or her driving record, which include things like operating a vehicle without a license, driving under the influence of alcohol (D.U.I.), driving while intoxicated (D.W.I.), or being involved in two or more accidents in the past 36 months. (A friend found out his driver’s license had been suspended — for unpaid parking tickets — when he tried to pick up a rental car, even before the D.M.V. notice arrived.)

So, the point is, if you’ve had any convictions for driving violations within the last three years, you can check whether your record might prevent you from renting a car by calling a company that provides this service to the car rental industry, TML (800-388-9099). TML charges $9.95 to run a driver background check, though some states do not allow this, including California and Pennsylvania.

A man fighting to overturn his drunken driving conviction has asked the Illinois Supreme Court to clarify the law governing testing requirements for breath-test machines.

Dean Rigsby, who allegedly registered a blood-alcohol concentration of 0.276 percent, contends that the 5th District Appellate Court majority in his case relaxed the regulatory scheme for testing breath-alcohol machines.

At issue is whether prosecutors had to prove that the machine was not tested after Rigsby's breath check, or that if it was tested, it was found to be working properly.

In a petition for leave to appeal, Rigsby contends that since neither point was proved at his trial, the breath-test results were not sufficiently reliable to prove him guilty beyond a reasonable doubt.

Rigsby says his case is one of first impression.

According to the Appellate Court, the sole witness against Rigsby was Lebanon police officer Robert Boehm.

Boehm testified that on the afternoon of May 25, 2006, a motorist alerted him to a red pickup truck on the side of the road with a man slumped over the steering wheel.

The officer testified that he found the truck running and saw two open beer cans in the truck bed and one on the floor. Rigsby was unconscious but still had his foot on the brake.

Unable to wake Rigsby, Boehm called for an ambulance.

''Before the ambulance arrived, the defendant woke momentarily, asked Boehm for a kiss, and said 'Alikazam' before passing out again,'' the Appellate Court noted.

Paramedics told Boehm they suspected Rigsby was simply drunk. Since Rigsby smelled of alcohol and could not stand to complete a field sobriety test, Boehm arrested him.

Boehm testified that he administered a breath-alcohol test using an EC-IR machine that had last been certified on April 12, 2006, by a man named Clyde Matthews. Rigsby blew a 0.276 percent, Boehm said.

On cross-examination, Boehm was shown pages from the EC-IR's log. Immediately above the entry of Rigsby's test results, Matthews had written his name but crossed it out.

On another sheet, Matthews indicated that he calibrated the machine on May 25, the same day as Rigsby's arrest, but the entry did not indicate whether it was before or after Rigsby's breath test.

Prosecutors then entered, without objection, the printout showing the results of Rigsby's breath test.

A St. Clair County jury convicted Rigsby of drunken driving. He was sentenced to 180 days in jail — 177 already served — and 2½ years on probation.

On June 24, a divided panel of the 5th District Appellate Court affirmed Rigsby's conviction. Justice Thomas M. Welch wrote the published opinion, with Justice Richard P. Goldenhersh concurring. Justice Melissa A. Chapman dissented.

Rigsby argued on appeal that prosecutors failed to prove that the EC-IR had been tested in accordance with the Illinois State Police regulations found at 20 Ill.Adm.Code §1286.200.

Welch explained that the regulations establish a rebuttable presumption that the breath-test machine was accurate premised on four conditions: the machine had to be approved; the accuracy check prior to a defendant's test must be within a certain tolerance; a defendant's test must be within 62 days of an accuracy check; and central to Rigsby's appeal, no accuracy check was performed after a defendant's test or, if one was, it also must be within an acceptable tolerance.

Rigsby argued that prosecutors failed to submit evidence that, after his test, the EC-IR either was not checked or was checked and found to be accurate. That failure, Rigsby argued, meant the state did not meet its burden of proof.

The appellate majority disagreed.

''Proving that the breath-test examination was performed according to the Department of State Police standards is not an element of the offense of driving under the influence but is instead a foundational requirement for the admission of the breath-test results,'' Welch wrote, citing People v. Black, 84 Ill.App.3d 1050 (1980).

The failure to lay a proper foundation goes to admissibility of the evidence, not the sufficiency of the evidence, Welch wrote.

''Once the results of the breath test showing the defendant's alcohol content of 0.27 [percent] was admitted into evidence, there was sufficient evidence before the jury for it to find him guilty beyond a reasonable doubt, even if the evidence was improperly admitted,'' Welch wrote.

Rigsby exposed the purportedly improper foundation during the police officer's cross-examination, Welch noted, but then failed to object to the admission of the printout showing his breath-test results.

''This failure to object waived the issue of an improper foundation on appeal,'' Welch wrote.

In her dissent, Chapman agreed with the majority that Rigsby's trial counsel failed to object to the introduction of the test results.

''However, I believe that given the number of other times before, during and after the trial that the foundation issue was raised by defense counsel, the foundation issue was preserved,'' Chapman wrote, noting that the state did not argue waiver.

Based on pretrial motions, questions at trial and a motion for a directed verdict, Rigsby's lawyer's arguments were clear, Chapman wrote.

''Because the state failed to prove the foundational element necessary to establish the accuracy of the defendant's May 25, 2006, breath-alcohol test and because a breath-alcohol test at or above 0.08 [percent] was a required element of the crime with which the defendant was charged, I believe that the state failed to prove the defendant guilty of the crime beyond a reasonable doubt,'' Chapman wrote.

In his petition to the high court, Rigsby calls that failure a ''fatal lack of reliability' ' of the evidence.

The Vehicle Code states that breath-alcohol tests ''shall be admissible,' ' the defendant contends. ''However, the tests have no presumption of reliability or accuracy unless there is proof of a successful accuracy test after the one given to the accused, or proof that the machine was never again tested for accuracy,'' he argues.

''Since the state could not prove the presumptive accuracy of the test results, the evidence against Mr. Rigsby for having any particular blood-alcohol level is too weak to uphold a conviction,' ' the petition contends.

Rigsby is represented by Assistant Defender Larry R. Wells and Deputy Defender Daniel M. Kirwan of the Office of the State Appellate Defender.

The case is People v. Dean Rigsby, No. 106887.

Hungry for drive-through? Find the lane. A man was arrested on suspicion of San Diego DUI - drunk driving, after he crashed a pickup through a brick wall and into a patio dining area at a Jack In the Box restaurant early Sunday.

The 2:07 a.m. crash was reported on Broadway near H Street, said Lt. Tro Peltekian of the Chula Vista police.

The motorist initially walked away from the damaged Ford F150 pickup, Peltekian said, but was detained by security guards from a nearby business until police arrived.

The motorist was treated at a hospital for minor injuries and then booked into Chula Vista jail. He was also held on suspicion of driving without a valid license, Peltekian said. No one else was injured.

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DUI defense attorneys unfortunately have a complete defense here: death certificate.

A motorcyclist stopped for suspected DUI / DWI / drunk driving in Kentucky died of a self-inflicted gun shot wound just before 6 a.m. today, according to DUI criminal lawyers.

After Morganfield police stopping the motorcyclist on U.S. 60-West near State Route 3393, officer Chris Toman determined the man was under the influence of alcohol and advised the man he was under arrest for DUI, according to DUI criminal defense attorneys.

The man then turned and spoke to a female passenger of his bike, stepped away from her and from officers and produced a handgun. He fired one fatal shot to his head.

The identities of the man and his female passenger are not being released pending family notifications.

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California DUI attorneys learned that two weeks after Joshua Lipton was charged in a drunken driving crash that seriously injured a woman, the 20-year-old college junior attended a Halloween party dressed as a prisoner. Pictures from the party showed him in a black-and-white striped shirt and an orange jumpsuit labeled "Jail Bird."

Prosecutors pounced when this party photo of Joshua Lipton in a "Jail Bird" costume appeared on Facebook.

In the age of the Internet, it might not be hard to guess what happened to those pictures: Someone posted them on the social networking site Facebook. And that offered remarkable evidence for Jay Sullivan, the prosecutor handling Lipton's drunken-driving case.

Sullivan used the pictures to paint Lipton as an unrepentant partier who lived it up while his victim recovered in the hospital. A judge agreed, calling the pictures depraved when sentencing Lipton to two years in prison.

Online hangouts like Facebook and MySpace have offered crime-solving help to detectives and become a resource for employers vetting job applicants. Now the sites are proving fruitful for prosecutors, who have used damaging Internet photos of defendants to cast doubt on their character during sentencing hearings and argue for harsher punishment.

"Social networking sites are just another way that people say things or do things that come back and haunt them," said Phil Malone, director of the cyberlaw clinic at Harvard Law School's Berkman Center for Internet & Society. "The things that people say online or leave online are pretty permanent."

The pictures, when shown at sentencing, not only embarrass defendants but can make it harder for them to convince a judge that they're remorseful or that their drunken behavior was an aberration. (Of course, the sites are also valuable for defense lawyers looking to dig up dirt to undercut the credibility of a star prosecution witness.)

Prosecutors do not appear to be scouring networking sites while preparing for every sentencing, even though telling photos of criminal defendants are sometimes available in plain sight and accessible under a person's real name. But in cases where they've had reason to suspect incriminating pictures online, or have been tipped off to a particular person's MySpace or Facebook page, the sites have yielded critical character evidence.

"It's not possible to do it in every case," said Darryl Perlin, a senior prosecutor in Santa Barbara County, California. "But certain cases, it does become relevant."

Perlin said he was willing to recommend probation for Lara Buys for a drunken driving crash that killed her passenger last year, until he thought to check her MySpace page while preparing for sentencing.

The page featured photos of Buys, taken after the crash but before sentencing, holding a glass of wine as well as joking comments about drinking. Perlin used the photos to argue for a jail sentence instead of probation, and Buys, then 22, got two years in prison.

"Pending sentencing, you should be going to [Alcoholics Anonymous]; you should be in therapy; you should be in a program to learn to deal with drinking and driving," Perlin said. "She was doing nothing other than having a good old time."

Santa Barbara defense lawyer Steve Balash said the day he met client Jessica Binkerd, a recent college graduate charged in a fatal drunken driving crash, he asked whether she had a MySpace page. When she said yes, he told her to take it down because he figured it might have pictures that cast her in a bad light.

But she didn't remove the page. And right before Binkerd was sentenced in January 2007, the attorney said, he was "blindsided" by a presentencing report from prosecutors that featured photos posted on MySpace after the crash.

One showed Binkerd holding a beer bottle. Others had her wearing a shirt advertising tequila and a belt bearing plastic shot glasses.

Binkerd wasn't doing anything illegal, but Balash said the photos hurt her anyway. She was given more than five years in prison, though the sentence was later shortened for unrelated reasons.

"When you take those pictures like that, it's a hell of an impact," he said.

Rhode Island prosecutors say Lipton was drunk and speeding near his school, Bryant University in Smithfield, in October 2006 when he triggered a three-car collision that left 20-year-old Jade Combies hospitalized for weeks.

Sullivan, the prosecutor, said another victim of the crash gave him copies of photographs from Lipton's Facebook page that were posted after the collision. Sullivan assembled the pictures, which were posted by someone else but accessible on Lipton's page, into a PowerPoint presentation at sentencing.

One image shows a smiling Lipton at the Halloween party, clutching cans of the energy drink Red Bull with his arm draped around a young woman in a sorority T-shirt. Above it, Sullivan rhetorically wrote, "Remorseful?"

Superior Court Judge Daniel Procaccini said the prosecutor's slide show influenced his decision to sentence Lipton.

"I did feel that gave me some indication of how that young man was feeling a short time after a near-fatal accident, that he thought it was appropriate to joke and mock about the possibility of going to prison," the judge said.

Kevin Bristow, Lipton's attorney, said the photos didn't accurately reflect his client's character or level of remorse and made it more likely he'd get prison over probation.

"The pictures showed a kid who didn't know what to do two weeks after this accident," Bristow said, adding that Lipton wrote apologetic letters to the victim and her family and was so upset that he left college. "He didn't know how to react."

Still, he uses the incident as an example to his own teenage children to watch what they post online.

If it shows up under your name, you own it and you better understand that people look for that stuff.


www.sandiegodrunkdrivingattorney.net/articles

A remarkable Judge has ruled to suppress breath-test evidence in eight pending drunken driving cases. Judge McCauley's decision contradicts the July 10 ruling of Chelan County District Court Judge Nancy Harmon to allow juries to hear breath-test results despite procedural errors made by the state toxicology lab in certifying the reliability of the breath-test machine used in Chelan and Douglas counties.

The errors were not so egregious that juries should not be allowed to see the results in about 60 pending cases in Chelan County, Harmon concluded, adding that defendants can challenge the tests' reliability in court.

Wenatchee defense attorney John Brangwin asked both courts in June to throw out results collected from Feb. 6 to May 20 of this year because one of the chemical solutions used to calibrate the machine during that period had not been properly certified by the state toxicology lab. There is no evidence that results were affected.

In a letter to attorneys in the case dated Monday, McCauley wrote: "The courts and Legislature have made it clear that it is the State Toxicologist's responsibility to establish the procedure regarding preparation of solutions and maintenance of the BAC machines. ... To allow the admission of the test result ... which failed to comply with adopted procedure would result in unfair prejudice to the defendants."

In February, Chelan County without a fight agreed not to use breath-test results in cases from December 2006 to December 2007 in response to a ruling in Douglas County invalidating test results during that period. Several counties across the state suppressed results following revelations that the lab falsely certified solutions, improperly rejected data and used software that miscalculated data. Some test results indicated that the machine could be falsely measuring blood-alcohol levels.

Douglas and Chelan counties use the same breath-test machine at the Chelan County Regional Justice Center.

"I'm worried about the inherent unfairness of it all," said attorney Steve Woods, Brangwin's partner, noting that DUI suspects who were pulled over on one side of the river or the other and used the same breath-test machine are subject to different rules. "You're getting a checkerboard across the state," he said.

Woods and Chelan County Deputy Prosecutor Allen Blackmon said they do not anticipate any further breath-test challenges. The questionable batch of solution at issue in the most recent cases is no longer being used, and no problems with the certification of other batches have surfaced.

sandiegodrunkdrivingattorney.net

Ohio Cops Caught Cheating on DUI Test
Ohio Inspector General report finds state troopers cheated on their breathalyzer competency exams.

Police officers administering tests used to determine whether a motorist is guilty of a serious drunk driving offense may not actually know what they are doing. The Ohio Inspector General yesterday released a scathing report that accused a state highway patrol post of cheating on tests used to certify proficiency with breathalyzer units.

"This is not solely about cheating on a test that admittedly the vast majority of law enforcement officers can pass, it is about the public's expectation that public safety officials should maintain the highest levels of integrity at all times," the report stated. "Cheating, no matter the circumstances, has no place in a law enforcement agency. It cannot be tolerated, encouraged, or condoned."

Conviction for driving under the influence of alcohol (DUI) carries harsh penalties that can cost more than $10,000 in fines and attorney fees. Under current law, a guilty or not guilty verdict often rests solely on the results produced by machines that estimate the amount of alcohol in the blood based upon a breath reading. Police in Ohio may only use these machines if they have up-to-date certification from the state Bureau of Alcohol and Drug Testing, which requires an annual written renewal exam.

On March 2, 2007, Trooper Anthony Maroon took that fifty-question multiple choice test. When the test giver, Craig Yanni, left the room, Maroon photocopied the booklet along with his answer sheet. Although the test is easy enough that few troopers ever fail, Maroon passed his answers to other state troopers in the Canton Patrol Post. During a test Yanni administered a year later, Yanni noticed that a trooper using a 2 inch by 3 inch reduced photocopy of the question book. Yanni went to Sergeant William Bower to report the incident and noticed that Bower already had his own copy of the answer sheet on his desk.

The discovery kicked off an investigation that reviewed 22,000 answer sheets to find how many got questions 30 and 47 wrong -- the only mistakes that Maroon made, but ones "any senior operator would and should recognize as incorrect." Investigators also interviewed with every officer who took the test on April 4. The inspector general criticized the lax testing conditions.

"We found that there are no written, standardized procedures addressing how inspectors should administer exams," the report stated. "For example, the inspector who administered the exam on April 4, 2008, pointed out questions to test takers that were answered incorrectly and gave them an opportunity to change their answers."

In total, Maroon's answer sheet was used by test takers on at least five testing occasions. This cheating was so blatant that five sergeants knew about it, but failed to take any action. Although the inspector general's report only covered the actions of state troopers, allegations have already surfaced that local police in Blue Ash, Jackson Township and Montgomery have also cheated.

"We believe that the sergeants' collective and individual inaction allowed Trooper Maroon to feel comfortable enough to carry out this scheme in front of everyone, regardless of rank, and without regard to any consideration of the consequences. It is our determination that the sergeants' failure to properly intercede with regard to Trooper Maroon's conduct represented a breakdown of leadership."

In response to the investigation, the state has changed the test and its answers and insisted that test givers remain in the room during testing. Some of the cheating law enforcement officials have been given either an oral reprimand or a three-day suspension.

Source: Cheating by State Troopers on a State-Administered Exam (Inspector General, State of Ohio, 7/16/2008)


SanDiegoDUI.com

California DUI lawyers are told that days after Kiefer Sutherland reflected on his DUI arrest, a new interview has emerged finding Mischa Barton speaking out about her own experience getting arrested on drunken driving charges.

"That was a low point for me. I never, ever would have thought I would be arrested," she told Nylon's August issue regarding her arrest last year on DUI related charges.

Barton was arrested in December 2007 on suspicion of DUI. She was later charged with four counts including a marijuana charge, which was later dropped. Barton made a plea deal in April 2008. As part of her sentence, the former "OC" star was put on 36 months probation, required to attend alcohol education classes and pay a fine.

Barton said one reason she was so disappointed over the incident was because of the people it lumped her in with.

"I was disappointed because it associated me with a group of girls that I would rather not be associated with," she said. "That was the biggest bummer for me - I didn't leave my house. I was too embarrassed. They made such a big deal out of it with these other young actresses, that, for a little bit, I wanted to crawl into a hole and die."

In the months before Barton's own DUI arrest, Paris Hilton and Lindsay Lohan were both arrested for the same offense.

The actress, who now enjoys spending time at her apartment in France, said following the incident, she turned to her inner circle for support.

"It was a stupid thing to do. But my friends were really great, and my family was really supportive, and I've done a lot to pay back for what I did," she said.

When asked by Nylon what she did to pay back for the crime, Barton said, "Just like stuff you have to do to please the courts."

Barton said she was also disturbed by how much attention getting arrested for driving drunken and alleged marijuana possession got her.


sandiegoduihelp.com

SanDiegoDrunkDrivingAttorney.net/articles

Lohan's DUI defense attorney says the actress is fulfilling terms of her California DUI Sentence.

Lindsay Lohan's attorney has provided an update to a Los Angeles Superior Court judge on the progress being made in completing her California DUI sentence. Lohan is reportedly "completely on track with everything."

Lindsay Lohan's attorney has provided an update to a Los Angeles Superior Court judge on the progress being made in completing her California DUI sentence. Lohan is reportedly "completely on track with everything."

Lohan was arrested twice for driving under the influence in LA last year. The 22 year old actress was required to complete several programs and duties or face stiff penalties. Lohan has completed her 10 days of community service, spent 84 minutes in jail - satisfying a 24 hour sentence, assisted in a morgue and emergency room and attended all her required obligations. She must continue with drug treatment and an 18 month alcohol education program.

The judge requested a further update on January 16, 2009.

If you have been been arrested for a DUI, you need to hire an experienced California DUI Lawyer.

A Superior Court judge in Arizona said she favors ordering a Kentucky manufacturer to release the software source code of its alcohol breath machine unless a prosecutor can persuade her otherwise.
Judge Deborah Bernini asked defense attorney James Nesci and Deputy County Attorney Robin W. Schwartz to submit written arguments before she makes a ruling in an action involving 19 defendants.
"If you asked me to rule from the bench today, it would not be in the state's favor," Bernini said Monday after the president of CMI Inc., Toby S. Hall, testified.
Defense attorneys have sought the source code of CMI's Intoxilyzer 8000, saying it's the only way they can test to see whether the machine works properly. Hall testified that the source code, is a trade secret.
"When asked what really is different and unique about the machine, Mr. Hall kept talking about the configuration for individual customers," Bernini said. "That's not what concerns the court.
"It's as simple as 'Is the defense entitled to have this?' " Bernini said. "It does not mean it's admissible in court, but that's definitely the direction I'm headed in, especially after today's testimony."
In recent months, breath tests in more than 100 DUI cases in Tucson City Court have been thrown out after CMI refused to disclose the source code, Nesci said. Many of those cases have been dismissed as a result, he added.
The states of Minnesota and Florida are suing CMI after it refused to divulge the source codes by court order.
Bernini's ruling is expected sometime in September.
Hall testified that CMI has written a newer version of the software that Arizona's Intoxilyzer machines use, to correct errors, but that version isn't loaded into any machines in use.
"When is (the new version) going to be in use?" Nesci asked.
"Whenever the state puts it into use," Hall testified.

California drunk driving news

sandiegoduilawyer.com/blog

Crestline, CALIFORNIA – A head on traffic accident on Highway 18 (The Narrows) Sunday shortly after noon resulted in five patients being transported to area hospitals and the arrest of a 40-year-old Long Beach woman on suspicion of California DUI - driving under the influence.

California Highway Patrol said a field sobriety test had been administered to the driver of a Cadillac that hit a white Excursion head on after reportedly slamming into the guardrail and entered the down bound lanes. Officer Reneau identified the driver as Jenny Lee Binder.

A head-on crash shortly after noon Sunday closed The Narrows (Highway 18) while the accident was investigated and occupants of the two vehicles treated at the scene. A total of five patients were eventually transported by ambulance to area hospitals.

The driver of the Excursion, Bonnie Keay explains there were eight people in her vehicle at the time of the accident including four children.

"I saw the Cadillac hit the guardrail," Keay stated, "and enter my lane and I attempted to avoid the collision but unfortunately the Cadillac struck the front of my vehicle."

Crest Forest Fire paramedics attend to the driver of a Cadillac involved in a head on collision in The Narrows (Highway 18) on Sunday. The driver was transported to Loma Linda University Medical Center.

The initial call to dispatch was at 12:21 p.m. and was called in by Officer Brad Burns of the US Forest Service who was flagged down by a motorist. CHP units were immediately dispatched to the scene about a mile below the old Cliffhanger Restaurant. Crest Forest Captain John Garber served as incident commander during treatment at the scene for the individuals involved in the accident.

Crest Forest Fire personnel were assisted by San Bernardino County Fire attending to the accident victims. Injured parties were transported to Loma Linda, St. Bernardine's and Arrowhead Regional Medical Center.

Don's Towing removes a white Excursion from the scene of a head-on accident involving a Cadillac on Highway 18 (The Narrows).

Motorists heading down Highway 18 were delayed during the investigation, treatment of injured parties and retrieval of the two vehicles by Don's Towing. Firefighters and Forest Service personnel handled traffic control.

Crest Forest Fire also toned out their paid-call firefighters for coverage at stations in Crestline and Twin Peaks. Rescue 26 staffed by paid-call personnel also responded to the accident scene on Highway 18.

San Diego DUI Hearing re: DMV action

The San Diego DUI / DMV hearing for a possible license suspension is like a mini-DUI trial without a jury, but with much different San Diego DMV rules, San Diego DMV laws and San Diego DMV procedures. The San Diego DUI / DMV hearing is presided over by a Driver Safety Officer (DMV hearing officer) rather than a real judge, an employee of the DMV not trained in law who acts as both prosecutor and judge. As unfair as it is, she or he can legally object to your evidence, rule on her or his own objection, dually engage your San Diego DUI / DMV lawyer, and admit or not admit either party's evidence.



The San Diego Driver Safety Officer offers evidence in the form of documents and/or witnesses. The Driver Safety Officer offers the San Diego drunk driving / DUI police report, DMV records, San Diego DUI alcohol reports and the important San Diego DUI officer's sworn statement entitled a "DS 367." With no Fifth Amendment right at the hearing, your San Diego DUI / DMV attorney usually will not want you to be present at the hearing since the Driver Safety Officer can call you as a witness and force you to testify against yourself if you ill-advisedly appear.



The San Diego DMV Driver Safety Officer's decision will usually be mailed a few days or even weeks after the hearing. A San Diego DMV / DMV suspension can be set aside or sustained. If the San Diego DMV suspension is sustained, the decision can be appealed to the DMV in Sacramento and/or to the San Diego Superior court by filing a San Diego DMV petition for writ of mandamus.




A San Diego DUI lawyer's defenses at an APS hearing are specialized and technical, more so than in criminal court. Frequent San Diego DUI / DMV proof problems - as well as legal, procedural and bureaucratic obstacles - are possible grounds for setting aside the suspension.




Because of the peculiar nature of San Diego DUI / DMV hearings and the absence of an independent San Diego DUI judge to offer some protection, you are strongly advised not to try to represent yourself. Because these are not San Diego DUI criminal proceedings, San Diego County public defenders are unavailable.




Your San Diego DUI / DMV attorney has just 10 CALENDAR DAYS after the DUI arrest to call the San Diego DMV Driver Safety Office to timely demand a hearing. You waive your right to a hearing after the 10 day deadline is up.



If your San Diego DUI / DMV attorney has not been retained within 10 days of the arrest, you should contact the local Driver's Safety Office yourself, request a 5 day extension so you can get a San Diego DUI / DMV Attorney Specialist.




Alternatively, if your request for an extension is denied by the San Diego DMV supervisor, request an In-person hearing, the Discovery (evidence), a Stay (stop) of the Suspension, and the Name of the Driver Safety Officer.




Please ask for the name of the person you speak with. Please do not discuss the reasons why you are contesting the suspension. The San Diego Driver Safety Office is located at 9174 Sky Park Avenue, Suite 200, San Diego (858/627-3901 or fax 858/627-3925).




The San Diego DMV may not be able to schedule a hearing before your 30-day temporary license expires. Your San Diego DUI / DMV lawyer will request a Notice of Stay of the 30-day temporary license until a San Diego DMV hearing is provided and a San Diego DMV decision is actually rendered.

San Diego DUI Lawyer

San Diego DUI

California DUI Attorney

San Diego DUI Help

Minor California DUI penalites

www.SanDiegoDrunkDrivingAttorney.net/penalties

13202.5. (a) For each conviction of a person for an offense
specified in subdivision (d), committed while the person was under
the age of 21 years, but 13 years of age or older, the court shall
suspend the person's driving privilege for one year. If the person
convicted does not yet have the privilege to drive, the court shall
order the department to delay issuing the privilege to drive for one
year subsequent to the time the person becomes legally eligible to
drive. However, if there is no further conviction for an offense
specified in subdivision (d) in a 12-month period after the
conviction, the court, upon petition of the person affected, may
modify the order imposing the delay of the privilege. For each
successive offense, the court shall suspend the person's driving
privilege for those possessing a license or delay the eligibility for
those not in possession of a license at the time of their conviction
for one additional year.
As used in this section, the term "conviction" includes the
findings in juvenile proceedings specified in Section 13105.
(b) Whenever the court suspends driving privileges pursuant to
subdivision (a), the court in which the conviction is had shall
require all driver's licenses held by the person to be surrendered to
the court. The court shall within 10 days following the conviction
transmit a certified abstract of the conviction, together with any
driver's licenses surrendered, to the department.
(c) (1) After a court has issued an order suspending or delaying
driving privileges pursuant to subdivision (a), the court, upon
petition of the person affected, may review the order and may impose
restrictions on the person's privilege to drive based upon a showing
of a critical need to drive.
(2) As used in this section, "critical need to drive" means the
circumstances that are required to be shown for the issuance of a
junior permit pursuant to Section 12513.
(3) The restriction shall remain in effect for the balance of the
period of suspension or restriction in this section. The court shall
notify the department of any modification within 10 days of the order
of modification.
(d) This section applies to violations involving controlled
substances or alcohol contained in the following provisions:
(1) Article 7 (commencing with Section 4110) of Chapter 9 of
Division 2 of, and Sections 25658, 25658.5, 25661, and 25662 of, the
Business and Professions Code.
(2) Division 10 (commencing with Section 11000) of the Health and
Safety Code.
(3) Section 191.5, subdivision (a) or (b) of Section 192.5, and
subdivision (f) of Section 647 of the Penal Code.
(4) Section 23103 when subject to Section 23103.5, Section 23140,
and Article 2 (commencing with Section 23152) of Chapter 12 of
Division 11 of this code.
(e) Suspension, restriction, or delay of driving privileges
pursuant to this section shall be in addition to any penalty imposed
upon conviction of a violation specified in subdivision (d).

www.SanDiegoDrunkDrivingAttorney.net/survey for help.

Questions loom since the confession came as the teenage girl lay side by side in the ambulance with the woman who had just hurt her. The woman admitted to the medical technician and the paramedic that she was fresh out of rehab and had been drinking - a lot. The girl heard her say, she couldn't recall the still-smoking accident in which she lost control of her Cadillac Escalade and smashed head-on into two cars, including the teenager's.

There are indications to date that the March 25 collision was caused by California drunk driving - and that police who investigated the incident should have been suspicious. Those police officers took no steps to question driver Sandra Woodall, a former San Jose California cop, about possible California intoxication and did not conduct a California DUI field sobriety or California drunk driving blood test.

California DUI attorneys with long experience in DUI cases agree there should have been questions from the beginning about whether the California crash had been fueled by booze. They suggested that the California police officers' conduct showed those officers didn't want to know the truth .

No California DUI blood alcohol test

Powerful evidence: After the ambulance reached the hospital, an officer reportedly told the mother of the teenager that it was too late for an accurate blood alcohol test on Woodall. Such a statement, California DUI attorneys say, would have been patently false.

But Harry Stern, a prominent East Bay lawyer who often represents police officers, said he saw no evidence of a coverup. "There is absolutely no proof that this was anything other than officers responding to someone that they knew and trying to be courteous," said Stern, a former Berkeley police officer.

After questions arose about the initial accident investigation, the California Attorney General's Office was brought in by the Santa Clara County District Attorney's Office to review the case because Woodall now works as a district attorney's investigator, creating a conflict of interest. The attorney general's office eventually charged Woodall with felony California drunk driving. She has pleaded not guilty. The San Jose Police Department has placed on leave two officers - supervising Sgt. Will Manion and officer Patrick D'Arrigo - and is investigating their actions as a possible crime.

Protecting their own?

A month after the Woodall incident first became public, many are looking upon it as a dark example of how law enforcement officers protect their own. But the San Jose mother of the injured teenager said it took nearly a month after the crash for her to suspect potentially nefarious reasons behind the odd behavior she witnessed that night.

"I think officers made a stupid mistake that night," said the woman, who requested anonymity. "They all worked to cover it up."

At the hospital the night of the crash, an officer - later identified as D'Arrigo - asked for insurance information as their daughter was being given a CAT scan, the woman said.

So what happened, the mother recalled asking him.

D'Arrigo told her two theories, both of which he said he got from witnesses: The driver of the Escalade miscalculated a turn - or someone may have cut her off.

The mother said to the officer: You know she was drinking, don't you?

D'Arrigo looked surprised, the woman said. No, he told her.

He said he would interview her daughter about it.

Can't you check her blood?

The officer explained that it was too late. A blood test this long after the crash wouldn't be accurate.

The woman estimated to the Mercury News that the exchange took place about an hour and 45 minutes after the California collision.

California DUI lawyers, who make their livings trying to rebut evidence against clients who are charged with California drunk driving, said that two hours, even three, are well within the legal norm for testing a suspected California drunk driver's blood.

California DUI attorneys suggest there were a myriad of indications that California police did not handle the Woodall investigation objectively.

For example:

Common crash cause

• A serious accident with injuries is virtually always considered as a potential California DUI case, because intoxication is such a common cause of accidents. A driver can be successfully prosecuted even with a low confirmed blood alcohol level. Yet the investigating officers apparently took no steps to explore that possibility.

• Given that medical workers said they smelled alcohol on Woodall's breath and saw clear signs of intoxication, it is difficult to believe the California police did not. An odor of alcohol is one of the clearest signs of intoxication and a trained officer would rarely miss it. Even if the officers didn't smell booze, why wouldn't they have suspected Woodall might have been driving under the influence of drugs - such as cocaine or the sleep aid Ambien - and had blood taken to confirm or discount it?

• Woodall was not given a California DUI field sobriety test or a PAS test (a Breathalyzer test), even though these tests are given at virtually every suspicious accident with injuries, California lawyers believe.


sandiegoduilawyer.com/blog

California Laws rumors

1. Carpool lane - first time $1,068.50 starting 7/1/08 (the $271 posted on the highway is old). Don't do it again because second time is going to be double. 3rd time triple, and 4th time license suspended.

2. Incorrect lane change - $380. Don't cross the lane on solid lines or intersections.

3. Block intersection - $485

4. Driving on the shoulder - $450

5. Cell phone use in the construction zone - Double fine as of 07/01/08. Cell phone use must be 'hands free' while driving.

6. Passengers over 18 not in their seatbelts - both passengers and drivers get tickets.

7. Speeders can only drive 3 miles above the limit.

8. DUI = JAIL (stays on your driving record for 10 years!)

9. As of 07/01/08 cell phone use must be 'hands free' while driving. Ticket is $285. They will be looking for this like crazy - easy money for police department.

www.SanDiegoDUIhelp.com

POMONA -- Police arrested seven people, issued 110 citations and impounded 96 cars during a DUI checkpoint conducted Friday night and early this morning, according to San Diego DUI lawyers.

About 3,350 vehicles were screened at the checkpoint, which was set up between 6 p.m. Friday and 1:30 a.m. today at Garey Avenue and Pearl Street, according to San Diego DUI lawyers.

Four of the arrests were for driving while intoxicated, two were for DUI-related warrants, and one person arrested was a parolee at large, according to San Diego DUI lawyers.

SanDiegoDUI.com

Filed 6/13/08; pub. order & mod. 7/8/08 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
RICHARD BUSSARD, SR.,
Plaintiff and Respondent,
v.
DEPARTMENT OF MOTOR VEHICLES,
Defendant and Appellant.
F053889
(Super. Ct. No. CV-259791)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Linda S.
Etienne, Commissioner.
Edmund G. Brown, Jr., Attorney General, Jacob A. Appelsmith, Assistant
Attorney General, Elizabeth Hong and Jasmine K. Bath, Deputy Attorneys General, for
Defendant and Appellant.
Law Offices of Richard O. Middlebrook and Richard O. Middlebrook, Jr. for
Plaintiff and Respondent.
-ooOoo2.
The Department of Motor Vehicles (the DMV) appeals from a judgment granting
respondent Richard Bussard Sr.’s petition for writ of mandate. The writ directed the
DMV to set aside its suspension of respondent’s driver’s license for driving with bloodalcohol
content in excess of 0.08 percent. In granting the writ, the trial court reasoned
that the hearing officer improperly granted a continuance of the administrative hearing
without a showing of good cause by the DMV. On appeal, the DMV contends the
continuance was not an abuse of discretion and respondent was not prejudiced thereby,
thus the trial court erred in granting the writ. We agree with the DMV. Consequently,
we reverse the trial court’s judgment and remand with instructions to deny the writ and
reinstate the DMV’s suspension order.
FACTS AND PROCEDURAL BACKGROUND
The underlying facts and procedural history are essentially undisputed. We briefly
summarize the salient points. On June 9, 2006, Kern County Sheriff Deputy Barker
observed respondent’s vehicle make a left turn against a red traffic signal and then travel
on the wrong side of the street. Deputy Barker initiated a traffic stop and respondent
complied by yielding. When Deputy Barker approached and spoke to respondent, he
noticed that respondent had signs of intoxication including slurred speech, red watery
eyes and unsteadiness on his feet. Deputy Barker then contacted his dispatcher and
requested that a California Highway Patrol (CHP) officer be called to the scene for a
“DUI turnover.” While waiting for a CHP officer to arrive, Deputy Barker observed
respondent exit his vehicle and stagger to the right shoulder to urinate.
About 15 to 20 minutes later, CHP Officer Love arrived at the location of the
traffic stop and contacted respondent. Officer Love observed that respondent seemed to
be intoxicated based on a strong odor of alcohol, slurred speech and red watery eyes.
When asked, respondent admitted that he had consumed six to eight beers. Officer Love
attempted to administer a series of field sobriety tests, but respondent was unable to stand
with his feet together without losing his balance and staggering backwards. Respondent
3.
then announced he was not going to perform any field sobriety tests. Based on
respondent’s objective signs of intoxication and on Deputy Barker’s observations of
respondent’s driving, Officer Love formed the opinion that respondent had been driving
under the influence of alcohol and arrested him for violation of Vehicle Code section
23152, subdivision (a). Respondent was then transported to the Kern County jail where
he submitted to two breath tests revealing a blood-alcohol content of 0.20 percent and
0.21 percent.
Officer Love recorded the information provided to him by Deputy Barker as well
as his own statement of the events leading to respondent’s arrest on official form DS 367
(entitled “Age 21 and Older Officer’s Statement,” hereafter form DS 367), and in an
arrest report (entitled “Driving Under the Influence Arrest -- Investigation Report,”
hereafter the DUI arrest report), which were submitted to the DMV along with
respondent’s breath test results.
On July 5, 2006, the DMV held an administrative hearing concerning the
suspension of respondent’s driver’s license. The DMV introduced several exhibits in
support of its prima facie case against respondent, including form DS 367, the DUI arrest
report, the breath test results showing that respondent had a blood-alcohol content of
0.20 percent and 0.21 percent, and respondent’s driver’s license record.
Respondent objected to form DS 367 and the DUI arrest report on the ground that
both documents, prepared by Officer Love, contained hearsay statements of Deputy
Barker. According to respondent, Deputy Barker’s statements were not made admissible
under the public employee records exception to the hearsay rule (see Evid. Code, § 1280)
because there was no indication that Deputy Barker was “on duty” when he observed
respondent. The hearing officer noted that the argument was valid and continued the
hearing in order to subpoena Deputy Barker to “find out if he was on duty.” Respondent
objected to the continuance because he was ready to go forward “today.”
4.
On September 6, 2006, the continued administrative hearing was conducted. Prior
to commencement of the hearing, respondent again objected to the continued hearing,
which was overruled. Deputy Barker appeared and testified that he was on duty when he
observed respondent’s erratic driving and made the traffic stop on June 9, 2006. On
November 21, 2006, the DMV issued its findings and decision that respondent was
driving a vehicle with a blood-alcohol content of 0.08 percent or more. As a
consequence, respondent’s license was suspended for one year. The evidence relied on
by the hearing officer included, among other things, form DS 367, the DUI arrest report,
the testimony of Deputy Barker, and the results of the chemical tests of respondent’s
breath to establish his blood-alcohol levels.
Respondent challenged the suspension of his driving privilege by filing a petition
for writ of mandate in the Kern County Superior Court. The petition asserted that the
hearing officer impermissibly continued the administrative hearing without good cause in
order to cure a defect in the DMV’s case, which thereby caused prejudice to respondent.
On May 14, 2007, the trial court filed its written order granting the writ petition. On
August 23, 2007, the trial court entered judgment and issued a writ of mandate directing
the DMV to set aside the suspension of respondent’s driving privileges. The DMV
timely filed its notice of appeal.
DISCUSSION
I. Standard of Review
A determination by the DMV to suspend an individual’s driver’s license is subject
to judicial review in the trial court by means of a petition for writ of mandate. (Veh.
Code, § 13559; Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499,
508.) Section 13559, subdivision (a), of the Vehicle Code authorizes the trial court to
rescind an order of suspension on several grounds, including that the DMV made a
determination which was “not supported by the evidence in the record,” that it “exceeded
its … statutory authority, made an erroneous interpretation of the law, [or] acted in an
5.
arbitrary and capricious manner.…” In the writ proceeding, the trial court exercises its
independent judgment. (Lake v. Reed (1997) 16 Cal.4th 448, 456.)
On appeal, we ordinarily need only review the record to determine whether the
trial court’s findings were supported by substantial evidence. (Lake v. Reed, supra, 16
Cal.4th at p. 457.) Here, however, the appeal is from the trial court’s ruling on a legal
question -- i.e., whether the hearing officer had any discretion under the circumstances to
grant a continuance pursuant to the applicable law. When the dispositive issue is one of
law, we exercise independent judgment. (Villalobos v. Zolin (1995) 35 Cal.App.4th 556,
558; Brierton v. Department of Motor Vehicles, supra, 130 Cal.App.4th at p. 508.)
Specifically, we must independently determine whether the hearing officer’s decision to
grant a continuance was within the scope of her discretion. An order granting or denying
a continuance is reviewed under the abuse of discretion standard. (Mahoney v. Southland
Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 172.) Such
decisions will be upheld unless a clear abuse is shown, amounting to a miscarriage of
justice. (Id. at p. 170; In re Marriage of Young (1990) 224 Cal.App.3d 147, 153.)1
II. The Trial Court Erred in Granting the Writ
As noted, the trial court concluded that when the DMV hearing officer continued
the administrative hearing to allow Deputy Barker to testify, such continuance was
granted without “good cause” as required by Government Code section 11524, thereby
1 As noted by the author of a respected treatise, “The policy favoring a full and fair
hearing calls for a more careful appellate review of the exercise of discretion in denying a
continuance [citation], but it is usually upheld.” (7 Witkin, Cal. Procedure (4th ed. 1997)
Trial, § 10, p. 36.) However, it is much more difficult to demonstrate an abuse of
discretion when a continuance is granted. “‘On an appeal from the judgment (the order
itself being nonappealable) it is practically impossible to show reversible error in the
granting of a continuance.’” (Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1007, citing
7 Witkin, supra, § 10, p. 36.)
6.
causing prejudice to respondent. Based on this conclusion, the trial court granted the writ
and set aside the suspension of respondent’s driver’s license.2 For the reasons expressed
below, we hold that the DMV hearing officer did not exceed or abuse her discretion in
granting the continuance of the hearing. Consequently, the trial court erred in granting
the writ.
Section 11524 of the Government Code provides that a continuance of an
administrative hearing may be granted in the discretion of the hearing officer upon a
showing of good cause. (Gov. Code, § 11524, subd. (a); Powers v. Commission on
Professional Competence (1984) 157 Cal.App.3d 560, 570.) Government Code section
11524, subdivision (b), includes a requirement of reasonable diligence when a party
seeks a continuance: “When seeking a continuance, a party shall apply for the
continuance within 10 working days following the time the party discovered or
reasonably should have discovered the event or occurrence which establishes the good
cause for the continuance. A continuance may be granted for good cause after the 10
working days have lapsed if the party seeking the continuance is not responsible for and
has made a good faith effort to prevent the condition or event establishing the good
cause.”
A continuance may be granted on motion of a party or on the hearing officer’s
own motion. (Gov. Code, § 11524, subd. (b); Powers v. Commission on Professional
Competence, supra, 157 Cal.App.3d at p. 571; Young v. Governing Board (1974) 40
Cal.App.3d 769, 773-774 [congested calendar is good cause for continuance on hearing
officer’s own motion].) In exercising the power to grant or deny a continuance, an
administrative law judge is guided by the same principles applicable to continuances
2 The petition for writ did not challenge or object to the fact that the hearing officer
admitted all the DMV exhibits, including form DS 367 and the DUI arrest report; rather,
the petition was based solely on the question of whether the continuance was proper.
7.
generally in adjudicative settings. (Arnett v. Office of Admin. Hearings (1996)
49 Cal.App.4th 332, 342-343.) “‘The factors which influence the granting or denying of
a continuance in any particular case are so varied that the trial judge must necessarily
exercise a broad discretion.’” (Taylor v. Bell, supra, 21 Cal.App.3d at p. 1007; 7 Witkin,
Cal. Procedure, supra, Trial, § 10, p. 36.) “And, since it is impossible to foresee or
predict all of the vicissitudes that may occur in the course of a contested proceeding
[citation], the determination of a request for a continuance must be based upon the facts
and circumstances of the case as they exist at the time of the determination.” (Arnett v.
Office of Admin. Hearings, supra, at p. 343.)3
Here, at the July 5, 2006 hearing, respondent objected to introduction of form
DS 367 and the DUI arrest report, both of which were prepared by Officer Love. The
basis for the objection was that these exhibits allegedly contained hearsay statements of
Deputy Barker regarding respondent’s driving and the cause for initiating the traffic
stop.4 Although an exception to the hearsay rule would apply with respect to statements
by public employees set forth in such official records (Evid. Code, § 1280; Gananian v.
Zolin (1995) 33 Cal.App.4th 634, 639-640 [statements by police officer in public
employee record prepared by another police officer admissible under Evid. Code,
§ 1280]), respondent claimed there was nothing in the record to confirm that Deputy
Barker was on duty at the time of his involvement in the case. It was argued that since
this foundational fact for application of the hearsay exception was not established, the
3 For example, California Rules of Court, rule 3.1332 sets forth some of the facts
and circumstances that are considered in motions to continue civil trials.
4 Deputy Barker’s observations regarding respondent’s driving were essential to the
DMV’s case. In order to justify suspension of a driver’s license, the DMV must prove
that the arresting officer had reasonable cause to believe the person was driving, the
driver was arrested, and the person was driving with 0.08 percent blood-alcohol content
or higher. (Lake v. Reed, supra, 16 Cal.4th at p. 456; Veh. Code, § 13557, subd. (b)(2).)
8.
statements of Deputy Barker contained in Officer Love’s reports were inadmissible.
When the trial court announced it would continue the hearing in order to allow Deputy
Barker to testify in person, respondent objected because he was prepared to proceed then
and there, even if the DMV was not.
We believe the hearing officer’s decision to continue the hearing was within her
broad discretion for several reasons. First of all, Officer Love provided adequate factual
information to allow a reasonable and probable inference that Deputy Barker was, in fact,
on duty at the time he observed respondent’s driving. The DUI arrest report plainly
stated that Deputy Barker initiated a traffic stop and that respondent’s vehicle yielded.5
These events were never disputed by respondent. It is highly unlikely (to say the least)
that these feats could have been accomplished if Deputy Barker was not on duty in his
patrol car. Therefore, objectively speaking, it was not reasonably foreseeable that
respondent would raise a question of whether Deputy Barker was on duty. When the
question was raised for the first time at the July 5, 2006 hearing, it was more or less an
unexpected development and not, as suggested by respondent, a situation in which the
DMV was lacking in diligence or negligently unprepared to meet their burden of proof.
Under the circumstances, it was well within the discretion of the hearing officer to
continue the hearing to allow Deputy Barker to testify, in an abundance of caution, in
order to confirm that he was “on duty.” In short, good cause existed for the continuance.
Second, the continuance was not an abuse of discretion because no prejudice
resulted to respondent. Not only were there circumstances showing “good cause” for the
continuance, but respondent ultimately received a fair hearing and the suspension of his
license was stayed until after the DMV issued its findings and decision on November 21,
2006.
5 Additionally, form DS 367 stated that respondent’s driving was observed by
“Another Officer,” identified as Deputy Barker.
9.
Third, our conclusion that the continuance was within the hearing officer’s sound
discretion is further substantiated by Vehicle Code section 14104.5, subdivision (a),
which provides as follows: “Before a hearing has commenced, the department, or the
hearing officer or hearing board, shall issue subpoenas or subpoenas duces tecum, or
both, at the request of any party, for attendance or production of documents at the
hearing. After the hearing has commenced, the department, if it is hearing the case, or
the hearing officer sitting alone, or the hearing board, may issue subpoenas or subpoenas
duces tecum, or both.” (Italics added.) This section clearly evidences the Legislature’s
intent to give a DMV hearing officer reasonable flexibility to issue subpoenas after the
hearing has commenced, in order to obtain witness testimony or documents. That is
precisely what happened here. (Jackson v. Department of Motor Vehicles (1994) 22
Cal.App.4th 730, 738 [stating that if foundational objection to admissibility of arrest
report had been raised at the hearing, hearing officer could have subpoenaed the officer to
testify]; see Lake v. Reed, supra, 16 Cal.4th at p. 458 [the DMV has right to receive
sworn testimony pursuant to Veh. Code, § 14104.7].)6
The flexibility conferred on the DMV hearing officer under provisions such as
Vehicle Code section 14104.5 is in keeping with the legislative purposes of the
administrative suspension procedure, which purposes include the protection of the public
from drunk drivers by providing an accelerated procedure to suspend licenses. (Lake v.
Reed, supra, 16 Cal.4th at pp. 454-455, 462.) When, in such an expedited administrative
process it becomes apparent to the DMV hearing officer that it is necessary to subpoena a
6 Vehicle Code section 14104.7 provides that the DMV may “receive sworn
testimony.” Moreover, it may even choose to reopen the case after it has made its
decision, and take further evidence, on its own motion. (Veh. Code, § 14106.) We agree
with the DMV that in determining whether it was within the hearing officer’s discretion
to grant a continuance, or whether “good cause” existed for same, the specific procedural
provisions relating to license suspension hearings in the Vehicle Code must be fully
considered. (See Veh. Code, § 14112, subd. (a).)
10.
witness to obtain live testimony, the discretion to do so is expressly provided under
Vehicle Code section 14104.5, subdivision (a), which discretion logically includes the
ability to grant continuances to accomplish that objective.
We conclude that the DMV hearing officer acted within the scope of her discretion
in granting the subject continuance. Since there was plainly substantial evidence to
support the suspension of respondent’s license, and the continuance itself did not
constitute an abuse of the hearing officer’s discretion, the trial court erred in granting the
writ of mandate.
DISPOSITION
The trial court’s judgment is reversed and the matter is remanded with instructions
to deny the writ of mandate and reinstate the DMV’s suspension order. Costs on appeal
are awarded to the DMV.
_____________________
Kane, J.
WE CONCUR:
_____________________
Cornell, Acting P.J.
_____________________
Gomes, J.
11.
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
RICHARD BUSSARD, SR.,
Plaintiff and Respondent,
v.
DEPARTMENT OF MOTOR VEHICLES,
Defendant and Appellant.
F053889
(Kern Super. Ct. No. CV-259791)
ORDER MODIFYING OPINION
AND CERTIFYING FOR
PUBLICATION
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on June 13, 2008, be modified as follows:
The first sentence on page 8 beginning “When the trial court” is modified to read
as follows:
When the DMV hearing officer announced she would continue the hearing
in order to allow Deputy Barker to testify in person, respondent objected
because he was prepared to proceed then and there, even if the DMV was
not.
There is no change in the judgment.
The opinion in the above entitled matter filed on June 13, 2008, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion as
modified should be published in the Official Reports and it is so ordered.

www.SanDiegoDUIhelp.com

Chargers star linebacker Steve Foley, whose football career came to an unfortunate end when he was shot by an off-duty Coronado police officer, settled his lawsuit against the city and the officer last week for $5.5 million, his lawyers announced Monday.

Foley, who was shot by Officer Aaron Mansker, formally agreed to resolve the case July 2, two weeks into a civil trial in Superior Court. The amount of the settlement was not disclosed when the settlement was first announced.

The Coronado City Council approved the settlement in closed session Monday afternoon. Foley, 32, sued Mansker and the city after he was shot in the back of his left knee and hip on the morning of Sept. 3, 2006, during a confrontation with Mansker near Foley's Poway home.

Mansker had followed the athlete from San Diego to Poway because he suspected Foley was driving drunk. Mansker, then 23, was wearing jeans and a white T-shirt and driving his personal car, a black Mazda.

Foley was driving a customized 1971 Oldsmobile Cutlass, and had a female passenger in the car.

Mansker testified he identified himself as a police officer to Foley and his companion, but never showed his badge. Mansker said he fired his gun during a final confrontation on Travertine Court, when he saw Foley – now on foot – reach toward his waistband.

Mansker said he believed the football player had a weapon. Foley, however, was unarmed.

Foley pleaded guilty to a misdemeanor drunken driving charge last year and was placed on five years' probation.

His lawyers contended during the civil trial that Mansker violated his training and department policy when, instead of just following Foley, he decided to get the football player to pull over.

Foley was scheduled to testify the day the settlement agreement was reached. He appeared to be upset moments before he walked back to the judge's chambers, pacing near the plaintiff's table and glaring angrily at Mansker who was seated near the door of the courtroom.

Jordan Cohen, one of Foley's lawyers, said in an interview that Foley was not upset because of the terms of the settlement, and had actually agreed to the amount a day earlier.

He stressed that all parties were pleased with the terms of the settlement and he agreed with a statement made last week by one of Coronado's lawyers, that the case was resolved at the right time.

Cohen credited retired federal Judge Lawrence Irving, who acted as a mediator in the case, for making recommendations that led to the settlement.

Among the issues that were discussed, Cohen said, was evidence that would likely be presented in court once Coronado presented the bulk of its evidence. Some of that testimony would have focused on Foley's DUI conviction and possibly his previous arrests.

Foley pleaded guilty to drunken driving in Louisiana in 1999.

“The degree to which he would have been responsible would act to reduce his award,” Cohen said.

Harvey Levine, another of Foley's lawyers, said the city had offered a “very nominal amount” to settle prior to the case going to trial.

Coronado is self-insured for liability claims up to $100,000. The city also participates in an insurance pool with other county municipalities and agencies that buys excess insurance to pay for claims valued at more than $2 million.

Other cities and agencies could be affected by the Foley agreement because the claim could reduce the reserve pool for future settlements.

Levine said a representative from the insurance company sat in on the trial for several days.

Mansker is indemnified under the government code, so none of the settlement will come out of the officer's pocket.

Per this forwarded email from MADD representative Matthias Mendezona, they express major disappointment in the Ignition Interlock bill being passed.

As feared, the bill was very watered down, and after public outcry, citizens were informed the bill would return and be put back into it’s original state of mandatory IID installations, go through the steps again, and be passed as it was intended to be written.

In fact that did not happen, as one representative pushed it through without honoring that agreement. IID will be entered into CA state law as an optional penalty for drunk drivers - now allowing them to choose whether they want to have IIDs installed in their cars.

Date: Wed, 25 Jun 2008 18:52:17 -0500
Subject: AB 2784 A Disappointment

Dear Folks,

As many of you have probably deduced by now, AB 2784 has fallen far short of what we wanted, despite our best efforts. Please see the release below which you will also find on the MADD.org website.

In behalf of MADD CEO Chuck Hurley, all the public policy folks at MADD National, and the MADD CA charter office, I thank you all for your unprecedented show of support for what truly counts: a final elimination of drunk driving. This fight is not over; it has just begun. We are rethinking our position and our options and promise to keep you notified.

Once again, a million thanks to you and your networks. You have shown many people that MADD in California has very deep grassroots support and that we care very much about taking concrete steps to save lives on our roadways.

Matthias Mendezona
State Executive Director
MADD California Charter Office
(916) 481-6233 Ext. 111


Disappointment in California

MADD is profoundly disappointed that the California Senate Public Safety Committee, chaired by Senator Gloria Romero, approved a very weak version of AB 2784. The bill originally called for interlocks for all convicted drunk drivers in California. Unfortunately, prior to submitting the bill to his Assembly Appropriations Committee, Chairman Mark Leno amended the bill to make interlocks voluntary even for repeat offenders. This is a major but temporary step back for Californians and MADD will be re-grouping on its next steps and keeping the public informed.

MADD would like to thank the following for their leadership on the original lifesaving bill.

* State Assembly Member Mike Feuer who represents the 42nd Assembly District
* Joseph Farrow, Commissioner of the California Highway Patrol
* The entire MADD California organization for its energized support of the bill

We know drunk drivers continue to drive on revoked licenses and drive drunk around 87 times before they are ever arrested. Ignition interlocks
prevent these dangerous actions for convicted drunk drivers. Californians are sharing the road with 310,971 convicted drunk drivers with three or more DUI convictions. Drunk driving is the nation’s most frequently committed violent crime - resulting in 1,276 deaths and over 270,000 DUI-related injuries in California alone in 2006.

# posted by SanDiegoDUI @ 3:56 PM links to this post